Cornell Law School Library Cornell University Libra ommentaries on the law of statutory cri COMMENTARIES ON THE LAW OF STATUTORY CRIMES. EMBRACING THE GENERAL PRINCIPLES OF INTERPRETATION OF STATUTES ; PARTICULAR PRINCIPLES APPLICABLE IN CRIMINAL CASES; LEADING DOCTRINES OF THE COMMON LAW OF CRIMES, AND DISCUSSIONS OF THE SPECIFIC STATUTORY OFFENCES, AS TO BOTH LAW AND PROCEDURE. BY JOEL PRENTISS BISHOP. “a BOSTON: LITTLE, BROWN, AND COMPANY. 1878. If Entered according to Act of Congress, in the year 1878, by JOEL PRENTISS BISHOP, In the Office of the Librarian of Congress, at Washington. CAMBRIDGE: PRESS OF JOHN WILSON AND SON. PREFACE. This work has some features in a measure peculiar to itself. It presents, in a compact form, the various elementary principles of statutory interpretation, pertaining both to the civil and criminal departments of the law. From this starting point it proceeds more minutely to explain the doctrines which control the interpretation of crimi- nal statutes in particular; and to illustrate them by numerous examples in which individual words, phrases, and larger provisions are given, with the constructions put upon them by the courts. Thus it goes on step by step with practical applications of doctrines, showing how the common law and the statutes are woven to- gether in the administration of the law of Statutory Crimes. As the work progresses toward the middle and the end, it descends more and more into detail; and the result is, that nearly all the particular statutory offences, known in our States, are treated of more or less at large, as respects the law, the indictment, and the evidence, and one or more brief forms of the indictment are given for nearly every offence. The old and standard statu- tory crimes, which, in their nature, are mere expansions of the common law, and are treated of in the author's works on “ Criminal Law” and “ Criminal Procedure,” lv PREFACE. are here touched but lightly; while the offences which are more purely statutory, especially those of the minor sort, are discussed in full. Such is the direct and obvious scope of the work ; but, in executing the plan thus drawn out, it was found to be practical and best to accomplish the following indirect purposes : — First. As the rules of statutory interpretation are in the main alike in civil and criminal cases, and as in dis- cussing the latter it became necessary to explain at what points differences exist, this volume consequently con- tains a compendium of rules for use in the civil depart- ment. Secondly. As, in interpreting every statute, it becomes necessary to know what the law was before the statute was made, this volume consequently contains, inter- spersed with its other matter, a condensed view of the common law pertaining to crimes. Thirdly. In like manner, as it became necessary to discuss many and varying forms of the indictment, the leading elementary principles of criminal pleading are here, in brief, and condensed, brought to view, in con- nection with illustrations of their application. Fourthly. A considerable variety of other incidental things likewise appear in the volume, not necessary here to be mentioned. With what ability and care the work is executed, it is not for me to say. I have endeavored to render it not inferior to my other works. But, in laying the plan for the accomplishment of the several direct and indirect objects above set forth, I took pains that it should include such a selection of material from the immense PREFACE, v mass before me as would enable me to render each paragraph new, not in form only, but in essence; thus essentially avoiding repetitions even of principles. or any other distinction already known in the law.® § 148. Provisions overlying One Another—— Liquor Law — Lord’s Day — Peddling. — Again, at the common law, criminal transactions are so arranged into specific crimes that a par- ticular act with its evi] intent may constitute a part of several distinct offences.? When, therefore, a court construes a stat- ute, it does not so arrange and bend the several sections and clauses, or so combine it with the prior law, that a particular transaction shall be included under only one inhibition. 1 The Apollon, 9 Wheat. 362. 2 Houston v. Moore, 5 Wheat. 1, 42, 66; Matter of Bruni, 1 Barb. 187, 208. 3 Ante, § 108; Vin. Ab. Statutes, E. 10; United States v. Hewes, Crabbe, 807 ; Broom Leg. Max. 2d ed. 50. 4 The State v. Garland, 7 Ire. 48; The State v. Milburn, 9 Gill, 106. Therefore a statute of limitations does not run against a State, unless express- ly named. Broom Leg. Max. 2d ed. 46 ; Lindsey v. Miller, 6 Pet. 666 ; The State v. Arledge, 2 Bailey, 401; Weath- erhead v. Bledsoes, 2 Tenn. 352; Peo- ple v. Gilbert, 18 Johns. 227; State Treasurer v. Weeks, 4 Vt. 215; Stough- ton v. Baker, 4 Mass. 522, 528 ; Nimmo v. Commonwealth, 4 Hen. & Munf. 57; Bagley v. Wallace, 16 S. & R. 245; Munshower v. Patton, 10 S. & R. 334; Commonwealth v. Baldwin, 1 Watts, 54; Wallace v. Minor, 6 Ohio, 366, 369; Wallace v. Minor, 7 Ohio, part I., 249, 90 It is 252. See ante, § 1038. That statutes authorizing suits against the State are to be construed liberally, see The State v. Curran, 7 Eng. 321, 346. 5 The State v. Ricker, 29 Maine, 84; Commonwealth v. Knapp, 9 Pick. 496 ; Commonwealth v. Macomber, 3 Mass. 254 ; Commonwealth v. Barlow, ee 430; ante, § 189. 2/7 Wieck, 6 Diew v. Commonwealth, 1 ay 279; United States v. Wilson, Bald. 78; Rex v. Carlile, 3 B. & Ald. 161; Com- monwealth v. Simpson, 9 Met. 138; 2 East P. C. 804; The State v. Absence, 4 Port. 397 ; Commonwealth v. Barlow, 4 Mass. 439 ; Commonwealth v. Newell, 7 Mass. 245; The State v. Butler, 3 McCord, 383 ; Rex v. Breeme, 1 Leach, 4th ed. 220, 2 East P. C. 1026; Rex v. Pearce, 2 Leach, 4th ed. 1046. 7 Crim. Law, 4th ed. I. § 796%t seq.; II. § 1209, note. CHAP. VI.] HOW LAWS OPERATE ON ONE ANOTHER. § 144 no objection that it is included under multitudes of separate inhibitions, each having a separate penalty of its own. Thus, a sale of intoxicating liquor may be equally a violation of a statute prohibiting labor on the Lord’s day, and of one against the selling of the liquor, and the prosecuting officer may pro- ceed for the one or the other offence at his election.! In like manner, the statutory provision against selling the intoxicating liquor may be violated by an act which is equally a violation of @ provision against peddling. And the principle is the same whether the inhibitions are found in separate acts or in sepa- rate clauses of the same act.? It has been assumed, and per- haps correctly, not only that the prosecuting power may elect for which offence to proceed ; but, in the cases referred to in this section, that there may be a prosecution for both offences. This latter question is not to be discussed in the present connec- tion ; but, however it may be, there are cases in which one prosecution will bar another. In such cases, as in the other, the prosecuting officer will proceed for whichever of the offences he may choose. § 144. Pollowing Analogies of Common Law — Common-law Remedy — Revision of Statutes — The County. —If the enact- ment is in its nature declaratory of the common law, it-will be construed as far as may be according to the common law.’ In like manner, said a learned judge: “ Without any statutory provision giving any specific remedy where a purely statutory right or remedy is asserted, the courts would adopt analogous common-law remedies to forward the ends of justice. And this has been too long the practice of the courts to be now bxought in question, or to need the aid of a reference to author- ity to sustain it.’4* A like principle applies to revisions of former statutes; for these are to receive the interpretations which were given to the statutes revised. So, it being a rule of 1 Commonwealth v. Harrison, 11 Baker v. Baker, 18 Cal. 87; Hewey v. Gray, 310 ; Commonwealth v. Trickey, Nourse, 54 Maine, 256. 13 Allen, 559. 4 Byrd, J. in Hightower v. Fitzpat- 2 Commonwealth v. McConnell, 11 rick, 42 Ala. 597, 600. See ante, § 114. Gray, 204. 5 Commonwealth v. Messenger, 4 3 Fréeman v. People, 4 Denio, 9,29; Mass. 462; Ennis v. Crump, 6 Texas, Commonwealth v. Humphries, 7 Mass. 34; ante, § 98. In like manner, where, 242; People v. Butler, 16 Johns. 203; by the general system of legislation 91 § 146 [BOOK I. INTERPRETATION OF CRIMINAL STATUTES. the common law that crimes are to be inquired of in the county in which they occurred, if a county is divided, the grand-juries of the respective new counties will indict only for offences com- mitted in their respective localities before the division. § 145. Eighthly. The foregoing propositions are not to nul- lify the plain words or necessarily implied ‘meaning of the statute : 2 — “ Actually occupy” — Particular Nature of Offence. — Thus the words “ actually occupy,” referring to the place of commit- ting an offence, seem to have been understood as excluding the idea of guilt? in one who did not, in the language of the provision, actually occupy the place.t There may also be cases in which the nature of the offence excludes the idea of criminality in any but the individual personally doing the act.6 § 146. Ninthly. The courts, in weaving, as we have seen they should do, the common and statutory laws into one uni- form texture of jurisprudence, can use only the material which these laws furnish them ;7 they cannot take upon themselves the legislative duty of creating laws to supply a deficiency : — Casus Omissus.— How far the words of a criminal statute may be extended to meet a particular mischief, we shall con- sider somewhat in another chapter. during the existence of slavery, white persons .and slaves were punished dif- ferently, a white person, accessory to an offence committed by a slave, was dealt with the same as white persons in other cases were, not as slaves. The State v. McCarn, 11 Humph. 494; Loughridge v..The State, 6 Misso. 594. 1 The State v. Jones, 3 Halst. 307, 357, 872. And see Crim. Proced. 2d ed. I. § 49 and note. 2 See 1 East P. C. 96, 247, 248, 250 ; Reg. v. Nickless, 8 Car. & P. 757. And see Reg. v. Whittaker, 1 Den. C. C. 310,; Rex v. Franklyn, 1 Leach, 4th ed. 255 ; Fletcher’s Case, 1 Leach, 4th ed. 342, 2 Stra. 1166, 2 East P. C. 700; Norton v. The State, 4 Misso. 461; Baxter v. People, 8 Scam. 868; O’Blen- nis v. The State, 12 Misso. 311. “It 92 But, when a court has would be dangerous to give scope to make a construction in any case against the express words, when the meaning of the makers doth not appear to the contrary, and when no inconvenience will thereupon follow ; and therefore in such a case a verbis legis non est receden- dum.” Edrich’s Case, 6 Co. 118. And see ante, § 80, 81. 3 Ante, § 185, 186. * Commonwealth v. Dean, 1 Pick. 387. 5 Reg. v. Wright, 9 Car. & P. 754; 1 Alison Crim. Law, 158, 158. See, as to the English statutes against poach- ing, Rex v. Dowsell, 6 Car. & P. 398; Rex v. Nash, Russ. & Ry. 886; Reg. v. Whittaker, 2 Car. & K. 686, 1 Den. C. C. 809, 8 Cox C. C. 650. ® Ante, § 123. 7 See ante, § 79, 80. CHAP. VII.] REPEAL OF CRIMINAL STATUTES. § 149 gone to the verge of its powers of construction, there will sometimes remain what is termed a casus omissus,—a case within the general scope and meaning of the amended laws, yet not provided for by them.! Such a case must be disposed of according to the prior law,? and the legislature alone can cure the defect.? CHAPTER VII. REPEAL OF CRIMINAL STATUTES. 147. Introduction. 148-163. General Doctrine of Repeal. ’ 164-174, Particular Applications of the Doctrine. 175-187. Consequences of Repeal. § 147. How the Chapter dividea.— We shall consider, I. The General Doctrine of Repeal; II. Particular Applications of the Doctrine; III. The Consequences of Repeal. I. The General Doctrine of Repeal. § 148. Different Sorts of Repeal.— The different sorts of re- peal, real or supposed, are, First, by Non-user; Secondly, by Express Words; Thirdly, by later Conflicting Provisions. Let us look at these in their order. § 149. First, By Non-user : — Does not work Repeal — Obsolete, how — Usage. — It has been sometimes supposed that a long course of forbearance to fol- low out and act upon a-statute, called non-user, will work a repeal of it. And in South Carolina it was observed: ‘The 1 See Rex v. Hill, Russ. & Ry. 483. desuetude, if it hath not been put in 2 Broom Leg. Max. 2d ed. 87; Hall execution for sixty years. Other wri- v. Jacobs, 4 Har. & J. 245. ters have extended this term to a cen- 3 Pitman v. Flint, 10 Pick. 504, 506; tury, and make a distinction between 4 Bl. Com. 302. See Kilpatrick v. statutes half obsolete and those in viridi Byrne, 25 Missis. 571. observantia. A vague notion seems, * Hill v. Smith, Morris, 70, 76. too, from the very frequent renewal of Dwarris says: “ The Scotch lawyers some of our fundamental laws, to have hold, that a statute loses its force by prevailed at different times in England, 93 § 150 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. court, in Watson v. Blaylock,! declared the act imposing pen- alties on lay magistrates for solemnizing marriages, obsolete and invalid, —the only instance in our judicial history in which courts have ventured to declare an act of the legislature inop- erative from non-user.” 2 In a still later South Carolina case, the doctrine of this earlier one, that a statute may become in- operative by non-user, appears to have been recognized.? But, in reason, and on the better authorities, no usage, either neg- ative or positive, can grow into a law adverse to a statute, and only the power which can make a law can annul one. Conse- quently, statutes expressed in general terms, with no limita- tion of time, stand until repealed by the law-making power. The matter to which they relate may indeed cease to exist, and thus they may not be called into action;* or the reasons for their enactment may have passed,® and thus it may be proper for the legislature to repeal them; but, according to the better opinion, all unrepealed statutes must be enforced, when the subject and occasion call for their enforcement, and they do not become void by non-user. Yet where the nature of the question is such, that the judge has a discretionary power, — as, to grant or withhold an information, —he may take into his consideration the long disuse of the statute.’ So in deter- mining the meaning of a statute, contemporaneous usage may, as we have seen,® be resorted to;° but this principle is alto- gether different from the one under consideration. § 150. Custom.— We see, therefore, that, if repeal by non- user is allowed, it is in effect a repeal by force of an adverse custom. Now, it has been laid down in England that the prior law may be repealed by a cust6m, when such prior law is either the common law, or a statute declaratory merely of it; but that a statute might become obsolete ; 6 White v. Boot, 2 T. R. 274; The but such opinion is unfounded, and has State v. Findlay, 2 Bay, 418; The no warrant in our law.” Dwar. Stat. State v. Tidwell, supra; Common- 2d ed. 529. wealth v. Hoover, supra; Dwar. Stat. 1 Watson v. Blaylock, 2 Mill, 351. 2d ed. 529; Snowden v. Snowden, 1 2 Canady v. George, 6 Rich. Eq. Bland, 550. Contra, James v. Common- 108, 106. wealth, supra. 8 O’Hanlon v. Myers, 10 Rich. 128. 7 Rex v. Dodd, 9 East, 516. 4 Commonwealth v. Hoover, 1 8 Ante, § 104. Browne, Pa. App. 25. 8 Chesnut v. Shane, 16 Ohio, 599; 5 James v. Commonwealth, 128.&R. Dwar. Stat. 2d ed. 580. , 220, 228 ; The State v. Tidwell, 5 Strob. 1. 94 CHAP. VII. REPEAL OF CRIMINAL STATUTES. § 151 doubts have been entertained concerning the latter branch of the proposition, namely, whether a statute merely declaratory of the common law can be so superseded! Plainly, on prin- ciple, it cannot be; non-user does not do away with the force of a statute; therefore a custom cannot do more, as a general doctrine; and that a statute is only declaratory of the prior law prevents not its effect as a statute. The question, how- ever, has little practical importance in this country, where it could seldom or never arise. § 151. Secondly, By Express Words : — Common Form — Within the Purview — Inconsistent. — The most common form of repeal, and one which needs no elucida- tion, is where an act says, in terms, that such a statute, or clause of a statute, or provision of the common law is re- pealed.? Then it is sometimes provided that all statutes com- ing within the *“ purview” of the act in which the repealing clause occurs, are repealed.2 Another method of express re- peal occurs where a clause of a statute provides that all acts inconsistent with the statute are repealed. 1 Dwar. Stat. 2d ed. 475-477; Bac. Ab. Statute, G. 2 Chambers v. The State, 25 Texas, 807; The State v. Beneke, 9 Iowa, 203. A statute provided that every person who should vend merchandise not the product of the United States, without license, should be fined. Sub- sequently another act’ was passed, in terms repealing so much of this one as required a license to vend cof- fee, tea, and sugar; and the court construed it to be a repeal of the former law as concerns the enumer- ated artifles. Taylor v. The State, 7 Blackf. 98. In a Pennsylvania case, the legislature had repealed a clause of a bill which had not then become law for want of the Governor’s signature. Afterward the bill was signed; but the court held the repeal of the clause to be effectual, on the groupd, that, as the legislature could abrobate a statute duly signed, it could do the same of one before the signature was attached. Southwark Bank v. Commonwealth, 2 Casey, 446. If the validity of a repeal- ing statute remains, however long, in doubt, by reason of a division of opinion among the judges, then it is finally adjudged to be valid, the act repealed will be held to have had no force dur- ing the period of doubt. Ingersoll v. The State, 11 Ind. 464. Where the charter of a bridge company prohibited the erection of any other bridge within a mile of that to be erected by the grantees, and the section containing the prohibition was subsequently re- pealed, it.was held, that the grantees of the franchise stood in precisely the same position, in reference to a second bridge, as if no such prohibition had been contained in their charter. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. 3 Ely v. Thompson, 38 A. K. Mar. 70; Scutt v. Commonwealth, 2 Va. Cas. 54; Payne v. Connor, 3 Bibb, 180. Repealing all acts inconsistent, Hale v. The State, 15 Conn. 242; The State v. Taylor, 2 McCord, 488; Jackson vu. The State, 12 Ga. 1. 95 § 154 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. § 152. Inconsistent Acts, continued. — Of course, such a clause does not repeal an act which is not inconsistent, though relat- ing tothe same subject-matter.1 When the provisions are in direct conflict the repeal necessarily takes place.2 But, in such a case, the repeal is effected only to the extent of the repug- nance. And if, for example, there is a general statute, and then comes another more specific one, with this repealing clause in it, the specific and general are not in repugnance; but, in obedience to a principle already considered,* they may be con- strued together and both will stand.® According to the better doctrine already discussed,® this sort of repealing clause has no effect upon acts inconsistent only with some provision in the repealing statute which is void as being unconstitutional.’ § 153. Thirdly, By later Conflicting Provisions : — Affirmative and Negative —- Express Repeals. — The repeals now under consideration are, in fact, express, though they cannot properly be regarded as repeals by express words. An old division of statutes is into affirmative and negative ; the one class embracing’ those expressed in affirmative, the other those in negative, words.’ Thus a legislative provision, that it shall be lawful for a tenant in fee-simple to make a lease for twenty- one years, and the lease shall be good, is affirmative; a pro- vision, that it shall not be lawful to make a lease for above twenty-one years, or that a lease for more shall not be good, is negative.? Now, obviously, a negative statute, being in express denial or negation of the prior law, repeals it ;° and it is equally obvious that this repeal is express. It appears plain that neg- ative statutes are to be construed,in respect to the matter of repeal, strictly; that is, as abrogating the pre-existing law no further than their express words require.!! § 154. Affirmative Statutes— Implied Repeals.— The other 1 People v. Durick, 20 Cal. 94; Lewis § Ante, § 34. v. Stout, 22 Wis. 234. 7 Sullivan v. Adams, 3 Gray, 476; 2 Tierney v. Dodge, 9 Minn. 166; Harbeck v. New York, 10 Bosw. 366. People v. Lytle, 1 Idaho, 161. 8 Bac. Ab. Statute, G. 3 Elrod v. Gilliland, 27 Ga. 467. 9 Dwar. Stat. 2d ed. 475. 4 Ante, § 126. {10 Bac. Ab. Statute, G.; Dwar. Stat. 5 Dolan v. Thomas, 12 Allen, 421. 2d ed. 475; Gooch v. Stephenson, 13 And see Cain v. The State, 20 Texas, Maine, 371. : 855; The State v. Macon County 1 See the cases cited to the next three Court, 41 Misso. 458. sections. 96 CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 155 method of repeal by a conflicting statutory provision is, as we have seen, where the statute is affirmative, and the matter of it is irreconcilably inconsistent with the prior law. In this case the repeal is implied. We have seen,! that every legisla- tive act in affirmative words is to be regarded, prima facie, as an addition to the mass of law; for such, on its face, it pur- ports to be. Yet when it is inconsistent with the former law, it must, as the last expression of the legislative will, prevail.? But repeals by implication, thus explained, are not favored.’ And a legislative intent to repeal an existing statute is never presumed.*? If two acts, seeming to be repugnant, can be reconciled by any fair construction, they must be, when no repeal will be held to take place.® § 155. Continued — Derogation of Common Law, or Prior Stat- ute. — Therefore, as we have already seen,® statutes in deroga- 1 Ante, § 5. Morrow, 26 Misso. 181; Swann v. 2 Broom Leg. Max. 2d ed. 23; Com- Buck, 40 Missis. 268; People v. San monwealth v. Cromley, 1 Ashm. 179; Francisco, &c., Railroad, 28 Cal. 254; Harris v. Robinson, 2 C. B. 908,910; Blain v. Bailey, 25 Ind. 165; Bucking- Reg. v. Salisbury, 2 Q. B. 72, 84; ham v. Steubenville and Indiana Rail- Byrne v. Stewart, 8 Des. 185; Britton road, 10 Ohio State, 25. v. Commonwealth, 1 Cush. 302; The * Furman v. Nichol, 3 Coldwell, State v. Miskimmons, 2 Ind. 440; 482. United States v. Irwin, 5 McLean, 5 Blain v. Bailey, 25 Ind. 165; The 178; Sullivan v. People, 15 Ill. 288; State v. Bishop, 41 Misso. 16; Nixon v. Adams v. Ashby, 2 Bibb, 96; Moore v. Piffit, 16 La. An. 879; De Pauw »v. Vance, 1 Ohio, 1; Den v. Pine, 4 New Albany, 22 Ind. 204; Mullen v. Wash. C. C. 691; Morrison v. Barks- People, 31 Ill. 444; Elliott v. Locknane, dale, Harper, 101; Moore v. Moss, 14 1 Kansas, 126; Conner v. Southern Ill. 106 ; Ham v. The State, 7 Blackf. Express Co., 37 Ga. 397; People o. 314; McQuilkin v. Doe, 8 Blackf. 581; Barr, 44 I. 198; Desban v. Pickett, Johnston’s Estate, 9 Casey, 511; Com- 16 La. An. 350; McCool v. Smith, 1 missioners v. Potts, 10 Ind. 286; The Black, 459; McDonough v. Campbell, State v. Wilson, 43 N. H. 415. 42 Ill. 490; Hume v. Gossett, 43 Ill. 3 Loker v. Brookline, 18 Pick. 348, 297. The principle is the same as to 348; Haynes v. Jenks, 2 Pick. 172, construing the statutes with the prior 176; Snell v. Bridgewater Cotton Gin commonlaw. To effect a repeal of the Man. Co., 24 Pick. 296, 297; Goddard common law, said Goldthwaite, J. in v. Boston, 20 Pick. 407; Bowen v. an Alabama case, “the right which is Lease, 5 Hill, N. Y. 221; Wyman v. given by the general law must be Campbell, 6 Port. 219; Dugan v. Git- plainly and obviously inconsistent with tings, 3 Gill, 188; McCartee v. Orphan the existing statutes; and if, upon a Asylum Society, 9 Cow. 487; Lichten- just interpretation of the latter, the two stein v. The State, 5 Ind. 162; Erwin can exist together, the intention of the v. Moore, 15 Ga. 361; Aspden’s Estate, legislature that they should both exist, 2 Wallace, Jr. 868, 481; Hockaday v. is to be presumed.” Tannis v. St, Wilson, 1 Head, 118; Robbins v. The Cyre, 21 Ala. 449, 452. State, 8 Ohio State, 181; The State v. § Ante, § 119. 7 97 § 156 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. tion of the common law,! or of a previous express enactment,” are to be construed strictly ; not operating beyond their words, or the clear repugnance of their provisions; that is, the new displaces the old only as directly and irreconcilably opposed in terms. For when the legislative power professes to add a pro- vision, as it does in the enactment of an affirmative statute, we cannot assume for it an intention also to subtract a provision ; while there is any well-known rule of interpretation which, ap- plied to the one, or to both, will enable both to stand. § 156. Continued — Mlustrations.— In this way, for example, specific and general provisions will be made to stand together.? Thus an act exempting a certain class of property from munici- pal taxation is not repealed by a subsequent act giving cities power to tax “all property” within their limits; but the two acts will be construed together, and the one will be held to create an exception to the general terms of the other.* 1 Melody v. Reab, 4 Mass. 471; Gib- son v. Jenney, 15 Mass. 205; Common- wealth v. Knapp, 9 Pick. 496, 514; Wil- bur v. Crane, 18 Pick. 284; Lock v. Miller, 3 Stew. & P. 18; Goodwin v. Thompson, 2 Greene, Iowa, 329; Rex v. Paine, 1 East P. C.5; The State v. Norton, 3 Zab. 33; Bailey v. Bryan, 8 Jones, N. C. 357; Smith v. Moffat, 1 Barb. 65; Young v. McKenzie, 3 Kel- ly, 81; Schuyler Co. v. Mercer Co., 4 Gilm. 20; Dwelly v. Dwelly, 46 Maine, 877; Burnside v. Whitney, 21 N. Y¥. 148. 2 White v. Johnson, 23 Missis. 68; Street v. Commonwealth, 6 Watts & S. 209; Morlot v. Lawrence, 1 Blatch. C. C. 608; Clarke v. The State, 23 Missis. 261; Williams v. Potter, 2 Barb. 816. The doctrine of the text is deemed to apply with special force where both acts are passed at the same session of the legislature; for “the presumption of so sudden a revolution in the mind of the legislature ought not to be indulged.” Peyton v. Moseley, 8 T. B. Monr. 77. 3 Ante, § 152. 4 Blain v. Bailey, 25 Ind. 165. Soin Mississippi it was held, that § 29 of the amended charter of the town of Holly 98 Again, Springs, giving the mayor and alder- men exclusive right to grant licenses for the sale of spirituous liquors, did not repeal Rev. Code, p. 197, art. 4, which requires the applicant for a license to retail to be recommended by a major- ity of the legal voters, &c. House v. The State, 41 Missis. 737. The statute authorizing a proceeding to contest the validity of a will, by “ petition to the Court of Common Pleas,” does not repeal the provisions of the former statute, authorizing a proceeding by bill in chancery. The maxim, leges posteriores priores contrarias abrogant, does not apply, except where the in- consistency or repugnancy is such that the two provisions cannot stand as cumulative or concurrent rules of ac- tion. Raudebaugh v. Shelley, 6 Ohio, State, 307. A law forbidding the open- ing of a road or street through any burial-ground is not repealed or sus- pended by a subsequent statute ex- tending the boundaries of a borough, and appointing three persons com- missioners, who shall have authority “to survey and Jay out, and mark the lines of such streets, roads, lanes, and alleys, as they shall deem neces- sary within the said limits.” Egypt CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 158 by an act of the Missouri legislature, a sum of money which had been granted to the State, by Congress, was appropriated to the redemption of certain specified bonds ; a subsequent act made an appropriation, out of the same money, for a different object, and the appropriation was so large as to interfere with the payment of the-bonds. It was thereupon held, that the lat- ter statute did not in any measure repeal the former; but the subsequent appropriation should take effect only out of what was left after the bonds were paid.1 But a subsequent statute fixing a salary different from the one formerly established, re- peals the former by implication.? In the nature of things two such statutes as these cannot stand together; the salary must be either the one sum or the other, it cannot be both. § 157. Whether the Doctrine has Exceptions — What. — The doctrine thus laid down is, it is believed, accepted as law every- where in the United States, when stated thus in general terms. But there is, in the minds of some judges, what seems to the writer to be a confusion of ideas with respect to one or two of the propositions when applied to the actual interpretation of the statutes. Looking at the legal doctrine truly, when a sub- sequent legislative enactment is found to be, neither in express words, nor by necessary intendment, in conflict with the pre- vious law, there would seem to be, in principle, no possible circumstance by reason of which it should be held to repeal such prior law. And that most courts do hold the doctrine thus strictly and rigidly is what the author believes to be fully apparent from the authorities cited to the sections accompany- ing this one. § 158. Continued — Apparent Exception stated and illustrated — Difficulty of understanding the Cases.—If we take into our Street, 2 Grant, Pa. 455. Where a horse,” &c., was not repealed by § 21 statute prohibits an act, under a pen- alty to be enforced by indictment, and a subsequent statute gives a qui tam action for such penalty, the latter is merely cumulative of, and does not repeal, the remedy given by the former statute. Bush v. The Republic, 1 Texas, 455. In South Carolina, § 1 of the act of 1857, making it an indictable offence “ wilfully, unlawfully, and ma- liciously ” to “cut, shoot,” &c., “any of the act of 1865, declaring ‘“ every wilful trespass” to be a misdemeanor. The State v. Alexander, 14 Rich. 247. A statute which imposes a penalty for occupying a building in the compact part of a town, as a slaughter-house, without license, does not repeal the common law relative to nuisances. The State v. Wilson, 43 N. H. 415. 1 The State v. Bishop, 41 Misso. 16. 2 Pierpont v. Crouch, 10 Cal. 315. 99 § 158 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. hands the eleventh volume of Wallace’s Reports,—being the last volume of decisions of the Suprerge Court of the United States published at the time of the present writing, — we shall find in one of the cases the following, from Field, J. pronounced in delivering the opinion of the whole court: “ When there are two acts on the same subject, the rule is to give effect to both if possible. But if the two are repugnant in any of their pro- visions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first.” Now, this is a good statement of the general doctrine, as everywhere held. But he adds: “ And even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly show- ing that it was intended as a substitute for the first act, it will operate as a repeal of that act.” When the author read this sentence from the opinion of the learned judge, it seemed to him that what he deems to bea great legal heresy, which has sprung up in some of our State tribunals, had possibly found its way into the Supreme Court of our nation, which had heretofore appeared to repudiate it. True, the facts of the case did not perhaps require this language, while doubts might exist as to how much was really meant by it. The point decided, accord- ing to the reporter’s head-note, was: “‘ When there are two acts of Congress on the same subject, and the latter act em- braces all the provisions of the first, and also new provisions, and imposes different or additional penalties, the latter act oper- ates, without any repealing clause, as a repeal of the first.” And this point was justly decided, according to the general doctrine. We saw, in the-last section, that, if a statute pro- vides a new salary, it abrogates the old statute, because the two salaries cannot stand together, and the last expression of the legislative will must prevail. So here, the second statute embraced all which the first did, but provided new penalties. It, therefore, must prevail as the last expression of the legisla- tive will, and the first could not stand with it. Then, turning further over in the same volume of reports, we find an opinion by Strong, J. who, speaking for the whole court, and referring to this opinion, frees the court from any suspicion of legal 1 United States v. Tynen, 11 Wal. 88 92 100 CHAP. VII.] REPEAL OF CRIMINAL STATUTES. § 159 heresy in the following language: He said the doctrine of this case is, “ that the former statute is impliedly repealed so far as the latter statute, making new provisions, is plainly intended as a substitute for it. Where the powers or directions under the several acts are such as may well subsist together, an impli- cation of repeal cannot be allowed.”’! Still this expression of the doctrine is unfortunate; it being much more simple and easily understood merely to say, that, where the two statutes can be made by construction to subsist together, the one shall not operate as a repeal of the other. § 159. Continuea. — H8w much of what is to be found in the adjudications and dicta of State tribunals, exceptional to the general doctrine, can be so fortunately explained away, the writer will not undertake to determine. Looking at the cases perhaps less critically than in the last section, we find that a partial innovation upon the doctrine seems to have been made in some of these courts, — it is not quite easy to say in just how many and of what States,—but perhaps of Massachu- setts,? Maine,’ Pennsylvania, Vermont, and possibly Alabama,® and some others,’ to the extent, simply and no further, that, 1 Henderson’s Tobacco, 11 Wal. 652, 657. 2 Commonwealth v. Cooley, 10 Pick. 37 ; Goodenow v. Buttrick, 7 Mass. 140; Bartlett v. King, 12 Mass. 5387, 545; Ashley, Appellant, 4 Pick. 21,23; Ma- son v. Waite, 1 Pick. 452; Ellis v. Paige, 1 Pick. 48, 45; Jennings v. Common- wealth, 17 Pick. 80; Commonwealth v. Ayer, 3 Cush. 150; Commonwealth v. Foster, 1 Mass. 488 ; Nichols v. Squire, 5 Pick. 168. 3 Towle v. Marrett, 3 Greenl. 22; Pingree v. Snell, 42 Maine, 58; Buck v. Spofford, 31 Maine, 34, 36. 4 Commonwealth v. Cromley, 1 Ashm. 179; Report of the Judges, 3 Binn. 595, 597. But in this State, Stat. March 21, 1806, had ordained, “that, in all cases where a remedy is provided, or any thing or things directed to be done by an act of Assembly, the directions of the act shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeably to the common law, further than is necessary in carrying such act or acts into effect.” And therefore it was held, that an indict- ment did not lie at common law against, an officer for taking illegal fees, the remedy being under the statute of March 28, 1814, § 20. Commonwealth vo. Evans, 13 8. & R. 426. And the general doctrine is still maintained in Pennsylvania, that there is no repeal by implication where the two acts can be construed together. Shinn v. Com- monwealth, 8 Grant, Pa. 205. 5 Giddings v. Cox, 31 Vt. 607; Farr v. Brackett, 830 Vt. 344; Isham v. Ben- nington Iron Co., 19 Vt. 280. 6 The State v. Whitworth, 8 Port. 484; Smith v. The State, 1 Stew. 506. But see George v. Skeates, 19 Ala. 788. 7 The State v. Seaborn, 4 Dev. 305, 810; Dugan v. Gittings, 3 Gill. 188; Caldwell v. St. Louis Perpetual Ins. Co., 1 La. An. 85; Smith v. The State, 14 Misso. 147 ; Bryan v. Sunberg, 5 Texas, 418; Rogers v. Watrous, 8 Texas, 62; 101 § 160 [BOOK I. INTERPRETATION OF CRIMINAL STATUTES. where a new statute covers the whole ground occupied by a previous one or by the common law, it repeals by implication the prior law, though there is no repugnance. Some of the cases add as a qualification to this proposition, that, to produce this result, the new statute must plainly appear to have been intended by the legislature as a substitute for the old, or as furnishing the only rule of law in the case. § 160. Objections to Exceptional Doctrine —True Rule re- peated. — Now, if the legislature did intend that the new act should stand in place of the old one, or in the place of the common law, and this intention appedts in any legitimate way, plainly, as already seen,’ the intent must prevail. But, since the legislative intent must appear in the act itself, it is not easy to see how, when the later and former provisions “ may,” in the language of Strong, J. in the Supreme Court of the United States, “ well subsist together,” * a judicial inference can be drawn of an intent, not to permit them to stand together, but to super- sede the earlier by the later. A court cannot leap from the language before it to conjectures, without violating a principle fundamental in all judicial proceedings. Hence the exception, if it really exists, is confined to a few States, where it should not be permitted to take to itself any new propositions ; while the general American doctrine, like the English, has no excep- tions, and is, that an affirmative statute never repeals the prior law, unless there is a direct contradiction between the two? Erwin v. Moore, 15 Ga. 361; Illinois in the course of this discussion, to the and Michigan Canal v. Chicago, 14 Ill. 834; Pankey v. People, 1 Scam. 80; Leighton v. Walker, 9 N. H. 59; Wake- field v. Phelps, 37 N. H. 295; Pulaski County v. Downer, 5 Eng. 588; Gorham v. Luckett, 6 B. Monr. 146; Stirman v. The State, 21 Texas, 7384; Swann v. Buck, 40 Missis. 268; Sacramento v. Bird, 15 Cal. 294; The State v. Conk- ling, 19 Cal. 501 ; Industrial School Dis- trict v. Whitehead, 2 Béasley, 290. See Daviess v. Fairbairn, 3 How. U. S. 686, 645. 1 Ante, § 70. 2 Ante, § 158. 3 The reader is referred, among other authorities, including those before cited 102 following: Wood v. United States, 16 Pet. 342, 862; Rex v. Paine, 1 East P. C. 5; Morlot v. Lawrence, 1 Blatch. C. C. 608; Rex v. Carlile, 8 B. & Ald. 161; Reg. v. Salisbury, 2 Q. B. 72, 84; 1 Bl. Com. 89; Broom Leg. Max. 2d ed. 24; Williams v. Pritchard, 4 T. R. 2; Rix v. Borton, 12 A. & E. 470; Da- kins v. Seaman, 9 M. & W. 777, 789, 6 Jur. 783; Wynn v. Davies, 1 Curt. Ec. 69,80; Middleton v. Crofts, 2 Atk. 650, 675 ; Foster’s Case, 11 Co. 56, 63 ; Ash- ton v. Poynter, 1 Cromp. M. & R. 738; Phipson v. Harvett, 1 Cromp. M. & R. 473; Rex v. Aslett, 1 New Rep. 1, 7; Dore v. Gray, 2 T. R. 358, 865; Plant- ers’ Bank v. The State, 6 Sm. & M. CHAP, VII. ] REPEAL OF CRIMINAL STATUTES. § 161 § 161. Objections to Exceptional Doctrine, continued. —It may be further added of the exceptional doctrine, that it is difficult and uncertain in its application, therefore specially objectiona- ble. Moreover, it is not supported by any satisfactory reason- ing. Its most plausible application occurs where a statute of our own has covered the whole subject embraced in some English act which with us is common law. 628; Kinney v. Mallory, 8 Ala. 626; Canal Company »v. Railroad Company, 4 Gill & J.1; The State v. Harker, 4 Harring. Del. 559; De Armas Case, 10 Mart. La. 158, 172; Herman v. Sprigg, 8 Mart. n. s. 190,199; Williams v. Pot- ter, 2 Barb. 316; George v. Skeates, 19 Ala. 788; United States v. Twenty-five Cases of Cloths, Crabbe, 856, 870, 382; The State v. Moore, 19 Ala. 514; Free- man v. The State, 6 Port. 372; Morris v. Delaware and Schuylkill Canal, 4 Watts & S. 461; Beals v. Hale, 4 How. U.S. 87; Brown v. Miller, 4 J. J. Mar. 474; Alexandria v. Dearmon, 2 Sneed, 104; Aspden’s Estate, 2 Wallace, Jr. 368, 481; Daviess v. Fairbairn, 8 How. U. S. 686; Mitchell v. Duncan, 7 Fla. 18; The State v. Fuller, 14 La. An. 667; The State v. Kitty, 12 La. An. 805 ; Beridon v. Barbin, 18 La. An. 458; Pratt v. Atlantic and St. Lawrence Railroad, 42 Maine, 579; Richards v. Patterson, 30 Missis. 588 ; Commercial Bank v. Chambers, 8 Sm. & M. 9; Ament v. Humphrey, 8 Greene, Iowa, 255 ; Attorney-General v. Brown, 1 Wis. 518; Casey v Harned, 5 Iowa, 1; The State v. Smith, 7 Iowa, 244; Edgar v. Greer, 8 Iowa, 394 ; The State v. Wood- side, 9 Ire. 496. In New York, the act of April 10, 1824, § 12, authorized a di- vorce from bed and board on the prayer of the husband, for the wife’s cruel treatment; the Revised Statutes of 1830 gave this remedy only to the wife; but by accident the act of 1824 was not expressly repealed, and the courts held that it remained in force. 1 Bishop Mar. & Div. § 761, note. In the Illinois case of Bruce v. Schuyler, 4 Gilm. 221, 271, Wilson, C. J. stated the rule in the following words: ‘ The In such a case, it is said doctrine of repeal by implication is not favored by the law, and is never to be resorted to except when the repugnance or opposition is too clear and plain to be reconciled. The rule of law is, that all laws in pari materia are to be con- strued together.” In accordance with the view in the text appears also to be the Scotch law. Cumming’s Case, Shaw Crim. Cas.17. “It isarule of law, that one private act of Parliament cannot repeal another, except by ex- press words.” Even though the second private act is declared to be a public one, the consequence is the same. Birkenhead Docks v. Birkenhead Docks Company, 23 Eng. L. & Eq. 889. 1In Ellis v. Paige, 1 Pick. 48, 46, the court put the matter thus: “Itisa well-settled rule, that, when any statute is revised, or one act framed from an- other, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance; which is altogether inad- missible.” The fallacy of this reason- ing is obvious when we consider that the question is not, whether the parts omitted are to be revived by construction ; but whether the whole is to be repealed by construction ; in other words, whether we are to impute to the legislature, either the ignorance of not knowing what was the previous law, or the care- lessness of not saying that they intend its repeal. Yet an examination of the cases which have admitted the doc- trine we are combating will show, that on this particular fallacy of reasoning the doctrine is generally made to rest. 103 § 163 [Book 1. INTERPRETATION OF CRIMINAL STATUTES. that our statute repeals the English,!— a view entitled to great consideration on the question whether we have adopted the English act; but, supposing we have adopted it, why may it not stand until the legislature, dissents from it, either by direct words or by an inconsistent enactment ? § 162. Continued. — Another view of the question is this: if the new statute contains nothing inconsistent with the prior law, no presumption can arise of an intent to repeal it; since the common law itself, in harmony with which all legislative enactments are to be interpreted,” recognizes the doctrine of a variety of remedies for a single wrong, of a variety of offences committed by a single act, of a variety of modes of procedure to gain a common right, of a variety of jurisdictions over a given matter, of a variety of results from a single cause. Na- ture recognizes the same. And for a court to interpose views of its own against wisdom from both these sources, and, with- out any positive or necessarily implied direction from the legis- lature, to assume a repeal, is to perform the functions of the law-giver, rather than of the judge. § 163. Authorities collected in Order of States.— We have thus seen, that the rules governing implied repeal by the oper- ation of affirmative statutes, on the ground of repugnance, are not identical in our States. The practitioner may therefore like to see, in a note,? references to some of the further author- ities showing when a repeal takes place, arranged in the order of the countries and States to which they belong. But in con- 1 Mason v. Waite, 1 Pick. 452; The State v. Seaborn, 4 Dev. 305, 310; Re- port of Judges, 3 Binn. 595, 597; Towle v. Marrett, 3 Greenl. 22. 2 Ante, § 141. 8 England. Rex v. Paine, 1 East P. C. 5; Rex v. Thorne, 2 East P. C. 622; Williams v. Reg. 7 Q. B. 250; Reg. v. Wynn, 1 Den. C. C. 365, 1 Temp. & M. 82, 18 Jur. 107, 18 Law J. n.s. M. C. 51; Reg. v. Overton, 4 Q. B. 83; Reg. v. Tivey, 1 Den. C. C. 68; Rex v. Farrington, Russ. & Ry. 207; Rex v. Robinson, 2 Leach, 4th ed. 749, 2 East P. C. 1110; Rex »v. Carlile, 3 B. & Ald. 161; Rex v. Wad- dington, 1 B. & C. 26; Rex v. Moor, 104 2 Mod. 128; Sir John Knight’s Case, 3 Mod. 118; Rex v. Jackson, Cowp. 297; Rex v. Taylor, Russ..& Ry. 373; Rex v. Pugh, 6 Mod. 140, 141; Reg. v. Sill, 14 Eng. L. & Eq. 185; Rex v. O’Brian, 7 Mod. 878, 379; Reg. v. Brecon, 3 New Sess. Cas. 434, 13 Jur. 422,18 Law J.n.s. M. C. 123; Reg. v. Thompson, 20 Law J. n. 8. M. C. 188, 15 Jur. 654; Rex v. Stanley, Russ. & Ry. 482; Rex v. Royall, 2 Bur. 832, 2 Keny. 549; Michell v. Brown, 1 Ellis & E. 267. Ireland. Reg. we. 315. United States. Untted States.v. Pi- rates, 5 Wheat. 184; United States v. Murphy, Jebb, CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 163 nection with these authorities, he should consult the foregoing sections, and those of the next sub-title. Halberstadt, Gilpin, 262; United States v. Jones, 8 Wash. C. C. 209; Morlot v. Lawrence, 1 Blatchf. C. C. 608; United States v. A Package of Lace, Gilpin, 838 ; United States v. Irwin, 5 McLean, 178; The Estrella, 4 Wheat. 298. Alabama. The State v. Coleman, 5 Port. 832; Smith v. The State, 1 Stew. 506 ; Hodges v. The State, 8 Ala. 55; The State v. Whitworth, 8 Port. 434; The State v. Jones, 5 Ala. 666; The State v. Flanigin, 5 Ala. 477; Hawk- ins v. The State, 3 Stew. & P. 68; Moore v. The State, 16 Ala. 411; The State v. Moseley, 14 Ala. 890; The State v. Allaire, 14 Ala. 485; Hirsch- felder v. The State, 18 Ala. 112; Sterne v. The State, 20 Ala. 43; The State v. Moore, 19 Ala. 514; Huggins v. Ball, 19 Ala. 587; DeBernie v. The State, 19 Ala. 23; Jordan v. The State, 15 Ala. 746; Turner v. The State, 40 Ala. 21; Jeffries v. The State, 89 Ala. 655; Magruder v. The State, 40 Ala. 347. Arkansas. Scoggin v. Taylor, 8 Eng. 380; Campbell v. Campbell, 8 Eng. 513; Ex parte Trapnall, 1 Eng. 9; Hamilton v. Buxton, 1 Eng. 24. California. People v. Chu Quong, 15 Cal. 382. Connecticut. Hale v. The State, 15 Conn. 242; Knowles v. The State, 3 Day, 103; The State v. Danforth, 3 Conn. 112; Southworth v. The State, 5 Conn. 325. Delaware. The State v. Harker, 4 Harring. Del. 559. Florida. Luke v. The State, 5 Fla. 185. Georgia. The State v. Calvin, R. M. Charl. 151; The State v. Maloney, R. M. Charl. 84; The State v. Savan- nah, T. U. P. Charl. 285; Union Branch Railroad v. East Tennessee and Georgia Railroad, 14 Ga. 327; Gor- man v. Hammond, 28 Ga. 85; Bloom v. The State, 20 Ga. 443; Wall v. McNeil, 20 Ga. 239; Wheeler v. The State, 28 Ga.9; Georgia Railroad v. Kirkpatrick, 35 Ga. 144. Illinois. Bruce v. Schuyler, 4 Gil- man, 221; Town of Ottawa v. County of La Salle, 12 Ill. 339; Illinois and Michigan Canal v. Chicago, 14 Ill. 334; Tyson v. Postlethwaite, 13 Il. 727; Perry v. People, 14 Ill. 496. Indiana. The State v. Mullikin, 8 Blackf. 260; Fuller v. The State, 1 Blackf. 63; Strong v. The State, 1 Blackf. 193; Cheezem v. The State, 2 Ind. 149; The State v. Miskimmons, 2 Ind. 440; King v. The State, 2 Ind. 523; The State v. Youmans, 6 Ind. 280; The State v. Horsey, 14 Ind. 185; The State v. Pierce, 14 Ind. 302; Cordell v. The State, 22 Ind. 1; Webb v. Baird, 6 Ind. 18; Dodd v. The State, 18 Ind. 56. Iowa. The State v. Moffett, 1 Greene, Iowa, 247; Goodwin v. Thompson, 2 Greene, Iowa, 329; Baker v. The Mil- waukee, 14 Iowa, 214; The State v. Donehey, 8 Iowa, 396; Stoneman v. Whaley, 9 Iowa, 390. Kentucky. Ely v. Thompson, 3 A. K. Mar. 70; Ervine v. Commonwealth, 5 Dana, 216; Harrison v. Chiles, 3 Litt. 194; Gregory v. Commonwealth, 2 Dana, 417; Adams v. Ashby, 2 Bibb, 96; Eccles v. Stephenson, 3 Bibb, 517; Lillard v. McGee, 4 Bibb, 165; Hick- man »v. Littlepage, 2 Dana, 344; Com- monwealth v. Craig, 15 B. Monr. 534. Louisiana. Caldwell v. St. Louis Perpetual Ins. Co., 1 La. An. 85; De Armas Case, 10 Mart. La. 158 ; Bernard v. Vignaud, 10 Mart. La. 482; Her- man v. Sprigg, 8 Mart. n. s. 190; New Orleans v. Mechanics and Traders Bank, 15 La. An. 107; The State v. Judge, 14 La. An. 486. Maine. Gooch v. Stephenson, 13 Maine, 371; Towle v. Marrett, 3 Greenl. 22; Parsons v. Bridgham, 34 Maine, 240; The State +. Woodward, 34 Maine, 293. Maryland. Dugan v. Gittings, 3 Gill, 188; Wright v. Freeman, 5 Har. & J. 467; Canal Company »v. Railroad Com- pany, 4 Gill & J. 1. Massachusetts. Commonwealth ». 105 § 164 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. Il. Particular Applications of the Doctrine of Repeal. § 164. Election — Choice of Courts — Statute or the Common Law. — Where the new statute Worcester, 8 Pick. 462; Jennings v. Commonwealth, 17 Pick. 80; Wilde v. Commonwealth, 2 Met. 408; Common- wealth v. Cooley, 10 Pick. 37; Shat- tuck v. Woods, 1 Pick. 171; Goodenow v. Buttrick, 7 Mass. 140; Bartlett v. King, 12 Mass. 587; Ashley, Appellant, 4 Pick. 21; Mason v. Waite, 1 Pick. 4652; Nichols v. Squire, 5 Pick. 168 ; Commonwealth v. Ayer, 8 Cush. 150; Ellis v. Paige, 1 Pick. 43; Common- wealth v. Kimball, 21 Pick. 873 ; Com- monwealth v. King, 13 Met. 115; Brit- ton v. Commonwealth, 1 Cush. 302; Salem Turnpike and Chelsea Bridge v. Hayes, 5 Cush. 458 ; Commonwealth v. Herrick, 6 Cush. 465; Common- wealth v. Norton, 13 Allen, 550; Car- ter v. Burt, 12 Allen, 424. Minnesota. Maple Lake v. Wright, 12 Minn. 403. Mississippi. White v. Johnson, 23 Missis. 68; Shelton v. Baldwin, 26 Missis. 439. Missouri. The State v. Merry, 3 Misso. 278; Smith v. The State, 14 Misso. 147. New Hampshire. The State v. Buck- man, 8 N. H. 203; Leighton v. Walker, ON. H. 69. New Jersey. Perine v. Van Note, 1 Southard, 146; Buckallew v. Acker- man, 3 Halst.:48. New York. Vallance v. King, 3 Barb. 548; People v. Townsey, 5 Denio, 70; Crittenden v. Wilson, 5 Cow. 165; Wright v. Smith, 18 Barb. 414; Bowen v. Lease, 5 Hill, N. Y. 221; Williams v. Potter, 2 Barb. 316; Almy v. Harris, 5 Johns. 175; Platt v. Sherry, 7 Wend. 236; Scidmore v. Smith, 18 Johns. 822; Wheaton v. Hibbard, 20 Johns. 290; Stafford v. In- gersol, 3 Hill, N. Y. 88; Renwick v. Morris, 3 Hill, N. Y. 621, 7 Hill, N. Y. 575; McCartee v. Orphan Asylum So- ciety, 9 Cow. 437; Hand v. Ballou, 2 Kernan, 641; People v. McCann, 16 N. Y. 58; New York v. Walker, 4 E. 106 does not repeal the prior law, D. Smith, 258 ; Manchester v. Herring- ton, 10 N. Y. 164. North Carolina. The State v. Hen- derson, 2 Dev. & Bat. 548; The State v. Walker, 2 Taylor, 229; The State v. Seaborn, 4 Dev. 305, 310; The State v. Nat, 18 Ire. 154. : Ohio. Carter v. Hawley, Wright, 74; Moore v. Vance, 1 Ohio, 1; Dodge v. Gridley, 10 Ohio, 178, 178; Seymour v. Milford and Chillicothe Turnpike, 10 Ohio, 476, 482; Calkins v. The State, 14 Ohio State, 222. Pennsylvania. Foster v. Common- wealth, 8 Watts & S. 77; Drew v. Commonwealth, 1 Whart. 279; Report of Judges, 3 Binn. 595; Common- wealth v. Cromley, 1 Ashm. 179; Street v. Commonwealth, 6 Watts & S. 209; Commonwealth v. Evans, 13 S. & R. 426; Jefferson v. Reitz, 6 Smith, Pa. 44; Gwinner v. Lehigh, &e. Railroad, 5 Smith, Pa. 126. Rhode Island. The State v. Wilbor, 1R. I. 199. South Carolina. The State v. Jones, 1 McMullan, 236; The State v. Wil- liams, 2 Rich. 418; The State v Bald- win, 2 Bailey, 541; The State v. Brown, 2 Speers, 129; The State v. Bowen, 3 Strob. 578; The State v. Nicholas, 2 Strob. 278; The State v. Thompson, 2 Strob. 12; The State v. Cattell, 2 Hill, 8. C. 291; The State v. Huntington, 3 Brev. 111; The State v. Evans, 3 Hill, S. C. 190; The State v. Brock, 11 Rich. 447; The State v. Elrod, 12 Rich. 662; Linam v. Johnson, 2 Bailey, 187. Tennessee. The State v. Gainer, 3 Humph. 89; The State v. Rutledge, 8 Humph. 32; Simpson v. The State, 10 Yerg. 525; Taylor v. The State, 7 Humph. 610. Texas. Fowler v. Brown, 5 Texas, 407; Rogers v. Watrous, 8 Texas, 62; Tke State v. Horan, 11 Texas, 144. Vermont. The State v. McLeran, 1 Aikens, 311; The State v. Wilkinson, CHAP. VII.] REPEAL OF CRIMINAL STATUTES. § 165 both laws have a concurrent efficacy, and suitors may elect under which to proceed. For example, ‘“ If by a former law,” says Blackstone, “ an offence be indictable at the quarter ses- sions; and the later law makes the same offence indictable at the assizes ; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either, unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere.” 2 So it is every-day prac- tice, in the criminal courts, for a prosecutor to proceed on either one of two statutes, or at the common law, as he may elect ; 8 and, where an indictment is intended to be drawn upon a statute, but is found defective as such, yet good at the com- mon law, it stands, — the courts rejecting the concluding words, “ against the form of the statute,” as surplusage.* § 165. What Repugnance works Implied Repeal — Prior Statute modified by Later.— The nature of the repugnance which by im- plication works a repeal of the prior law was seen in a general way under our last sub-title, but it is now to be more particu- larly considered. 2 Vt. 480; Pratt v. Jones, 25 Vt. 303, 307. Virginia. Commonwealth v. Peg- ram, 1 Leigh, 569; Lanthrop v. Com- monwealth, 6 Grat. 671. Wisconsin. Schieve v. The State, 17 Wis. 258. 1 Broom Leg. Max. 2d ed. 25; Fos- ter’s Case, 11 Co. 56, 62: Richards v. Dyke, 3 Q. B. 256, 268 ; Gooch v. Ste- phenson, 13 Maine, 371; Fuller v. The State, 1 Blackf. 63; Almy v. Harris, 5 Johns. 175; Platt v. Sherry, 7 Wend. 236; Farmers Turnpike v. Coventry, 10 Johns. 389; Colden v. Eldred, 15 Johns. 220. 2 1B. Com. 90. 31 Saund. Wms. ed. (6th) 1353, note; Gooch v. Stephenson, 13 Maine, 871; The State v. Abram, 4 Ala. 272. See The State v. Savannah, T. U. P. Charl. 235; The State v. Wilkinson, 2 Vt. 480; Reg. v. Tinsley, Reg. v. Brightside Birelow, and Reg. v. Atter- cliffe cum Darnall, 4 New Sess. Cas. We have already seen, also, how distinct 47, 14 Jur. 174,19 Law J. n. s. M. C. 50; The State v. Morton, 1 Wms. Vt. 810; The State v. Norton, 3 Zab. 33 ; The State v. Berry, 4 Halst. 374. Where the charter of a turnpike corpo- ration provided a penalty for a failure to keep the road in repair, but con- tained no negative words, the court held, that an indictment for non-repair against the corporation would still lie atcommon law. Waterford and White- hall Turnpike v. People, 9 Barb. 161. 4 Rex v. Dickenson, note, 1 Saund. Whs. ed. 185; Reg. v. Wigg, 2 Ld. Raym. 1163; Bennet v. Talbois, 1 Ld. Raym. 149; The State v. Walker, 2 Taylor, 229. And see Crim. Proced. I. § 228 et seq. 349. So a recognizance not strictly conformable to the statute may be good at the common law. Phelps v. Parks, 4 Vt. 488, the court referring to Fanshaw v. Morrison, 2 Ld. Raym. 1138; Johnson v. Laserre, 2 Ld. Raym. 1459; Young v. Shaw, 1 D. Chip. 224; s.e. Reg. v. Ewer, Holt, 612. : 107 § 166 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. statutory and common-law provisions operate one upon another, contracting, expanding, and. modifying one another; and how, when they so operate, their construction is determined, not neces- sarily by the order in which they were established, but by other principles.1_ Therefore, where a provision of law is thus modi- fied or cut short, it is not, in any proper sense, repealed. And we may lay down the doctrine broadly, that. no repeal takes place if the earlier provision can stand, to any extent, consist- ently with the later.? Yet this proposition must not be misap- plied. For if the later statute conflicts in any particular with the earlier, then the earlier is so far abrogated; though we do not say, speaking of the earlier as a whole, that it is repealed. Now the abrogation of a provision of law may extend only to something which is incidental; or, on the other hand, its prin- cipal part may be abrogated, leaving only the minor matter to stand. It will help us to determine when an abrogation takes place, and how widely it operates, if we first consider into what parts a statutory provision may for this purpose be separated. Let us look a little at that question. § 166. Into what Parts, for Repeal or Modification, Statute sep- arable — Offence and Punishment — How Indictment drawn. — We may always separate the offence from the punishment; and so a statute which provides a new punishment for an old offence operates as a repeal of so much only of the old law as relates to the punishment. A person offending will then be indict- able, either at the common law or under the old statute, as the case may be, leaving the court to inflict the punishment or- dained by the new ;* or under the new statute, at the election 1 Ante, § 126-146. 2 This doctrine was stated in part by Mathews, J. as follows: “A particular law is not repealed by a subsequent so much of a previous one,-creating an offence and affixing a penalty, as relates to the penalty, all right to prosecute for a violation of it is gone. Reg. v. general law, unless there be such re- pugnancy between them that they can- not both be complied with, under any circumstances.’ De Armas Case, 10 Mart. La. 158, 172. 3 We are now upon cases in which the new statute provides a new punish- ment. It appears (a proposition, in- deed, about which there can be no doubt), that, if a statute mee repeals 108 Adams, Car. & M. 299. * Commonwealth v. Searle, 2 Binn. 332, 339; Williams v. Reg., 7 Q. B. 251; The State v. Wilbor, 1 R. I. 199; McCann v. The State, 18 Sm. & M. 471; The State v. Thompson, 2 Strob. 12; Rex v. Berry, 1 Moody & R. 463; The State v. Williams, 2 Rich. 418, CHAP. VII. | REPEAL OF CRIMINAL STATUTES. § 167 of the prosecutor! This doctrine, however, should not be con- founded with another. In the work on Criminal Procedure we saw,? that, as fundamental doctrine relating to the indictment, whether at common law or under a statute, the allegations must cover every particular element of crime entering into the punishment to be inflicted. The doctrine of this section, there- fore, is, and is only, that, if the same elements of crime are punishable alike at the common law and under a statute, the indictment may in form be drawn either on the one or on ‘ the other; and, of course, it in its substantial parts will be the same in either case. § 167. Form of the Indictment, continued. —It was indeed ruled in an English nisi prius case,? harmoniously with the doctrine apparently best sustained by authority,‘ that, where the offence was originally created by a statute, affixing to ita penalty, and a subsequent statute increased the penalty, the indictment must conclude against the form of the statutes, in the plural. But this is at most a mere technical rule of plead- ing, not resting well on principle; and, in this country, the question has been decided both ways,® —a matter of pleading, 1 Rex v. Dickenson, 1 Saund. Wms. ed. 185; Rex v. Dixon, 30 Mod. 335, 887, Say. 226; Rex v. Urlyn, note, 2 Saund. Wms. ed. 808; Rex v. Chat- burn, 1 Moody, 408; Sir John Knight’s Case, 8 Mod. 117; Rex v. O’Brian, 7 Mod. 378, 879. See, however, Felix v. The State, 18 Ala. 720. 2 Crim. Proced. 2d ed. I. § 77 et seq. 3 Reg. v. Adams, Car. & M. 299. 4 1 Chit. Crim. Law, 2d Eng. ed. 291, and Am. Notes; 2 Gab. Crim. Law, 246; Lee v. Clarke, 2 Hast, 338, 389; Rex v. West, Owen, 184. 5 That the singular form is sufficient, Strong v. The State, 1 Blackf. 198; The State v. Wilbor, 1 R. I. 199; The State v. Dayton, 3 Zab. 49; The State v. Berry, 4 Halst. 374; Butman’s Case, 8 Greenl. 118. That the plural form must be employed, The State v. Moses, 7 Blackf. 244, and King v. The State, 2 Ind. 528, the judges being apparently unaware of their previous decision in Strong v. The State ; The State v. Cas- sel, 2 Har. & G. 407. See Kane v. Peo- ple, 8 Wend. 203; United States v. Gibert, 2 Sumner, 19; Sears v. United States, 1 Gallis. 257,259. In The State v. Pool, 2 Dev. 202, the majority of the judges held, that, where one statute creates an offence punishable by a pen- alty recoverable in an action civil in form, and another statute makes the offence indictable, the indictment must conclude against the form of the stat- utes, in the plural. But Henderson, C. J. dissented, observing: ‘“‘ I am inclined to believe that this is the rule; that, where it is necessary to have recourse to two or more statutes to show that the acts imputed as crimes are in fact so, that is, acts forbidden or duties en- joined, . . . there both or all the stat- utes must be referred to. ... But it cannot be said that the defendant did an act contrary to the prohibitions of a statute, when the statute did not pro- hibit it ; in fact, was silent in regard to it, and only prescribed the mode of 109 § 168 [BOOK I. INTERPRETATION OF CRIMINAL STATUTES. however, more exactly considered in our work on Criminal Procedure.! Now, although the punishment is the measure of the offence (there being no offence where there is no pun- ishment, and the offence being greater or less according as the punishment is so); and although, therefore, the indictment must set out every element of crime which enters into the pun- ishment, since otherwise it does not set out fully the offence,? the true view as to this question of pleading seems to have been expressed by Lord Denman, thus: “ It is the offence which is the subject of indictment, not the punishment;”? and the doctrine is settled in both countries, that, if the offence is orig- inally at common law, and the punishment is by statute, a con- clusion at common law is sufficient.4 § 168. Bffect, as a Repeal, of Statute changing Punishment. — It is clear that, if a new statute provides a milder punishment than was before imposed for the same offence, and adopts no prosecution, and the punishment on conviction. . . . The defendant cannot be said to act contrary to a statute which prescribes nothing to be done, but only fixes the mode of proceeding against, and the measure of punishment to, those who have violated another.” p. 207, 208. In the Supreme Court of Maine, Parris, J. drew the distinctions as follows: “ Where one statute cre- ates the offence, and another gives the penalty, it seems to be settled that an indictment must conclude against the form of the statutes. But if there be more than one statute concerning the same offence, and the first of them was never discontinued, and the later only qualify the method of proceeding upon the earlier, without altering the sub- stance of its purview, it seems agreed that it is safe in an indictment on such a statute to conclude against the form of the statute. Where an offence is prohibited by several statutes, if only one is the foundation of the action, and the others are explanatory, it is suffi- cient to say, against the form of the statute.” Morrison v. Witham, 1 Fairf. 421, 425. 1 Crim. Proced. 24 ed. I. § 594+ 607. 110 2 Ante, § 166. 3 Reg. v. Williams, 14 Law J. n. a. M. C. 164. 4 Reg. v. Williams, supra; Rex v. Chatburn, 1 Moody, 403; Fuller v. The State, 1 Blackf. 63; Rex v. O’Brian, 7 Mod. 378, 379 ; Rex v. Jones, 1 Leach, 4th ed. 174; Reg. uv. Bethell, 6 Mod. 17; The State v. Evans, 7 Gill & J. 290; Williams v. Reg., 10 Jur. 155; Russell v. Commonwealth, 7S. & R. 489. See The State v. Flanigin, 5 Ala. 477; The State v. Jones, 5 Ala. 666; Rex v. Brown, 2 East P. C. 1007. In King v. The State, 2 Ind. 528, the court, after laying down the doctrine, that, where one statute defines the offence and an- other prescribes the punishment, the indictment must conclude in the plural, adds: “ This is no doubt correct, for the obvious reason that neither statute would of itself support the prosecution.” But the reader will notice, that in fact the former statute would have sup- ported it, the same as the common law would have done, if the offence had ex- isted at common law ; for if the former statute had failed to prescribe any pen- alty, then, as we have seen, ante, § 188, the offence created by it would have been punishable at the common law. CHAP. vir. ] REPEAL OF CRIMINAL STATUTES. § 169 different remedy, it repeals so much of the old law as concerns the punishment! From some cases and dicta we might infer, that the converse is not true; but, if by a more recent enact- ment a heavier punishment is established, a prisoner may be sentenced under either law.? The better view however appears to be, that, where there is no change in the character or cir- cumstances of the offence, or nature of the remedy, a new law establishing any different punishment in amount, whether more or less, is so far inconsistent with and repeals the old.2 Where, by two sections of one statute, jurisdiction over the same offence was given to different courts, and different degrees of punish- ment were prescribed, it was held that only the milder degree could be ordered by either court.‘ § 169. Continued — Punishments or Remedies of Different Na- tures— Nuisance. — Several concurrent remedies “of a different nature,” © carrying with them their respective penalties, may be provided for one offence; and each remedy may stand, penalty and all, without conflicting with the others® ‘“ There- fore keeping of swine in the city, &c., being a nuisance at common law, the prosecutor is at liberty either to proceed ‘by way of indictment for the nuisance, or to take that more ex- peditious remedy which is given him by act of Parliament, by sale of the swine.” 7 So a statute making it penal to “ in- 1 Henderson v. Sherborne, 2 M. & W. 236, 239; Smith v. The State, 1 Stew. 506; The State v. Thompson, ple, 15 Ill. 238; post, § 169-171. In Pennsylvania, this has been so pro- vided, substantially, by statute. Com- 2 Strob. 12; The State v. Whitworth, 8 Port. 484; United States v. Jones, 3 Wash. C. C. 209; The State v. Up- church, 9 Ire. 454; The State v. Rip- ley, 2 Brey. 300; Barton v. Watkins, 2 Hill, S. C. 674. 2 Harrison v. Chiles, 8 Litt. 194; The State v. Taylor, 2 McCord, 483 ; Reg. v. Pugh, 6 Mod. 140, 141. 3 Nichols v. Squire, 5 Pick. 168; Perine v. Van Note, 1 Southard, 146; Buckallew v. Ackerman, 8 Halst. 48; Carter v. Hawley, Wright, 74; Com- monwealth v. Kimball, 21 Pick. 873; Sir John Knight’s Case, 8 Mod. 117; Attorney-General v. Lockwood, 9 M. & W. 878, 391. See Clarke v. The State, 23 Missis. 261; The State v. Ward, 6 N. H. 529; Sullivan v. Peo- monwealth v. Evans, 138 S. & R. 426. 4 Scrinegrour v. The State, 1 Chand. 48. : 5 Lord Abinger, in Henderson v. Sherborne, 2 M. & W. 236, 239. 6 1 Mod. 34, note; Rex v. Jackson, Cowp. 297; Reg. v. Wigg, 2Ld. Raym. 1168; Jennings v. Commonwealth, 17 Pick. 80; Crittenden v. Wilson, 5 Cow. 165; The State v. Rutledge, 8 Humph. 32; Hodges v. The State, 8 Ala. 55; Rex v. Moor, 2 Mod. 128; Simpson v, The State, 10 Yerg. 525; Pitman v. Commonwealth, 2 Rob. Va. 800; United States v. Halberstadt, Gilpin, 262; Renwick v. Morris, 8 Hill, N. Y. 621, 7 Hill, N. Y. 575. 7 Reg. v. Wigg, 2 Ld. Raym. 1163. 111 § 171 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. jure a mill-dam”’ does not take away the common-law right to abate the nuisance, if the mill-dam becomes such.! And a statute providing a specific method of abating a nuisance does not abrogate the common-law method.2, The reason of these propositions is, that, since no repeal of a prior law is implied from a subsequent enactment, except in cases of repugnance, there can be no repeal in these circumstances ; for there is no repugnance between provisions of differing natures, to cure a common evil. And the reason of some other of the foregoing doctrines —as that, where there are two provisions differing not in nature from each other, one, for instance, visiting the offender with a heavier punishment, of the same kind, than the other, the later repeals the earlier —is because nature forbids two identical things, in this instance the things being identical a certain way, to occupy the same space. § 170. Continued — Obstructing Way — Penal Action and In- dictment.—- What are remedies of different natures, within the rule just stated, we may not find it easy to lay down in a word; and perhaps the cases are not entirely harmonious. The Ver- mont court held, that a statutory provision imposing a fine of seven dollars, to be recovered by complaint before a justice of the peace, for placing any obstruction in the highway, was merely cumulative, not interfering with the common-law remedy by indictment; but whether it superseded the common-law punishment, which is the question now under consideration, the court did not say.2 In New Jersey, a statute having pro- hibited a thing under a penalty of ten dollars, to be recovered in an action of debt by any person suing for it; and a subse- quent statute having made the same thing indictable, and the offender liable to twenty dollars’ fine ; the later provision was held to repeal the earlier. The ground of the last decision was, that it could not be presumed both penalties were to stand; and that, therefore, the last must prevail.4 § 171. Continued — Two Separate Proceedings — Offences included in One Another — Aggravation with Added Penalty, &e— 1 The State v. Moffett, 1 Greene, And see Salem Turnpike and Chelsea Iowa, 247. Bridge v. Hayes, 5 Cush. 458. 2 Wetmore v. Tracy, 14 Wend. 250. * Buckallew v. Ackerman, 8 Halst. 3 The State v. Wilkinson, 2 Vt. 480. 48. 112 CHAP. VII.] REPEAL OF CRIMINAL STATUTES. § 171 Perhaps some of the difficulties on this point may be obviated, by calling to mind certain principles considered by us more at large elsewhere. One is, that the law may, sometimes does, attach two or more separate penalties or punishments — as a fine and a forfeiture, or a fine and imprisonment— to the same act, and even authorize them to be enforced in separate prosecutions, — a proposition which requires some consider- ation to determine its precise constitutional limits! In such a case, it is of course no objection that the right to prosecute is derived from statutes passed at different times. Another principle is, that, to a considerable extent, offences are like successive circles of different sizes enclosed within one another, a robbery, for example, being an assault committed under par- ticular circumstances of aggravation ; and that, in these cases, the offender may be convicted of either the simpler or aggra- vated form, at the election of the prosecutor; except that, sometimes, the line between felonies and misdemeanors cannot in this way be passed. These several degrees of the same offence have their corresponding degrees of punishment; though, when a prisoner has been convicted in one degree, he cannot be convicted in another degree. Therefore, if the new statute adds aggravations not existing in the old law of the offence, and creates a higher penalty ;? or omits some aggravating quality and provides a lower penalty ;° or if the new statute is applicable to a particular class only of persons, who owe particular duties in the matter ;* the new punish- ment does not supersede the old.* This is clear: but, where 1 People v. Stevens, 18 Wend. 841; 2 The State v. Maloney, R. M. Reg. v. White, 20 Eng. L. & Eq. 585; Blatchley v. Moser, 15 Wend. 215. The Illinois court held, that an officer is not indictable in Illinois for taking illegal fees, observing: “A remedy has been provided by the infliction of a penalty for such acts; but the modes of proceeding to enforce such penalty are entirely of a civilnature.” Pankey v. People, 1 Scam. 80. Still there is doubt whether this Illinois doctrine is sound. A civil remedy in the nature of apenalty for the offence may well stand with a common-law indictment, the two remedies being enforceable together. Charl. 84. 3 The State v. Buckman, 8 N. H. 203 ; Rex v. Taylor, Russ. & Ry. 378; The State v. Danforth, 3 Conn. 112; Southworth v. The State, 5 Conn. 325. 4 Gregory v. Commonwealth, 2 Dana, 417. : 5 Ante, § 164, 169. And see The State v. Taylor, 2 McCord, 488; Rex v. Waddington, 1B. & C. 26; Knowles v. The State, 3 Day, 108; Common- wealth v. Pegram, 1 Leigh, 569; Allen v. Commonwealth, 2 Leigh, 727; Tay- lor v. The State, 7 Humph. 510. 113 § 174 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. the law is changed in a way the reverse of this, the same re- sult does not necessarily follow. Thus in Alabama it was held, that, where the new law provided a less penalty for an offence of a higher grade than the old, it superseded the. old.t § 172. Continued — Observations.— The difficulties. disclosed in the last few sections will be found less embarrassing, in the facts of cases as they arise, than they appear upon this naked statement. .Because, when a court takes into its view the large range of subjects entering into questions of the interpre- tation of statutes, it will usually discern some circumstance to relieve any doubts which might encumber an abstract propo- sition. § 173. Implied Repeal as to the Offence. — Having thus: con- sidered the question of implied repeal as respects the punish- ment, we next come to look at it as respects the offence itself. And the instances are rare in which a statute operates as a repeal of the prior law, statutory or common, concerning merely the offence, distinguished from the punishment. Of course, from this statement must be excluded the peculiar doctrine of some tribunals, mentioned in previous sections.? Since there are, under many circumstances, various shades and degrees of legal offence attaching to a single act, no reason exists why any new provision of statutory law should be construed other- wise than as creating an additional offence, though of the same general kind which existed before.® § 174. Continued — Misdemeanor raised to Felony, and the Reverse. — But, on principles which will become apparent when we consider the distinction between felonies and misdemean- ors, if a statute elevates to a felony what before was a misde- meanor, or creates a misdemeanor of what was before a felony, the old law is gone by reason of the repugnance, and the offender can be indicted only under the new.* 1 Smith v. The State, 1 Stew. 506. 4 Reg. v. Button, 12 Jur. 1017, 1021 ; And see The State v. Jones, 5 Ala. Rex v. Robinson, 2 East P. C. 1110, 666; The State v. Flanigin, 5 Ala. 477. 1114, 1115, 2 Leach, 4th ed. 749; Rex 2 Ante, § 157-162. v. Walford, 5 Esp. 62; The State v. ® Sce cases cited ante, § 154-164; Wright, 4 McCord, 358; Barton »v. Commonwealth v, Herrick, 6 Cush. Watkins, 2 Hill, S. C. 674; The State 465. v. Dick, 2 Murph. 388; Warner v. 114 CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. S177 II. Zhe Consequences of Repeal. § 175. The Right and Remedy distinguished — Rules different. — Law divides itself into that which concerns the right, and that which concerns the remedy. Rights depend on the rule pre- vailing at the place where, and the time when, the fact trans- pired; remedies, on that of the place where they are sought to be enforced,' as existing at the time? when the proceedings are carried on and the judgment is rendered. § 176. What pertains to Remedy — Punishment — Procedure — By what Law regulated. — The punishment, we have seen, to be treated of as separable from the offence, belongs, under this division, to the remedy. A prisoner, therefore, is to re- ceive the sentence legally provided for him when it is pro- nounced by the court.‘ And the same rule applies to the proceedings, which must conform to the law as it is while they are progressing.® § 177. Repeal of Statute — Procedure — Punishment. — It fol- lows, therefore, that no proceedings can be carried on under a law which, being repealed, is not existing to give authority to the court. Consequently if the common or statutory law, which authorizes a prosecution and conviction for a specific offence, is repealed or expired? before final judgment, the court can go no further with the case Even if a verdict has Commonwealth, 1 Barr, 154; Rex v. Cross, 1 Ld. Raym. 711, 12 Mod. 684; Rex v. Pim, Russ. & Ry. 425, 1 May v. Breed, 7 Cush. 15, 84; Story Confl. Laws, § 556-558. ? Hale v. The State, 15 Conn. 242; Lore v. The State, 4 Ala. 173; The State v. Fletcher, 1 R. I. 198; David- son v. Wheeler, Morris, 288; Knoup v. Piqua Bank, 1 Ohio State, 608. 3 Ante, § 166, 167. 4 The State v. Williams, 2 Rich. 418; The State v. Fletcher, 1 R. I. 193; ante, § 166. 5 Lore v. The State, 4 Ala. 173; Hale v. The State, 15 Conn. 242. See Van Valkenburgh v. Torrey, 7 Cow. 252. 6 Miller’s Case, 3 Wils. 420, 1 W. Bl. 451; Hunt v. Jennings, 5 Blackf. 195; Road in Hatfield, 4 Yeates, 392; Di- rectors of the Poor v. Railroad Com- pany, 7 Watts & Serg. 286; The State v. Lackey, 2 Ind. 285; Reg. vu. Denton, 14 Eng. L. & Eq. 124; Com- monwealth v. Commissioners, 6 Pick. 601, 508; Illinois and Michigan Canal v. Chicago, 14 Ill. 334; North Canal Street Road, 10 Watts, 351; Fenelon’s Petition, 7 Barr, 173. 7 Ship Helen, 6 Cranch, 203; Rachel v. United States, 6 Cranch, 329; Yea- ton v. United States, 5 Cranch, 281; The Irresistible, 7 Wheat. 551; David- son v. Wheeler, Morris, 238; Eaton v. Graham, 11 Ill. 619. But see post, § 181, 182. 8 Commonwealth v. Kimball, 21 Pick. 873 ; Commonwealth v. Marshall, 11 Pick. 350; Taylor v. The State, 7 Blackf. 93; Mayers v. The State, 2 Eng. 68; Anonymous, 2 Lewin, 22; 115 [BOOK I. § 178 INTERPRETATION OF CRIMINAL STATUTES. been rendered against the prisoner, sentence cannot be pro- nounced ; and he must be discharged.1 The same result fol- lows, if there is a judgment which has been vacated by an appeal? or a writ of review.? But, after final judgment, the - execution of the sentence is not affected by a repeal of the law.t This principle, being general, applies of course to qui tam and other actions under penal statutes, and the like,' as well as to indictments. If the repealing statute, though enacted, has not gone into operation, it produces no effect whatever in any case.® § 178. Continued — Vested Rights — When — Constitutional — Taking away Remedy — Modifying. — Where private rights of property, however, have actually vested in individuals,’ even United States v. Passmore, 4 Dall. 872; Stoever v. Immell, 1 Watts, 258; Com- monwealth v. Beatty, 1 Watts, 382; Scutt v. Commonwealth, 2 Va. Cas. 54; The State v. Cole, 2 McCord, 1; The State v. Fletcher, 1 R. I. 193; Attoo v. Commonwealth, 2 Va. Cas. 882; Commonwealth v. Leftwich, 5 Rand. 657; Anonymous, 1 Wash. C. C. 84; People v. Townsey, 5 Denio, 70, 4a; 1 Kent Com. 465; The State v. Allaire, 14 Ala. 435; Jordan v. The State, 15 Ala. 746; The State v. Lloyd, 2 Ind. 659; Heald v. The State, 36 Maine, 62; Howard v. The State, 6 Ind. 188; The Governor v. Howard, 1 Murph. 465; The State v. O’Conner, 18 La. An. 486; The Rachel v. United States, 6 Cranch, 329; United States v. The Helen, 6 Cranch, 203; Yeaton v. United States, 5 Cranch, 281; Wall v. The State, 18 Texas, 682; The State v. Ingersoll, 17 Wis. 681; The State v. Cress, 4 Jones, N. C. 421; Gen- kinger v. Commonwealth, 8 Casey, Pa. 99; The State v. Edward, 5 Mart. La. 474; Lunning v. The State, 9 Ind. 309 ; Calkins v. The State, 14 Ohio State, 222; Griffin v. The State, 89 Ala. 541. When the statute declaring the pen- alty for an offence is repealed, a person who had committed it cannot even be punished under a general provision, that, in a case of legal conviction where no punishment is provided by statute, 116 the court shall award such sentence as is conformable to the common usage and practice, according to the nature of the offence. Commonwealth v. Mc- Donough, 18 Allen, 581. 1 Commonwealth v. Duane, 1 Binn. 601; Keller v. The State, 12 Md. 322. 2 The Rachel v. United States, 6 Cranch, 329; Eaton v. United States, 5 Cranch, 281. 3 Lewis v. Foster, 1 N. H. 61. * The State v. Addington, 2 Bailey, 516 ; Foster v. Medfield, 3 Met. 1. 5 Pope v. Lewis, 4 Ala. 487; The State v. Towbeckbee Bank, 1 Stew. 847; Eaton v. Graham, 11 Ill. 619; Sumner v. Cummings, 28 Vt. 427; Lewis v. Foster, 1 N. H. 61; Allen v. Farrow, 2 Bailey, 584; Commonwealth v. Welch, 2 Dana, 380; Saco v. Gur- ney, 84 Maine, 14; Broughton »v. Branch Bank, 17 Ala. 828; Eugle v. Shurts, 1 Mich. 150; Thompson »v. Basset, 5 Ind. 585; Welch v. Wads- worth, 80 Conn. 149; Williams v. Mid- dlesex, 4 Met. 76 ; Uwchlan Township Road, 6 Casey, Pa. 156; Gaul ». Brown, 53 Maine, 496. 6 Grinad v. The State, 34 Ga. 270; ante, § 81. 7 As to what are vested rights, see 1 Bishop Mar. & Div. § 667, 672-676, 678. Rights of property depend on the statutes as existing at the time they vest. Hunt v. Hunt, 37 Maine, CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 179 under a statute in form penal, if a legislative act attempts to divest them, it is unconstitutional and void;? and so is one not merely modifying the remedy, but taking all remedy away,? ‘or providing a remedy so difficult to be enforced as to render it practically of no avail.4 There is some nice law as to what act will vest, in the person performing it, the right to a penalty incurred by another, so as to prevent the repeal of the statute from cutting off prosecution for the penalty. Under the head of pardon, this point is discussed in the author’s work on the Criminal Law.’ But the proposition probably is, that, when the suit isin the name of the government, the right does not vest until final judgment;® on the other hand, when the private individual prosecutes as plaintiff, in his own name, the commencement of the suit vests the right.’ There is no such thing as a vested right in any particular remedy.® § 179. Statute limiting Effect of Repeal. — The consequences of a repeal, where a right to prosecute for an offence has ac- crued to the State, being usually such as to defeat the ends of justice, the new statute often provides that it shall not operate to destroy rights of prosecution for crimes already committed. And the same thing may be done by a general provision. Thus, in Missouri, “no offence committed, and no fine, pen- alty, or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such repeal ; but the trial and punishment of all offences, and the recovery of such fines, penalties, and forfeitures, shall be had 833; Mays v. Williams, 27 Ala. 267; Yarmouth v. North Yarmouth, 384 Maine, 411. 1 Taylor v. Rushing, 2 Stew. 160; Dow v. Norris, 4. N. H. 16; Palmer v. Conly, 4 Denio, 3874, 2 Const. 182. And see McGowen v. Deyo, 8 Barb. 340. 2 See, also, Rice v. Railroad, 1 Black, 858; Ex parte Graham, 138 Rich. 277; Sinking Fund Commission- ers v. Northern Bank, 1 Met. Ky. 174; Davis v. Miner, 1 How. Missis. 183 ; James v. Dubois, 1 Harrison, 285; Grace v. Donovan, 12 Minn. 580. 3 Story Const. § 1385, 1891; Butler v. Palmer, 1 Hill, N. Y. 324, 328; De Cordova v. Galveston, 4 Texas, 470. 4 Riggs v. Martin, 5 Pike, 506. Newkirk v. Chapron, 17 Ill. 344. 5 Crim. Law, 4th ed. I. § 757, 758. 6 The State v. Youmans, 5 Ind. 280; Bank of St. Mary’s v. The State, 12 Ga. 475. 7 Costs are not governed by the statutes in force when the suit is com- ménced, but by those in force at the time of judgment rendered. Ellis ov. Whittier, 37 Maine, 548; Onondaga v. Briggs, 3 Denio, 178. And see Com- monwealth v. McKenney, 14 Gray, 1. 8 Commonwealth v. Commissioners, 6 Pick. 501. ‘117 See § 181 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. in all respects as if the provision had remained in full force.” ? And similar provisions prevail in some of the other States.’ § 180. Saving Clause in Repealing Statute —Lapsed Right to prosecute revived —New Jurisdiction — Transfer of Causes. — When, therefore, the repealing statute contains a saving clause, authorizing a prosecution under the old law for offences already committed ;3 or when, the old law having been re- pealed, the legislature by subsequent act authorizes the pro- ceedings, as by repealing the repealing statute ; * in every such case, though the right to prosecute should have once lapsed, a conviction may be had. The repealing statute ‘“‘ operates,” in the language of Wilde, J., “only as a suspension of his lia- bility, and not in the nature of a pardon.” > And, upon a like principle, if there are civil causes depending in a court which is abolished by law, and, owing to some defect in the law, these causes are not transferred to any court, the legislature at a subsequent period may provide for their transfer.6 A statute creating a new court, or giving jurisdiction to an existing one, to try offences previously committed, is not ea post facto.’ 8 181. Simultaneous Re-enactment of Repealed Statute — De- grees in Manslaughter.—If a statute, repealing a former one, 1 The State v. Matthews, 14 Misso. 183. 2 See McCuen v. The State, 19 Ark. 684; Reynolds v. The State, 3 Kelly, 58 ; Commonwealth v. Adcock, 8 Grat. 661; The State v. Shaffer, 21 Towa, 486; People v. Quinn, 18 Cal. 122; Jordan v. The State, 38 Ga. 585; Richardson v. The State, 8 Cold. 122. 8 Taylor v. The State, 7 Blackf. 93 ; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 878; United States v. Ship Helen, 6 Cranch, 208; The Irresisti- ble, 7 Wheat. 551. 4 Commonwealth v. Mott, 21 Pick. 492; Commonwealth v. Getchell, 16 Pick. 452. See Van Valkenburgh v. Torrey, 7 Cow. 252, 255; The State v. Dunkley, 3 Ire. 116; Dawson v. The State, 6 Texas, 847; McMullen v. Guest, 6 Texas, 275; Commonwealth v. Leech, 12 Harris, Pa. 55. 5 Commonwealth v. Getchell, 16 118 Pick. 452; and see Roby v. West, 4 N. H. 285; Matter of Pennsylvania Hall, 5 Barr, 204. Contra, Roberts v. The State, 2 Tenn. 423. There seems nev- ertheless to be both reason and author- ity for the proposition, that, if process has been actually abated by the re- peal of a statute, the revival of this statute or the enactment of a new one, cannot operate to reinstate the particu- lar abated process. Commonwealth v. Leech, 12 Harris, Pa. 55. And, accord- ing to the principle recognized in a Tennessee case, perhaps, if the process were merely abatable, the same result might follow. Tucker v. Burns, 2 Swan, Tenn. 35. 6 Scott v. Smart, 1 Mich. 295. And see Freeborn v. Smith, 2 Wal. 160. 7 Commonwealth v. Phillips, 11 Pick. 28; Perry v. Commonwealth, 3 Grat. 632. And see Baugher v. Nelson, 9 Gill, 299; The State v. Howard, 15 Rich. 274. CHAP. VII.] REPEAL OF CRIMINAL STATUTES. § 183 contains a substantial re-enactment of its provisions, a suit brought under the old may be finished under the new.! The re-enactment of an existing law is not necessarily a repeal of it ;? and, if the legislature enacts a law in the terms of a former one, and at the same time repeals the former, this amounts to a mere affirmance of the former law, which it does not in legal contemplation repeal. The provision is continued without any intermission.2 The case would appear, in principle, to be like that of an instantaneous seisin, where a man by one act re- ceives and passes back an estate ; and the consequences of own- ership do not, therefore, attach to him.* In Wisconsin, the facts of a case were, that, at the time of the finding of an in- dictment for manslaughter, there were no degrees of this offence ; but, before the trial took place, the legislature divided manslaughter into four degrees; and the court held the judg- ment to be properly rendered under the new provision.® § 182. statute expiring by its own Limitation. —TIf the period to which a penal law is made by its terms applicable simply elapses, the prosecution for an offence already committed under it may go on.6 This last proposition seems to be in conflict with a proposition in an earlier section.’ But the distinction in principle is, that, if a statute makes an act punishable when committed within a particular time, the expiration of the time does not prevent the punishment; while, on the other hand, if there is no way of préceeding in a case but the one pointed out by the statute, and the statute has run its time, then, of course, since there can be no proceeding, there can be no pun- ishment following. § 188. Different Punishments for Acts done at Different Times — “Hereafter” — Saving Clauses, continued— Bankruptcy. — From the foregoing views we learn, that an offence may be subjected to a particular punishment when committed before the repeal of a legal provision, and to a different one when committed 1 McMullen v. Guest, 6 Texas, 275. #1 Bishop Mar. Women, § 3825, And see People v. Livingston, 6 Wend. 326. 526. 5 Keene v. The State, 8 Chand. 109. 2 Martindale v. Martindale, 10 Ind. And see Commonwealth v. Gardner, 566; Cordell v. The State, 22 Ind. 1; 11 Gray, 438. Alexander v. The State, 9 Ind. 337. 6 Stevens v. Dimond, 6 N. H. 330. 3 Fullerton v. Spring, 3 Wis. 667. 7 Ante, § 177. 119 § 184 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. after, if the statutes so direct. And where the provision was, that persons “hereafter” doing a thing before penal should receive a particular punishment differing from the old one, it was held, that sentences for former offences should be under the old law.! Still the legislative intent must, in some way, appear affirmatively on the face of the new statute, which is to be strictly construed, that former offences be prosecuted or punished under the former provision, or it will not so operate. The act, therefore, repealing the United States bankrupt law, having declared that “the repeal shall in no wise affect the execution of any commission of bankruptcy, which. may have issued prior to the passage of this act, but every such commis- sion shall be proceeded in and fully executed as if this act had not been passed,” — it was held, that no prosecution could be had for perjury previously committed under the repealed statute.” § 184. Repeal of Punishment, New Statutes, &c., in Special Cir- cumstances. — There seems to be a doctrine resting on one case, that, if a statute establishes a new punishment for a com- mon-law offence; and, during the continuance of this statute, a criminal act is committed; and then the statute is repealed, and a new punishment ordained for the future ; the criminal act may be subjected to the common-law punishment. We cannot easily see how this is, unless we suppose, that, con- trary to the doctrine laid down a few sections back,‘ the first statute was cumulative, leaving the common-law punishment as well as offence to remain; for how can the courts pronounce a sentence known to the law neither at the time the criminal thing was done nor afterward? Possibly, however, the judges considered the second of the two statutes equivalent to an enactment that previous offences be punished by the common law ; deciding, therefore, the case on the just principle, that the punishment is to be regulated by the law existing at the time 1 Commonwealth v. Pegram, 1 Leigh, 2 Anonymous, 1 Wash. C. C. 84, 89. 569; Allen v. Commonwealth, 2 Leigh, 3 Rex v. McKenzie, Russ. & Ry. 429. 727. And see Rex v. McKenzie, Russ. See People v. Townsey, 5 Denio, 70; & Ry. 429; Pitman v. Commonwealth, Roberts v. The State, 2 Tenn. 423; 2 Rob. Va. 800; The State v. Daley, The State v. Daley, 29 Conn. 272. 29 Conn. 272. * Ante, § 168. 120 CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 185 of sentence pronounced.! Where a statute operated as a re- peal of the common law itself, not merely of the punishment, the court held, that a revival of the common law, by a repeal of this statute, could not subject one to the old law, which was not in force when he did the act.3 § 185. Increasing Punishment for Old Offence—Ex Post Facto Laws — What is in Mitigation — (Points, in the Note). — The general doctrine, that the punishment of offences must follow the law existing at the time of judgment rendered, though a punishment differing from this prevailed in the law when they were committed, is limited, moreover, in this country, by the constitutional inhibition against ex post facto laws, binding in its terms both the Federal and State legislatures. A statute, to be obnoxious to this constitutional inhibition, need not re- quire that acts innocent when done be punished ; it is equally so if it imposes a heavier penalty than was then provided in the law. If, however, the statute is in mitigation of punish- ment, it is not liable to this objection. And where, at the time of a conviction for forgery, the penalty was death ; but the pris- oner appealed, and pending his appeal it was reduced to fine, whipping, and imprisonment; the milder sentence was pro- nounced.® So, by a statute of Indiana, the punishment being changed from whipping not exceeding one hundred stripes, to imprisonment not exceeding seven years, the court held, that this was in mitigation, and therefore constitutional.’ But cer- tainly the court went far in this last case. Where the nature of the punishment is entirely changed, there is difficulty in 1 Ante, § 166, 167, 176, 180, 183; post, § 185. 2 Ante, § 178. 8 Commonwealth v. Marshall, 11 Pick. 850. Andsee The State v. Da- ley, 29 Conn. 272, stated in note to next section. 4 Const. U. S. art. 1,§ 9,10; Calder v. Bull, 8 Dall. 886, 389; Watson v. Mercer, 8 Pet. 88, 110; Bennett »v. Boggs, Bald. 60, 74. And see Hope v. Johnson, 2 Yerg. 123; ante, § 85. 5 Story Const. § 1845; Common- wealth v. Mott, 21 Pick. 492, 500, 501; Flaherty v. Thomas, 12 Allen, 428 ; Commonwealth v. McKenney, 14 Gray, 1; Strong v. The State, 1 Blackf. 193; Keene v. The State, 3 Chand. 109; Boston v. Cummins, 16 Ga. 102; The State v. Arlin, 89 N. H. 179. See Mullen v. People, 31 Ill. 444. 6 The State v. Williams, 2 Rich. 418. And see Leighton v. Walker, 9 N. H. 59. 1 Strong v. The State, 1 Blackf. 193. And see Clarke v. The State, 23 Missis. 261; Dawson v. The State, 6 Texas, 847; Holt v. The State, 2 Texas, 863; Herber v. The State, 7 Texas, 69; Martin v. The State, 24 Texas, 61. 121 § 186 INTERPRETATION OF CRIMINAL STATUTES, [BOOK I. saying that the one penalty is less than the other; though any thing not extending to the life is clearly milder than death.1 § 186. Repeal of Repealing Statute. — When a repealing stat- ute is itself repealed, the old law, statutory or common, is thereby revived.? 1 However, in Herber v. The State, 7 Texas, 69, the court observes: “ Among all nations of civilized man, from the earliest ages, the infliction of stripes has been considered more de- grading than death itself.” Still a punishment is not to be estimated, as to its weight or severity, exclusively by its degrading nature. The matter of this section has been considerably discussed of late in New York. There, in 1860, the statute providing the pun- ishment for certain kinds of homicide was repealed, and by the repealing act what was subject to death before was made subject to imprisonment for life ; and it was declared, that offences al- ready committed should be punished under the new law. And the court held, that, the old law being unquali- fiedly repealed, there could be no pun- ishment under it; neither, on the other hand, could the new punishment be inflicted, because, it was considered, this would be a punishment ez post facto. Hartung v. People, 22 N. Y. 95; Shepherd v. People, 25 N. Y. 406. These two decisions show a variety of points to have been presented, and they are worthy of examination; but, as seems often to happen in New York, the judges did not much enlighten their understandings, before deciding the cases, by looking into what had theretofore proceeded, on the same subject, from our other American tri- bunals. See, further, as to the New York law, Hartung v. People, 26 N. Y. 167, 28 N. Y. 400; Ratzky v. People, 29N. Y. 124; McKee v. People, 82.N. Y. 239. In Connecticut, a statute having provided that one who committed man- slaughter should be punished in the State prison not less than two years nor more than ten, a man committed 122 This is so even where the statute thus re- the offence, then a legislative act re- pealed this provision and directed that, when manslaughter should’ be there- after committed, it should be punished by imprisonment in the State prison or county jail not less than ten years. The majority of the court held, that the offender could not be made to suf- fer the old punishment, because the statute was repealed, or the new pun- ishment, because the new statute did not apply to past offences. The dis- senting judge deemed that the offender could be subjected to the common-law punishment, the offence being at com- mon law. The State v. Daley, 29 Conn. 272. Some Alabama cases hold, that, where a statute provides an in- creased punishment for an offence if afterward committed, and is silent con- cerning the offence when it had been committed before, and there is no ex- press repeal, the old offender can be punished under the old law. The words were: “From and after the passage of this act, any person,” &c. Said Judge, J.: ‘‘ The latter statute has operative effect only as to the offences therein named when committed subse- quent to its passage.” Miles v. The State, 40 Ala. 39, 42; Moore v. The State, 40 Ala. 49; Stephen v. The State, 40 Ala. 67; Wade v. The State, 40 Ala. 74. 2 The State v. Rollins, 8 N. H. 550, 567; Commonwealth v. Churchill, 2 Met. 118; Commonwealth v. Mott, 21 Pick. 492; Directors of the Poor v. Railroad Company, 7 Watts & S. 236; James v. Dubois, 1 Harrison, 285; 1 Kent Com. 466; Doe v. Naylor, 2 Blackf. 32; Janes v. Buzzard, Hemp. 259; Harrison v. Walker, 1 Kelly, 32. And see Commonwealth v. Marshall, 11 Pick. 350, 351. CHAP. VII. ] REPEAL OF CRIMINAL STATUTES. § 187 pealed had merely superseded the old law by its implied force ;? or, where it had merely modified the old law, the implied mod- ification ceases with the repeal of the. statute.? “ But,” ob- serves Dwarris,? “if a statute be repealed by several acts, a repeal of one act, or two, and not of all, does not revive the first statute. If a repealing statute, and part of the original statute, be repealed by a subsequent act, the residue of the original statute is revived.’ If an act of Parliament be revived, all acts explanatory of that so revived are revived also.””® Such is the common-law doctrine; but often the repealing statute provides otherwise, and then the special provision stands in place of the common-law rule. And in some of the States a general statute provides a rule of its own. Thus, in Illinois, “ no act or part of an act repealed by another act of the Gen- eral Assembly, shall be deemed to be revived by the repeal of such repealing act.’’?7 A like statute prevails in Louisiana.® In Ohio the words are, “‘ Whenever a law shall be repealed, which repealed a former law, the former law shall not thereby be revived unless specially provided for.” And this provision is held in the United States Circuit Court to apply to repeals which are implied by reason of repugnance, as well as to those which are express.? A statute which refers to and adopts the provisions of another statute is not repealed by the subsequent repeal of the statute adopted.” § 187. Repealing Statute expiring — Temporary Statute, &c. — But where the repealing act expires under its own limitation, a different rule prevails ; the old law not reviving in this case.l! If there is a temporary statute, subsequently continued, made perpetual, or revived by another, after its period has elapsed, 1 Hastings v. Aiken, 1 Gray, 168. 9 Milne v. Huber, 8 McLean, 212. As 2 Glaholm v. Barker, Law Rep. 1 to Wisconsin, see Smith v. Hoyt, 14 Wis. Ch. Ap. 223, 229. 252. As to California, Manlove v. White, 3 Dwar. Stat. 2d ed. 534. 8 Cal. 876. In England, Stat. 13 & 14 * The Bishops’ Case, 12 Co. 7; Vict. is to the like effect with those Tattle v. Grimwood, 3 Bing. 498, 496. mentioned in the text. See Glaholm v. 59B.&C. 354. Barker, supra, at p. 229. 6 2 Bur. 747. 10 Siker v. Chicago, &c. Railroad, 21 7 Sullivan v. People, 15 Ill. 233. Wis. 370. ‘8 Tallamon v. Cardenas, 14 La. 1 United States v. Twenty-five Cases An. 509; Witkouski v. Witkouski, 16 of Cloths, Crabbe, 356. La. An. 282. 123 § 189 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. or, of course, before, all things done are to be considered as done under the first statute; though, if there is an .intermedi- ate time in which it had no force, such time, unless saved by a special provision, is lost.1 CHAPTER VIII. HOW, IN THE ABSENCE OF REPEAL, CRIMINAL STATUTES EXPAND AND CONTRACT, BY FORCE OF PARTICULAR RULES AND CIR- CUMSTANCES. 188. Introduction. 189-201. General Views of Expansion and Contraction of Statutes. 202-225. Rule of Strict Interpretation as against Defendants. 226-240. Rule of Liberal Interpretation in their Favor. § 188. How the Chapter divided. — The discussions of this chapter will be presented in the following order: I. General Views of the Expansion and Contraction of Statutes ; II. The Rule of Strict Interpretation, which does not admit of Expan- sion, as against Defendants; III. The Rule of Liberal Inter- pretation, which admits of the Largest Expansion, in Favor of Defendants. f I. General Views of the Expansion and Contraction of Statutes. § 189. Distinction between Meaning of Statute and its Effect in the Laws — Scope of the Present Chapter.— In the chapter before the last, we took into view the operations of the dif- ferent provisions of statutory and common law upon one another ; the purpose being, not to aid the reader in deter- mining the meaning of a statute, but to guide his investiga- tions as to the effect of it, after its meaning is ascertained. This chapter has no relation to that. Its object is entirely different; being to illustrate the effect of different rules and circumstances upon the meaning of the statute itself. All 1 1 Kent Com. 466. 124 CHAP. VIII. ] HOW EXPAND AND CONTRACT. § 190 statutes, whether relating to the civil or criminal department of our law, are more or less elastic ; that is, what otherwise would be their meaning will more or less give way before the pressure of particular rules provided by the law for their con- struction, and the special circumstances which attach them- selves to the particular enactment! Some statutes are more elastic than others, — the distinction depending upon the sub- ject and upon various other things. § 190. Letter —- Mischief — How expand and contract. —It has been said, in reference not particularly to criminal statutes, that cases out of the letter of an act, yet within the mischief or cause of making it, should be brought within the remedy by construction ; for the reason that the law-makers could not set down all cases in express terms.2, But evidently if this doc- trine were freely acted upon, even in the construction of stat- utes relating to the civil department of our law, it would prove dangerous, as substituting the will of a judge for that of the legislature ; therefore it is greatly limited, and subjected to so many exceptions as to be, perhaps, itself the exception rather than the rule. What its limits are, we shall not have occasion in these chapters fully to consider. Courts are less ready to extend statutes to include cases within the mischief, but not the words, than to restrain them so as to exclude cases within thé words, but not the mischief Whatever may be the force of the doctrine which allows the expansion of a statute beyond its words, it is not permitted to operate in a criminal statute against defendants ; but in favor of them it has a force, as we shall see further on,°® probably greater than anywhere else in the law. On the other hand, the doctrine is of very extensive applicability in the construction of statutes of every kind, that 1 See ante, § 70, 78-82, 87, 93. same doctrine in his mind when he said: 2 Broom Leg. Max. 2ded. 59; Co. Lit. “In expounding remedial laws, it is a 24 b; 8 BL. Com. 430, 481; Jenk. Cent. settled rule of construction to extend the 58, 60, 226; Bac. Ab. Statute, I. 5,6; remedy as far as the words will admit.” Holbrook v. Holbrook, 1 Pick. 248,254; Turtle v. Hartwell, 6 T. R. 426, 429. Brown v. Thorndike, 15 Pick. 388,402; And see Bac. Ab. Statute, 1.6; Broom The State v. Stephenson, 2 Bailey, 334; Leg. Max. 2d ed. 60; Dwar. Stat. 2d Brinker v. Brinker, 7 Barr, 58,55; Van ed. 622 et seq.; ante, § 145, 146. Valkenburgh v. Torrey, 7 Cow. 252. 4 Rex v. Parker, 2 East P. C. 592. 3% Smith Stat. & Const. Law, p. 831. 5 Post, § 196. Lord Kenyon seems to have had the 125 § 192 INTERPRETATION OF CRIMINAL STATUTES. [BOOK.I. cases are to be excepted out of their operation, if clearly not within the mischief intended to be remedied.1 § 191. Liberal Interpretation — Strict — What — How operate together. — In applying the various specific rules of statutory interpretation to cases actually arising, we recognize two dis- similar kinds of interpretation ; namely, liberal, or open; and strict, or close. In the liberal interpretation, the sense is ex- panded to cover a larger space than the words import; in the strict, it is kept within the words, or even contracted to a less space.? But both of these interpretations are variously modified, according. to the requirements of particular cases. For example, the rule that each specific clause be made to harmonize, if possible, with the general purpose of the entire act,? may compel us to apply to all the clauses either a close or an open interpretation; or one of these to one clause, and the other to another clause; or to resort to a middle course, or blending of the two, as will best accomplish the object. Then, to enlarge the idea, since, when we construe a particular statute, we look, not at it alone, but at the entire body and spirit of the law, statutory and common,‘ — it re- sults, that, in the particular case, we may find the general spirit urging toa different interpretation from what is indi- cated by the one statute viewed alone; or we may find all the considerations acting together, either to expand the law or to contract it. In the last-mentioned instance, the interpreta- tion will be either most strict or most liberal. § 192. Continued — Things Odious — Favored — When Liberal and when Strict — Remedial — Beneficial —- Forfeitures —- Hard- ships. — There are things which the law esteems odious; not indeed as being unnecessary, but odious in the sense in which a father feels it odious to inflict needful chastisement on a child ; and, on the other hand, there are things in which the law delights. In respect to things odious, we are to employ a strict interpretation; and, in respect to things favored, a 1 Bac. Ab. Statute, I. 5,6; Williams 2 See ante, § 119, 120. v. Prichard, 4 T. R. 2,8; Canal Com- 3 Ante, § 82. pany v. Railroad Company, 4 Gill & J. 4 Ante, § 86-91, 123. 1; Holbrook v. Holbrook, 1 Pick. 248, 5 See also post, § 199. 254; Brown v. Thorndike, 15 Pick. 888, 402. 126 CHAP. Vit. ] HOW EXPAND AND CONTRACT. § 193 liberal one: as a father, in chastising his child, would keep within the necessity of the case to the letter; while, in be- stowing a merited reward, he would cast in something also from affection. The law, for example, loves harmony and right; therefore it construes remedial statutes, made to amend some defects in the common law, liberally :1 it loves honesty and fair-dealing, and so construes liberally statutes made to suppress frauds between individuals ;* and, generally, it employs a liberal interpretation for statutes which operate beneficially upon those whom they immediately concern. But enactments of the opposite character, taking away rights, or working forfeitures, or creating hardships of any kind, it construes strictly. § 198. Continued — Penal — Forfeiture, continued — Summary Process —- Liberty — Degree of Punishment — Derogation of Common Law — Party as Witness.— The law delights in the life, liberty, and happiness of the subject ; and deems statutes which deprive him of these, or of his property, however neces- sary they may be, in a sense odious. Therefore, and for kin- dred reasons,° as well as for the reason that every man should 11 Bl. Com. 86, 87; Broom Leg. Max. 2d ed. 60; The State v. Stephen- son, 2 Bailey, 8384; Neal v. Moultrie, 12 Ga. 104; ante, § 120. 2 “ Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule [that penal statutes are to be construed strictly], most statutes against frauds being in their consequences pe- nal. But this difference is here to be taken : where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly ; but where the statute acts upon the offence, by setting aside the fraud- ulent transaction, here it is to be con- strued liberally.” 1 Bl. Com. 88. To the last point is also Cumming v. Fryer, Dudley, Ga. 182; Carey v. Giles, 9 Ga. 253 ; Smith v. Moffat, 1 Barb. 65. And see Ellis v. Whitlock, 10 Misso. 781. 8 Bac. Ab. Statutes, I. 7, 9. 4 Bac. Ab. Statutes, I. 6,7; Salters v. Tobias, 8 Paige, 338 ; Smith v. Spoon- er, 3 Pick. 229; Sewall v. Jones, 9 Pick. 412; Sullivan v. Park, 38 Maine, 488; post, § 193. 5 See further, as to these distinctions, Jortin v. Southeastern Railway, 3 Hq. Rep. 281, 24 Law J. w. s. 348, 1 Jur. n. 8. 483, 81 Eng. L. & Eq. 320. 6 “ The rule that penal laws are to be construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals ; and on the plain principle, that the power of pun- ishment is vested in the legislative, not in the judicial, department. It is the legislature, not the court, which is to define a crime, and ordain its punish- ment. It is said, that, notwithstand- ing this rule, the intention of the law- maker must govern in the construction of penal as well as other statutes. This is true. But this is not a new, inde- pendent rule, which subverts the old. It is a modification of the ancient max- im, and amounts to this, that, though penal laws are to be construed strictly, they are not to be construed so strictly 127 § 193 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. -be able to know certainly when he is guilty of a crime,} stat- utes which subject one to a punishment or penalty? or forfeit- ure,? or to a summary process‘ calculated to take away his opportunity of making a full defence, or in any way depriving him of his liberty, are to be construed strictly. And the de- gree of strictness will depend somewhat on the severity of the punishment they inflict.® as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary accepta- . tion, or in that sense in which the leg- islature has obviously used them, would comprehend. The intention of the leg- islature is to be collected from the words they employ. Where there is no ambi- guity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To deter- mine that a case is within the intention of a statute, its language must author- ize us to say so. It would be danger- ous indeed to carry the principle, that a case which is within the reason or mischief of a statute is within its pro- visions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred charac- ter, with those which are enumerated. If this principle has ever been recog- nized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.”’ Marshall, C. J. in United States v. Wiltberger, 5 Wheat. 76, 95, 96. “Where a law imposes a punish- ment which acts on the offender alone, and not as a reparation to the party in- jured, and where it is entirely within the discretion of the law-giver, it will not be presumed that he intended it should extend further than is expressed ; and humanity would require that it should be so limited in the construc- tion.” Johnson, J. in The State v. 128 In like manner all statutes in dero- Stephenson, 2 Bailey, 384. And see Commonwealth v.. Loring, 8 Pick. 370; United States v. Wigglesworth, 2 Story, 869. 1 Beccaria on Crimes, c. 11; Living- ston, J. in The Enterprise, 1 Paine, 32. 2 Andrews v. United States, 2 Story, 202, 218; Commonwealth v. Martin, 17 Mass. 589; Commonwealth v. Keniston, 5 Pick. 420 ; Carpenter v. People, 8 Barb. 603, 605; The State v. Upchurch, 9 Ire. 454; Van Rensselaer v. The Sheriff, 1 Cow. 448; Seaving v. Brinkerhoff, 5 Johns. Ch. 329; Courteen’s Case, Hob. 270; Searle v. Williams, Hob. 288 ; Hall v. The State, 20 Ohio, 7; Warner v. Commonwealth, 1 Barr, 154; The State v. Solomons, 3 Hill, S. C. 96; Bettis v. Taylor, 8 Port. 564; Van Valkenburgh v. Torrey, 7 Cow. 252; Hughes v. The State, 1 Eng. 131; Reed v. Davis, 8 Pick. 514, 517; United States v. Starr, Hemp. 469; United States v. Ramsay, Hemp. 481; United States v. Beaty, Hemp. 487; United States v. Ragsdale, Hemp. 497; Lair v. Killmer, 1 Dutcher, 522; Gunter v. Leckey, 80 Ala. 591; The State v. Whetstone, 18 La. An. 876. A statute, giving a party double damages is to be construed strictly. Smith v. Causey, 22 Ala. 568. . 3 Ante, § 192; United States v. Kighty- four Boxes of Sugar, 7 Pet. 453; The State v. Dill, 2 Sneed, 414. 4 Logwood v. Planters’ and Mer- chants’ Bank, Minor, 28; Childress v. McGehee, Minor, 181; Crawford v. The State, Minor, 148; Yancey v. Hankins, Minor, 171; Hale v. Burton, Dudley, Ga. 105. 5 Pierce’s Case, 16 Maine, 255. 6 See Randolph v. The State, 9 Tex- as, 521; post, § 199. CHAP. VIII.] HOW EXPAND AND CONTRACT. § 196 gation of common-law rights are strictly construed.!_ Such, for instance, is a statute allowing a party to testify in his own cause for himself.” § 194. Strict Interpretation Illustrated. — Such statutes? are to reach no further in meaning than their words ; no person is to be made subject to them by implication ;* and all doubts concerning their interpretation are to preponderate in favor of the accused.5 § 195. Revenue Laws.— Revenue laws, too, come within this rule of strict interpretation; for, though their primary object is, not the punishment of crimes, but the collection of duties,§ yet, as they impose fines, work forfeitures, and de- prive men of their property, they are within the same reason as other penal statutes.’ § 196. Criminal Statutes — Interpretation both Liberal and Strict — Exercise Trade.— The doctrine of a strict interpre- tation extends only so far as it is supported by the reasons on which it is thus seen to rest; therefore those parts of a crimi- nal statute which exempt from punishment are not to be strictly construed. Thus, Lord Mansfield, speaking of the old statutory English offence of exercising a trade — “ set up, l Sibley v. Smith, 2 Mich. 486; Sugar 4th ed. 318, 2 East P. C. 598; United v. Sackett, 13 Ga. 462; Rathbun v. Ack- States v. Wigglesworth, 2 Story, 869; er, 18 Barb. 398; ante, § 155. Rawson v. The State, 19 Conn. 292; % Hotaling v. Cronise, 2 Cal.60; War- United States v. Wilson, Bald. 78, 102; ner v. Fowler, 8 Md. 25. So of a stat- Schooner Harriet, 1 Story, 251; Bell v. ute granting a franchise, as a turnpike Dole, 11 Johns. 178; post, § 220. charter. The State v. Clarksville and 5 The Enterprise, 1 Paine, 32; United R. Turnpike, 2 Sneed, 88. See also States v. Wigglesworth, 2 Story, 369; Academy of Fine Arts v. Philadelphia, The People v. Howell, 4 Johns. 296 ; 10 Harris, Pa. 496. So of one taking Commonwealth v. Macomber, 8 Mass. the land ,of individuals for the public 254; Kent v. The State, 8 Blackf. 163; use. Sharp v. Speir, 4 Hill, N. Y. 76; post, § 218. Sharp v. Johnson, 4 Hill, N. ¥Y.92. See 6 United States v. Twenty-eight also Rathbun v. Acker, 18 Barb. 393. Packages, Gilpin, 806, 826. And see 3 See ante, § 119, 191. Attorney-General v. Radloff, 10 Exch. 4 The State v. McOmber, 6 Vt. 215; 84, 26 Eng. L. & Eq. 418. Rex v. Mitehell, 2 East P. C. 936,937; 17 United States v. Highty-four Boxes Rex v. Hammond, 2 East P. C.1119,1 of Sugar, 7 Pet. 453; United States v. Leach, 4th ed. 444; Leonard v. Bos- Wigglesworth, 2 Story, 369; Dwar. worth, 4 Conn. 421; The State v.Sum- Stat. 2d ed. 642; Rex v. Hymen,7 T. ner, 10 Vt. 587; The State v. Sanford, R. 536; Walwin v. Smith, 1 Salk. 177. 1 Nott & McCord, 512, 515; Rex v. And see The Mayor v. Davis, 6 Watts & Parker, 2 East P. C. 592, 1 Leach, 4th §,. 269; Taylor v. United States, 3 How. ed. 320, note; Rexv. Hickman, 1 Leach, U.S. 197. 9 129 [BOOK . § 197 INTERPRETATION OF CRIMINAL STATUTES. occupy, use, or exercise without having certain qualifica- tions required by the enactment, said: ‘“ The constructions made by former judges have been favorable to the qualifica- tions of the persons attacked for exercising the trade, even where they have not actually served apprenticeships. They have, by a liberal interpretation, extended the qualifications for exercising the trade much beyond the letter of the act ; and have confined the penalty and prohibition to cases pre- cisely within the express letter.” And within the equity of this doctrine, which extends a statute beyond its words in favor of a defendant, while holding it to its words as against him, the court decided, in the case in which these observations were made, that one not qualified to exercise a trade himself, by having served an apprenticeship, does not render himself liable to the penalties of the statute by entering into a partner- ship with a qualified person, and sharing the profits and losses of the partnership, where he does not exercise the trade person- ally.1. Indeed the same principles which require a statute to receive a close interpretation as against defendants, demand that it be construed openly and liberally in their favor.2, And as these principles sometimes unite with others calling also for a liberal interpretation, it may happen that a criminal statute is thus expanded further beyond its words than any other.? § 197. Continued — Strict and Liberal to a Single Provision — Jurisdiction. — Thus we see that the rule which is commonly 1 Raynard v. Chase, 1 Bur. 2,6. The statute on which this question arose is 6 Eliz. c. 4, § 31, the material words of which are: “It shall not be lawful for any person, &c., to set up, occupy, use, or exercise any craft, mystery, or occu- pation now used or occupied within the realm, &c., except he shall have been brought up thereto seven years at the least as an apprentice in manner and form, &c. ; nor to set any person on work in such mystery, art, or occupation, &c., except he shall have been apprentice as is aforesaid; or else, having served as an apprentice as is aforesaid, shall or will become a journeyman, or be hired by the year; upon pain that every per- son willingly offending or doing the con- trary shall forfeit and lose for every -180 default forty shillings for every month.” The little inaccuracy of expression, in this transcript, accords with the stand- ard text. 2 “In expounding penal statutes, it is an established rule, that the construc- tion must be strict as against the defend- ant, but liberal in his favor.” Gould, J. in Myers v. The State, 1 Conn. 502. “Penal statutes are construed strictly against the subject, and favorably and equitably for him.” 1 Hawk. P. C., Curw. ed., p. 90, §8. And see The State v. Upchurch, 9 Ire. 454, and the observations of Lord Mansfield in Rex v. Parker, 2 East P. C. 592. See also United States v. New Bedford Bridge, 1 Woodb. & M. 401. 3 Ante, § 191; post, § 199. CHAP. VIII.] HOW EXPAND AND CONTRACT. § 199 expressed as demanding a strict construction for criminal statutes is really better stated in a different form of words. It is, that the construction should be strict against defendants, and liberal in their favor. Indeed, many statutes are to be construed by this blending of the strict and liberal in the in- terpretation. For example, if a limited jurisdiction is created by a statute, the enactment should be construed strictly as to the extent of the jurisdiction,! and liberally as to the mode of proceeding.? § 198. Exception — When Criminal Statutes liberally con- strued — Venue — Arrest.—Nor does the rule of strict con- struction apply to all criminal statutes, even as against defend- ants. Thus it is of little consequence to one arraigned for crime in what county he is tried, consequently legislative acts determining the venue — that is, the place of trial — are not to be construed strictly.2 It seems, also, that a similar view has been taken of statutes defining the rights of officers to make arrests in criminal cases; for the English statute of 29 Car. 2, ¢. T, § 6, having forbidden and made penal arrests on the Lord’s day, “ except in cases of treason, felony, or breach of the peace,” these words were extended by judicial interpre- tation to include all indictable offences. Yet the court re- fused, in another particular, to extend by judicial exposition another and somewhat similar statute; Pollock, C. B. ob- serving, “In a case in which the liberty of the subject is con- cerned, we cannot go beyond the natural construction of the statute.” 5 § 199. Differing Degrees of Strictness — Weight of Punishment — Frauds, &c. — Moreover, the construction of different criminal statutes will, as already intimated,® be more or less strict according to the different pressures of the principles control- ling them. For we should remember that the interpretation of no law, written or unwritten, is the result of any one rule alone, but of all the legal reasons applicable to the case com- 1 The State v. Anderson, 2 Tenn.6; 286; 2 Hawk. P. C., Curw. ed., p. 456, Shawnee v. Carter, 2 Kansas, 115. § 52. 2 Russell v. Wheeler, Hemp. 3. 4 Rawlins v. Ellis, 10 Jur. 1039. ® People v. Hulse, 3 Hill, N. Y. 809, 5 Bowditch v. Balchin, 5 Exch. 878. 819; Nash v. The State, 2 Greene, Iowa, 6 Ante, § 191, 198, 196. 1381 INTERPRETATION OF CRIMINAL STATUTES. [BooK I, § 200 bined. Now, we may have one principle bearing more or less strongly in a particular direction; as, for example, a statute may be more or less penal, the consequence of which is, that the more severe the punishment it directs, and the heavier the crime, the more strict must be its interpretation ;} or two principles may operate in the same direction, and their power combined is greater than that of one alone; or the one prin- ciple may press one way and the other another way. Thus, in construing statutes to prevent frauds, suppress public wrongs, or effect a public good, — objects which the law favors, — there is a pressure toward a liberal interpretation ; but, if they also provide a penalty, being a thing odious to the law, there _is another pressure toward the strict rule; and the combined result may be a trembling of the balance, or the one scale or the other may simply preponderate, according to the peculiar circumstances of the case, or the views of the particular judge.? But the circumstances will be rare in which any court will so extend an enactment by construction as to involve penal con- sequences not within the express words. § 200. Strict Interpretation further illustrated — Legislative Intent — Other Rules — Absurd — Eluded — Title — Preamble. — From these views it follows, that the rule of strict interpre- tation for criminal statutes does not prevent the courts from feeling after the legislative will, to ascertain which will is the great end of all interpretation.2 Neither does this rule prevent our calling in the aid of other rules, and giving each its appropriate scope, yet not so as to overturn this one.t For example, penal statutes, like all others, are to be so construed as not to work an absurdity,® or defeat their own purpose, or 1 The State v. Wilcox, 3 Yerg. 278; Rex v. Mitchell, 2 East P. C. 986, 937; Johns. 497; Van Valkenburgh v. Tor- rey, 7 Cow. 252. Commonwealth v. Snelling, 4 Binn. 879; The State v. Upchurch, 9 Ire. 454; Reg. v. McNeill, 1 Crawf. & Dix C.C. 80; Commonwealth v. Fisher, 17 Mass. 46, 49; United States v. Moulton, 5 Mason, 537 ; ante, § 198. 2 See and compare Taylor v. United States, 3 How. U. S. 197; Fairbanks v. Antrim, 2 N. H. 105; Abbott v. Wood, 22 Maine, 541; Sickles v. Sharp, 18 132 3 Ante, § 70, 75, 82; The State v. Brooks, 4 Conn. 446; Rawson v. The State, 19 Conn. 292; Commonwealth »v. Loring, 8 Pick. 870; The Enterprise, 1 Paine, 82; United States v. Wilson, Bald. 78; Pike v. Jenkins, 12 N. H. 255. 4 Schooner Harriet, 1 Story, 251; Pike v. Jenkins, 12 N. H. 255. 5 Rawson v. The State, 19 Conn. 292; CHAP. VIII.] HOW EXPAND AND CONTRACT. § 208 the process of the court instituted for their enforcement,! or be eluded ;* and we may gather light concerning their meaning from the title and preamble.’ § 201. Continued — Intent Clear.— The object of interpre- tation being to ascertain the legislative intent, the doctrine follows as a necessary consequence, that, whenever this intent is clear on the face of an enactment, no room is left for the application of any particular rules. Therefore we should bear it on our minds throughout this whole discussion, that our several propositions apply only in cases where, without them, doubts concerning the meaning might arise. Yet, again, in considering whether a doubt might be, we must remember that the question is not concerning a doubt in the mind of an uninformed person, but in the legal mind. Il. The Rule of Strict Interpretation, not admitting of Hz- pansion,.as against Defendants. § 202. Introduction.— We are to inquire, under the present sub-title, what are the boundaries of the rule that criminal statutes must be construed strictly as against defendants. That we may see somewhat where these boundaries lie, let us look for some things which have been found, in the actual administration of the law, to be connected with the rule. Therefore, in considering how far, consistently with this rule of strict interpretation, statutes may be enlarged as against defendants, when the reason of the law and the evident intent of the legislature require it, we observe, — § 203. First. They ‘may be extended by other provisions of statutory law, and by the common law, combining with them : — How this regarded. — This doctrine was explained in our chapter before the last. But, as we have seen,‘ the doctrines under that head concern, not properly the meaning of statutes, but their effect, where the meaning is ascertained. Commonwealth v. Loring, 8 Pick. 870; Wheat. 381, 388; Commonwealth v. Schooner Harriet, 1 Story, 251. McGeorge, 9 B. Monr. 3. 1 Bartolett v. Achey, 2 Wright, Pa. % The State v. Stephenson, 2 Bailey, 273. 334; The State v. Fields, 2 Bailey, 554; 2 The Emily and The Caroline, 9 The State v. Smith, Cheves, 157. * Ante, § 189. 133 § 204 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. § 204. Secondly. The rule of strict interpretation ts not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings : — The Rule, what — Popular Sense — Legislative Intent. — For example, the words in a criminal statute, the same as in any other, may, in a particular instance, contrary to the general rule,! have their wider popular meaning instead of their nar- rower technical one. The doctrine under this head is, that the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative in- tent.? 1 Ante, § 96. 2 Pike v. Jenkins, 12 N. H. 255; The People v. Howell, 4 Johns. 296; The Mayor v. Davis, 6 Watts & 8.269. For illustrations of this principle, see the re- maining cases cited to this section and the six sections next following; also, Rex v. Glover, 2 Russ. Crimes, Grea. ed. 146 ; Reg. v. Hale, 2 Car. & K. 826; Rex v. Taylor, Russ. & Ry. 373 » Stone v. The State, Spencer, 401; Hodgman uv. People, 4 Denio, 235; Rex v. Hick- man,/1 Leach, 4th ed. 318, 2 East P. C. 593; Rex v. Parker, 2 East P. C. 592, 1 Leach, 4th ed. 820, note ; The State v. Anone, 2 Nott & McCord, 27; Reg. v. Bowden, 2 Moody, 285; 1 Car. & K. 147; Reg. v. Charretie, 13 Q. B. 447; Reg. v. Wallace, 2 Moody, 200; Commonwealth v. Stearns, 2 Met. 343; Smith v. Com- monwealth, 4 Grat. 582; Commonwealth v. Phillips, 11 Pick. 28; Commonwealth v. Smith, 14 Mass. 874; Rex v. Wil- loughby, 2 East P. C. 944; Rex »v. Shepherd, 2 East P. C. 944; 1 Leach, 4th ed. 226 ; Hopkins v. Commonwealth, 3 Met. 460; Commonwealth v. Briggs, 5 Met. 559; Commonwealth v. Homer, 5 Met. 555; Rex v. Foster, 7 Car. & P. 495; Rice v. Commonwealth, 12 Met. 246; The State v. Cullum, 2 Speers, 581; People v. Mather, 4 Wend. 229, 255; The State v. Taylor, 2 McCord, 483 ; The State v. Bell, 8 Ire. 506; Lin- ney v. The State, 6 Texas, 1; Hudgins v. The State, 2 Kelly, 178; Downman v. The State, 14 Ala. 242; Common- wealth v. Pash, 9 Dana, 81; Cole v. 184 Commonwealth, 8 Dana, 81; The State v. Gurney, 83 Maine, 527 ; The State v. Robinson, 33 Maine, 564 ; Rex v. Moore, 2 Car. & P. 235, 1 Moody, 122; Com- monwealth v. Smith, 7 Pick. 137 ; Com- monwealth v. Kneeland, 20 Pick. 206 ; Ream v. Commonwealth, 3 8. & R. 207; Reg. v. Oldham, 14 Eng. L. & Eq. 568, 2 Den. C. C. 472; Reg. v. Wiley, 1 Eng. L. & Eq. 567, 2 Den. C. C. 37; Collins v. The State, 14 Ala. 608; The State v. Fearson, 2 Md. 310; The State v. Gir- kin, 1 Ire. 121; The State v. Crawford, 2 Dev. 425; Bell’s Case, Foster, 430; Reg. v. Yorkshire Justices, 2 Eng. L. & Eq. 296 ; Rex v. Ridgaly, 1 East P. C. 171, 1 Leach, 4th ed. 189 ; Angel v. Com- monwealth, 2 Va. Cas. 228; United States v. Brewster, 7 Pet. 164; United States v. Staats, 8 How. U. S. 41; United States v. Bailey, 9 Pet. 238; People v. Hennessey, 15 Wend. 147; The State v. Stutson, Kirby, 52; White v. Commonwealth, 4 Binn. 418; The State v. Carr, 5 N. H. 367; Bagley v. The State, 1 Hump. 486; Reg. v. Evans, Car. & M. 298; The State v. Britt, 3 Dev. 122; Rex v. Cornwall, Russ. & Ry. 836 ; The State v. Findlay, 2 Bay, 418; Rex v. Beacall, 1 Car. & P. 310, 454; Thomas v. Commonwealth, 2 Leigh, 741; Nancy v. The State, 6 Ala. 483; Rex v. Wyer, 1 Leach, 4th ed. 480; Rex v. Reekspear, 1 Moody, 342; Rex v. Cox, 1 Moody, 337, 5 Car. & P 297; James v. Elder, 23 Missis. 184; The State v. Glaze, 9 Ala. 288; Rex v. Robinson, 2 Stark. 485; Rex v. Thomas, 2 Kast P. C. 605, 2 CHAP. VIII.] HOW EXPAND AND CONTRACT. § 206 § 205. Mlustrations — “Subject "— Foreign Lotteries — Foreign Authority —- Kidnapping — Foreign Bank Notes — Betting on Elections — “ Exportation.” — Thus, a foreigner living in Eng- land under the protection of the king ‘is an English subject, within an act of Parliament, defining crimes; “but it was admitted, that, if the statute had said natural-born subject, it would not have extended to him.”! An act of one of our States making penal the sale of lottery tickets, in “ any lottery not authorized by law,” prohibits the sale of tickets in lotteries authorized by the laws of other States and countries, unless also authorized by some law either of the Federal or State government, having force in the particular locality.2 Anda provision for the punishment of those who, without lawful authority, forcibly confine any person in this State, or carry any person out of the State against his will, extends to soldiers of another State coming, by order of the military powers of their own State, under martial law in a time of civil insur- rection, to seize and carry back their insurgent citizens found here. A statute forbidding the larceny of “ any bank-note” extends to bank-notes of other States ;4 against betting “ upon any election in this State,” to a betting, within this State, on an election for President of the United States. So the words “ designed for exportation,” in the inspection laws of a State, refer to exportation to another of the United States, as well as to a foreign country.® § 206. Mlustrations, continued — Forgery — Smoking in Streets —“Way.”— The English statute, 7 Geo. 2, c. 22, against the Leach, 4th ed. 877; Rex v. Rowley, 814; Commonwealth v. Cone, 2 Mass. Russ. & Ry. 110; Reg. v. Mence, Car. , 182. e & M. 284; The State v. Brown, 4 Port. 410; Redman v. Sanders, 2 Dana, 68; United States v. Jones, 8 Wash. C. C. 209; The State v. Smith, 82 Maine, 369; Commonwealth v. Houghton, 8 Mass. 107; Brown v. Commonwealth, 8 Mass. 59; Commonwealth v. Whitmarsh, 4 Pick. 233; The State v. Blythe, 3 Mc- Cord, 363 ; The State v. Clarksville and R. Turnpike, 2 Sneed, 88. 1 1 East P. C. 53, 54. 2 Commonwealth v. Dana, 2 Met. 329. And see People v. Warner, 4 Barb. 3 Commonwealth v. Blodgett, 12 Met. 56. * Cummings v. Commonwealth, 2 Va. Cas. 128. The same principle has been held to apply to the forging, in this State, of a deed of lands lying in another State. People v. Flanders, 18 Johns. 164. And see Rex v. McKeay, 1 Moody, 180; Rex v. McKay, Russ. & Ry. 71. 5 Quarles v. The State, 5 Humph. 561; Givens v. Rogers, 11 Ala. 548. 6 Commonwealth v. King, 1 Whart. 448. 185 § 208 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. forging of orders for the payment of money, and the like, was - not confined in its interpretation to commercial transactions ; but extended to an order, drawn by a justice of the peace on a high constable or treasurer, to pay a reward.1_ So the Mas- sachusetts statute imposing a penalty on “any person who shall smoke, or have in his possession, any lighted pipe or cigar in any street, lane, or passage-way ” in Boston, applies to all open ways, used for purposes of travel, though not legally established as such.? § 207. “ Dwelling-house” — “ Jail” — “ Advertisement ” — Lot- teries. — It is held that a jail is an “ inhabited dwelling-house,” within the statutes against arson.? A sign-board, at a person’s place of business, giving notice of lottery tickets being for sale there, is an “‘ advertisement” ; and, if erected before the pas- sage of the act making the advertising of lottery tickets penal, a continuance of it is within the act.* § 208. Continued — “Erect and build” — “Wooden Buildings,” &c.— To elevate and enlarge a wooden building, so as materi- ally to alter its character, is to “erect and build” it, within statutes and ordinances designed to prevent the spread of fires in populous places ;5 but to suffer one already erected to re- main does not come within these provisions of law: ® neither 1 Rex v. Graham, 2 East P. C. 945. 2 Commonwealth v. Thompson, 12 Met. 231. 8 People v. Cotteral, 18 Johns. 115; Commonwealth v. Posey, 4 Call. 109. So it is a “house.” Rex v. Donnavan, 1 Leach, 4th ed. 69, 2 East P. C. 1020; Stevens v. Commonwealth, 4 Leigh, 683. 4 Commonwealth v. Hooper, 6 Pick. 42. 5 Douglass v. Commonwealth, 2 Rawle, 262. And see Tuttle v. The State, 4 Conn. 68. The enlarging and fitting up, as a livery stable, in Boston, within one hundred and seventy feet of a church, of a dwelling-house which was built before the passing of the Massa- chusetts Stat. of 1810, c. 124, is an “erecting” of a livery stable within the meaning of that statute, and, while the building is used and improved as a liv- ery stable, renders the owner or keeper 136 thereof liable to the penalties imposed by that act. Hastings v. Aiken, 1 Gray, 163. The removal of a building from one part of a lot to another, and its per- manent location in the place to which it is removed, do not constitute an erec- tion of a building within the intent of the Connecticut statute which forbids the erection of wooden buildings in cer- tain cases. Brown v. Hunn, 27 Conn. 832, - 6 The State v. Brown, 16 Conn. 54; Tuttle v. The State, 4 Conn. 68. Neither is keeping possession of a thing within a statute against “receiving” it. At- torney-General v. King, 5 Price, 195. Nor is the ordinance of a city, forbid- ding any person “ to spread any awn- ing,” &c., violated when the person con- tinues to keep spread an awning spread before. The State v. Cleaveland, 3 R. I. 117. CHAP. VIII. ] HOW EXPAND AND CONTRACT. § 210 is it within them: to make merely internal alterations in the building, and apply it to a new use ; as, to convert a meeting- house or a joiner’s shop into a dwelling-house.!_ Within these statutes, a building partly of wood and partly of brick, called brick-pane, has been held not to be a“ wooden building” ; though, had the act been a remedial one, instead of penal, the result would have been otherwise.” § 209. Continued — " Crew ” —Assault on Seamen — “ Goods or Merchandise ” —“ Personal Goods” — “Materials for Lottery.” — So, where a statute made it an offence for “ any master or other offi- cer” of a vessel maliciously to “ beat, wound, or imprison any one or more of the crew ”’ ; the word “ crew,” was held to include the under-officers as well as the common seamen, and conse- quently a master was deemed liable for the imprisonment of his first mate. The luggage of a steamboat passenger is “ goods or merchandise,” within a statute against larceny from any vessel in any navigable river ;* but the words “personal goods,” in another criminal statute, have been held not to include choses in action.» Books kept in relation to the proceedings of a lot- tery are “ materials for a lottery.” ® § 210. Continued — “Pedler,” &c. — “ Deal in Selling” ——“ Cause False Entry.” One who carries about goods, offering them for sale, is held to “trade, deal, and traffic, as a pedler, hawker, or petty chapman,” in the goods he so carries and offers.’ And to sell spirituous liquors in a single instance is to “ deal in the selling ” of them.’ In England, a woman went to a registrar of births, requesting him to register the birth of a child; she 1 Booth v. The State, 4 Conn. 65. 2 Stewart v. Commonwealth, 10 Watts, 306, decided on a city ordi- nance. 8 United States v. Winn, 3 Sumner, 209. or by threats and intimidation,® a person within the house to open the door; is, in legal contemplation, a breaking. And where the door had no lock, latch, or other fastening, but fitted closely within the casing, and force was required to push it open, the pressing open of this door was held to be a breaking.’ So the removal of a portion of the building, however small, as a pane of glass, or any part of a shutter, is sufficient. The Massachusetts court held, that cut- ting and tearing down a netting of twine, nailed at the top, bot- tom, and sides of a window so as to cover it, and entering the house at the window, are enough in burglary ; though the win- dow had been left otherwise open by the occupant of the house. “It makes no difference,” said the judge, ‘‘ whether the door is barred and bolted, or the window secured, or not; it is enough that the house is secured in the ordinary way ; so that by the carelessness of the owner in leaving the door or window open 1 Ante, § 277, 290. 2 J. Kel. 67; Rex v. Gray, 1 Stra. 481; Reg. v. Wheeldon, 8 Car. & P.. 747; The State v. Wilson, Coxe, 489; Curtis v. Hubbard, 1 Hill, N. Y. 336, 4 Hill, N. Y. 487. And see The State v. Newbegin, 25 Maine, 500; ante, § 290. 3 Rex v. Haines, Russ. & Ry. 451; Rex v. Hall, Russ. & Ry. 355. And see Rex v. Robinson, 1 Moody, 827; Rex »v. McKearney, Jebb, 99; Rex v. Bailey, Russ. & Ry. 341, 1 Moody, 23; Reg. v. Bird, 9 Car. & P. 44. 4 Rex v. Russell, 1 Moody, 877; Rex v. Brown, 2 East P. C. 487, 2 Leach, 4th ed. 1016, note. But if fastenings are intended to be put upon a trap- door, it has been held that lifting it up is not a breaking. Rex v. Lawrence, 4 Car. & P. 231. And see Rex v. Callan, Russ. & Ry. 157; Hunter v. Common- wealth, 7 Grat. 641; Roscoe Crim. Ev. 341. 5 Park v. Evans, Hob. 62; Rex v. Hawkins, 1 East P. C. 485; Ducher v. The State, 18 Ohio, 308; Rex v. Big- ley, 1 Crawf. & Dix C. C. 202. But see The State v. Henry, 9 Ire. 463. 6 Rex v. Swallow, 1 Russ. Crimes, Grea. ed. 792. 7 Finch v. Commonwealth, 14 Grat. 643. 8 Rex v. Perkes, 1 Car. & P. 300; Reg. v. Bird, 9 Car. & P. 44; Anony- mous, Anderson, 115; Gibbon’s Case, Foster, 107; Rex v. Bailey, Russ. & Ry. 841, 1 Moody, 23 ; Rese v. Davis, Russ. & Ry. 499; Rex v. Hughes, 1 Leach, 4th ed. 406, 2 East P. C. 491, 207 INTERPRETATION OF CRIMINAL STATUTES. [BooK I. § 314 the party accused of burglary be not tempted to enter. Shut- ting the window-blinds and leaving the windows open for air is a common mode of closing a house in the warm season ; if the blinds are forced, it is a breaking.” 1 But if a door or win- dow is open a little way, it is not breaking the house to push it further open.2, And the thing displaced must be a part of the freehold. As the chimney, however, is not intended to be shut at all, an entrance there is a breaking, though nothing is moved. Yet it is no breaking to walk into an open door or window.® § 318. Forcibly Break.— In Ohio, under a statute making it criminal to “ forcibly break and enter” a building, actual force has been held not to be necessary ; but a breaking at common law, such as our last section describes, is sufficient.® § 314. Wound — Wounding.—A wound is a breach of the skin, or of the skin and flesh, produced by external violence.’ The word occurs in several statutes, English and American; and in some of them its meaning seems to be somewhat modi- fied by the connection in which it stands, and the subject to which it is applied. Thus the words of Stat. 7 Will.4 41 Vict. c. 85, § 4, as also of the former Stat. 9 Geo. 4, c. 31, § 12, are “ stab, cut, or wound”; and it has been decided, not without some differences of opinion, that, as the first two of these three connected words imply the use of some instrument, so must also the last one ;® and that, therefore, a wound in- 1 Commonwealth v. Stephenson, 8 Pick. 354, opinion by Parker, C. J. 2 Rex v. Smith, 1 Moody, 178, Car. Crim. Law, 8d ed. 293; Commonwealth v. Steward, 7 Dane Ab. 186. The ma- jority of the Scotch judges held, that it is not house-breaking to enter by means of the key left in the door locked on the outside. Alston’s Case, 1 Swinton, 433. 3 Commonwealth v. Trimmer, 1 Mass. 476; Rex v. Paine, 7 Car. & P. 185; ante, § 281. * Rex v. Brice, Russ. & Ry. 450; The State v. Boon, 18 Ire. 244. 5 The State v. Boon, supra; Rex v. Lewis, 2 Car. & P. 628; Common- wealth v. Steward, 7 Dane Ab. 186; 208 Anonymous, J. Kel. 70; The State v. Wilson, Coxe, 439. 6 Ducher v. The State, 18 Ohio, 308. The passing of a toll-gate against the keeper’s consent, refusal having been . given by him on account of the non- payment of toll, is a “forcible passing,” within the meaning of a statute on this subject. Camden Turnpike v. Fowler, 4 Zab. 205. As to what is a“ damag- ing,” see Reg. v. Whittingham, 9 Car. & P. 2384; Rex v. Tracy, Russ. & Ry. 452; Reg. v. Norris, 9 Car. & P. 241. 1 In The State v. Leonard, 22 Misso. 449, 451, it is said: “In criminal cases, the definition of a wound is an injury to the person by which the skin is broken.” 8 See ante, § 245. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 314 flicted with the teeth, as in biting off the finger or nose, is not within the statute But the kind of instrument is immaterial, provided it really produces a wound. A blow from a hammer,? from the but-end of a gun, or from a bludgeon,‘ or a kick with a shoe,® parting the skin, is as good in law as a cut from a sharp instrument; nor is it any objection that the instrument, instead of inflicting the wound directly, falls on some other thing, as the hat of the party injured, and the latter breaks or cuts the skin.6 Yet oil of vitriol, thrown on a person’s face, is not sufficiently an instrument to bring the wound within the statute.? The injury need not extend below the skin, and there need not be effusion of blood; yet the entire skin must be divided, a separation of only the cuticle or upper membrane being insufficient. But if the internal skin, as that within the mouth, is broken, it is the same as the external.? Noth- ing, it seems, will stand in the stead of this parting of the skin ; for, where a man’s person was bruised, and his collar-bone fractured, this was held not to be a wounding.” But under Stat. 9 Geo. 1, c. 22, §1, providing a punishment for those who should “ unlawfully and maliciously kill, maim, or wound any cattle,” &c., it was held that driving a nail into the frog of a horse’s foot was a wounding, — “ which word ‘ wound,’ ”’ the judge said, “appears to be used as contradistinguished from a permanent injury, such as maiming.” !! 1 Jenning’s Case, 2 Lewin, 180; Elms- ley’s Case, 2 Lewin, 126; Rex v. Ste- vens, 1 Moody, 409; Rex v. Harris, 7 Car. & P. 446. 2 Reg. v. Smith, 8 Car. & P. 178; Rex v. Withers, 1 Moody, 294, 4 Car. & P.446; Rex v. Hughes, 2 Car. & P. 420. 3 Rex v. Sheard, 2 Moody, 18, 7 Car. & P. 846. 4 Rex v. Payne, 4 Car. & P. 558. 5 Rex v. Briggs, 1 Moody, 318, 1 Lewin, 61. 6 Reg. v. Sheard, 2 Moody, 18, 7 Car. & P. 846. 7 Rex v. Murrow, 1 Moody, 456; Henshall’s Case, 2 Lewin, 185. And see 1 Russ. Crimes, Grea. ed. 731. 8 Reg. v. McLoughlin, 8 Car. & P. 635; Rex v. Beckett, 1 Moody & R. 526; Commonwealth v. Gallagher, 6 Met. 565; Moriarty v. Brooks, 6 Car. & P. 684; Rex v. Wood, 1 Moody, 278; Reg. v. Smith, 8 Car. & P. 178. 9 Reg. v. Smith, 8 Car. & P. 178; Reg. v. Warman, 1 Den. C. C. 1838. 10 Rex v. Wood, 4 Car. & P. 381. ll Heywood’s Case, 2 East P. C. 1076, 1077. According to the report of this case by Russell and Ryan, (Rex v. Heywood, Russ. & Ry. 16,) the sole question submitted to the judges was, whether an injury not permanent is within the statute. Besides, as the in- jury here was to a part where nature has provided no skin, or where perhaps the hoof may be deemed the skin, the decision is not probably in conflict with the general doctrine; yet perhaps the particular wording of this statute re- 14 209 § 316 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. § 315. cut — Cutting — Stab — Stabbing. — The words cut and stab, we have seen,! are used in the English statutes together. They “relate only to such wounds as are made by an instrument capable of stabbing or cutting; stabbing being properly a wounding with a pointed instrument, and cutting being a wounding with an instrument having a sharp edge. And if the indictment be for cutting, evidence of a stab will not support the charge; for, as the statute uses the words in the alternate, ‘ stab or cut,’ so as to distinguish them, the dis- tinction must be attended to in the indictment.”? Though the instrument must be of a kind capable of cutting or stab- bing, this need not be the purpose for which it was made. Thus a blow from the sharp claw of a hammer; or the sharp- ened point of an iron crow,* may inflict a cut; but neither from the blunt end of a hammer,’ nor from a square iron bar producing a contused or lacerated gash,° nor from the scabbard of a sword,’ nor from the handle of a windlass,®— does the blow inflict a cut. The New Jersey court once held, that, if the nose is bitten off, it is cut off, within the statute of the State ;® but this decision is not reconcilable with the English doctrine.° Under the English statute of 1 Jac. 1, ¢. 8, § 2, providing a punishment for any one who “ shall stab or thrust any person,” &c., “the killing,’ says Hawkins, “of a man with a hammer, or such like instrument, which cannot come properly under the words ‘thrust’ or ‘ stab,’ is not a killing within the statute.’”? 2 § 316. Maim — Maiming!*— The word “maim” implies a permanent injury. Such is its signification under a statute quired the term “wound” to be con- & Rex v. Adams, 1 Russ. Crimes, strued as meaning something different from what it does in the other stat- utes. 1 Ante, § 314. 2 1 Russ. Crimes, Grea. ed. 728 ; ante, § 298; Rex v. McDermot, Russ. & Ry. 856. See, however, ante, § 247, 248; post, § 326. 3 Rex v. Atkinson, Russ. & Ry. 104, Russ. Crimes, Grea. ed. 728. 4 Rex v. Hayward, 1 Russ. Crimes, Grea. ed. 729, Russ. & Ry. 78. 5 Rex v. Atkinson, supra. 210 Grea. ed. 728. 7 Rex v. Whitfield, 1 Russ. Crimes, Grea. ed. 728. 8 Anonymous, 1 Russ. Crimes, Grea. ed. 728. 9 The State v. Mairs, Coxe, 453. 10 See Rex v. Harris, 7 Car. & P. 446; ante, § 314. 1 Hawk. P. C., Curw. ed., p. 90, § 8. 12 See Crim. Law, 4th ed. IT. § 969 et seq. 18 The State v. Briley, 8 Port. 472. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 318 making it indictable to “ kill, maim, or wound any cattle” ;1 and the same appears to be its general legal meaning” At the common law, a maim, or mayhem, is such an injury as renders a man less able, in fighting, to defend himself or annoy his adversary ;® but the word “maim” is not always to be understood in so technical a sense in statutes. In Massachu- setts, the legislature having made it a misdemeanor to cut off the ear with intent to maim, the court observed, that the word “maim” in the statute was used in the popular sense of muti- late, and not.as synonymous with the technical word mayhem.* And in Arkansas, the common law of maim is somewhat changed by a statute which provides, that maiming shall con- sist ‘in unlawfully disabling a human being, by depriving him of the use of a limb or member, or rendering him lame, or defective in bodily vigor.”5 In some other States, also, there are statutory definitions of the offence of mayhem.6 The English judges have held, that pouring acid into the eye ofa mare, and thereby blinding her, is a maiming within Stat. 7 & 8 Geo. 4, c. 30, § 16, which makes it felony to “ unlawfully and maliciously kill, maim, or wound any cattle.”7 § 317. Slit the Nose®— These words are answered by any division, perpendicular or transverse, of the flesh or gristle.® § 318. Grievous Bodily Harm. —.“‘ Grievous bodily harm is a generic term, which may comprehend severe wounds or hurts of various kinds ; but they are not required to be such as are likely to produce a permanent injury ” ;!° much less need they put the life in hazard. For example, to cut the private parts of a female child, and thus enlarge them, for the time, the 1 Roscoe Crim. Ev. 875, 376; Reg.v. to the word “disfiguring,” see The Jeans, 1 Car. & K. 589; ante, § 314. State v. Smith, Cheves, 157. And see Baker v. The State, 4 Pike, 7 Rex v. Owens, 1 Moody, 205. 56. 8 See Crim. Law, 4th ed. II. § 971; 2 The State v. Briley, 8 Port. 472, Crim. Proced. 2d ed. II. § 855. where the same meaning was given to 9 Rex v. Carroll, 1 Leach, 4th ed. the word “ disabling,” in the statute. 55, 1 East P. C. 394. 31 Hawk. P. C., Curw. ed., p. 107, 10 Archb. New Crim. Proced. 264. §1, 2; Roscoe Crim. Ev. 785. 1 Reg. v. McNeill, 1 Crawf. & Dix 4 Commonwealth v. Newell, 7 Mass. C.C.80. And see Rex v. Phillips, 1 245, 249. Crawf. & Dix C. C. 164; Reg. v. Ca- 5 Baker v. The State, 4 Pike, 56. ruthers, 8 Crawf. & Dix C. C. 391; 6 The State v. Briley, 8 Port. 472; Rex v. Hunt, 1 Moody, 98; Roscoe The State v. Simmons, 3 Ala. 497. As Crim. Ev. 786. 211 § 319 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. wound being neither deep nor dangerous, and the hymen not being ruptured, is a grievous bodily harm.1 IV. The Objects acted upon and the Instrumentalities. § 319. Tool — Instrument —Implement.— These words are generally found together in statutes. In meaning they are nearly alike, but probably not exactly so;? and they denote some inanimate thing, which ordinarily can be handled and used with the hands. A game-cock, therefore, being a live animal, is not an implement of gaming.? And a printing-press with the types and forms is not a tool, within statutes specify- ing what property of a debtor is exempt from attachment.4 Neither is a mill-saw worked by water-power ;° nor are cart- wheels, and other parts or the whole of vehicles drawn by horses or by oxen;*® nor are the moulds of a paper manufac- turer ;7 nor is a portable machine, of the kind used in factories for spinning and manufacturing cloth, even though propelled by the hand ;* nor, it has been held, is a peg-machine, used by a single person, and operated by hand power,?—a tool within these statutes. So, in the criminal law, a crucible or other pot for melting or boiling is not a tool or instrument for counterfeiting.” Buta press for coinage,” as also a mould,” has been held to be such tool or instrument, within the English statutes; in which statutes, however, the meaning of these words may perhaps be enlarged by the connection in which they are used. So, the English judges unanimously held that a collar, as it was called, employed for marking the edge of a counterfeit coin, the process being to force the coin through the collar by machinery, is an edger, edging tool, instrument, or engine.3 Of course, if the statute speaks of an instrument for 7 Rex v. Cox, Russ. & Ry. 362. 2 See Atwood v. De Forest, 19 Conn. 518 ; Coolidge v. Choate, 11 Met. 79. 3 Coolidge v. Choate, supra. 4 Buckingham v. Billings, 13 Mass. 82; Danforth v. Woodward, 10 Pick. 423 ; Spooner v. Fletcher, 3 Vt. 183. Contra, Patten v. Shepard, 4 Conn. 450. 5 Batchelder v. Shapleigh, 1 Fairf, 185. 6 Daily v. May, 5 Mass. 818. 212 T Burbank v. Reed, cited 2 Vt. 406. 8 Kilburn v. Deming, 2 Vt. 404. ° Knox v. Chadbourne, 28 Maine, 160. W The State v. Bowman, 6 Vt. 594. See Wetherby v. Foster, 5 Vt. 186. 1 Rex v. Bell, 1 East P. C. 169, Fos- ter, 430. 2 Rex v. Lennard, 2 W. BI. 807, 1 Leach, 4th ed. 90, 1 East P. C. 170. 48 Rex v. Moore, 1 Moody, 122, 2 Car. & P. 235. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 320 a particular purpose, it is not within the act unless the pos- sessor of it intends to employ it for the purpose; yet there is no need the instrument should be adapted only for that use. Keys, therefore, are instruments of house-breaking, or not, according to the intent of the person having them.1 But these words are all probably somewhat elastic, to be compressed and enlarged by the accompanying words, and the subject to which they relate. And the word “instrument,” for example, has sometimes in law a meaning different entirely from the one now under consideration ; as where we speak of an instrument in writing. § 320. Deadly Weapon — Dangerous Weapon.— A deadly weapon is one likely to produce death or great bodily injury.” The question, whether a particular weapon is deadly or not is one of law for the court, not of fact for the jury.2 Upon an indictment, under a statute of the United States, for robbing the mail and putting in jeopardy the life of the mail-carrier, it 1 Reg. v. Oldham, 2 Den. C. C. 472, 14 Eng. L. & Eq. 568. And see Rex v. Palmer, 1 Moody & R.70; Rex v. Johnson, Russ. & Ry. 492. : 2 The State v. Jarrott, 1 Ire. 76, 87. 8 The State v. Collins, 8 Ire. 407; The State v. Cesar, 9 Ire. 391; The State v. Craton, 6 Ire. 164. Such is the general proposition ; but the ques- tion is often a complicated one of law and fact. Thus, Curtis, J. left it to the jury, under directions from the court, to determine whether a belaying-pin was a “ dangerous weapon,” as actually used. He said: “I think, as actually used, the weapon must have been dan- gerous to life. Thus a small pistol, when loaded, is undoubtedly a danger- ous weapon; and, if pointed toward a person within striking distance, with a present intention of discharging it, an assault with a dangerous weapon is committed. But if not loaded, and used only to push or strike with, a small pis- tol could not be considered a weapon dangerous to life. So the thing said to be used by the defendant may, in the hand of a strong man, be capable of en- dangering life by a blow on the head ; but not dangerous to life if the arm or leg be struck with it. And if it be so, then an assault on a person by striking at, or attempting to strike at, his head with this instrument, being within strik- ing distance, would be an assault with a dangerous weapon ; while an attempt to strike his arm with it would not be such an assault. In many cases it is practicable for the court to declare that a particular weapon was, or was not, a dangerous weapon, within the meaning of the law. And when it is practicable, it is matter of law, and the court must take the responsibility of so declaring. But when the question is, whether an assault with a dangerous weapon has been proved, and the weapon might be dangerous to life, or not, according to the manner in which it was used, or according to the part of the body at- tempted to be struck, I think a more general direction must be given to the jury ; and it must be left for them to decide whether the assault, if commit- ted, was with a dangerous weapon.” United States v. Small, 2 Curt. C. C. 241, 243. See also The State v. Jar- rott, 1 Ire. 76; Rex v. Grice, 7 Car. & P. 803; The State v. Dineen, 10 Minn. 407. 213 § 822 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. was considered that a sword or pistol in the hand of the robber, through terror of which the robbery is effected, is a “ danger- ous weapon,” though the sword is not drawn or the -pistol not pointed.1 And a pistol may be regarded as a dangerous weapon, even without proof of its having been loaded.” § 321. Offensive Weapon. — These words occur in several present and repealed English statutes, which forbid the doing of certain things, “armed with firearms or other offensive arms or weapons,’’? “ carrying offensive arms or weapons,’’4 “with an offensive weapon or instrument,” ° and other like expressions. No exact definition has been given to the words “ offensive weapon ”’; yet they are understood to include, not only guns, pistols, daggers, and instruments of war; together with bludgeons, properly so called, clubs, and other things used only as weapons ;® but also heavy walking-sticks, crutches, and the like, which latter are deemed offensive weapons or not, according to the intent with which the person uses or carries them.’ On the other hand, a common horsewhip ;® bats, being long poles employed by smugglers with which to convey away tubs of spirits;® and large sticks, some three feet long, with knobs at the ends, and with some prongs, the natural growth of the timber ;!° have severally been held not to be offensive weap- ons: the impression indeed seems to have prevailed, that, to be offensive, they must be what the law calls dangerous. § 322. Loaded Arms.— A pistol loaded with gunpowder and ball, yet having its touch-hole so plugged that it cannot pos- sibly be fired, is not “loaded arms” within the English statute of 9 Geo. 4, c. 31, § 11 and 12;” the words of which are, — “shall, by drawing a trigger, or in any other manner, attempt 1 United States v. Wood, 8 Wash.C. East P. C. 488, 1 Russ: Crimes, Grea. C. 440. ed. 120; Rex v. Fry, 2 Moody & R. 42; 2 United States v. Wilson, Bald. 78. ante, § 219. 39 Geo. 2, c. 35, § 10; 6 Geo. 4, 8 Rex v. Fletcher, 1 Leach, 4th ed. c. 108, § 56. 23, 842, note, 2 Stra. 1166. 43&4 Will. 4, c. 53, § 60. 9 Rex v. Noakes, 5 Car. & P. 826. 5 7 Geo. 2, c. 21. 0 Rex v. Ince, 1 Leach, 4th ed. 342, ® Cosan’s Case, 1 Russ. Crimes, note. Grea. ed. 119, 1 Leach, 4th ed. 342, 1 And see 1 Russ. Crimes, Grea. ed. note. 119, 120; Rex v. Grice, 7 Car. & P. 7 Rex v. Palmer, 1 Moody & R. 70; 808. Rex v. Johnson, Russ. & Ry. 492, 2 1 Rex v. Harris, 5 Car. & P. 159. 214 . CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 325 to discharge any kind of loaded arms at any person.” And where one sent to another a tin box, with three pounds of gun- powder in it, and two detonators to ignite the gunpowder when the box should be opened, intending to destroy the person opening the box, — the court held, that this was not an attempt to discharge loaded arms at him.! § 323. Weapon drawn. — A snead has been deemed a weapon drawn ;? so also has a pot, thrown at another.® § 824. Destructive Matter.— Boiling water is destructive mat- ter, within Stat. 7 Will. 4 & 1 Vict. c. 85, § 5, making it felony, under circumstances, to “cast or throw upon, or otherwise apply to, any person any corrosive fluid or other destructive matter.” 4 § 325. Words employed in Statutes against Forgery, Larceny, &c, to designate Classes of Written Instruments.— There are many English and American statutes, existing and repealed, relating to various subjects in the criminal law, particularly to larceny, receiving stolen goods, and forgery, wherein such words as “ deed,” “bill of exchange,” “promissory note,” “ order for the payment of money,” and the like, are found. Thus Stat. 11 Geo. 4 & 1 Will. 4, c. 66, § 3, makes it felony to forge, &c., “any will, testament, codicil, or testamentary writing; or any bill of exchange, or any promissory note for the payment of money; or any indorsement on, or assignment of, any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange; or any undertaking, war- rant, or order for the payment of money, with intent,” &c. And § 10 makes it felony to forge, &c., any “ deed, bond, or writing obligatory ; or any court roll or copy of any court roll relating to any copyhold or customary estate; or any acquit- tance or receipt either for money or goods, or any accountable receipt either for money or goods, or for any note, bill, or other security for payment of money; or any warrant, order, or request for the delivery or transfer of goods, or for the de- livery of any note, bill, or other security for payment of money, 1 Rex v. Mountford, 7 Car. & P. 242, without hurt, and out of his reach, 1 Moody, 441. he had no weapon drawn.” Ib. p. 2 Keat’s Case, Skin. 666, 668. 256. 3 Rex v. Hunter, 3 Lev. 255. “But 4 Reg. v. Crawford, 2 Car. & K. 129, when he had thrown it out of his hand 1 Den. C. C. 100, 215 § 826 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. with intent,’ &c. These sections are cited as specimens of the enactments now under consideration. © § 326. Continued. — We have seen,! that, according to some decisions, while a ewe is a sheep if the statute employs only the word “sheep,” yet, if it has both words, in the alternative, the word “ sheep” is not to extend so far in meaning as to include the ewe; the law as laid down by an American court being, that the more general terms are not to comprehend the more specific.? But this principle is not universal; it seems to have been greatly qualified or wholly discarded in England ; # and, if we allow it any existence, we cannot easily define its exact limits. It has not had much influence in the interpreta- tion of the statutes mentioned in our last section; for the courts appear to have given each of the several terms embraced in them substantially the same meaning as if it had stood alone, so that sometimes a particular writing may be equally well described by any one of the alternative words of the stat- ute. Where, however, one section provided a particular pen- alty for passing counterfeit bank-bills; and another section a different penalty for passing counterfeit promissory notes ; it was held, that, although the words “ promissory notes” would, on general principles, include bank-bills, yet they could not be so construed here, otherwise the two sections would be repug- nant to each other.> It may be further observed, concerning the statutes we are considering, that they comprehend as well written securities issued under the laws of foreign States and countries, if of current value in the locality where the offence is committed, as domestic.® 1 Ante, § 247; Rex v. Cook, 1 Leach, 4th ed. 105, 2 East P. C. 616. 2 Ante, § 298, 314, 315. 3 Reg. v. McCulley, 2 Moody, 34, 2 Smith, 2 Moody, 295; Reg. v. Gilchrist, Car. & M. 224; The State v. Wilkins, 17 Vt.151; The State v. Wilson, 3 Brey. 196 ; Reg. v. White, 9 Car. & P. 282. Lewin, 272. And see Reg. v. Spicer, 1 Car. & K. 699; Rex v. Teague, 2 East P. C. 979, Russ. & Ry. 38; ante, § 247. * Reg. v. Williams, 2 Car. & K. 51; Rex v. Mitchell, 2 East P. C. 986; Rex v, Willoughby, 2 East P. C. 581, 944; Reg. v. Thorn, 2 Moody, 210; Reg. v. Dawson, 1 Eng. L. & Eq. 589, 2 Den. C. C. 75; Rex v. Shepherd, 2 East P. C. 944, 1 Leach, 4th ed. 226; Reg. vu. 216 5 The State v. Ward, 6 N. H. 629. For the same principle, see also People v. Howell, 4 Johns. 296. And see ante, § 168. : 6 Commonwealth v. Hensley, 2 Va. Cas. 149; Cummings v. Commonwealth, 2 Va. Cas. 128; People v. Flanders, 18 Johns. 164; Rex v. Kirkwood, 1 Moody, 811; Rex v. McKeay, Car. Crim. Law, 8d ed. 190, 1 Moody, 130. And see CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 328 § 827. Order for the Payment of Money — Order for the Deliv- ery of Goods.!— An order is a written direction, addressed by one who either has in fact, or in the writing professes to have, control over a fund or thing, to another who either purports in the writing to be under obligation to obey, or who is in fact under such obligation, commanding him how to appropriate the fund or thing. This definition substantially describes the order according to what appears to be the English rule, yet the Ameri- can cases differ somewhat from the English. According to this definition, and according to the decisions of all the tribunals, there are two kinds of orders; namely, such as are orders on their face; and such as, not being on their face orders, may be shown to be orders by averment and proof. § 328. Continued.—If a writing has on its face all that be- longs to an order, the law regards it as such, though in fact the drawer had no funds, and the drawee was under no obliga- tion to respond.?, Whether particular words are sufficient, within this branch of the definition, may be a question nice and delicate. The tests are, that there must be apparently a drawer; that he must appear to have a disposing power over the fund or the goods; that there must appear to be a person drawn upon, apparently under obligation to obey ;° and there must appear to be a person to whom the delivery or payment is to be made, sufficient to exclude uncertainties of meaning in this respect, though there is doubt whether the payee need Rex v. Goldstein, 7 Moore, 1, 8 Brod. & B. 201, 10 Price, 88, Russ. & Ry. 4738; Rex v. Dick, 1 Leach, 4th ed. 68, 2 East P. C. 925; Lewis v. Commonwealth, 2S. & R. 551; ante, § 205; post, § 340. 1 See Crim. Law, 2d ed. II. § 525, 797; Crim. Proced. 2d ed. II. § 478. 2 Rex v. Lockett, 1 Leach, 4th ed. 94, 2 East P. C. 940; Reg. v. Carte, 1 Car. & K. 741; Rex v. Clinch, 1 Leach, 4th ed. 540, 544; People v. Way, 10 Cal. 886. And see Rex v. Froud, 3 Moore, 645, 7 Price, 609, 1 Brod. & B. 300, Russ. & Ry. 389; 2 Russ. Crimes, Grea. ed. 520; Reg. v. Ilidge, 2 Car. & K. 871, 875. 3 Rex v. Baker, 1 Moody, 231; Rex v. Clinch, 1 Leach, 4th ed. 540, 544; Rex v. Mitchell, 2 East P. C. 936; Reg. v. Williams, 2 Car. & K. 51; Rex v. Hart, 6 Car. & P. 106; Reg. v. Thorn, 2 Moody, 210; Reg. v. Curry, 2 Moody, 218; Rex v. Cullen, 5 Car. & P. 116; Reg. v. Roberts, 2 Moody, 258, Car. & M. 652; Reg. v. Newton, 2 Moody, 59; Rex v. Ravenscroft, Russ. & Ry. 161; 2 Russ. Crimes, Grea. ed. 516, 519, 520, 522. 4 Rex v. Richards, Russ. & Ry. 198. So also as to a bill of exchange, Rex v. Randall, Russ. & Ry. 195. And a like principle prevails as to a receipt. Post, § 341. 5 People v. Farrington, 14 Johns. 348, 217 § 829 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. be mentioned by name.! The writing need not concern com- mercial transactions ;? and if the payee purports to be merely the agent of the drawer, to convey the thing drawn to him, this is no objection.2 A check in common form on bankers is an order, and so isa bill of exchange ;* and, if the check is postdated, this makes no difference. But a writing in the ‘following words, — “ Messrs. Wilkins & Co., Bankers, Please to advance the bearer, Samuel Richards, the sum of two hun- dred and fifty pounds, and place the same to my account. Morgan Thomas,’”’ — was held not to be an order, where the external proof failed to show it such.® § 329. Continued.— The following instruments have been held to be orders as appearing such on their face: “ Mr. John- son, Sir, Please to pay to James Jackson the sum of 131., by order of Christopher Sadler, Thornton-le-Moor, brewer. I shall see youon Monday. Your obliged, Chr. Sadler. The District Bank.”7? So, “Please to deliver my work to the bearer,” signed and addressed ; the objection that the writing did not sufficiently specify the articles to be delivered being overruled.’ So, “ Oredit the person named in my letter of advice the sum of 5/., and debit the same to this office,” — signed by the postmaster of Shrewsbury, and addressed “ To the Post-office, London.” 9 1 And see Reg. v. Gilchrist, Car. & M. 224, 2 Moody, 233. It is sufficient made payable to bearer. People »v. Brigham, 2 Mich. 550. It need not, in New York, be addressed to any one. Noakes v. People, 25 N. Y. 380. 2 Rex v. Graham, 2 East P. C. 945, 2 Russ. Crimes, Grea. ed. 514; ante, § 206. 3 The State v. Nevins, 28 Vt. 519. 4 Rex v. Willoughby, 2 East P. C. 944; Rex v. Shepherd, 2 East P. C. 944, 1 Leach, 4th ed. 226; People v. Howell, 4 Johns. 296; Russ. Crimes, Grea. ed. 515. 5 Reg. v. Taylor, 1 Car. & K. 212. 6 Reg. v. Williams, 2 Car. & K. 51. And see Evans v. The State, 8 Ohio State, 196; Carberry v. The State, 11 Ohio State, 410. 7 Reg. v. Carter, 1 Car. & K. 741, 1 218 But the following instruments Den. C. C. 65. Sadler was, however, proved to be a customer of the bank, yet the decision seems not to have de- pended upon this fact. 8 Rex v. Jones, 1 Leach, 4th ed. 53, 2 East P. C. 941. There was, how- ever, in this case some extrinsic proof, though probably it did not vary the result. An order for the payment of money need not specify the sum to be paid. MclIntosh’s Case, 2 East P. C. 942. Yet concerning the sum, see, as to a receipt, post, § 341. 9 Reg. v. Gilchrist, Car. & M. 224, 2 Moody, 238. For further cases in which the writing was held to be an order, see Rex v. McIntosh, 2 East P. C. 942, 956, 2 Leach, 4th ed. 8838, 2 Russ. Crimes, Grea. ed. 515, 516; Rex v. Bamfield, 1 Moody, 416; Reg. v. An- derson, 2 Moody & R. 469; Reg. v. CHAP. XI. ] PARTICULAR WORDS AND PHRASES. § 330 have been held not to be orders on their face: “Mr. Thomas, Sir, You will please to pay the bearer, for Richard Power, three pounds, for three weeks due to him a country member, and -you will much oblige, Yours, &. J. Beswick”; the drawer not appearing to have any disposing authority over the fund.1 So, “‘ Please to send 117. by bearer, as I am so ill I cannot wait on you.’”? So, “ Mr. Jefferys, I desire you to let this woman have six yards of ordinary stuff, one pair of stock- ings, one shift, one apron, one handkerchief; and I will see it all paid for. Witness my hand, George May.”? So, “ Mr. Fisher, I should feel greatly obliged to you if you will please to send by the bearer the sum of three pounds, as I have had a large quantity of bones this week, and the man from Coleford is coming in to-morrow with 10 ewt. I have about one ton now. Yours, Thomas Davis.” 4 § 330. Continued.— Thus stands the English doctrine; but from the few reported cases in this country we may infer, that perhaps the American courts generally will give, as some of them have given, the word “ order” a more liberal interpreta- tion. Thus, in Massachusetts, the following writing was held to be an order for the delivery of goods, although it affirma- tively appeared that the person purporting to be the drawer had no goods in the hands of the drawee: .“ Mr. Parker, Sir, deliver my son one pair of walking-shoes, and charge the same to me. Yours, James Fisher.” The court was aware that this decision was.contrary to the English adjudications; but said, that in favor of life these English statutes had “ received a stricter construction than we think it necessary to give our own, by which the life of the offender is not put in jeopardy.” 5 And a similar conclusion appears to have been arrived at in Dawson, 1 Eng. L. & Eq. 589, 2 Den. 3 Rex v. Mitchell, 2 East P. C. C. C. 75, Tentp. & M. 428; Rex v. 936. Richards, Russ. & Ry. 198; Rex v. 1 Reg. v. Roberts, 2 Russ. Crimes, Harris, 6 Car. & P. 129; Reg. v.Mc- Grea. ed. 522. For other illustrations, Connell, 1 Car. & K. 871; Reg. v. see Rex v. Rushworth, Russ. & Ry. Raake, 2 Moody, 66, 8 Car. & P. 317, 2 Russ. Crimes, Grea. ed. 517, 626. and see note; Reg. v. Curry, 2 Moody, 1 Rex v. Baker, 1 Moody, 231. 218. 2 Rex v. Ellor, 1 Leach, 4th ed. 328, 5 Commonwealth v. Fisher, 17 Mass, 2 East P. C. 988. 46. See ante, § 199. 219 § 332 [BOOK I. INTERPRETATION OF CRIMINAL STATUTES. Connecticut, New York,? South Carolina,’ and Georgia.t The Tennessee court, however, held, that the statute against pass- ing “ any forged paper, knowing it to be forged,” is not vio- lated where the order is not shown to have been drawn by one who has an interest in the goods therein mentioned.© Butina later case the court of this State decided, that an indictment will lie for obtaining goods by a false pretence, where the pre- tence used is an order for goods in which the drawer has no interest.° The interpretation which renders an apparent inter- est or right in the drawer unnecessary is in accordance with opinions expressed even by some English judges.’ § 831. Continued.—If there is not sufficient on the face of an instrument to make it an order, the defect may sometimes be supplied by averment and proof, as already mentioned.’ It is not easy to lay down, in a word, how extensively such defi- ciencies may thus be filled up, and how little need be embraced in the writing, where there is no lack of extrinsic facts; for the decisions have not been so numerous as to indicate an exact tule.® Yet something on this point will be attempted a few sections further on,” in connection alike with this word and the words “ warrant’ and “ request.” § 332. Warrant for the Payment of Money — Warrant for the Delivery of Goods.—In one case it is said, and in others assumed, that in the statutes under consideration the words ‘‘warrant”’ and “ order” are synonymous; but later deci- sions indicate that warrant is to be taken in a somewhat larger sense than order. Like the word “ order,” it implies, accord- 1 The State v. Cooper, 5 Day, 250. _— tion, namely, death.” Lumpkin, J. p. 2 People v. Shaw, 5 Johns. 2386. And see People v. Farrington, 14 Johns. 348. 8 The State v. Holley, 1 Brev. 35. As to Vermont, see The State v. Nev- ins, 28 Vt. 519. * Hoskins v. The State, 11 Ga. 92, the court observing: ‘“ The strict con- struction adopted in relation to this English statute never has obtained in the American courts. . . . It arose wholly in the mother country from the penalty which was to follow a convic- 220 101. 5 Walton v. The State, 6 Yerg. 877. 6 Tyler v. The State, 2 Humph. 87.. 7.Sir Sidney Staff€rd Smythe, in Rex v. Mitchell, 2 East P. C. 936, 987. 8 Ante, § 827. 9 See Reg. v. Atkinson, Car. & M. 825; Reg. v. Vivian, 1 Den. C. C. 35. 10 Post, § 335. Ul Rex v. Mitchell, 2 East P. C. 986; Rex v. Clinch, 1 Leach, 4th ed. 540, 644, 2 Hast P. C. 988, 940. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 322 ing to some English adjudications, that the drawer has a dis- posing power over the fund or goods; which disposing power must appear, either on the face of the writing, or by averment and proof.! Yet other and more recent decisions indicate, that this disposing power is not essential ;? the judges in one case observing, that “any instrument for payment, under which, if genuine, the payer may recover the amount against the party signing it, may properly be considered a warrant for the payment of money; and it is equally this, whatever be the state of the account between the parties, and whether the party signing it has, at the time, funds in the hands of the party to whom it is addressed or not.”3 That the American courts will generally adopt the latter opinion appears probable from what we have already seen in respect to the word “ order.” 4 But the broad difference, which may or may not include this one, between a warrant and an order, is, that, while a writing to be an order must direct or command the thing to. be done, implying an obligation on the part of the drawee to obey,> to be a warrant it need only authorize the doing, without implying any obligation of obedience. To illustrate this distinction, we may refer more at large to the following case, mentioned a few sections back: 7 In an indictment for forgery, the writing was described as a warrant and order; and it was necessary, there- fore, that it should appear to be both. The words of it were, “ Messrs. Wilkins & Co., Bankers, Please to advance the bearer, Samuel Richards, the sum of two hundred and fifty pounds, and place the same to my account. Morgan Thomas.” As these words were not sufficient, without external evidence, to make the writing an order, or even perhaps a warrant, proof was introduced that the supposed drawer had a deposit account, not a drawing one, with the bankers named ; that is, 1 Rex v. Mitchell, supra; Rex v. Thorn, supra, some of the judges said, Clinch, supra; Reg. v. Thorn, 2 Moody, that, if this question were res integra, 210, Car. & M. 206. they should so hold. 2 Reg. v. Vivian, 1 Car. & K. 719; * Ante, § 330; The State v. Holley, Reg. v. Rogers, 9 Car. & P.41; Reg.v. 1 Brey. 35. Roberts, 2 Russ. Crimes, Grea. ed. 522, 5 Ante, § 327, 328. note; Reg. v. Dawson,1Eng.L.& Eq. © Reg. v. Williams, 2 Car. & K. 51; 589, 2 Den. C. C. 75, Temp. & M. Reg. v. Dawson, supra; Rex v. Crow- 428. ther, 5 Car. & P. 316. 3 Reg. v. Vivian, supra. In Reg. v. 7 Ante, § 328. 221 § 835 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. though he had funds in their hands, he was not authorized to draw checks; upon which the court was of opinion, that the instrument was a warrant, but not an order.! § 333. Continued. — The following was held to be a warrant from Luke Lade, who kept cash with Molineux & Co., bankers, for the payment of money to John Smith: “To Molineux & Co. Pay to my order, two months after date, to Mr. John Smith, the sum of 80/., and deduct the same out of my account.” It was not signed; but across its face was writ- ten, ‘“ Accepted, Luke Lade”’; and, on the back, the name of John Smith with his address appeared.? So a letter of credit,? a bill of exchange,‘ an order sent in England from one post-office to another, and generally whatever may be described by the word “ order,” ® are warrants.” § 334. Request for the payment of Money — Request for the delivery of Goods. — Request is a broader word than either warrant or order; and it seems not to demand much obser- vation.’ The following was held to be a request: “ Please to let bearer, William Goff, have spillshoul and grafting tools for me.” Of course it is not of consequence, in these cases, that the person who purports to make the request should appear to have, or have in fact, any interest in, or control over, the fund or goods. Nor need the writing be sufficient in words to charge the drawer.” On the other hand, if it purports to charge him, it will not on that account be the less a request.! § 335. Order — Warrant — Request.— Let us now inquire how far any defect of form in these several writings may be cured by oral evidence.” If a request omits the name of the person to whom it is intended to be addressed, this omission 1 Reg. v. Williams, 2 Car. & K. 51. 8 For a full statement of English 2 Reg. v. Smith, 1 Car. & K.700,1 cases under this word, see 2 Russ. Den. C. C. 79. Crimes, Grea. ed. 526-531. ® Reg. v. Raake, 8 Car. & P.626,2 9% Reg. v. James, 8 Car. & P. 292. Moody, 66. And see Reg. v. Newton, 2 Moody, 59; 4 Rexv. Willoughby, 2 Fast P.C.581. Reg. v. Roberts, 2 Moody, 258; Reg. 5 Reg. v. Gilchrist, Car. & M. 224. v. Thorn, 2 Moody, 210. ® Ante, § 832; Rex v. Beard, Jebb,9. 10 Rex v. Thomas, 2 Moody, 16, 7 7 See also the cases cited to the last Car. & P. 851. section, and Reg. v. Anderson, 2 Moody 1 Reg. v. White,9 Car. & P. 282; & R. 469; Reg. v. Harris, 2 Moody, Reg. v. Walters, Car. & M. 588. 267,1 Car. & K.179; Reg.v.McCon- 1 Ante, § 327, 331. nell, 1 Car. & K. 871, 2 Moody, 298, 222 CHAP. XI. ] PARTICULAR WORDS AND PHRASES. § 336 may be filled up by proof;} and so of a warrant,? and so of an order.? Likewise evidence may be admitted of the course of dealing between the parties, whereby the writing gains a meaning of which it would otherwise come short.* In this way the following paper, —‘ August 3, 1839—one 16-in. helmet scoop, one 4-qt. kettle — James Hayward,” — was interpreted to be a request for the delivery of goods.5 And . where the course of dealing between two persons was, that one of them should make a list of names, with a sum against each name, on sight of which list the other, upon the credit of the first, should furnish the several individuals mentioned with goods to the amounts specified, —the writing, so illu- mined by extrinsic evidence, was held to be a request, though without the evidence it would come short.6 Where also the course of dealing at a bank is, that a depositor who takes an accountable receipt for his money draws out the money, with ‘interest, on indorsing his name on the face of the receipt, it, with his name thus indorsed, is deemed an order for the pay- ment of money.’ So the fact that there is a fund, and that the drawer has a disposing power over it, may be shown in evidence, to make an instrument an order, where these par- ticulars do not sufficiently appear on its face.8 These are illustrations of a general doctrine; but how far the doctrine will be carried by the courts is not certain. Evidently it has limits. In cases of the sort now under consideration, the extrinsic matter must appear by averment in the indictment, as well as by proof at the trial. § 336. Promissory Note.— This well-known mercantile secu- rity requires little explanation here. It has been defined to be “a written promise, by one person to another, for the payment 1 Rex v. Carney, 1 Moody, 851; Reg. v. Rogers, 9 Car. & P. 41; post, Reg. v. Pullbrook, 9 Car. & P. 87; § 842. Rex v. Cullen, 5 Car. & P. 116, 1 5 Reg. v. Pullbrook, 9 Car. & P. 87. Moody, 300. 6 Reg. v. Walters, Car. & M. 588. 2 Reg. v. Rogers, 9 Car. & P. 41. 7 Reg. v. Atkinson, Car. & M. 325. 3 Reg. v. Snelling, Dears. 219, 23 8 Reg. v. Vivian, 1 Den. C. C. 35; Law J.n. s.M.C. 8,17 Jur. 1012, 22 Reg. v. Williams, 2 Car. & K. 51. See, Eng. L & Eq. 597. for a further illustration, Reg. v. Illidge, + Reg. v. Walters, Car. & M. 588; Temp. & M. 127,18 Jur. 548, 18 Law J. Rex v. Cullen, 1 Moody, 800,5 Car.& w.s.M. C. 179, 1 Den. C. C. 404. P. 116; Reg. v. Pullbrook, 9 Car. & P. 9 Carberry v. The State, 11 Ohio 87; Reg. v. Atkinson, Car & M. 825; State, 410; post, § 341, 342. 223 § 838 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. of money at a specified time, absolutely and at all events.’ ! The instrument need not be negotiable? to be a promissory note, even within the meaning of the words in criminal stat- utes ; as in the statutes against forgery. And the following writing; namely, “Due J. F. one dollar on settlement this day,” &c.,— was held in New York to be a note for the pay- ment of money. A bank-bill, whether of our own State or of any other, is a promissory note ;° though, of course, every promissory note is not a bank-bill.6 But the reader will find this instrument best described in works treating of bills and notes.” § 337. Bank-bill — Bank-note.— These two terms are iden- tical in meaning. And we have just seen that the term “promissory note” includes a bank-note. But the term “ bank-note”’ does not include every sort of promissory note. Thus, in New Jersey, a statute made punishable one who “ shall purloin, embezzle, or convert to his own use any money, bank bill or note,” &c.; and it was held that none of these terms include promissory notes or commercial paper, other than bank-notes. bank-bill or bank-note.”’ 9 ““ The phrase ‘ bank bill or note’ means § 338. Bill of Exchange — (Acceptance — Indorsement, in Note). — Similar in legal effect to a promissory note is a bill 1 8 Kent Com. 74. A written prom- ise on condition is not a promissory note. Corbett v. The State, 24 Ga. 287. 2 Story Bills, § 60; Bates v. Butler, 46 Maine, 887; Sibley v. Phelps, 6 Cush. 172; People v. Bradley, 4 Parker C. C. 2465. 3 Rex v. Box, Russ. & Ry. 300, 6 Taunt. 325. 4 People v. Firch, 5 Johns. 237. 5 Hobbs v. The State, 9 Misso. 845; Commonwealth v. Paulus, 11 Gray, 805; Commonwealth v. Woods, 10 Gray, 477; Commonwealth v. Thomas, 10 Gray, 483; Reg. v. McDonald, 12 U.C., Q. B. 548. Contra, Culp v. The State, 1 Port. 33. ® The State v. Wilson, 3 Brev. 196. And see The State v. Wilkins, 17 Vt. 151; The State v. Ward, 6 N. H. 529; 224 ante, § 326 ; The State v. Tillery, 1 Nott & McCord, 9; The State v. Cassados, 1 Nott & McCord, 91. 1 The reader may like to examine the following cases, in addition to those already cited to this section, decided under the criminal law. Rex v. Elliott, 2 East P. C. 951; Wilcox’s Case, 2 Russ. Crimes, Grea. ed. 497; Rex v. Clark, Russ. & Ry. 181, 2 Leach, 4th ed. 1086; Rex v. Treble, 2 Leach, 4th ed. 1040, 2 Taunt. 328, Russ. & Ry. 164; Butler v. The State, 22 Ala. 48. An indorsement of a promissory note is a “contract.” Poage v. The State, 8 Ohio State, 229. 8 The State v. Hays, 21 Ind. 176. 9 The State v. Stimson, 4 Zab. 9, 29. See also, on the subject of this section, The State v. Watson, 4 Ind. 595; Rex v. Sadi, 2 East P. C. 601. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 340 of exchange ; being “a written order or request by one person to another for the payment of money at a specified time, abso- lutely and at all events.”?! Like a promissory note,’ it is gen- erally negotiable, not necessarily so. For further information concerning this mercantile security, the reader should consult the books of commercial law, and some matter he may find, by referring to the index, in the author’s work on the Crimi- nal Law. § 339. Undertaking for the Payment of Money. — This phrase is somewhat broader in meaning than the term “ promissory note.” 5 While, therefore, every promissory note is undoubt- edly an “ undertaking for the payment of money,” every “ un- dertaking” of this sort is not a promissory note. Thus, if one in writing guarantees another against loss by a third per- son, not exceeding a certain sum, this writing, though plainly not a promissory note, is an “ undertaking for the payment of money.” ® Itis not necessary that the consideration should appear on the face of the instrument; therefore the following paper has been held to be such undertaking : — I. O. U. thirty-five pounds. 351. “ November 21st, 1870. ARTHUR CHAMBERS, Grorce WickHaM.”7 § 840. Securities — (Book of Accounts — Deed, in the Note). — There are statutes containing such words as “ securities for 1 8 Kent Com. 74. 2 Ante, § 386. 3 Story Bills, § 3, 60. * For decisions in the criminal law as to what is a bill of exchange, see Rex v. Hart, 6 Car. & P. 106; Reg. v. But- terwick, 2 Moody & R. 196; Rex v. Wicks, Russ. & Ry. 149; Rex v. Ran- dall, Russ. & Ry. 195; Reg. v. Smith, 2 Moody, 295; Reg. v. Bartlett, 2 Moody & R. 362; Rex »v. Birkett, Russ. & Ry. 251; Rex v. Pooley, Russ. & Ry. 12; People v. Howell, 4 Johns. 296 ; Rex v. Chisholm, Russ. & Ry. 297; Reg. v. Curry, 2 Moody, 218; Rex v. Szudurskie, 1 Moody, 429; Rex v. Mc- Intosh, 2 East P. C. 942, 956, 2 Leach, 4th ed. 883 ; Warner v. Commonwealth, 1 Barr, 154. As to what is an “ accept- 15 ance of a bill of exchange,” see Reg. v. Cooke, 8 Car. & P. 582; Reg. v. Rog- ers, 8 Car. & P.629; The State v. Mor- ton, 27 Vt. 310. As to, what is an “in- dorsement,” see Rex v. Arscott, 6 Car. & P. 408; Rex v. Bigg, 1 Stra. 18. What a “ draft for the payment of mon- ey,” Rex v. Pooley, 3B. & P. 311, Russ. & Ry. 81. 5 Reg. v. Reed, 1 Moody, 62, 8 Car. & P. 623, 2 Lewin, 185; Reg. v. Stone, 1 Den. C. C. 181, 2 Car. & K. 364; The State v. Humphreys, 10 Humph. 442; Reg. v. Thorn, Car. & M. 206. 6 Reg. v. Reed, supra; Reg. v. Joyce, Leigh & C. 576. 7 Reg. v. Chambers, Law Rep. 1 C. C, 341. 225 § 341 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. money,” “valuable securities,” “securities and effects,” &. The meaning of these terms will be sufficiently obvious; but the reader may like to see in a note! a reference to some of the cases. Where a prisoner was indicted for stealing a cer- tificate of a foreign railway company, described in the indict- ment as a “valuable security’ (which were the words of the statute), the conviction was sustained. The principal objection, which was overruled, was, that the qualifying statutory words, “in the funds of any body corporate, company, or society, or to any deposit in any savings bank,” did not extend to a foreign corporation.? § 341. Receipt for Money — Receipt for Goods. — A receipt is a written acknowledgment, by the maker, of something deliv- ered him from another. Like orders, warrants, requests, and undertakings, receipts are of two kinds, — such as are receipts on their face, and such as may be shown to be receipts by aver- ment and proof. To make the writing sufficient in itself, no exact form of words is necessary, only the idea must be con- veyed to common apprehension. The expression, “ Received the contents above, by me, Stephen Withers,’’ written below a bill of parcels ;* or even “settled 47. Samuel Hughes” ;* or “paid sadler,” Sadler being shown to be a person’s name, though written with a small s,5— constitutes a receipt, without the aid of other proof ;, and so the words, “ Received from Mr. Bendon, due to Mr. Warman, 17s. Settelled,” no signature being added below, have been held to be Mr. Bendon’s receipt, there being evidence of its having been uttered as such.® 1 Rex v. Hart, 6 Car. & P. 106; Rex v. Yates, 1 Moody, 170, Car. Crim. Law, 3d ed. 278, 383; Rex v. Aslett, Russ. & Ry. 67, 2 Leach, 4th ed. 958; Reg. v. Heath, 2 Moody, 83; Rex v. Bakewell, 2 Leach, 4th ed. 943; Reg. v. Green- halgh, Dears. 267, 25 Eng. L. & Eq. 570. What a “ book of accounts,” Com- monwealth v. Williams, 9 Met. 278. What a “deed,” Rex v. Fauntleroy, 1 Moody, 62, 2 Bing. 418, 1 Car. & P. 421. 2 Reg. v. Smith, Dears. 561, 7 Cox C. C. 98, 83 Eng. L. & Eq. 569. See ante, § 326. 226 On 3 Testick’s Case, 2 East P. C. 925. And see Reg. v. Vaughan, 8 Car. & P. 276; Rex v. Russel, 1 Leach, 4th ed. 8. 4 Rex v. Martin, 7 Car. & P. 549, 1 Moody, 483, overruling Rex v. Thomp- son, 2 Leach, 4th ed. 910. 5 Reg. v. Houseman, 8 Car. & P. 180. If there are initials, as H. H., in place of the full name, it is necessary to aver and prove what is meant by them. Rex v. Barton, 1 Moody, 141. See Reg. v. Boardman, 2 Moody & R. 147, 2 Lewin, 181. 6 Reg. v. Inder, 2 Car. & K. 635. So the entry of money by the cashier in CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 342 the other hand, the following writing, “ William Chinnery, Esq., paid to X tomson, the som of 8 pounds, fed. 13, 1812,” was held to come short; because it was an assertion, not an ac- knowledgment, that Chinnery had paid the money.! And an acknowledgment seems not to be sufficient when it is only in the form of a recital, introductory to something else.2 So the writing must show what sum, or at least that a sum, was re- ceived, and from whom ;* and, where there is a scrip receipt for money paid on stock subscribed to a bank, and the blank for the subscriber’s name is not filled up, it is not in lawa receipt. The word “ settled,” at the foot of a bill of parcels, is not alone sufficient to show the bill to have been intended for a receipt, unless averments to this effect are contained in the indictment § 342. Continued.— Where an instrument is not on its face sufficiently full to be a receipt, the defect may be supplied by showing a course of dealing between the parties in which it is understood to be and treated as such. This extrinsic matter must appear both by averment and proof. And care should be taken, that the evidence goes the necessary length, and not merely shows the writing to have been an order, or something else other than a receipt.’? Precisely how far the criminal law permits these deficiencies to be supplied by extrinsic evidence, the authorities do not define; but, while the doctrine may go further ® than above expressed in this section, it no doubt has limits.° ‘ the bank-book of a creditor is an ac- countable receipt. Rex v. Harrison, 1 Leach, 4th ed. 180, 2 East P. C. 926. For another illustration, see Rex v. Rice, 6 Car. & P. 634. 1 Rex v. Harvey, Russ. & Ry. 227. 2 Reg. v. West, 2 Car. & K. 496, 1 Den. C. C. 258; Clark v. Newsam, 5 Railw. Cas. 69, 1 Exch. 131. 8 Yet see, as to an order, ante, § 329, note. 4 Rex v. Lyon, 2 Leach, 4th ed. 597, 2 East P. C. 938. > Rex v. Thompson, 2 Leach, 4th ed. 519. See also, on the general subject, The State v. Martin, 9 Humph. 55; People v. Hoag, 2 Parker, 36; Reg. v. Rodway, 9 Car. & P. 784; Reg. v. Frampton, 2 Car. & K. 47; Reg. ». Smith, 2 Den. C. C. 449, 9 Eng. L. & Eq. 582; People v. Loomis, 4 Denio, 880; Commonwealth v. Williams, 9 Met. 278; Reg. v. Inder, 1 Den. C. C. 825 ; Rex v. Hope, 1 Moody, 414; Reg. v. Pringle, 2 Moody, 127; Kegg v. The State, 10 Ohio, 75. 6 Rex v. Hunter, 2 Leach, 4th ed. 624, 2 East P. C. 928, 977. 7 Reg. v. Cooper, 2 Car. & K. 586. 8 See Rex v. Barton, 1 Moody, 141, and some cases mentioned in the last section. 9 See ante, § 335. 227 § 344 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. § 343. Acquittance.— This word is in some statutes employed in connection with the word “receipt”; but it requires no separate explanation.! § 344. Goods — Chattels.— In the books of the law, these words are usually, not always, found together; thus, “ goods and chattels.” They are nearly alike in import; though chat- tels is the more technical word, and, in pure legal phrase, the more appropriate. Perhaps, also, it is the more extensive in meaning. Hach of these words, in its largest sense, signifies all a man’s property other than real estate; yet the word “ goods” seems to be quite variable, and sometimes to embrace much less.2 But in the criminal law, particularly in statutes against larceny, neither of these words has been often, or ever, under- stood to have the full meaning thus indicated. The general doctrine here is, that neither word comprehends choses in action ; as bank-notes,? mortgage-deeds,t and the like. And where the words of a statute against larceny were “‘ any goods and chat- tels,” a dog was held not to be within these descriptive terms ; because dogs are not subjects of larceny at the common law.® It seems, also, that these words do not include any thing which circulates as money; or, rather, it has been so held under some English statutes, where perhaps the question really depended on the relation the words bore to others in the enactment.’ And in a statute against larceny of “any goods, wares, or mer- 1 Rex v. Martin, 7 Car. & P. 549; The State v. Martin, 9 Humph, 55; People v. Hoag, 2 Parker, 36; Reg. v. West, 1 Den. C. C. 258, 2 Car. & K, 496; Clark v. Newsam, 5 Railw. Cas. 69, 1 Exch. 181; Reg. v. Atkinson, 2 Moody, 215. 2 See Bouv. Law Dict. and Burrill Law Dict. voc. Goods, Chattels, re- spectively, and the authorities there cited ; 2 Bl. Com. 885. 8 The State v. Calvin, 2 Zab. 207; Commonwealth v. Swinney, 1 Va. Cas. 146 ; Rutherford v. Commonwealth, 2 Va. Cas. 141; Rex v. Hill, Russ. & Ry. 190; Rex v. Morris, 1 Leach, 4th ed. 468, 2 East P. C. 748; Rex v. Sadi, 1 Leach, 4th ed. 468, 2 East P. C. 748; The State v. Jim, 3 Murph. 3. 228 4 Reg. v. Powell, 14 Eng. L. & Eq. 575, 2 Den. C. C. 408. 5 And see The State v. Foster, 3 McCord, 442. 6 Findlay v. Bear, 8S. & R. 571. 1 2 East P. C. 648, 748; Rex v. Guy, 1 Leach, 4th ed. 241, 2 East P. C. 748; Rex v. Davidson, 1 Leach, 4th ed. 242, note. And see the observations of Story, J. in United States v. Moulton, 5 Mason, 537. According to one case, if an act of Parliament vests the prop- erty of “goods, chattels, furniture, clothing, and debts,” in certain persons, the property in money and securities for money is not thereby transferred. Rex v. Beacall, 1 Car. & P. 810, 454. In Ohio, the doctrine of the text seems not to be followed. Hall v. The State, 3 Ohio State, 575. CHAP. XI.] PARTICULAR WORDS AND PHRASES. § 345 chandise, in any vessel upon any navigable river,” the word “ goods ” was construed not even to extend to dollars, or Por- tugal money, not current by proclamation ; the reason appear- ing to be, that, as this word stood connected in the clause with ‘* wares or merchandise,” the latter limited its meaning. Yet, on the other hand, there is reason for the opinion, that “ goods and chattels’ embrace all coin, though circulating as money, which would be the subject of larceny at common law; and, in the United States Circuit Court for the District of Massachu- setts, it was decided, that the term “ personal goods” in the act of Congress of 1790, c. 86, § 16, should be so construed. The court in this case even intimated, contrary to what we have just seen to be the general doctrine, that under the phrase “ goods and chattels’? may be comprehended bank-bills, since they circulate as currency ; but not other choses in action, as promissory notes.2 With the exceptions already pointed out, the words under discussion seem to include every thing of a personal nature. Thus oats, rye, and corn, the produce of a man’s farm, and lying in his barn, are “ goods, wares, and merchandise”’;* the luggage of a passenger going to a steam- boat is “‘ goods and merchandise” ;* and a railroad passenger ticket is a “chattel” ;° as are also sheep, fowls, and other animals.® § 345. Continued. — But the words “ goods and chattels,” in these criminal statutes, may include, not only coin, but choses in action also, as promissory notes, bank-bills, and the like, when there are other words or other statutes which, on all being taken together,’ fairly require such interpretation. Thus, where the stealing of promissory notes was a statutory larceny, and a subsequent enactment made it a misdemeanor to “buy or receive any goods or chattels, knowing the same to have been stolen,” the judges of Ireland held, that promissory notes fell 1 Rex v. Leigh, 1 Leach, 4th ed. 52; # Rex v. Wright, 7 Car. & P. 159. Rex v. Grimes, 1 Leach, 4th ed. 53, 5 Reg. v. Boulton, 1 Den. C. C. 508, note, 2 East P. C. 647, Foster, 79, note. 2 Car. & K. 917, 18 Jur. 1034. And see ante, § 245. 6 2 East P. C. 748. Asses and pigs 2 United States v. Moulton, 5 Ma- have been held to be “cattle,” within son, 587. And see Rex v. Dean, 2 Stat. 9 Geo. 1, c. 22. Rex v. Chapple, Leach, 4th ed. 693, 2 East P. C.749; Russ. & Ry. 77; Rex v. Whitney, 1 Rex v. Mead, 4 Car. & P. 535. Moody, 3. 3 The State v. Brooks, 4 Conn. 446. 7 Ante, § 82, 86, 123. 229 § 346 INTERPRETATION OF CRIMINAL STATUTES. [BOOK I. within the latter act ;! yet substantially a contrary doctrine was laid down in New Jersey in an exceedingly well considered and ably reasoned case,? and there may be grave doubts whether the latter is not the true view. In England, the halves of county bank-notes, sent in a letter, are held to be goods and chattels ;* and a bank-note is, within the words “ money, goods or chattels, wares or merchandises,” of Stat. 12 Anne, stat. 1, ce. 7, § 1, concerning stealing from a dwelling-house ;* but the Virginia court denied that such note was to be included under words similar to those last mentioned. On the whole, these terms are not so well defined in the criminal law as we might wish they were; the cases are at several points conflicting; and the careful practitioner will not advise in a matter of doubt, without first making a particular examination, both of the de- cisions at large and of the statute law of his own State. § 846. Money.— The word “ money” means, in these stat- utes, only that which is a legal tender.’ It does not, therefore, include bank-bills, though they pass current ;® neither does it include United States treasury warrants,’ nor county claims,” 1 Rex v. Crone, Jebb, 47. And see Anonymous, 1 Crawf. & Dix C. C. 152. See People v. Kent, 1 Doug. Mich. 42; Hall v. The State, 3 Ohio State, 575. 2 The State v. Calvin, 2 Zab. 207. 3 See the various cases cited to the last section. 4 Rex v. Mead, 4 Car. & P. 585. 5 Rex v. Dean, 2 Leach, 4th ed. 6938, 2 East P. C. 646, 749. § Commonwealth v. Swinney, 1 Va. Cas. 146, 151. And see Rex v. Hill, Russ. & Ry. 190. 71 East P. C. 147, 149. And see Hale v. The State, 8 Texas, 171; Col- son v. The State, 7 Blackf. 590. In England, foreign coin is considered mere bullion, unless made current by proclamation, 1 East P. C. 149. But by legislation pretty generally prevailing now, the setting out even of a by-law has become in most localities unnecessary, and the court is to take judicial cognizance of it.6 The provision 1 Feltmakers v. Davis, 1 B. & P. 98. * The State v. Soragan, 40 Vt. 450. 2 Rex v. Lyme Regis, 1 Doug. 149; Feltmakersv. Davis, supra, where it was observed, per curiam, that the “ power of making by-laws is incident to every corporation, either by the body at large or by a select part ; and it is in the lat- ter case only that the power need be shown.” p. 100. And see Rex v. Bird, 18 East, 367. 3 See The State v. McAllister, 24 Maine, 189; The State v. Soragan, 40 Vt. 450; Clark v. Janesville, 10 Wis. 186. * Feltmakers v. Davis, 1 B. & P. 98. & In a Massachusetts case, Wilde, J. once observed : “ Another objection, on which great stress has been laid, relates to the form of the complaint, which ought, as it is urged, to have set out the by-law at large. But if the statute dis- pensing with the necessity of thus en- cumbering the record is a valid law [which the court held it to bé], this ob- jection must fail. Perhaps, even with- out the aid of the statute, the court below, being composed of citizens of 271 § 407 INDICTMENT OR COMPLAINT. [BOOK III. rendering it unnecessary pertains, of course, to the remedy, and it may be made applicable to past offences as well as future.! The complaint or information should conclude both against the form of the by-law,? and also against the form of the statute ;8 because evidently it rests both upon the by-law and upon the statute. In other respects, the allegation should conform, in fulness, to the indictment or complaint upon a statute ; as, for example, it will be insufficient though it fills the very language of the by-law, if it does not charge such an illegal act as the by-law was intended to prohibit. The cause should be entitled in the name of the State or Commonwealth, the same as though the proceeding were on a statute.® § 407. A Form of Allegation —In England, the Municipal Corporations Act of 5 & 6 Will. 4, c. 76, having given, in § 90 and 91, authority to such corporations to establish by-laws enforceable by fine, to be recovered by summary conviction, we have in Paley on Summary Convictions the following form of the allegation : — “That, &c., did unlawfully suspend an article of dress, to wit, a shirt, over the causeway of a certain street there called High Street, for the purpose of then and there drying the same, contrary to the by-law of and for the said bor- ough in that behalf duly made at a meeting of the council of the said borough, held on the day of , 18 ,and which said by-law was at the time of the commission of the said offence, and still is, in force for the said borough, and contrary to the form of the statute in such case made and provided.” & This form will be suggestive, though doubtless some of the matter in it may be omitted. On the other hand, as the reader sees, it is insufficient by reason of not setting out the by-law, except where a statute dispenses with this formality. In this particular instance, the statute would not on general princi- ples need to be set out, because it is general, not local or private. Boston, were bound to take notice of pra; Lewiston v. Fairfield, 47 Maine, the by-law ; though generally, no doubt, 481. . a by-law must be pleaded.” Common- 3 Commonwealth v. Gay, 5 Pick. 44; wealth v. Worcester, 3 Pick. 462, The State v. Soragan, supra. 473. * The State v. Goulding, 44 N. H. 1 Commonwealth v. Bean, Thacher 284. Crim. Cas. 85. 5 The State v. Soragan, supra. 2 Commonwealth v. Worcester, su- § 1 Paley Convict. 4th ed. 522. 272 CHAP. XVIII.] SCOPE AND DIVISIONS. § 409 BOOK IV. THE LEADING STATUTORY OFFENCES CONNECTED WITH THE COMMON LAW. CHAPTER XVIII. SCOPE OF THE DISCUSSION AND HOW DIVIDED. § 408. Scope of Present Book.—It is the purpose of the author, in the series of chapters on which we are now entering, to bring together in groups the principal statutory provisions creating or defining offences of the sort analogous to those existing by the common law; and show how they operate, not only of themselves alone, but in connection with the common law. Incidentally, therefore, to the main purpose, the author will be obliged to draw the outlines of the leading common- law crimes. At the same time this is not an independent work, but is a volume in a series, of which the author’s works on “ Criminal Law ” and “ Criminal Procedure” are also parts. When, therefore, a particular offence has been discussed in those works, the discussion here will be brief. Still, in respect of such offences, something will be required to show the effect of statutes upon them. The leading statutory offences of the minor kind, and those less connected with common-law crimes, not there discussed, will be elucidated more fully in the subse- quent part of this volume, with respect both to the law and the procedure. § 409. In what Groups.— Instead of following either the alphabetical order, as in the second volumes of the works on Criminal Law and Criminal Procedure, or the more philosophi- cal order pursued in the first volume of the work on Criminal 273 § 411 LEADING STATUTORY OFFENCES. [BOOK Iv. Law, we shall here single out various leading and well-known crimes ; and, after discussing them severally, group around them such as seem to have an affinity to them. Thus, under the Larceny group, we ‘shall discuss, not only larceny proper, but cheats, false pretences, and some others; under the Rob- bery group, we shall consider, besides robbery, the other forms of taking property by force; under the Homicide group, we shall bring to view, besides the felonious homicides, the various other methods of endangering the personal safety, including, of course, such offences as assault and battery. But it is not necessary to specify all here. CHAPTER XIX. LARCENY AND OFFENCES IN AFFINITY TO IT. 410. Introduction. 411, 412. Larceny at Common Law. 413-429, Statutory Larcenies. 480. Malicious Mischief at Common Law. 431-449. Statutory Malicious Mischief. 450. Cheats at Common Law. 451, 452. Statutory Cheats. 453-462. Offences in Affinity with these. § 410. How the Chapter divided. — We shall consider, I. Larceny at the Common Law; II. Larceny under Statutes; IIT. Malicious Mischief at the Common Law; IV. Malicious Mischief under Statutes; V. Cheats at the Common Law; VI. Cheats under Statutes; VII. Statutory Offences in Affin- ity with these. I. Larceny at the Common Law. § 411. Outlines.— Discussions of this offence, somewhat minute, and of the proceeding for its punishment, may be found in the other works of the present series! There is perhaps no other offence in which the form of the allegation against the offender, as established and made good by ages of 1 Crim. Law, 5th ed. II. § 757 et seq., Crim. Proced. 2d ed. § 696 et seq. 274 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 412 use, seems so nearly inadequate, as in this, to, cover what the law requires to be proved. The indictment charges that the defendant did feloniously steal, take, and carry away certain articles of personal property, which it specifies, adding usually the value, of the goods and chattels of a person whom it names.1 But when the law is expounded and the evidence produced, the following propositions are found necessary to be supported : — 1. The goods must correspond in description with the alle- gation in the indictment. 2. The ownership must be shown. 8. The value, so far as the law makes it essential to the punishment, but no further. 4, It must appear that the defendant committed a technical trespass on the goods. This point is incumbered with many rules of a very refined sort. 5. When the trespass was committed, they must have been personal property, and not real, or savoring of the realty, and of a kind to which the ancient common law attributed a value. Therefore of unreclaimed wild animals, of things adhering to the soil, of chose in action, and the like, there can be no lar- ceny at the common law. 6. Simultaneously with the trespass, there must exist, in the mind of the thief, the intent to steal the goods. On the ques- tion of the nature of this intent, — as, whether the thief must mean to make them his own, or whether it is sufficient merely to intend to deprive the owner of them,— the adjudications are not quite uniform. But all hold that the thief must mean to take from the owner the entire property, in distinction from any mere temporary use. 7. These facts must all have transpired in the_county in which the indictment is found. ; § 412. General View.— This enumeration of things will serve as an aid to the memory; but the law of larceny is full of technicalities, and no one can understand it who does not study it in its details. The reader can also refer to it to deter- mine whether or not a statute has changed the common law of this offence. 1 And see Crim. Proced. 2d ed. I. § 522; II. § 697. 275 § 415 LEADING STATUTORY OFFENCES. [BOOK Iv. II. Larceny under Statutes. § 415. In General Terms. —If a statute, in general terms, provides, that “ whoever shall be guilty of larceny” shall be punished in a manner pointed out,! the offence which it creates is the same, in its entire extent and its limitations, as larceny at the common law.? For example, since larceny at the com- mon law cannot be committed by taking and carrying away, in one transaction, any thing which pertains to the realty,? it can- not under the statute. Therefore, under such a statute, it is not larceny to take and carry away, with a felonious mind, copper pipe which was attached to the freehold. How the indictment should be drawn, in this class of cases, we have already seen. The doctrine, in brief, is, that, where the indict- ment is really upon the statute, instead of being at the common law while the statute is simply looked to on the question of the punishment, it must be in the common-law form, but con- clude against the form of the statute.® § 414. Statutory Words extending beyond Common-law Doc- trine : — Different Classes of Cases — Things not Subjects of Larceny at the Common Law. — The legislation of our country and of Eng- land presents numerous instances wherein statutes have broad- ened, or attempted to broaden, the doctrine of larceny as expounded by the common law; making, indeed, multitudes of larcenies which were not such under the unwritten laws. The most familiar of these make bank-bills and other choses in action, and various things pertaining to the realty, subjects of larceny, which were not such at the common law. The more general doctrine relating to this class of statutes is, that the offence created by them is to be treated in all respects as a common-law larceny, except that the indictment describes the instrument’ or other thing stolen in the statutory words, and concludes against the form of the statute.” § 415. Continued — Follow Statute — Things fixed to the 1 La. Rev. Stats. of 1870, § 812. 5 Ante, § 381. 2 Ante, § 363. 6 And see Crim. Proced. 2d ed. IL. 3 Ante, § 411; Crim. Law, 5th ed. II. § 781. § 763-766. * 7 Crim. Proced. 2d ed. II. § 781-736 ; * The State v. Davis, 22 La. An. 77. Archb. Crim. Pl. & Ev. 18th ed. 296. 276 CHAP. XIX.] LARCENY AND ITS AFFINITIES. § 416 Realty. — Still, in these cases, the indictment must follow any descriptive words which the statute may contain.1_ Thus, it was in England provided by Stat. 2 & 3 Vict. c. 58, § 10, that, “if any person, &c., shall take, &c., the ore, &c., being in such mine,” &c., he “shall be deemed, &c., guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ;”’ and it was ruled that the words “ being in such mine ” should in some way be cov- ered by the allegation. Therefore where the indictment simply charged, that the defendants, persons employed in a mine, at a place named, did steal ore, the property of the adventurers in the said mine, then and there being found, it was insufficient, as not showing the property to have been in the mine when stolen.? In like manner, when Stat. 4 Geo. 2, c. 32, made it punishable in any one to “ steal, rip, cut, or break with intent to steal, any lead, &c., being fixed to any dwelling-house,” &c., the words “ being fixed to any dwelling-house’’ were impor- tant, and it was necessary they should be covered by the allegation. The form given by Chitty is the following: that the defendant, at the time and place named, “sixty pounds weight of lead, of the value of four shillings, belonging to C. D., then and there fixed to the dwelling-house of the said C. D., feloniously did rip, steal, take, and carry away, against the form of the statute, &c., and against the peace,” &c.2 The special words in these cases are material; and, if the lead, for example, was found by the prisoner already unfixed, and, being therefore personal property, he carried it off, he cannot be convicted on this form of the indictment.* § 416. Follow Statute, continued. — Again, the United States act of April 30, 1790, provided, in § 16, “ that, if any person, within any of the places under the sole and exclusive jurisdic- tion of the United States, or upon the high seas, shall take and carry away, with intent to steal or purloin, the personal goods of another,”’ he should be punished in a manner pointed out. And under this statute it has been deemed not to be sufficient 1 Crim. Proced. 2d ed. II. § 734. for further illustrations, Reg. v. Rice, 2 Reg. v. Trevenner, 2 Moody & R, Bell C. C. 87; Reg. v. Jones, Dears. & 476. And see Archb. Crim. Pl. & Ev. B. 555. 18th ed. 3800, 301. 4 Reg. v. Gooch, 8 Car. & P. 298. 3 8 Chit. Crim. Law, 973. And see, 277 § 417 LEADING STATUTORY OFFENCES. [BOOK Iv. to set out the larceny merely as at common law. Where it is not charged to have been on the high seas, the place must be alleged to be within the “ sole and exclusive jurisdiction of the United States.” Moreover, there must be an averment that the defendant took and carried away the goods with the intent to steal them, or with the intent to purloin them ; it being, in this part also, not sufficient merely to follow the common-law form. § 417. Continued —As to the Trespass.— We have seen,? that the common-law form of the indictment for larceny is very brief, yet it is holden to charge various elements which enter into the offence, among which is a trespass on the prop- erty stolen. If, then, a statute provides that, under certain circumstances which it specifies, there need be no trespass, but the wrongful act, without the trespass, shall be larceny, will the common-law form of the indictment suffice? On princi- ple, and perhaps on authority, if the statute altogether dispenses with the element of a trespass, then, as no trespass need be proved, none need be alleged, and less than the common-law form will suffice? Under such circumstances, it would seem, on principle, that the common-law form would not be ill; because, though it charged a trespass, that part of it might be deemed surplusage. But, where the statute dispensing with the trespass is special, applying only in circumstances which it particularly names, the indictment should contain allegations bringing the case within the special circumstances of the statute. For example, by the common law of Tennessee, the doctrine which exempts from the penalties of larceny the obtaining of goods by fraud was carried further than it is in England and the other States generally.* | Upon this, “ the act of 1842,” says the court, “ worked a material change in the common law. The trespass, either actual or implied, in every case of larceny at common law, in the taking, is, ta certain cases specified in the statute, dispensed with. A fraud- ulent appropriation of property, by any person to whose charge or care it is delivered, subject to the immediate orders of the 1 United States v. Davis, 5 Mason, 2 Ante, § 411. 356. And see Crim. Proced. 2d ed. II. 8 Prim v. The State, 82 Texas, 157. § 784. 4 Crim. Law, 5th ed. IL. § 814.- 278 CHAP. XIX. ] LARCENY AND iTS AFFINITIES. § 419 owner, or to the use of it in his business, or for the purposes of his trade, is declared to be larceny. So, also, if a contract of loan for use, or of letting and hiring, or other bailment or agency, be used merely as the means of procuring possession of property, with an intent to make a fraudulent appropriation at the time, it is in like manner, by statute, a larceny. In all these cases, the trespass necessary at common law is waived, and the fraudulent appropriation of goods, the possession whereof is obtained without a trespass, by any of the devices contained in the statute, completes the crime of larceny.” Thereupon it was held, that an indictment in the mere common- law form would not support a conviction for the obtaining of goods by the frauds specified in the statute. ‘It cannot be maintained,” continued the court, “ that an indictment charg- ing-a simple larceny at common law, which includes a trespass in the taking, cannot [can] be sustained by proof of obtaining goods under false pretences.” And it was further laid down, that, to allow this, would violate the provision of the State constitution, which secures to the prisoner the right “to demand the nature and cause of the accusation against him.” } . -§ 418. Embezzlement. — Out of the principle thus laid down, arose, by construction of the courts, the doctrine of embez- zlement. A statute, meant to extend the crime of larceny, provided, that, when a person of a class specified —as, for example, a servant —embezzled goods intrusted to him, he should be deemed guilty of larceny ; and thereupon the courts held, that an indictment in the common-law form as for larceny could not be maintained, but the allegation must be special, drawn upon the statute. The consequence was, that statutory larceny of this sort came to be looked upon as a separate crime, and it was called embezzlement.? -§ 419. Larceny by Bailees. — At common law, if a bailee acts honestly at the inception of the bailment, he cannot commit larceny of the goods while the relation of bailor and bailee subsists, between him and the general owner. But if he breaks Ball, he thereby ends the bailment and then he may 1 Hall v. The State, 3 Cold. 125. 3867, note; Crim. Proced. 2d ed. II. 2 Crim. Law, 5th ed. II. § 819-828, § 316-318. 279 § 420 LEADING STATUTORY OFFENCES. [BOOK Iv. commit larceny, and it is the same when the bailment is in any other way terminated, — as, for example, when a common carrier has taken the goods to their final destination. In like manner, if he receives the goods intending to steal them, he ” commits larceny in the original taking... And if he becomes possessed of the goods as bailee, not honestly, but through fraud, — as, where a person obtains possession of a horse and sleigh by falsely and fraudulently pretending that he wants them to drive to a certain place, and to be gone a specified time, when in fact he does not intend to go to such a place, but to a more distant one, and to be absent a longer time, — and, while thus in possession, converts the property to his own use with felonious intent, though he did not at first intend a theft, he commits larceny. Said Dickerson, J. in a case of this sort, “The prisoner obtained possession of: the property by fraud. This negatives the idea of a contract, or that the possession of the prisoner was a lawful one, when he sold the horse. He was not the bailee of the owner, but was a wrongdoer from the beginning ; and the owner had a right to reclaim his prop- erty at any time.”’? Now, to meet those cases in which wrong- doers escape the penalties of larceny under the constructions of the courts, various statutes have been enacted.? § 420. Continued — The Statutes.— The statutes on this subject differ considerably in the different States. In Illinois, the provision is as follows: ‘If any bailee of any money, bank-bill, or note, or goods or chattels, shall convert the same to his or her own use, with an intent to steal the same, he shall be deemed guilty of larceny in the same manner as if the original taking had been felonious, and, on conviction thereof, shall be punished accordingly.”* The present Eng- lish provision is in the following words: ‘“‘ Whosoever, being a bailee of any chattel, money, or valuable security, shall fraud- ulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty 1 Crim. Law, 5th ed. II. § 809, 818, 3 Crim. Law, 5th ed. II. « Mes. 888, 884, 836, 857-871. 4 Gross, p. 180, § 21. And see Crim. 2 The State v. Coombs, 65 Maine, Law, supra; Commonwealth v. Wil- 477, 480. liams, 3 Gray, 461. 280 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 421 of larceny, and may be convicted thereof upon an indictment for larceny.” 1 This statute was passed in 1861. Previously to its enactment, the following provision was in force, passed four years before: “If any person, being a bailee of any prop- erty, shall fraudulently take or convert the same to his own use, or the use of any person other than the owner thereof, although he shall not break bulk or otherwise, determine the bailment, he shall be guilty of larceny.” 2 § 421. Continued — Form of the Indictment. — It is perceived that the earlier and present English enactments are substan- tially alike, except that the present one contains a clause mak- ing the indictment for larceny sufficient. Under the former English enactment, a case was tried before Wightman, J. in which on an indictment as for larceny at the common law, concluding against the form of the statute, a man was tried and convicted as bailee under the statute; and, after some hesitation, he sentenced him to imprisonment.2 This one decision, by a single judge, seems not to have satisfied the profession ; for, in the subsequent cases which the author has noticed, the indictment was special in form, with a count added as for larceny at the common law.‘ The present statute plainly settles the question for England in favor of the com- mon-law form ;° but, aside from this and on principle, the ruling of Wightman, J. was evidently a departure from all precedent, having nothing to sustain it either in the English or American adjudications. If the reader will turn back to some practical directions for the drawing of indictments on statutes,® he will see that the form should vary with the par- ticular language of the statute. But let us suppose that we are to draw an indictment on the Illinois statute, recited in the last section. It will be convenient to lay before us a form found in Bassett’s Criminal Pleading, professedly drawn on this very section. It is as follows : — “That J. S., late of C., in the county of C., on the first day of July, in the year of our Lord , at C., aforesaid, in the county aforesaid, one gold 1 24 & 25 Vict. c. 96, § 3. & C. 98, 9 Cox C. C. 29; Reg. v. Loose, 2 20 & 21 Vict. c. 54, § 4. Bell C. C. 259, 8 Cox C. C. 302. 8 Reg. v. Haigh, 7 Cox C. C. 403. 5 Reg. v. Bunkall, Leigh & C. 871. * Reg. v. Hassall, Leigh & C.58,8 §& Ante, § 375 et seq. Cox C. C. 491; Reg. v. Robson, Leigh 19 281 ‘ § 421 LEADING STATUTORY OFFENCES. [BOOK Iv. watch of the value of one hundred dollars, of the goods and chattels of one J. N., then and there found, intrusted to the said J. S. by the said J. N. for safe-keeping, the said J. S. then and there did fraudulently and feloniously convert to his the said J. N.’s [J. S.’s] own use, with intent feloniously to steal, take, and carry away the same, whereby and by force of the statute in such case made and provided, the said J. S. is deemed to have committed the crime of larceny ; and so the jurors aforesaid, upon their oaths [oath] aforesaid, do say, that the said J. S. then and there, in manner and form aforesaid, the said gold watch, of the goods and chattels of the said J. N. feloniously did steal, take, and carry away ; against, &c. and contrary, &c.” ! The pleader in this instance has very properly consulted the forms established in embezzlement, and modelled his indict- ment after them. But the clause “ whereby and by force of the statute, &c., the said J. S. is deemed to have committed the crime of larceny,” is superfluous ;? because this is a mere conclusion of law from the facts stated, and the courts take notice of the law and its conclusions, and they need never be alleged.2 This clause we shall, therefore, reject. Again, this form does not keep closely enough to the statute to suit a well cultivated taste, or even to answer the requirements of the law; though possibly some courts might hold it to be adequate. The leading statutory word “ bailee”’ is not used, as in good plead- ing it should be;* and only great leniency of judicial con- struction could accept the circumlocution “intrusted to the said J. 8. by the said J. N. for safe-keeping,” as a substitute for it. We shall do well to look further after forms in this connection ; but the offence is recent in legislation, therefore the old books contain none. In an English case, the reporter, not giving the indictment in extenso, says: “The indictment alleged, that, on the 20th of July, 1859, the prisoner became and was bailee of moneys of Richard Carraway, deceased, to the amount of £40, and that, being such bailee, he fraudulently and feloniously did take and convert the said moneys to his own use, and that the prisoner in manner and form aforesaid feloniously did steal, &c., the said moneys.” 5 Let us, there- fore, draw our form on the above Illinois provision, and with respect to the facts attempted to be set forth in the foregoing Illinois form, as follows : — 1 Bassett Crim. Pl. 94. 4 Tb. I. § 385. 2 Crim. Proced. 2d ed. II. § 833,com- 5 Reg. v. Loose, Bell C. C. 259, 8 pared with the statute recited in § 831. Cox C. C. 302. 3 Ib. L. § 329, 516. 282 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 422 That J. S. &., on, &e., at, &c., became and was the bailee of one gold watch of the value of one hundred dollars, of the goods and chattels of one J. N. then and there being,! and, being so the bailee thereof, did then and there fraudu- lently and feloniously convert the same to his own use [it would probably be just as well to say, “ That J. S. &c., on, &c., at, &e., being then and there the bailee of one gold watch, of the value, &c., of the goods and chattels, &c., did fraudulently and feloniously convert, &c.;” because an allegation, however material, is sufficient though stated in the participial or even adverbial form,? and in this instance the participial form is particularly appropriate], with intent to steal the same; and so the jurors aforesaid, upon their oath aforesaid, &e. [proceeding as in the form above to the end.] § 422. Form of the Indictment, continued. — But is-this suffi- cient? In California it is held, in accord with the foregoing views, and contrary to the ruling of Wightman, J. that one cannot be convicted of larceny as bailee on an indictment for larceny drawn in the common-law form.’ The court of this State, however, has gone further, and contrary to the foregoing views has held, that it is not enough to charge the defend- ant, as in the foregoing form, with being bailee, but the facts and circumstances of the bailment must be set out. To the ' Probably no harm would come from here adding the word “found,” so common in indictments for larceny ; but it seems wholly inappropriate, and I should omit it. Crim. Proced. 2d ed. II. § 697, note. In the larceny case of The State v. Sparrow, 2 Taylor, 98, the entire phrase “ then and there being found” was very properly held to be unnecessary. 2 Crim. Proced. 2d ed. I. § 556-558. 3 People v. Jersey, 18 Cal. 337. * People v. Poggi, 19 Cal. 600. In this case, Norton, J. in delivering the opinion of the court, observed: “ The indictment states that the defendant ‘was the bailee of one hundred and thirty ounces of gold dust,’ which he converted to his own use, with intent to steal the same ; ‘the said gold dust being then and there the property, goods, and chattels of one Francisco Gallardo.’ There are no other aver- ments showing the character or circum- stances of the bailment, or that the de- fendant was in fact a bailee of gold dust. It was decided in the case of The People v. Cohen, 8 Cal. 42, that an in- dictment like this was insufficient, and the case of The People v. Peterson, 9 Cal. 818, was decided in the same way upon the authority of the former case. The remarks of the judge upon this point in the case of The People v. Co- hen are rather applicable to another statute regarding certain officers who are charged with the custody of public moneys (Wood Dig. art. 1927) than to the statute under which the indictment in that case was found (Wood Dig. art. 1931) ; and there does not appear to be any authority for the conclusion that the legislature intended to use the word bailee, in the statute last referred to, ina limited sense, as designating bailees ‘to keep, to transfer, or to deliver.’ Any bailee who converts the property of which he is the bailee to his own use, with intent to steal the same, may un- doubtedly be indicted for larceny under that statute. The decision that the in- dictment was insufficient was, however, correct, for the reason that it did not set forth the necessary facts to show that the defendant was a bailee of the property. The facts and circumstances 283 § 423 LEADING STATUTORY OFFENCES. [BOOK Iv. writer, this does not seem, on principle, to be necessary, for the following reasons: First, although the fact of the bailment is material, it is in a certain sense incidental ; the offence con- sisting in the person who sustains the relation of bailee to the property doing the forbidden thing. The gravamen of the charge is, that this person did ‘convert the same to his own use.” It is not denied, and it cannot be, that it is sufficient simply to follow the statute in this part of the allegation ;1 therefore, a fortiori, it should be sufficient in the other part. Secondly, the relation of bailee is well known in the law; just as well known, though not quite so common, as the relation of owner. It is not necessary to allege how a man became owner of personal property, or to state the facts and circumstances of the ownership. When one is charged with being owner, the allegation covers all necessary facts; in like manner it should be held, that, when one is charged with being bailee, the alle- gation covers all necessary facts. § 423. What constitutes Bailee.— As to what constitutes a bailee, within the meaning of these statutes, there do nof ap- pear to be any doctrines peculiar to the criminal law.2 A bailment takes place when an article of personal property is put into the hands of one for a special purpose, and it is to be returned by the bailee to the bailor, or delivered to some third person, when the object of the trust is accomplished. If, then, which are necessary to constitute a com- plete offence must be stated with di- rectness and certainty. Proof of the circumstances constituting the bailment must be made at the trial, and the es- sential facts to be proved should be stated in the indictment. So are the precedents of indictments under stat- utes substantially the same. 3 Chit. Crim. Law, 967; Commonwealth v. Merrifield, 4 Met. 468. By the same precedents it appears that it is sufficient to state the fact of the conversion with intent to steal in the language of the statute, without specifying any particu- lars of the mode of conversion.” p. 600, 601. As to the authorities referred to by the learned judge, near the close of this quotation, I cannot see that they are pertinent to the point, but perhaps 284 Iam mistaken. If, as mere.precedents, they covered the precise point, I should adapt to the occasion the words of Seawell, J., sitting in the North Caro- lina court, in a case the point of which was stated in a note to the last section: “ Now although it is true, that prece- dents are high authority as to what the law is, yet, in this case, they only prove that they contain these words; for it is certain that most of them con- tain many things which never were essential, and some they retain which long since have become useless.” The State v. Sparrow, 2 Taylor, 93, 94. 1 People v. Poggi, supra. 2 See the long note to the last section ; Reg. v. Hassall, Leigh & C. 58, 8 Cox C. C, 491, CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 424 the specific thing is not to be restored on the trust being ful- filled, — as, if the money of a club is put into the hands of its treasurer, whose duty does not require him to keep and return the particular coins which he receives, — the transaction is not a bailment.! It was once held, in England, by a single judge, that a married woman could not be a bailee, within the mean- ing of these statutes ;? but, though the point is perhaps not quite settled, it appears from a later case before the whole court that she can be. The idea on which she was supposed not to be capable of becoming a bailee is, that a contract is essential to a bailment, and that a married woman cannot enter into a contract. But on the other hand it is asserted that there may be a bailment without contract. It was intimated and perhaps ruled by the recorder of London, in one case, that there cannot be a bailment which is procured by the bailee’s fraud. It seems to the present writer, that, though these two classes of cases are not without their difficulties, if the formal- ities which constitute a bailment are gone through with, it violates no principle of the law while it promotes justice to hold, that, on a question of crime, the formal bailee shall not be permitted to set up his own fraud, or even her own want of civil capacity, in defence. At the same time, this is a point which a practitioner could not be expected to carry before every judge.é § 424. What Act of Bailee constitutes Larceny. — It has been ruled, by a single judge, to be necessary, in order to maintain the charge of larceny against the bailee, to show some act of conversion inconsistent with the purpose of the bailment.® This doctrine has been both affirmed and denied by other ! Reg. v. Hassall, supra. And see Reg. v. Hoare, 1 Fost. & F. 647. 2 Reg. v. Denmour, 8 Cox C. C. 440. 3 Reg. v. Robson, Leigh & C. 938, 9 Cox C. C. 29. + Reg. v. Hunt, 8 Cox C. C. 495. 5 See further as to what constitutes a bailment, Reg. v. Loose, Bell C. C. 259 ; Reg. v. Bunkall, Leigh & C. 371, 9 Cox C. C. 419; Reg. v. Davies, 14 W.R. 679, 14 Law Times, n. s. 491; Hunt v. Wyman, 100 Mass. 198; Becker v. Smith, 9 Smith, Pa. 469. A man be- ing on the ground in a state of partial intoxication and partly asleep, saw an- other, with whom he was acquainted, take from his pocket his watch, and employed no measures to prevent it be- cause he believed the object to be to preserve the watch for him; this was ruled to constitute a bailment, subject- ing the bailee, who converted the watch to his own use, to indictment under the statute. Reg. v. Reeves, 5 Jur. n. 8. 716. 6 Reg. v. Jackson, 9 Cox C. C. 505. 285 § 425 LEADING STATUTORY OFFENCES. [BOOK Iv. judges; but, where the prosecutor had given the prisoner money to buy coals, which the latter was to bring in his own cart to the former for hire, and the prisoner bought the coals in his own name, and on his way to the prosecutor’s abstracted some of them for his own use, it was held, that, whichever view of the above point be taken, here was a bailment of the coals, which in law were the prosecutor’s, though they had never come into his own hands, and here was a sufficient act of conversion.! So if a carrier is employed to deliver a boat’s load of coals, in his own cart, to persons named in a list, and he fraudulently sells some of them and takes the money to his own use, he may be convicted of the larceny of these coals as bailee.2. And it was laid down in another case, that a carrier who, receiving money to procure goods, obtains the goods which he duly delivers, but fraudulently retains the money, may be convicted of the larceny of the money as bailee.? Looking at the question of the necessary combined act and intent, in the light of principle, if the statutory words are “ shall convert the same to his own use,” evidently the mere intent to convert is not enough, there must be some act also. But the act need not be such as would be unlawful if the intent were lawful. On the other hand, the act may receive color from the intent. Thus, it might be lawful for a common carrier, acting in good faith, to stop on the way at his own house, and there to change the goods from one vehicle to another ; but, if he should do this intending to steal them, and as an act of theft, the case would be entirely different ; and then, on principle, he would be guilty of larceny as bailee within the statute. § 425. Summary of Foregoing Doctrines. — There are various other statutory larcenies, differing more or less from larceny at the common law; but it is believed that the practitioner who makes himself acquainted with the principles governing those already discussed in this sub-title, will have little difficulty with the rest. It is perceived, that almost the only peculiarity governing these larcenies relates to the form of the indictment. 1 Reg. v. Bunkall, Leigh & C. 871, 9 2 Reg. v. Davies, 14 W. R. 679, 14 Cox C. C. 419. Law Times, n. s. 491. 3 Reg. v. Wells, 1 Fost. & F. 109. 286 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 426 And here the doctrine is, that, in some way, the allegation must be brought within both the statute and the common law. If the statute simply makes it larceny to steal a particular thing, of which there could be no larceny at the common law, then an allegation in the common-law form, merely employing the statutory term, answers both these ends. If the statute uses further descriptive words, these words also must be em- ployed. If, again, the statute makes a particular act larceny, when the act was not such at the common law, then the act must be set out in the words of the statute, while still the indictment must be so drawn as to embrace also the common- law form. If, lastly, the statute simply makes that larceny which was such at the common law, the common-law form of the indictment will suffice, but nothing short will. In all these cases, it should be borne in mind, the indictment must conclude “ against the form of the statute in such case made and provided.” § 426. Stealing a Particular Animal.— There are, however, some English and American statutes which require explana- tion, differing somewhat from the foregoing. Thus, in England, from early times, there have been statutes making the stealing of particular animals mentioned larceny, and attaching thereto a particular punishment, though at the same time these ani- mals were the subjects of larceny at the common law. The present English enactment, condensing into one section what went before, is as follows: ‘“ Whosoever shall steal any horse, mare, gelding, colt, or filly; or any bull, cow, ox, heifer, or calf; or any ram, ewe, sheep, or lamb, — shall,” &c.1 In words more or less closely resembling these, various statutes have been enacted in our States. We have already seen how the animal is to be named in the indictment, when the words employed in the statute to designate it overlie one another in meaning.? The word “horse” includes in meaning a mare or gelding, as well as the animal of the male sex ;3 so a mare 124 & 25 Vict. c. 96, § 10. The were several, and in forms perhaps less prior statute of 7 & 8 Geo. 4, c. 29, § 25, compact. See 2 Hast P. C. 614-617. was in nearly the same words. But 2 Ante, § 247, 248. before this time the statutory provisions 3 Baldwin v. People, 1 Scam. 304; Reg. v. Aldridge, 4 Cox C. C. 143. 287 § 428 LEADING STATUTORY OFFENCES. [BOOK IV. filly is a “mare.” 1 It was formerly held that an indictment for stealing a “cow” could not be supported by evidence of stealing a heifer ;? but this was during the. reign of the old doctrine, when the words were narrowed by construction, so as not to overlie one another. In accordance with what is pretty generally the accepted view now, the Alabama court has held, that an indictment for stealing a cow is sustained by proof of the larceny of a heifer between two and three years old, that never had a calf. But the reader should remember that the old doctrine is still held in some of our States; for example, it isin Texas.!. § 427. Continued. — The general doctrine of larceny, as it prevails in England and our States, makes the punishment greater or less according to the value of the goods. There- fore, since whatever enters into the punishment prescribed by the law for any offence must always be alleged in the indict- ment,® it is necessary that the ordinary indictment for larceny should mention the value of the thing stolen. But in these cases of the statutory larceny of a specified animal, where the statute is silent on the subject of value, there need be no allegation of value in the indictment.6 At the same time, this sort of indictment often alleges the value, and no harm can come from the allegation, which is mere surplusage. It must, of course, conclude against the form of the statute, when the statute affects any thing except the punishment. But where an indictment charged a larceny of a mare, saddle, and bridle, yet did not conclude against the form of the stat- ute, it was held, in England, that, since the stealing of the mare, as well as the stealing of the saddle and bridle, was a felony at the common law, and not created or altered in its nature by the statute, the indictment would suffice, and the statutory punishment would attach to the stealing of the mare.’ § 428. Continued. — It follows, from these views, that a 1 Rex v. Welland, Russ. & Ry. 494. 5 Crim. Proced. 2d ed. I. § 77 et seq. 2 Rex v. Cook, 1 Leach, 4th ed. 105, 6 The State v. Daniels, 32 Misso. 2 East P. C. 616. 558; Sheppard v. The State, 42 Ala. 3 Parker v. The State, 89 Ala. 365. 581; Crim. Proced. 2d ed. I. § 541, 567; * Ante, § 248; Marshallv. The State, II. § 713-717. 81 Texas, 471. 7 Williams v. Reg. 7 Q. B. 250. 288 CHAP. XIX.] LARCENY AND ITS AFFINITIES. § 430 count charging a larceny of the particular animal may be joined in the indictment with one charging a larceny at the common law.! § 429. Continued. —— And in other respects the indictment conforms to the common-law indictment for larceny. For example, it should allege the name of the owner.2? And the same may be observed of the other particulars relating to this offence. Thus there must be a felonious intent; as, if a per- son stealing other property takes a horse, not to steal it, but to get off with the other property, and then he turns the horse loose, he does not commit larceny of the horse.? III. Malicious Mischief at the Common Law. § 430. General Doctrine.— Malicious mischief is perhaps plainly enough an offence at the common law, but its bounda- ries are in some respects uncertain. If one destroys an article of personal property through ill-will or resentment toward its owner, he commits this offence, as the doctrine is pretty gen- erally held. But if the act of mischief consists merely in some serious damage to the property, or if the destruction or dam- age is to something pertaining to the realty, or if the malevo- lent mind is of a more general sort and there is no particular ill-will toward the owner, the question whether this offence is committed is one upon which the authorities are less harmoni- ous. Most courts hold, that malice toward the owner is neces- sary ; the division is nearly equal upon the question, whether the offence can be committed by doing damage to real estate ; and there is great uncertainty as to what is the damage or de- struction which the common law requires. The consequence is, that this sort of ground is pretty generally covered by stat- utes. Indeed, the plentifulness of the statutes, particularly the English ones, and their early dates, appear to be the main cause of the uncertainties connected with the common law itself. 1 Barton v. The State, 18 Ohio, 221. 4 Crim. Law, 5th ed. II. § 983 et And see The State v. Nutting, 16 Vt. seq., and the places in Vol. I. there re- 261. ferred to; Crim. Proced. 2d ed. II. 2 The State v. France, 1 Tenn. 484. —§ 837 et seq. 3 Rex v. Crump, 1 Car. & P. 658. 289 § 438 LEADING STATUTORY OFFENCES. [BOOK Iv. IV. Malicious Mischief under Statutes. § 481. English Legislation —The early English statutes on this subject were very numerous, diversified, and complicated in their provisions. The reader will find an excellent view of them in East’s Pleas of the Crown.! But, except as reénacted, or otherwise adopted by express legislation, no one of them appears to have ever had any force as law in this country.? In 1827, all the early legislation was superseded by Stat. 7 & 8 Geo. 4, c. 30, wherein what had gone before was digested and revised. This statute consists of forty-three sections, and cov- ers a wide range of matter. But still legislation on the subject accumulated, till, in 1861, 24 & 25 Vict. c. 97, in seventy-nine sections, was passed “to consolidate and amend the statute law of England and Ireland relating to malicious injuries to property.” § £82. Black Act.— The most noted of the many early Eng- lish statutes on this subject is 9 Geo. 1, c. 22, known as the Black Act. It took its name from the occasion of enacting it, and from the preamble, which recites, that, “ whereas several ill-designing and disorderly persons have of late associated themselves under the name of blacks,” &c. This statute is not confined to malicious mischief, but it extends to some other subjects also. A part of the first section is as follows: “If any person, &c., shall unlawfully and maliciously kill, maim, or wound any cattle, or cut down or otherwise destroy any trees planted in any avenue or growing in any garden, orchard, or plantation, for ornament, shelter, or profit; or shall set fire, &c., every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy.” § 433. American Statutes — Malice against Owner.— The Amer- ican statutes are in diverse terms, but in the main they are based on the English. One of the important questions arising under these enactments relates to the nature of the malice which must be shown to have moved the defendant to the un- lawful act. As elsewhere explained, it is the general common- law doctrine, in this country, that ‘the malice must be against 1 2 Bast P. C. 1045-1103. 2 Crim. Law, 5th ed. IL. § 999. 290 CHAP. XIX.] LARCENY AND ITS AFFINITIES. § 484 the owner of the property, and not against another person, or against the property itself; it not being, for instance, sufficient where a man kills an animal out of an ill mind toward it.” } And the same doctrine was applied by the English courts in the interpretation of the early statutes, at least, of the Black Act; for, as observed by Mr. East, “ it is clearly settled, that, in order to bring an offender within this law, the malice must be directed against the owner of the cattle, and not merely against the animal itself’? Why? The author has not been able to discern the reason in the opinions of the English courts.® § 434. Malice against Owner, continued — English Interpreta- tions. — The cases in which the point has been held having all risen under the Black Act, Mr. East derives this result from the preamble ; and the same result he derives also from the preamble of the similar and earlier statute of 87 Hen. 8, c. 7. He deems that the word “ maliciously,” employed in the stat- utes, would not of itself lead to this consequence ; but it would be satisfied by acts coming within “ its most general significa- tion, as denoting an unlawful and bad act, an act done malo animo from an unjust desire of gain, or a careless indifference of mischief.” * The entire preamble of the Black Act, of which 1 Crim. Law, 5th ed. II. § 996. 2 2 East P. C. 1172. on purpose and of malice aforethought, and by lying in wait, shall unlawfully 3 The following are the principal English cases on this head: Rex v. Aus- ten, Russ. & Ry. 490, holding that mal- ice against a servant or relation of the owner is not sufficient ; but in Rex v. Salmon, Russ. & Ry. 26, it appears to have been held, that malice against the owner is not essential on a charge of setting fire under this statute; Rex v. Pearce, 1 Leach, 4th ed. 527, 2 East P. C. 1072; Rex v. Kean, 2 East P. C. 1078, 1 Leach, 4th ed. 527, note; Rex v. Shepherd, 1 Leach, 4th ed. 539, 2 East P. C. 1073; Anonymous, 2 East P. C. 1073, 1 Leach, 4th ed. 540, note; in which several cases it was held that malice or resentment toward the animal was not sufficient, it must be against the owner. 4 2 East P. C. 1062, 1063, 1071, 1072. For example, Stat. 22 & 23 Car. 2, c. 1, § 7, provides, that, “if any person, &c., cut out or disable the tongue, &c., of any subject, with intention in so doing to maim or disfigure him,” &c.; and East observes : ‘‘ It does not seem necessary that the malicious intention described should be directed against any partic- ular individual. If it be conceived against all persons who may happen to fall within the scope of the perpetrator’s design, the particular mischief done to .any one shall be connected with the general malignant intent, so as for the statute to attach upon the offenders. This is necessarily to be inferred from Carroll’s Case [Rex v. Carroll, 1 Leach, 4th ed. 55, 1 East P. C. 394], who was an entire stranger to the gentleman whom he assaulted, and who could not have been personally in his contempla- tion till the occasion occurred on the sudden. So, if a blow be intended to maim one, and by accident maim an- 291 § 435 LEADING STATUTORY OFFENCES. [BOOK Iv. the reader will judge for himself, is in the following words: “Whereas several ill-designing and disorderly persons have of late associated themselves under the name of blacks, and entered into confederacies to support and assist one another in stealing and destroying of deer, robbing of warrens and fish ponds, cutting down plantations and trees, and other illegal practices, and have, in great numbers, armed with swords, fire-arms, and other offensive weapons, several of them with their faces blacked, or in disguised habits, unlawfully hunted in forests belonging to his majesty, and in the parks of divers of his majesty’s subjects, and destroyed, killed, and carried away the deer, robbed warrens, rivers, and fish ponds, and cut down plantations of trees; and have likewise solicited several of his majesty’s subjects, with promises of money, or other rewards, to join with them; and‘have sent let- ters in fictitious names to several persons, demanding venison and money, and threatening some great violence if such their unlawful demands should be refused, or if they should be inter- rupted in or prosecuted for such their wicked practices, and have actually done great damage to several persons, who have either refused to comply with such demands, or have endeav- ored to bring them to justice, to the great terror of his majes- ty’s peaceable subjects.” !_ This question could not have arisen in England since 1827, the consolidating act of 7 & 8 Geo. 4, ce. 80, having provided, in § 25, “ that every punishment and forfeiture by this act imposed on any person maliciously com- mitting any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise.”? And this provision is continued in the present act.? § 435. Continued — American Interpretations.— Whether, un- other, the party is equally liable to be ! For the effect of a preamble on the indicted or appealed for such maim.” interpretation of the statute, see ante, 1 East P. C. 396. The same doctrine, § 48-51. the reader will observe, is by the courts 2 As to the interpretation of this pro- applied to the “‘ malice aforethought” vision, see Reg. v. Tivey, 1 Den. C. C. which constitutes murder. Crim. Law, 638, 1 Car. & K. 704. 5th ed. I. § 828; II. § 675 et seq. 3 24 & 25 Vict. c. 97, § 58. 292 CHAP. XIX.] LARCENY AND ITS AFFINITIES. § 437 der our American statutes, expressed in general terms, yet employing the word “ maliciously,” there must be express malice toward the owner, or whether general malevolence, or resentment toward the beast injured, will suffice, is a question upon which we appear not to have any very enlight- ened judicial discussions, but upon it differing opinions have been expressed. Where the indictment is at common law, the American doctrine appears pretty plainly to be that there must be a particular malice toward the owner ;! but, where the indictment is drawn on a statute, the question depends partly on the particular language of the statute, and partly, as just observed, on the differing views of different judges.? § 436. Continuea — How in Principle. — Since all statutes are to be construed in harmony with the common law,? if, at the common law, a particular malice toward the owner, in distinc- tion from general malevolence, or-resentment against an ani- mal injured or destroyed, is necessary, it is difficult to avoid requiring the same thing under a statute the words of which are not express on this point. But it occurs to the writer that there may, after all, be some doubt as to what is the true com- mon-law doctrine. As the common law does not recognize any rights in animals, and does not punish mere cruelty toward them, it seems pretty plainly to follow that no ill mind toward the animal can properly supply the malice required by these statutes. But the question whether there must necessarily be a particular malice toward the owner is one of another sort; and, on principle, general malice, or a particular malice toward a third person, ought to suffice; because, in general, this sort of malice constitutes a sufficient evil intent in the criminal law, while also it falls within the reasons on which these pro- hibitions are founded.® § 437. Illustrations of the Required Malice.— Where, then, the killing or maiming of an animal is in a passion against it,® or 1 Crim. Law, 5th ed. IL. § 996. 8 Ante, § 7, 75, 82, 88, 114, 123, 131- 2 Hobson v. The State, 44 Ala. 380, 144, 155, 156. 881; Johnson v. The State, 37 Ala. + Crim. Law, 5th ed. I. § 594, 595. 457; The State v. Pierce,;7 Ala. 728; 5 And see ante, § 484 and note. The State v. Enslow, 10 Iowa, 115; 6 Rex v. Kean, 2 East P. C. 1078; Mosely v. The State, 28 Ga. 190; Rex v. Shepherd, 1 Leach, 4th ed. 589, Wright v. The State, 30 Ga. 825; The 2 East P. C.1073; Anonymous, 2 East State v. Hambleton, 22 Misso. 452. P. C. 1078. 293 § 438 LEADING STATUTORY OFFENCES. [BOOK Iv. where a maiming is done to make it quiet while an act of bestiality is being committed,! the transaction lacks the sort of malice required in malicious mischief. In like manner, if an animal is in the habit of trespassing on a man’s fields, and destroying his crops, and during an act of trespass he shoots the animal, not out of any malice, but to preserve his crops, though he may not be justified civilly, he is criminally. The motive is not what the law deems malicious.? But as observed by Chitty? “it is not necessary to give evidence of express malice against the owner, which will be presumed until the con- trary appears. And in Dawson’s case, who was indicted for poisoning horses, in order to prevent them from running the race, defendant having betted against them, it was held that the intent was sufficient to bring the case within the act, and the defendant was convicted.” & § 438. Form of the Indictment — Black Act.— On the before- mentioned clause of the Black Act, “if any person, &c., shall unlawfully and maliciously kill, &c., any cattle,’ &c.,° Chitty furnishes the following form of the indictment : — “That A. H., late of, &c. [being an ill-designing and disorderly person, and of a wicked and malicious mind, after the first day of June, in the year of our Lord one thousand seven hundred and twenty-three, to wit], on, &. [with force and arms®], at, &c., one [black 9] gelding [of the price of fourteen pounds !9], of the goods and chattels of one J. J. [in a certain field belonging to him the said J. J..)] then and there being, feloniously, unlawfully, wilfully, and maliciously then and there did kill and destroy [to the great damage of him the said J. J.!°], against the form of the statute, &c., and against the peace, &c.” 8 1 Rex v. Pearce, 1 Leach, 4th ed. 527, 2 East P. C. 1072. +. 2 Wright v. The State, 30 Ga. 325. 3 3 Chit. Crim. Law, 1087, note. 4 2 Hast P. C. 1074. The American editor refers also to The State v. Coun- cil, 1 Tenn. 305. 5 Dawson’s Case, MS. The indict- ment is given 3 Chit. Crim. Law, 1088. 6 Ante, § 482. T Plainly none of the words enclosed in these brackets are necessary. The words “after,” &c., are introduced to cover the following, in the statute: “If any person or persons, from and after the first day of June, in the year of our Lord one thousand seven hundred and twenty-three,” &c. Even in such a 294 ’ case, it is probably always sufficient that the date alleged in the indictment appears on its face to be later than that of the taking effect of the statute; if the statute is an old one, it certainly is. Crim. Proced. 2d ed. I. § 622. 8 In most of our States, not neces- sary, probably not necessary in any of them. Crim. Proced. 2d ed. I. § 502; II. Ib. § 57, 380, 608; Taylor v. The State, 6 Humph. 285. 9 Not necessary. Post, § 448. 10 As to this, see post, § 444. ll Plainly not necessary. 12 Unnecessary. Ante, § 388, note ; Crim. Proced. 2d ed. I. § 647; II. Ib. § 57. 18 3 Chit. Crim. Law, 1087. CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 440 With this form before us, let us proceed to consider what is required of some of the particular allegations, as well under the American as under the English statutes. § 439. “Feloniously..— The above form contains the word “‘ feloniously,”’ because, as we have seen,! the offence under the Black Act, on which the indictment is drawn, is felony.2 But, under most of the American statutes, the offence is misde- meanor, and, when it is, the indictment should not charge the act to have been committed feloniously.? § 440. The Word to designate the Animal.— The statute on which this indictment is drawn, the reader perceives, employs the words “any cattle,” and it does not descend to terms ex- pressive of particular species of cattle. Yet the pleader, in this instance, makes use of the word “ gelding,” which is not found in the statute, and does not add that the gelding is an animal of a sort known as “cattle.” Now, this form of the allegation has been held, both in England and in numerous cases in this country, to be adequate. Thus, on this very statute, where the allegation was that the defendant killed, &ec., “one mare, of a mixed red and white color, and one brown stone colt, the goods and chattels [not adding, the “‘cattle’”’] of one Matthew Batten,” it was held to be sufficient. On the other hand, to charge the defendant with having committed the offence on “ certain cattle,’ employing the exact statutory word, has been held to be inadequate ; the species of cattle must be mentioned. The allegation may, however, be “certain cattle, to wit, one mare,” &c.; but in this case the widelicet cannot be rejected as surplusage, and the proof must show the animal to have been amare In like manner, where, in Tennessee, the statutory word was “ beast,” and the indictment charged the injury to have been done to a“ horse beast,” this was held to be suffi- cient. And where, in Missouri, the statute employed the sin- gle word “ cattle,” the words “a certain horse beast, to wit, one mare,” were held to be adequate.’ Likewise where the 1 Ante, § 482. v. Tivey, 1 Den. C. C. 68, this doctrine 2 Reg. v. Gray, Leigh & C. 365. was accepted as of course. 8 Ante, § 887; Crim. Proced. 2d ed. § Rex v. Chalkley, Russ. & Ry. 258. I. § 626. 6 The State v. Pearce, Peck, 66. 4 Reg.v. Paty,2 W.Bl.721. InReg. 7 The State v. Hambleton, 22 Misso. 452. 295 § 442 LEADING STATUTORY OFFENCES. [BOOK Iv. statutory words were “ cattle or other beast,” the single word “steer”? was held in Vermont to be adequate in the indict- ment.! In like manner, where the statutory words were “ horse, cattle, or other domestic beast,” and the indictment simply charged that the offence was committed on a “ hog,’ — an ani- mal evidently coming within the general term, — this was held to be sufficient, it not being necessary to add that the hog is a * domestic beast.’”’ The courts take notice of such things.? § 441. Continued. — What is thus laid down must not be con- founded with another question. As we have already seen,? if the statute, instead of employing one general term, like “ cat- tle,” or *‘ beast,” enumerates various particular species, — thus, for example, “horse, mare, ewe, or sheep,’ —it used to be held, that the pleader must select the most appropriate specific word, and no other one would answer in its place.* And this doctrine still prevails in some of our States, though it is ex- ploded in England and is contrary to sound principle. But whether we receive this doctrine or not, it follows from what is said in the last section, that, if the specific enumeration is followed by a general term, — as “ horse, mare, ewe, sheep, or other beast,” — and the indictment is for an injury to an animal within the general term, but not within any of the specific words, — it is sufficient to employ the specific name of the ani- mal, which, it is seen on this statement, is not found in the statute. § 442. Cattle — Beast. — The word “ cattle,” in these stat- utes, includes horses, mares, colts, geldings, and the like,® pigs,’ 1 The State v. Abbott, 20 Vt. 587. 2 The State v. Enslow, 10 Iowa, 115. In Tennegsee, where the statute had the single word “beast,’’ and the indict- ment employed the single word “ cow,” the court, holding this to be sufficient, said: ‘“ The word beast is here used as a generic term, and includes all animals of that description. The indictment de- scribes the specific animal killed, and the animal so described is a ‘ beast ;’ and, by necessary consequence, the in- dictment charges that the defendant killed a ‘beast.’” Taylor v. The State, 6 Humph. 2385, 286, opinion by Green, J. 296 3 Ante, § 247, 248. 4 See, for illustration, Rex v. Beamy, Russ. & Ry. 416. 5 See ante, § 247, 248, 426; Crim. Proced. 2d ed. I. § 619, 620. 6 The State v. Hambleton, 22 Misso. 452; Rex v. Paty, 1 Leach, 4th ed. 72, 2 East P. C. 1074, 2 W. BL 721; Rex v. Moyle, 2 East P. C. 1076; Rex v. Mott, 2 East P. C. 1075, 1 Leach, 4th ed. 78, note; Reg. v. Tivey, 1 Den. C. C. 68, 1 Car. & K. 704; ante, § 440. 7 Rex v. Chapple, Russ. & Ry. 77. CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 444 asses,! sheep,? a steer,? and probably many other specific animals. Evidently the word “beast” includes every thing which the word cattle does, and probably something more. For example, a horse is a beast, so is a cow,° and go is a hog.§ § 448, Particular Description of the Animal—Name of the Owner.— In the form extracted from Chitty, the color of the animal is mentioned,’ so also it is in a case recited in a pre- ceding section.® But this sort of particularity is not neces- sary, and it is not usual in good pleading at the present day ;° for, if thus unnecessarily the color is alleged, the allegation must be proved, and it cannot be rejected as surplusage.° A good pleader is careful not to clog the record in this way. All that is necessary, of particular description, is to state the name of the owner, or, when not known, to set out the usual excuse, the same as in larceny. And this must be done, or the indictment will be bad. Where the indictment is for killing sheep, for example, the ownership may be laid in the agistor, the same as it could bein larceny.!8 Where it was for killing a dog, and the dog belonged to a minor son living with his father, it was held to be ill to lay the ownership in the father.’ § 444. Value — Amount of Damage. — Whether the mischief is to animals or to any other property, it is not necessary on general principles to allege either the value of the property or the amount in value of the injury done to it. But if the punishment which the law appoints depends on either of these, then that on which it depends must be alleged, in pursuance of the universal rule,!® that whatever enters into the punish- 1 Rex v. Whitney, 1 Moody, 8. 12 The State v. Smith, 21, Texas, 748; 2 Rex v. Hughes, 2 Car. & P. 420. Crim. Proced. 2d ed. II. § 848; Rex u. 3 The State v. Abbott, 20 Vt. 587. Patrick, 2 East P. C. 1059. 4 The State v. Pearce, Peck, 66. 13 Rex v. Woodward, 2 East P. C. 5 Taylor v. The State, 6 Humph. 285. 653. In an indictment for maliciously 6 The State v. Enslow, 10 Iowa, 115. injuring a dwelling-house occupied by 7 Ante, § 438. a tenant at will of the owner, the house 8 Ante, § 440. may well be described as the house of 9 Taylor v. The State, 6 Humph. the tenant. The State v. Whittier, 21 285; The State v. Hambleton, 22 Misso. Maine, 841. See The State v. Mason, 452; Commonwealth v. Sowle,9 Gray, 18 Ire. 341. 304. 14 The State v. Trapp, 14 Rich. 203. 10 Crim. Proced. 2d ed. I. § 486. 15 The State v. Jones, 33 Vt. 443. N Ante, § 386. 16 Crim. Proced. 2d ed. I. § 77 et seq. 20 297 § 445 LEADING STATUTORY OFFENCES. [BOOK Iv. ment must be set out in the indictment. This doctrine is well illustrated by two Indiana cases occurring on two different statutes. The one statute provides, that “‘ every person who shall maliciously or mischievously injure or cause to be injured any property of another, or any public property, shall be deemed guilty of a malicious trespass, and be fined not ex- ceeding two-fold the value of the damage done, to which may be added imprisonment, not exceeding twelve months.” And where the indictment set out the malicious killing of a dog of the value of forty dollars, this was held to be insufficient ; because the penalty depended on the value of the damage done to the owner, and not on the value of the property. Although, in this instance, the animal was killed, still its carcass might be of some worth; so that, not the value of the dog, but the value of the damage done by killing should have been alleged.” The other statute provides, that “every person who shall injure any tree, &c.,on the land of another person, .. . with- out license so to do from competent authority, . . . shall be deemed guilty of a trespass, and, upon conviction, shall be fined in five times the value of such property.” And it was held that an information stating the value of the tree, but not the amount of damage to the owner, was sufficient. Davison, J. observed: “ In this instance, the tree injured is alleged to be of the value of one dollar, and as such value constitutes the basis upon which the penalty for the commission of the offence is estimated, there seems to be no valid reason why the damage to the owners of the property should have been alleged.” # § 445. Continued.— In estimating the damage or injury, only what is direct can be taken into the account, not what is con- sequential. Thus, in England, it being provided by Stat. 7 & 8 Geo. 4, c. 80, § 19, that, if one should maliciously damage any tree, &c., he should be punished in a particular way when the amount of injury done should exceed £5, a man was indicted for injuring the trees in a hedge, exceeding £5 in amount. The proof was, that the injury to the trees them- 1 Crim. Proced. 2d ed. II. § 840. 231. For a form of indictment on this 2 Harness v. The State, 27 Ind. statute, see Crim. Proced. 2d ed. II. 425. § 841, note. See, also, Commonwealth 3 The State v. Shadley, 16 Ind. 230, v. Cox, 7 Allen, 577. 298 CHAP. XIX.] LARCENY AND ITS AFFINITIES, § 446 selves was £1; but, to repair the mischief, it would be neces- sary to stub up the old hedge and plant a new one, involving a further outlay of over £4. Upon this it was contended that the injury exceeded, in point of law, £5; but, said Pollock, C. B. delivering the opinion of the court, “ there is, it is true, a consequential injury exceeding £5, but that is not suffi- cient.” } Moreover, if a certain amount of injury is inflicted in one transaction, and a certain other amount in another, the two cannot be added together to make up the statutory sum. ? § 446. Allegation and Proof of the Injury. — In the foregoing form,’ itis alleged that the defendant “did kill and destroy” the animal. The statutory words were “kill, maim, or wound”: but evidently the allegation rested simply on the word “kill.” And if this word “ kill,’ and no more, had been employed, it would have been sufficient. Thus, where the statute was, “If any person shall wilfully or maliciously kill or destroy, or wound, the beast of another, he shall,” &., an indictment in the following words, the offence being a mis- demeanor, was sustained as adequate, — the form, indeed, is an excellent one: — “That, &c., on, &e., at, &c., did wilfully and maliciously kill a cow, of the value of five dollars, the property of William Watts, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”’5 So, where a statute employed the words “ kill, maim, or disfigure any horse,” &c., an indictment alleging that the defendant a certain horse “of one Joseph Wilbur then and there wilfully and maliciously did kill ” — not saying any thing of the means or mode of the killing— was adjudged to be sufficient.© In like manner, an indictment for wilful trespass to timber, alleging that the timber was cut down and destroyed, need not enter into particulars; for this injury includes all others.’ And when the words of a statute were, “ cut, injure, 1 Reg. v. Whiteman, Dears. 353, 6 6 Commonwealth v. Sowle, 9 Gray, Cox C. C. 370, 25 Eng. L. & Eq. 590. 304; s. p. Hayworth v. The State, 14 2 Reg. v. Williams, 9 Cox C. C. 338. Ind. 590; The State v. Hambleton, 22 3 Ante, § 438. Misso. 452. * Ante, § 482. 17 The State v. Watrous, 13 Iowa, 5 Taylor v. The State, 6 Humph. 489. And see Jarnagin v. The State, 10 285. Yerg. 529. 299 § 447 LEADING STATUTORY OFFENCES. [BOoK Iv. or destroy any leaden or other pipe used as an aqueduct, for the conveyance of water,” an indictment in the following form was held on demurrer to be good : — “That, &c., on, &c., with force and arms, at Hydepark aforesaid, wilfully and maliciously did cut, injure, and destroy certain leaden pipe, used as an aqueduct for the conveyance of water, being the property of one Harvey Jewett then and there being found, contrary,” &c.1 § 447. Continued. — There is probably not much room for doubt that what is said in the last section is good law in mat- ter of principle as well as in the authorities cited. And, on the other hand, it is plain, both in principle and authority, that there are cases in which it is not enough simply to use the statutory word as descriptive of the injury.* Thus, where the statutory words were “ maim, beat, and torture,” it was laid down that the indictment must go beyond the words, and aver such specific acts as would show the offence to be within the inhibition.2 Passing over what is said in the work on Crimi- nal Procedure, it may be here observed, that, where the charge was that the defendant, at a time and place named, “ certain personal property, to wit, an omnibus, of the vaiue of five hundred dollars, the property of Jacob H. Hathone, did wil- fully and maliciously injure, by then and there wilfully and maliciously driving the pole of a horse railroad car at, against, and through a panel of the said omnibus, by means of which said wilful and malicious driving of the said pole against the said panel of the said omnibus, the said panel was broken in pieces, and the said omnibus was otherwise greatly injured,” the setting out was held to be sufficient. So likewise was it in the following allegation: that the defendant“ did maliciously and mischievously injure one wagon, the property of, &c., of the value of, &c., by then and there removing from the ends of the axletrees of said wagon the nuts or taps on the same, and by then and there removing the hammer and neck yoke of 1 The State v. Jones, 88 Vt. 448. 3 The State v. Pugh, 15 Misso. 509, And see The State v. Hockenberry, more particularly stated Crim. Proced. 11 Iowa, 269; Crim. Proced. 2d ed. I. 2d ed. I. § 629. § 629 and note. * Commonwealth v. Cox, 7 Allen, 2 See, for various cases, and some 677. observations, Crim. Proced. 2d ed. I. § 629 and note ; II. § 841 and notes. 300 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 450 said wagon where the said Kennedy could never find them the said taps, hammer, and neck yoke, which taps, &c., were of the value of,” &c.} § 448. Kil — Wound — Maim — Disfigure, &c.— The word “kill,” as used in these statutes, requires no explanation. The interpretations of the words “ wound” and “ maim” have already been given.2 So also have those of various other words which the reader can find by consulting the Index. A statute in Iowa having employed the words “ kill, maim, or disfigure,” the court distinguished the latter two by laying it down, that to “ maim” a domestic animal implies a perma- nent injury; to “ disfigure”’ it is to commit a lower grade of the same offence, and the injury need not be permanent, but, however slight, if it lessens the animal’s value, and the intent is malicious, the crime is complete. ‘“ Thus,” observed Bald- win, J. “to shave a horse’s mane or tail is a disfiguring of the - horse, but the injury is not of a permanent character. So the cutting off the hair, or cutting the skin, of a cow or an ox, would tend to destroy the beauty or symmetry of the animal and would, although not of a permanent character, be an indictable offence. Malice toward the owner of the animal is the ingredient of this offence ; and, although the injury may be but very slight, yet [if] it is of such a character as to les- sen the value of the animal to the owner, and shows the mali- cious intention of the person committing the act, we think, under the statute, the offence is complete.” ° § 449. Conclusion. — In the author’s works on Criminal Law and Criminal Procedure, other matter may be found relating to the present sub-title ; but it is believed that what is said in this volume will enable the intelligent practitioner to interpret and proceed upon most of the numerous and complicated stat- utes, relating to the subject, to be found in our several States. Useless would it be to say, in this connection, every thing which might be said. V. Cheats at the Common Law. § 450. General View. — The subject of cheats at the common 1 The State v. Williams, 21 Ind. 2 Ante, § 314, 316. 206. 8 The State v. Harris, 11 Iowa, 414. 301 § 451 LEADING STATUTORY OFFENCES. [BOOK Iv. law has become of: but little practical consequence; because the statutes against obtaining goods by false pretences have covered nearly all the ground occupied by the common-law cheat, while in most respects they extend much further. The general doctrine is, that if, by some false representation of a thing, called a symbol or token, extending beyond mere words, one commits a fraud on another to his injury, or thus perpe- trates a public fraud, the transaction is indictable at the com- mon law. Indeed, it is laid down that frauds affecting the public at large, or the public revenue, are punishable by indict- ment at the common law, though accomplished without resort to any false token or symbol.!_ The reader will find the law of the subject explained, in its particulars, in the author’s work on the Criminal Law;? and the pleading, practice, and evidence, in his work on Criminal Procedure.® VI. Cheats under Statutes. § 451. General View — The Law.—In like manner, in the author’s other works, the law, and the procedure under it, for the statutory crime of obtaining goods by false pretences, are pretty fully considered. The statutes in our several States and in England are similar the one to another, and to some extent are copies of one another. Still, in various particulars, they are found to differ; therefore the practitioner, in examining any question, should lay the statutes of his own State before him, and keep in mind the diversities while consulting decisions of courts foreign to his own. In general terms, a false pretence is a false representation, which may be in mere oral words, or it may be in writing, or by signs, or the like, relating to some existing or past fact; and, to be indictable otherwise than as an attempt, it must actually mislead, and so produce such a particular cheat as falls within the words of the statute. A promise not meant to be kept is not a false pretence. How it is if the pretence is frivolous in its nature, not calculated to 1 United States v. Watkins,8Cranch 3 Crim. Proced. 2d ed. Il. § 157 et C. C. 441. seq. 2 Crim. Law, 5th ed. II. § 141 et * Crim. Law, 5th ed. II. § 409 et seq. seq.; Crim. Proced. 2d ed. Il. § 157 et seq. 802 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 454 deceive the average of men, but, being addressed to a weak or incautious mind, does deceive this person and work a fraud upon him, is one of the questions, connected with this subject, upon which judicial opinions are not harmonious. But it is not best to undertake a complete summary of doctrines here. § 452. Continued — The Procedure.— In drawing the indict- ment, the practitioner should consider whether the offence is a felony or a misdemeanor in his own State; and, if the former, according to the practice prevailing in England and in a part of our States, he must not omit to employ the word “ feloni- ously,” though this word should not be found in the statute.! It is not sufficient merely to charge the offender with having employed “ false pretences,” in the naked words of the statute, the pleader must go further and specify the pretences ;? so also he must specify the goods obtained, and from whom.’ The indictment must negative the pretence, aver that the defendant knew them to be false, show the connection between them and the accomplished fraud, and in all other respects conform to the rules of sound pleading.* Of course, it must be supported by the evidence ; but, where the other parts of the case are within the law, if the defendant failed to accomplish the medi- tated fraud, he may be indicted for the attempt.® VII. Statutory Offences in Affinity with these. § 453. General View.— There are various statutory offences which are not exactly of the nature of larceny with its statu- tory modifications, or exactly of the nature of cheats or of stat- utory false pretences, while still they are akin to each. Those to be mentioned under this sub-title illustrate this general proposition. § 454. Altering Marks on Cattle. — It is customary, in some localities, for the owners of cattle which are liable to be mixed with those of other owners, to put upon their own some mark or brand to distinguish them from all others. And in some 1 Ante, § 387. Kube, 20 Wis. 217; Commonwealth v. 2 Crim. Proced. 2d ed. II. § 165, Davis, 9 Cush. 283. 166. * Crim. Proced. 2d ed. II. § 163-186. 8 Ib. § 1738; 174; Commonwealth v. 5 Tb. § 194-196 ; Crim. Law, 5th ed. Lincoln, 11 Allen, 2838; The State v. II. § 488. 303 § 456 LEADING STATUTORY OFFENCES. [BOOK Iv. of our States there are even provisions of law for recording the mark. If, then, a man effaces the mark which another has put on his cattle, to distinguish them, or puts on them his own mark, intending, by so doing, to convert them to his own use, or to prepare the way for so converting them, it is evident, on principle, that he commits either actual or attempted larceny at the common law; though the author does not recollect any case in which this question was actually discussed. But, in those States in which the practice of marking or branding cat- tle mostly prevails, the legislatures have not left this question to the determination of the common law, they have provided a special remedy by statute. § 455. Continued — Indiana Statute, with Form of Indictment. — The Indiana statute is as follows: ‘“ Every person who shall alter the mark or brands of the horse, mare, gelding, ass, mule, sheep, goat, neat cattle, or hog of another, or mark or brand any such animal, with intent to steal the same, if the value of the animal so marked be five dollars or upward, shall be sub- ject to the punishment inflicted on those guilty of grand larceny ; and, if the value of such animal be less than five dollars, such person shall be subject to the punishment inflicted on those guilty of petit larceny.”” And a book on Indiana crim- inal practice supples the following form of the indictment: — That A. B., on the —— day of , in the year ——, at said county, unlaw- fully and feloniously altered the mark of a certain hog, of the goods and chattels of C. D., of the value of fifteen dollars, by then and there unlawfully and feloni- ously cutting out a crop on the right ear of said hog, and changing said mark into a swallow fork, said crop on the right ear being then and there the lawful and duly recorded mark for the hogs for the said C. D., contrary, &c.1 § 456. Continued — Illinois Statute, with Form of Indictment. —“ Hvery person who shall mark or brand, alter or deface the mark or brand, of any horse, mare, colt, jack, jennet, mule, or any one or more head of neat cattle or sheep, goat, hog, shoat, or pig, not his or her own property, but belonging to some other person, with intent thereby to steal the same, or to pre- vent identification thereof by the true owner, shall, on convic- tion thereof, be punished by confinement in the penitentiary ! Bicknell Crim. Pr. 482; referring, for the statute, to Felony Act, § 25, 2 G. & H. 445. 304 CHAP. XIX. ] LARCENY AND ITS AFFINITIES. § 458 for a term not less than one year nor more than three years ; provided, that no person shall be condemned to the penitentiary under this section unless the value of the property affected shall amount to $5. And in case the value of the property affected by the offence herein described, &c., shall not amount to $5, then the offender shall be punished by imprisonment in the county jail, for a term not exceeding three months, and fined not exceeding $50.” And on this statute an Illinois book furnishes the following form of the indictment for brand- ing a mare with intent to steal the same: “That J. S., late of C., in the county of C., on the third day of August, in the year of our Lord ——, at C. aforesaid, in the county aforesaid, did feloniously brand (or ‘mark’) a certain bay mare, the property of one J. N., with intent thereby feloniously to steal, take, and carry away the same; against, &c., and contrary, &c.”’ 2 § 457. Continued — Allegation of Value.— We have seen, that whatever enters into the punishment must be charged in every indictment; and that, within this rule, where the value of a thing is an element regulating the punishment fixed by law, it must be alleged, but in other circumstances it need not be.2 Within this rule, both the foregoing indictments, the reader perceives, ought to state the value of the animal. The former does, and it is therefore, on general principles, suffi- cient. The latter does not, and, under it, no more, at most, than the milder punishment could be inflicted. If, in Ilinois, there is a provision of statutory law making this form sufficient to sustain the heavier punishment (the writer is not aware that there is), such provision is in violation of the guaranties of the Constitution of the State.4 § 458. Continued — Owner's Name. — But for the purpose of precision and identification, as already seen,’ it is necessary that the name of the owner, if known, should be alleged in this indictment. And where the allegation was, that the animal belonged to “ an estate,” this was held to be insufficient.® 1 R. S. of 1845, c. 80, § 65, Gross, seq., 95 et seq. And see the discussion p. 178, § 14. in Vol. I. of that work, § 562-609. 2 Bassett Crim. Pl. 85. 5 Ante, § 378, 448. 3 Ante, § 870, 871, 444; post, § 461. 6 People v. Hall, 19 Cal. 425. 4 See Crim. Proced. 2d ed. I. § 77 et 305 § 462 LEADING STATUTORY OFFENCES. [BOOK Iv. § 459. Continued — Statutory Words — “Fraudulently.” — The indictment in these cases, as in all others, must follow the material statutory words. Therefore, where the Florida stat- ute made it punishable “if any person shall fraudulently alter or change the mark or brand of any animal,” &c., an indict- ment which omitted the word “fraudulently ” was held to be insufficient, though in place of it the pleader inserted the two words “ wilfully and feloniously.” For, said Randall, C.J. “the gist of the offence is the intent to defraud the owner.” 1 § 460. Describing the Mark or Alteration.— The reader has observed, that, in the Indiana form before quoted,” the pleader has described the alteration which the defendant made in the mark, but this sort of description is not given in the Illinois form.? Whether this is necessary is a question on which judges would be likely to differ; the only decision on the point, now before the author, occurred in a North Carolina case, in which it was held sufficient simply to allege that the defendant “ un- lawfully, knowingly, and wilfully did alter the mark of a cer- tain cow, the property of Martha Benson.” * This decision, if we assume it to be correct, goes to the extreme of condensa- tion, beyond which nothing more can be done. And if we can- not pronounce it to be absolutely wrong in principle, still the form it sanctions plainly descends less into detail than is usual in the approved forms in analogous cases. § 461. Continued —" Altering” a Brand.— As to what is an altering of the brand of an animal, it has been held that putting on it a new brand, without defacing the former one, is an act falling within the prohibition.® § 462. Estray Animals. — There are various statutes for the protection of owners, regulating the taking up of animals found estray. And some of these statutes render certain acts penal. The Texas statute makes the unlawful use of an estray indict- 1 Morgan v. The State, 18 Fla. 254; Crim. Proced. 2d ed. I. § 629, 671. note. 2 Ante, § 455. 5 Atzroth v. The State, 10 Fla. 207. 3 Ante, § 456. As to the “altering” of bank-bills, see 4 The State v. O'Neal, 7 Ire. 251, ante, § 217. 306 CHAP. XX. ] PHYSICAL INJURIES TO PERSON. § 464 able, and the degree of the punishment is determined in some measure by the value. Therefore an indictment on this stat- ute.must allege the value of the animal.t CHAPTER XX. PHYSICAL INJURIES TO THE PERSON. 468, 464. Introduction. 465-477. Murder and other Indictable Homicides. 478-494. Rape and Carnal Abuse of Children. 495-499. Mayhem and other Maimings. 500-510. Other Aggravated Assaults. 511-514. Simple Assaults. § 463. General View. — According to a doctrine developed in the work on the Criminal Law,? if a man wrongfully and wan- tonly injures the person of another by means of any sort of phys- ical force, he is indictable therefor. In most cases, perhaps in all, this injury is such as, in one view of it, is known in the law as a battery ; though, when it proceeds further than a mere battery, it is more commonly spoken of under its aggravated name, — as, a rape, a mayhem, a manslaughter, and the like. And even where the wrong-doer does not go so far as to inflict actual injury, but endeavors to, and proceeds a certain way in carrying out the endeavor, he commits an indictable attempt, known by the technical name assault. Now, assault is the lightest of the common-law offences which come within the scope of this chapter; the heaviest is murder. Between these two extremes lie various others. § 464. Order of the Discussion—- How divided.— But, the reader will observe, through these several offences there extends — generally, if not always — the one element of assault; and, where more than assault is committed, the element also of a 1 The State v. McCormack, 22 Tex- ? Crim. Law, 5th ed. I. § 548. as, 297; ante, § 457. As to the larceny 3 Th. IL. § 23 and note. of estrays, under the common law, see Crim. Law, IT. § 876. 307 § 466 LEADING STATUTORY OFFENCES. [BOOK Iv. battery. Thus it is at the common law; and the statutes have not much, if at all, changed the common law in this particular. A natural order of the discussion, therefore, would be to begin with assault and proceed upward through its various aggrava- tions ; but it will be practically more convenient here to reverse this order. Consequently we shall consider, I. Murder and the other Indictable Homicides; II. Rape and the Carnal Abuse of Children; III. Mayhem and other Maimings; IV. Other Aggravated Assaults; V. Simple Assaults. I. Murder and the other Indictable Homicides. § 465. How at the Common Law : — Historical View. — By the common law, as received and ad- ministered in this country, all homicides which are indictable are felonies, but all are not punishable by death. Anciently, in England, the law inflicted certain forfeitures on persons com- mitting homicides which were not otherwise punishable ;! but these forfeitures do not exist in our country. Formerly, also, all felonious homicides were punishable by death; but then these, like all other felonies, became subject to the benefit of clergy, so that most offenders practically escaped all serious punishment. Upon this state of the law, a statute took away the benefit of clergy from such indictable homicides as were committed of “ malice aforethought.”’ These were thereupon called murder, and the rest were known as manslaughter. A milder punishment was provided for manslaughter, while the death penalty continued to be inflicted for murder; and thus stood the law which was adopted and made common law in the United States. The line distinguishing indictable from unin- dictable homicides is drawn by the ancient common law of England; that distinguishing murder from manslaughter is drawn by an ancient English statute, which has become com- mon law with us.? § 466. What Homicides Indictable.— Since, then, the dis- tinction between the indictable and not indictable in homi- cide depends upon the ancient common law, as modified and confirmed by decisions extending down to the present time, there 1 Crim. Law, 5th ed. II. § 617. § 616-628; Crim. Proced. 2d ed. II. 2 And see Crim. Law, 6th ed. II. § 498-501. 308 CHAP. XX.] PHYSICAL INJURIES TO PERSON. § 467 is no way in which the distinction can be fully learned, except by tracing down this line of adjudication. In general it may be said, that, when one takes another’s life, either by design or by accident, if there were no circumstances justifying the tak- ing, and if the taker were doing a thing palpably careless or otherwise wrong, or were omitting a plain duty, and death followed within a year and a day, though unintended, an in- dictment as for a felonious homicide will lie. But this general proposition, to be of practical avail, should be examined in connection with the specific points adjudged.t § 467. What Indictable Homicides are Murder.— When we have ascertained that a particular homicide is indictable at the common law, then, if we would determine whether it is murder or manslaughter, we are to inquire whether or not it was com- mitted of “ malice aforethought.” If it was, it is murder; if it was not, it is only manslaughter. But the meaning of the words ‘“ malice aforethought”’ is not to be determined in the same way as if they were found in a statute just enacted, and had never been construed. On the other hand, they were em- ployed in a statute on this subject as far back as 1389 (13 . Rich. 2, stat. 2, ¢. 1), were found also in several other early statutes, and were first construed at a time when the courts took more liberties with statutes than they do now. Thus, it is said in an old book: “ He that doth a cruel act voluntarily, doth it of malice prepensed. By the statute of 5 Hen. 4,if any one out of malice prepensed shall cut out the tongue or put out the eyes of another, he shall incur the pain of felony. If one doth such a mischief on a sudden, that is malice prepensed ; for, saith my Lord Coke, if it be voluntarily, the law will imply malice.”? And thus, step by step, the courts proceeded, till the doctrine was long ago and is now established, that, to con- stitute the ‘ malice prepensed,” or “ aforethought,” which distin- guishes murder from manslaughter, the slayer need not have contemplated the injury beforehand; and need at no time have intended to take life. If he specifically meant, not death, but bodily harm of a certain standard in magnitude or kind, or if he purposely employed a certain weapon or did certain acts 1 Crim. Law, 5th ed. II. § 629- 2 Reg. v. Mawgridge, J. Kel. 119, 671. 127. 309 § 470 LEADING STATUTORY OFFENCES. [Boox Iv. from which the Jaw implies malice, the offence is murder when death follows within a year and a day, the same as though he intended to kill. The actual intent is in many circumstances an important element; but there may be murder as well with- out as with a murderous mind, and especially the fatal result need not be predetermined! Thus the words “ malice afore- thought” have a technical legal meaning, differing consider- ably from the popular idea of them. § 468. Form of the Indictment.— Of the form of the indict- ment it is necessary here only to observe, that, as the “ malice aforethought ” is all which distinguishes murder from man- slaughter, the indictment for murder is the same as for man- slaughter, except that it adds, to what is necessary in the latter, these statutory words, together with the word “ murder” which is also found in the old statutes dividing felonious homicides into murder and manslaughter.” § 469. Statutory Murder and Manslaughter : — General Terms.— From what has already been said,’ the reader perceives, that, if a statute in general terms provides a punishment for “murder” or for “manslaughter,” it means murder or manslaughter as the offence is defined at the com- mon law.* Then, in the absence of any statutory provision, the indictment should be drawn precisely as at the common law. If it is in a State in which there are no common-law offences, or if the offence is against the United States, it should also conclude against the form of the statute. But if it is in a State in which there are common-law offences, the conclusion may be either way at the election of the pleader.® § 470. Statutes defining Murder and Manslaughter — Degrees. — There are some States in which the statutes are not in these general terms, but they proceed to define murder and man- slaughter. It is so, for example, in New York. There the Revised Statutes defined murder and manslaughter, as though they had never been defined before, and made four degrees of the latter. Afterward the statutes were so altered as to make, 1 Crim. Law, 5th ed. II. § 672-719. 4 The State v. Mullen, 14 La. An. 2 Crim. Proced. 2d ed. II. § 601, 640-570. 548. 5 Ante, § 881, 384, 418. 3 Ante, § 363. 310 CHAP. XX.] PHYSICAL INJURIES TO PERSON, § 471 also, two degrees of the former. While the Revised Statutes remained unaltered,!it was held that an indictment for murder, drawn after the common-law model, and concluding against the form of the statute, was sufficient.2 And since murder has been there divided into two degrees, the same form of the in- dictment has been held adequate to sustain a conviction of murder in either the first or second degree.® § 471. Two Degrees of Murder, continued — Form of Indict- ment.— We have seen elsewhere,‘ that this latter doctrine, not only does violence to the common-law rules, and to the princi- ples of natural justice, but it is repugnant also to guaranties found in all our constitutions. And the reason is, that, by the rules of the common law, by the dictates of natural justice, and by constitutional guaranty, whatever is made by law an ele- ment essential to the fixing of the punishment for any offence, must be set out in the indictment;® while, according to the statutes of all our States, dividing murder into two degrees, the punishment for the first degree is higher than for the sec- ond, and the common-law forms do not necessarily, though some of them do in fact, charge more than is essential to con- stitute murder in the second degree. Indeed, without looking into the words of the statute, or of the indictment, we should know that this must be so. And the reason is, that, since at common law a killing accompanied by certain facts is murder, the indictment drawn upon the common law must allege so much of fact as such law makes essential to the crime, and it need not allege more. Then, in the nature of things, if this common-law offence is to be divided into two degrees, there is but one way in which it can be done. It cannot be done by subtracting, from what the common law required, some fact, and making a homicide murder in the second degree where such fact does not exist; for then something would be made murder which was not murder before, and the common-law 1 See, for their provisions, as respects Kennedy v. People, 39 N. Y. 245; Keefe murder, and for an exposition of them, v. People, 40 N. Y. 348. Crim. Law, 5th ed. II. § 720, 721. 4 Crim. Proced. 2d ed. II. § 562-608; 2 People v. Enoch, 18 Wend. 159; Crim. Law, 5th ed. I. § 797; Bishop Crim. Proced. 2d ed. II. § 614. First Book, § 401 and note, 455; ante, 8 Fitzgerald v. People, 37 N. Y. 418, § 872. dissenting opinion by Bacon, J. 685; 5 Crim. Proced. 2d ed. I. § 77 et seq. ; ante, § 370-372. 311 § 471 LEADING STATUTORY OFFENCES, [BOOK Iv. murder would not be divided. It must, therefore, be done, and it is actually done, by adding to the common-law murder some element which was not essential in murder before, and declar- ing that, where this element exists, the murder shall be in the first degree, while, where it does not exist, the murder shall be in the second degree. Then, if the law provides, as it does, a higher punishment for murder in the first degree than in the second, this added element must be charged in the indictment, else the indictment sets out only what merits the lower punish- ment. There is no possible escape from this conclusion. No judge ever did or ever will pretend to meet the argument, and escape from this its conclusion. What has been said on the other side is mere imponderable fog, sometimes assuming one undeveloped form and sometimes another. Truth here, as else- where, is a line of light, while error is a mere bank of fog. And, in spite of whatever may be said to justify a contrary doctrine, the proposition still remains unassailed and unassail- able, that, if a court condemns to the gallows, where hanging is provided only for murder in the first degree, a prisoner upon an indictment wherein the special element making the killing murder in this degree is not charged, it does the same thing as to pronounce sentence of death without any allegation; in other words, it in éffect commits murder itself. 1 The blundering of so many courts on this subject seems, at first thought, inexplicable. While conversing with one who had been called upon judicially to consider this question, and who had arrived at a result according with these views, he suggested that the blunder- ing probably arose from the judges ac- cepting, without consideration, the pop- ular meaning of the words “malice aforethought,” instead of their legal meaning. It may be so. It is thus: this question comes before one not fa- miliar with the criminal law, and he thinks, if he does not say, that the words “‘ malice aforethought,” which he reads in the indictment, must, of course, charge the highest possible kind of mal- ice. If he had ever given much atten- tion to this branch of jurisprudence, he would see at once, that, by construction 812 of the courts, these words charge the very lowest malice possible in this crime, —just enough to make the kill- ing murder in distinction from man- slaughter, and nothing more. And, when the statute requires that, to con- stitute murder in the first degree, the “malice aforethought” shall be “de- liberately premeditated,” these statu- tory adjectives have a meaning, and are not void; therefore the malice must be something more than mere naked “ mal- ice aforethought.”’ Consequently, if it must be more, the indictment must al- lege it to be more. Perhaps no judge has actually, in direct terms, expressed the erroneous idea above intimated; but the court came, at least, very near to it in The State v. Verrill, 54 Maine, 408, 415, 416, in a passage quoted Crim. Proced. 2d ed. Il. § 699. And there CHAP. XX. ] PHYSICAL INJURIES TO PERSON. § 472 § 472. Second Degree — First Degree, continued. — Whether the doctrine of the New York courts, that the common-law form of the indictment is sufficient, under the statutes of the State, even to charge murder in the second degree, is sound in legal principle, is a different question. The idea on which the doctrine is based seems to be, that the statute merely gives shape and form to the common law, — in other words, merely defines it,— hence, though the enactment has, in some not very important particulars, changed the boundaries of the crime, yet, as they remain substantially as before, no change in the indictment is required. In some of the other States, this doctrine, either by reason of the differing statutes or of different judicial views prevailing on the bench, is not followed. Thus, in an Ohio case, Bartley, C. J. in delivering the opinion of the majority of the court, discourses as follows: “In Penn- sylvania, Virginia, New York, and other States, different de- grees have been created in murder, affixing the punishment of death to murder with express malice, and other murder of the are various cases in which this idea meditation and an intent to kill. If it seems to be fairly enough implied. I happen to have before me a book on the New York local practice in which the author has illustrated, in his own case, how easy it is to slide into such a notion; and I shall so far depart from my rule not to say any thing in criti- cism of a living text writer, as to copy the passage here. ‘At the common law,” he observes, ‘‘one of the requi- sites of murder was, that it should be committed with malice prepense or aforethought. It will be noticed that our statute uses the words ‘ premedi- tated design.’ The Mississippi statute uses the same words ; and it was judi- cially held in that State, that ‘malice aforethought’ and the words ‘ premedi- tated design’ were, in legal effect, re- garded as the same. [Referring to Mc- Daniel v. The State, 8 Sm. & M. 401.] The phrase ‘ malice aforethought’ may, therefore, be said to include premedita- tion and an intent to kill.” 1 Colby Crim. Law, 598. Now, we have seen (ante, § 467), that the phrase ‘“ malice aforethought” does not include pre- 21 did, there could be no murder without this premeditated intent, and all murders would be in the first degree. Neither, so far as I am aware, did any court ever so far forget itself as actually to lay down the doctrine that it had this meaning. The Mississippi court, in the case referred to, did not announce any such doctrine. The statute in question is not given in the report. But the court did say, in substance, that the words ‘‘ premeditated design” in this statute meant nothing more than the term “ malice aforethought ” of the com- mon law. Whether this is an adjudi- cation contrary to the general doctrine, or not, I cannot say, because the entire statute is not given; and particular words are liable to be bent in meaning by the connection in which they stand. But it is plain, from the case itself, that the court did not understand either of these forms of words as implying either premeditation or a specific intent to take life. 1 People v. Enoch, 18 Wend. 159, be- fore cited. 313 § 473 LEADING STATUTORY OFFENCES. [BOOK Iv, most aggravated character, and imprisonment as the punish- ment for the other and less aggravated kinds of murder. The statutes of these States, however, in making the different de- grees of murder, have followed, as closely as practicable, the common-law description of murder. So that, in many in- stances, the form of the indictment for murder at common law would seem to be sufficient in those States. In other States, however, murder is defined by statute essentially different from murder at common law in various and material matters. In Ohio, there are no crimes or misdemeanors by the common law, and the statute of this State, which defines murder with great precision and certainty, is, &c. . . . It may, therefore, be assumed as well settled, that murder in Ohio is different from murder by the common law of England, not simply in the fact of the two degrees into which it is divided, but especially and most essentially in the fact, that a purpose or intent to kill is made by the statute an essential and distinguishing feature in murder, both of the first and also of the second degree. It follows, that an indictment for murder, under the statute of this State, must contain a direct averment of a purpose or intent to kill, in the description of the crime charged.”’! § 473. Continued — Indiana. — The doctrine adverse to what is held by the New York courts, at least as concerns murder in the first degree, may also be illustrated by the Indiana practice. In this State, like Ohio, it may be observed, if the fact is mate- rial, that all crimes are in some way the creatures of statutes.? A book of Indiana criminal practice® gives us the following 1 Fouts v. The State, 8 Ohio State, 98, 111,112. So, by later decisions, an intent to kill being required to make murder in the first or second degree under the Ohio statute, this intent must therefore be expressly averred in every indictment for either of these crimes. Hagan v. The State, 10 Ohio State, 459; Kain v. The State, 8 Ohio State, 806. The provision creating the offence of murder in the first degree is in the following words: “If any person shall purposely and of deliberate and pre- meditated malice, or in the perpetration or attempt to perpetrate any rape, ar- son, robbery, or burglary, or by admin- 314 istering poison, or causing the same to be done, kill another, every such per- son shall be deemed guilty of murder in the first degree, and, upon convic- tion thereof, shall suffer death.” And the court has held, that, even where the murder is by poisoning, there must be the intent to kill, and this intent must in some way appear in the allega- tions of the indictment. Robbins v. The State, 8 Ohio State, 181; Loeffner v. The State, 10 Ohio State, 598. 2 Crim. Law, 5th ed. I. § 35 and. note. 3 Bicknell Crim. Pr. 254 et seq. CHaP. XX.] PHYSICAL INJURIES TO PERSON. § 474 view of the Indiana law and procedure on this subject: “ Our statutes of murder,” observes the author, “are as follows: — “Tf any person of sound mind shall purposely and with pre- meditated malice, or in the perpetration or attempt to perpe- trate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill any human being, such person shall be deemed guilty of murder in the first de- gree, and, upon conviction thereof, shall suffer death. “Tf either party to a duel be killed, the survivor shall be deemed guilty of murder in the first degree, and shall suffer death.? “* Any person convicted of murder in the first degree may, instead of being sentenced to death, in the discretion of the jury be imprisoned in the State’s prison during life.’ “Tf any person shall, by previous appointment made within the State, fight a duel without the State, and in so doing shall inflict a mortal wound upon any person, whereof the person so injured shall die within this State, such person so offending shall be deemed guilty of murder in the first degree, in the county where such death shall happen, and shall suffer death, or be imprisoned in the State’s prison during life.4 “If any person shall, purposely and maliciously, but without premeditation, kill any human being, every such person shall be deemed guilty of murder in the second degree; and, on conviction thereof, shall be imprisoned in the State’s prison during life.’ § 474. Continued — First Degree. — These are the principal statutes ; and the author goes on to give us a brief form of the indictment, which, he informs us, has been sustained as suffi- cient ® by reason of the following statutory provisions: “ The offence charged must be clearly set forth in plain and concise language, without repetition, and with such a degree of certainty that the court may pronounce judgment upon a conviction, according to the right of the case.”* Also: ‘“ The words used 12R.S. 888, § 2; 2G. & H. 485. also refers, in this connection, to The 22K. 8. 396,§ 3; 2G. & H. 486. State v. Murphy, 21 Ind. 441; and to 35 RK. S. 396, § 4; 2H. & G. 487. 14 Ind. 23, 220; 11 Ind. 807, 557; 8 Ind. 42K. S. 396, § 5. 200. 5 Ib. § 6. 72 R. 8S. 868, § 60;:2G & H. § Cordell v. The State, 22 Ind.1. He 403. 815 § 475 LEADING STATUTORY OFFENCES. [BOOK Iv. in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal mean- ing.” ! Again: “ Words used in the statute to define a public offence need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.” 2 The indictment is as follows : — “That Thomas Cordell, on, &c., at, &c., did feloniously, purposely, and with premeditated malice, unlawfully kill and murder Patrick Quirk, by then and there feloniously, purposely, and with premeditated malice, cutting, stabbing, and mortally wounding said Patrick Quirk with a knife which he, the said Thomas Cordell, then and there had and held in his hands, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.” It is perceived that this is an indictment for murder in the first degree, on the first clause of the before-quoted statutes. The author observes : * “ The words ‘ purposely and with pre- meditated malice’ are in the statute ; and the words purposely and with premeditated malice seem to be held essential. Thus, where the words were ‘ feloniously, wilfully, and of his mal- ice aforethought’ [the common-law form], it was held that such words charged murder in the second degree only.” On look- ing into the case to which the learned author here refers, it is perceived that what the court held was, that such an indict- ment would not sustain a conviction for murder in the first degree ; and, though the language of the judge implies that it would sustain a verdict for murder in the second degree, noth- ing of the sort was decided.* § 475. Continued — Second Degree. — If we are to infer from this, that, in Indiana, an indictment as at the common law will sustain a conviction for murder in the second degree, still such appears not to be the usual form. Thus, in one case, the fol- lowing was held to be adequate : — “That Samuel Dukes, &c., on, &e., at, &c., feloniously, purposely, and mali- ciously, but without premeditation, did kill and murder John G. White, a human being, by then and there feloniously, purposely, and maliciously, but without pre- meditation, shooting the said John G. White in the abdomen with a certain gun, loaded and charged with gunpowder and leaden shot, which gun, he, the said Samuel Dukes, in his hands then and there had and held, and discharged, and 12K. S. 868, § 58. 3 Bicknell Crim. Pr. 258. 2 Th. § 59. ‘ 4 Finn v. The State, 5 Ind. 400. 316 CHaP. XX.] PHYSICAL INJURIES TO PERSON. § 478 shot off, at and against the said John G. White. And so the jurors aforesaid, upon their oaths aforesaid, do find and say, that the said Samuel Dukes did felo- niously, purposely, and maliciously, but without premeditation, kill and murder the said John G. White, on the day and year last aforesaid, at the county afore- said.” And the form which the author before us furnishes is like it, but more brief, thus : — “That A. B., &c., on, &e., at, &c., feloniously, purposely, and maliciously killed and murdered C. D., by then and there feloniously, purposely, and maliciously cutting, stabbing, and mortally wounding said C. D., with a knife, which he the said A. B. then and there had and held in his hands, contrary, &c.”? § 476. General View. — It is not best to pursue this subject further. The practitioner should consult the particular stat- utes, decisions, and usages of his own State; but, unless spe- cially constrained by them, he should cling to the particular words of the enactment in framing his indictment. And, in the proofs, he should bear in mind the language of the statute on which he is proceeding. If this is done, he may also keep as closely to the common-law form of the allegation, and in the proofs and law generally derive as much help from com- mon-law rules, as the case will admit of. And surely it is right that a statute should be as much regarded and followed when its function is to take away a man’s life, as when it extends in its penalties only to liberty or property. § 477. Statutory Manslaughter.— There are some statutory manslaughters, and statutory divisions of this offence as known at the common law, but the adjudications are not sufficient in number and importance to render a discussion of them profit- able. Something may be found, at the places cited, in the author’s works on the Criminal Law and Criminal Procedure. Il. Rape and the Carnal Abuse of Children. § 478. At the Common Law : — General View. — Rape, at the common law, has been dis- cussed in the author’s other works ; and, in the same connec- 1 Dukes v. The State, 11 Ind. 557. 3 See Crim. Law, 5th ed. II. § 731; ? Bicknell Crim. Pr. 481. He refers Crim. Proced. 2d ed. IL. § 610, 614; to 22 Ind. 1; but the indictment here United States v. Warner, 4 McLean, given is for murder in the first degree, 463; Thomas v. The State, 38 Ga. 117; and there is no other. See ante, § 474 Walters v. Commonwealth, 8 Wright, and note. Pa. 135. 317 § 480 LEADING STATUTORY OFFENCES. [BOOK Iv. tion, something has been said of the carnal abuse of children.1 Rape is an offence resting partly on the ancient common law, but chiefly on old English statutes which are common law in this country2 Hence the indictment, in England, concludes against the form of the statute, though perhaps this conclusion is not strictly necessary.2 The old definitions declare this offence to be the unlawful carnal knowledge, by a man, of a woman, by force and against her will. And to this form of the definition the indictment, under our unwritten law, usually conforms.* § 479. Continued — Against Will— Without Consent. — Still the attention of the courts has of late been directed to the statutes, and it is seen and admitted, that, instead of the words ‘against her will,’ in the definition, the true language is, “ without her consent ;”? making perhaps an important differ- ence in the actual limits of the offence.6 To complete the offence of rape, therefore, there must be, 1. a carnal knowl- edge, and this requires a penetration and, according to some authorities, an emission also;® 2. force, but, where the other circumstances concur, this would seem to be ‘sufficiently im- plied in the act itself;7 3. absence of consent in the woman. If a consent is obtained by fraud it avails the defendant, but if by force it does not.8 § 480. Carnal Abuse of Children.—The carnal abuse of fe- male children is, like rape, an offence under our unwritten law ; but resting, even more distinctly than rape, on early Eng- lish statutes, which are common law with us. In this offence, the consent of the female is of no avail whatever to the de- fendant.? The offence, with us, is almost altogether statutory. As to our unwritten law, as it comes to us by construction of the early English statutes, the author has elsewhere stated the following conclusion, which is as definite as he could obtain: “Though we have almost no direct decisions to 1 Crim. Law, 5th ed. II. § 1107 et +4 Ib.§ 591; Crim. Law, 5th ed. II. seq.; Crim. Proced. 2d ed. II. § 947 et § 1118. seq. 5 Crim. Law, 5th ed. IT. § 1114, 1115. 2 Crim. Law, 5th ed. IL. § 1108- = & Ib. § 1127-1132. 1113. 7 Ib. § 1120, 1121. 8 Crim. Proced. 2d ed. II. § 949, & Ib. § 1122-1126. 950. 9 Reg. v. Beale, Law Rep.1 C. C. 10. 318 CHaP. XX. ] PHYSICAL INJURIES TO PERSON. § 484 guide us, yet, according to established principles, the common law of this country makes the unlawful carnal knowledge of a girl who consents, while between ten and twelve years old, indictable as misdemeanor; below ten, indictable, probably as felony; if not, then indictable as misdemeanor.” ? § 481. Rape under American Statutes : — General View. — The statutes of our States generally have not much changed the law of this offence. In a considerable part of them, where there is any legislation, the statute simply provides a punishment for “ rape,’ leaving the offence to its common-law definition.2 It is so, also, of the United States statute, making “ rape” punishable in certain localities within the jurisdiction of the general government.® Still other stat- utes are like the Massachusetts one, which provides, that ‘whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished,” &c.* But a statute like this is interpreted to leave the boundaries of the offence as at the common law.® § 482. “Against her Will”— And there are many States in which rape is partly or fully defined by statute; and, in most or all of these, the ravishment must be, asin the: Massachu- setts statute just quoted, “against the will” of the woman, instead of “ without her consent.’ ® § 488. Carnal Ravishment of Children under Statutes, with some further Views of Statutory Rape : — In General — Connection of the Two Crimes.— The principal difference between the carnal abuse or ravishment of a child, and rape, as the offences are known at the common law, con- sists in the fact, that the former may be committed when the female consents, and the latter cannot.7’ Both, under many of our statutes, are called rape, and they are generally treated of together. § 484. Ohio Statute.— As a specimen of the forms which 1 Crim. Law, dth ed. II. § 1188. 5 See Commonwealth v. Sugland, 4 2 Ante, § 368, 413. Gray, 7. 3 Act of March 8, 1825, 4 U. S. Stats. ® Ante, § 479. at Large, c. 45, § 4. 7 Ante, § 479, 480. 4 Gen. Stats. c. 160, § 26. 319 § 485 LEADING STATUTORY OFFENCES. [BOOK Iv. the statutory law assumes, we may first look at that of Ohio, as follows : — “Tf any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person so offending shall be deemed guilty of a rape, and, upon convic- tion thereof, shall be imprisoned in the penitentiary and kept at hard labor, during life. : “If any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister as afore- said, forcibly and against her will; or if any male person, of the age of seventeen years and upwards, shall carnally know and abuse any female child, under the age of ten years, with her consent; every such person so offending shall be deemed guilty of a rape, and, upon conviction thereof, shall be impris- oned in the penitentiary, and kept at hard labor, not more than twenty nor less than three years.’’! § 485. Indictment under Latter Section — Daughter or Sister. — It has been observed, by the Ohio court, that the offences cre- ated by these two sections “are distinct and separate crimes, and not merely different grades of the same crime.” And the court added, and apparently adjudged, that, ‘in charging the latter crime, it is essential for the indictment to state that the woman or female child upon whom the crime is charged to have been committed, is not the daughter or sister of the accused.” ? This decision may be sound; still there is room to doubt whether all other courts would hold the point, under like statutory provisions, in the same way. The view of those who would dissent from this Ohio decision would. be, that, since all statutes must be construed together,* these two sec- tions, standing together, must be especially so. Looking, then, at the two sections together, we have the result, that, when the woman is the daughter or sister of the defendant, he is to be punished more heavily than when she is not. The relation- ship may exist, and still the prosecuting power may not choose to avail itself of this fact and demand the higher punishment, or the fact may be unknown to the prosecutor ; and, in either 1 Swan Stats. 269; Warren Crim. 2 Howard v. The State, 11 Ohio Law, 3d ed. 246. State, 328. 3 Ante, § 82, 86 et seq. 820 CHAP. Xx. ] PHYSICAL INJURIES TO PERSON. § 487 case, if the indictment neither affirms nor negatives the rela- tionship, the prisoner cannot get off by showing himself to be more guilty than he is charged with being. There are many analogies in the law favoring this view ; perhaps it may derive some support from what follows in the present discussion. § 486. Wife.— At the common law,! and under statutes like the Massachusetts one before cited,? it is not necessary to allege that the woman is not the wife of the ravisher.? § 487. Age.— Where the indictment alleges that the act was against the will of the woman, it need not mention her age, or allege that she was above the statutory age. And where the facts show that the girl was below the statutory age, the de- fendant may be convicted if the case has the ordinary ingre- dients of rape, force and want of consent.6 The rule that the age of the female need not be alleged applies even where the words are, as in the Massachusetts statute before quoted,§ “a female of the age of ten years or more.”’ Neither, though a boy under fourteen cannot by the common-law rules commit rape, is it necessary to make any mention in the indictment of the age of the defendant. And where the words of the Cali- fornia statute, drawn on the like pattern with the Ohio one,° were ‘‘ any person of the age of fourteen years and upward, who shall have carnal knowledge,” &c., the court held, that, even upon this statute, the age of the defendant need not be alleged. “It does not,’ said Sawyer, J. “ appear upon the face of the indictment that the defendant was under fourteen years of age, and we see no better reason for averring that he is over fourteen than in any other criminal case for averring that the party charged is of such age as to render him capable in law of committing the crime.” 1° But where the case is for the carnal abuse of a female child, and the fact of her want of 4 Crim. Proced. 2d ed. II. § 949. 6 Ante, § 481. 2 Ante, § 481. T Commonwealth v. Sugland, 4 Gray, 8 Commonwealth »v. Scannel, 11 7. Cush. 547. 8 Crim. Proced. 2d ed. II. § 954. 4 Crim. Proced. 2d ed. II. § 954. 9 Ante, § 484. 5 The State v. Storkey, 63 N.C.7; 1 People v. Ah Yek, 29 Cal. 575, O’Meara v. The State, 17 Ohio State, 6576. 515; Charles v. The State, 6 Eng. 389; Reg. v. Neale, 1 Car. & K. 591. 321 § 489 LEADING STATUTORY OFFENCES. [BOOK Iv. age is to stand in the place of her want of consent, the age must be averred.t § 488. sanity — Homicide.— In further illustration of this subject, it may be observed, that the before-quoted Indiana statute creating’ the offence of murder in the first degree com- mences, “if any person of sound mind shall,” &c., yet the indictment does not set out the soundness of the defendant’s mind.2 “This is not material,” says Bicknell. ‘“ All persons are presumed to be sane until the contrary is shown. Insanity is matter of excuse or defence; and the sanity of the defend- ant requires neither allegation nor proof in the first instance, on behalf of the State, in any criminal prosecution.” @ § 489. “Ravish” —“Carnally know” —“ Abuse.” —It is a plain proposition that the indictment must follow the material statutory words. Thus, in rape proper, where the question is not affected by our own statutes, the indictment must contain the word “ ravish ;”’* because it is found in Stat. Westm. 2 (18 Edw. 1), c. 34, which is common law with us.6 And this old statute, by the same word, appears to apply to the carnal knowledge of girls between ten and twelve who consent; but, where the girl is below ten, the case under our common law appears to be governed by 18 Eliz. c.7,§ 4; as follows, “ that, if any person shall unlawfully and carnally know and abuse any woman-child under the age of ten years, every such un- lawful and carnal knowledge shall be felony, and: the offender thereof being duly convicted shall suffer as a felon without allowance of clergy.”® But, as already observed, this offence, with us, rests almost entirely on our own statutes ; and, where a statute does not contain the word “ ravish,” the indictment on it need not. It is so, for example, of an indictment on the North Carolina act, the words of which are “ unlawfully and carnally know and abuse any female child under the age of ten years.”* It is plain, that, if the statute is in the alternative, 1 The State v. Storkey, supra; 4 Crim. Proced. 2d ed. II. § 953; O’Meara v. The State, supra; Reg. v. Train & Heard Preced. 442. Martin, 9 Car. & P. 215. See Reg. v. 5 Crim. Proced. 2d ed. II. § 950. Shott, 3 Car. & K. 206. 6 Crim. Law, 5th ed. IL § 1109, 2 Ante, § 478, 474. 1112, 1133. ® Bicknell Crim. Pr. 256, referring to 1 The State v. Smith, Phillips, 302. 1 Blackf. 395. If the word “ravish’” is employed, 822 CHAP. XX. ] PHYSICAL INJURIES TO PERSON. § 491 ‘“‘ carnally know or abuse,” the use of either of the two terms alone, or the use of both of them connected by the conjunction and, is sufficient. Perhaps “ carnally know” includes in its meaning all which is signified by “abuse ;” at all events, un- der the English statute of 24 & 25 Vict. c. 100, § 50, which makes it felony to “ carnally know and abuse any girl under the age of ten years,” it has been held that the indictment is sufficient if it employs merely the words “ carnally know.” 3 § 490. “ Actual Violence.” — In like manner, where the Con- necticut statute provided, that “ every person who shall with actual violence make an assault upon the body of any female with intent to commit a rape, shall suffer imprisonment,” &c., an information was adjudged sufficient which charged in effect, that the defendant with force and arms did make an assault on A. W.,a single woman, and her did then and there beat, wound, and ill-treat, with intent violently, and against her will, her feloniously to ravish and carnally know. Although the words “actual violence” were not used, the idea was sufficiently embraced within the allegation.? § 491. Whether Carnal Abuse includes Assault.— The com- mon form of indictment for ordinary rape, whether necessarily or unnecessarily we need not inquire,® charges that the defend- ant did, upon the woman, “make an assault,” &c.; and the same form is pretty generally employed in the indictment for the carnal abuse of a female child.4 Now, if the latter indict- mentis in this form, and no technical rule prevents, such as that there cannot be a conviction for misdemeanor on an indictment for felony,® then, if the carnal abuse is not proved, when it is not in the statute, it does no harm, but it may be rejected as sur- plusage. Misso. 116. 1 Reg. v. Holland, 16 Law T. n. s. 536, 15 W.R. 879, 10 Cox C. C. 478. Where the words of the statute were “shall have carnal knowledge of any female child under the age of ten years, either with or without her consent,” it was adjudged sufficient to allege that the defendant, on, &c., at, &e., “ did unlawfully and feloniously have carnal McComas v. The State, 11 knowledge of a female child, named A, she, the said A, then being under ten years of age, to wit, of the age,” &c. People v. Mills, 17 Cal. 276. And see People v. Ah Yek, 29 Cal. 575. 2 The State v. Wells, 31 Conn. 210; Crim. Proced. 2d ed. II. § 976, note. 8 See Reg. v. Allen, 2 Moody, 179, 9 Car. & P. 521. 4 Crim. Proced. 2d ed. II. § 949, 958, 960. 5 Crim. Law, 5th ed. I. § 804 et seq. 823 § 492 LEADING STATUTORY OFFENCES. [BOOK Iv. but the assault is, there can be a conviction for the assault. But it is a doctrine in the law of simple assault, that there is no assault where there is consent;? while, on the other hand, it is the peculiarity of this law of carnal abuse that the offence is committed equally whether the girl consents or not. It fol- lows from this, that, if a girl consents, there can be neither a simple assault in the unsuccessful endeavor to effect the pur- pose, nor an assault with intent to commit the offence of carnal abuse. Such is the well-settled English law,? it is so held under the Ohio statute; and it is clear beyond room for doubt in matter of principle. At the same time, in respect of the evidence, youth, inexperience, and subjection in the child will be taken into the account ; and often a very small circum- stance will be admitted to overcome the apparent consent.? But in assault, unlike rape, a consent obtained by fraud is no con- sent; therefore, when a man having venereal disease, and knowing it, induced a girl of thirteen, ignorant of his condi- tion, to consent to a connection by which she was infected, it was ruled, on a trial before a jury, that he thereby committed an indecent assault.® § 492. Continued. — Still, contrary to the leading doctrine laid down in the last section, it has been held, in New York? and Michigan, that, the consent of the girl being void as to the carnal abuse, which is the principal matter charged, it must be taken to be so also as to the minor matter, the assault. In the Michigan case, which was an information for an assault on a girl seven years old with intent carnally to know and abuse her,® the defendant, with the girl’s consent, had lain indecently exposed before her in bed. The jury found that he was not guilty of the intent to commit the higher crime, but convicted 1 Reg. v. Guthrie, Law Rep. 1 C. C. 5 Crim. Law, 5th ed. IL. § 36; Reg. v. 241, Day, 9 Car. & P. 722; Reg. v. McGav- 2 Crim. Law, 5th ed. II. § 35, 36. aran, 6 Cox C. C. 64. 3 Reg. v. Guthrie, supra; Reg. v. ® Reg. v. Bennett, 4 Fost. & F. 1105. Martin, 2 Moody, 123, 9 Car. & P. 213; 1 Hays v. People, 1 Hill, N. Y. 351. Reg. v. Johnson, Leigh & C. 632, 10 8 The statute, the information, and Cox C. C. 114; Reg. v. Day, 9 Car. & the facts were nearly identical with P. 722; Reg. v. Read, 2 Car. & K. what appeared in the Ohio case of 957, 1 Den. C. C.877, 8 Cox C.C. 266. Smithv. The State, 12 Ohio State, 466, 4 Smith v. The State, 12 Ohio State, where the majority of the court held the 466. contrary. 824 CHAP. XX. ] PHYSICAL INJURIES TO PERSON. § 494 him of simple assault and battery, and the proceeding was sustained, Martin, 0. J. observing: “As actual consent of a female child under the age of ten years cannot be shown upon a trial for the crime of rape, because the law will not suffer the presumption of inéapacity to consent to be repelled, or even attacked, neither, in case of a charge of assault with intent to commit such crime, can consent be shown to negative such intent. ... . There can be no presumption or evidence of con- sent in cases in which the law declares there exists an absolute inability to consent.” 1 The oversight of the court, for such there plainly was, consisted in not drawing certain distinctions with sufficient clearness. Assault is not necessarily a part of this statutory offence of carnal abuse. The statute has ex- pressly provided, that, where there is a consent, — in other words, where there is no assault, — the mere act of what would be fornication if the girl were older, shall be indictable. The case is as if, where fornication is made a crime by statute, a man and woman should meet by mutual arrangement for the illicit purpose; and, after an indecent exposure, but before the offence was committed, an alarm should interrupt them, then the man should be indicted for assaulting the woman! § 493. attempt. — Still, in these cases, though the law does not term the act an assault, if it was done with the idtent to have carnal knowledge of the child with her consent, it is, in States where there are common-law crimes, indictable as an attempt to commit the substantive offence.2 But in a State, like Ohio, where there are no common-law crimes, it is not so indictable ; if there is no statute to meet the case, the offender must escape.? § 494. The Carnal Knowledge.— We have elsewhere seen,* that, in ordinary rape, there must be penetration, but there is no particular depth requisite; simply res in re will answer, even though the hymen is not broken. And whether there must be emission is a question on which the authorities differ. ’ People v. McDonald, 9 Mich. 150, 8 Smith v. The State, 12 Ohio State, 152, 1538. 466. 2 Reg. v. Martin, 2 Moody, 128, 9 * Crim. Law, 5th ed. Il. § 1127- Car. & P. 218; Reg. v. Beale, Law 1182. Rep. 1 C. C. 10; Reg. v. Ryland, 11 Cox C. C. 101. 825 § 496 LEADING STATUTORY. OFFENCES. [BOOK ‘Iv. In some of the States, it is rendered unnecessary by statute,! the same as it is in England. Now, in reason, whatever is essential in rape, even less ought to be required to constitute the offence of carnal abuse. Still, the North Carolina court has gone so far as to adjudge, that emission is necessary even in the latter crime.? Probably not many courts would hold this doctrine. But all hold to the necessity of something which, in distine- tion from mere outward contact, may be called penetration. In one case, of a child under ten, where the hymen was not broken, but there was a venereal sore upon it, and the defend- ant by his counsel contended that this might be and still there be no penetration, Parke, B. said: “I shall leave it to the jury to say, whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix ; for, if ever it was, no matter how little, that will be sufficient to constitute a penetration.” ? II. Mayhem and other Maimings. § 495. General View. — The offence of mayhem at the com- mon law, together with various statutory maims, has been discussed by the author elsewhere,* and the expositions need not be repeated here. Though mayhem is an offence at the common law, it is, in the actual proceedings against the of fender, practically statutory in all our States. A few words, therefore, will be useful concerning the proceeding on our American statutes. § 496. New York Statute and Indictment.— The statute of New York is as follows: “ Every person, who, from premedi- tated design, evinced by lying in wait for the purpose, or in any other manner, or with intention to kill or commit any fel- ony, shall, 1. Cut out or disable the tongue; or, 2. Put out an eye; or, 8. Slit the lip, or slit or destroy the nose; or, 4- Cut off or disable any limb or member of another, on purpose, upon conviction thereof shall be imprisoned in a State prison for such term as the court shall prescribe, not less than seven 1 Waller v. The State, 40 Ala. 325. 4 Crim. Law, 5th ed. II. § 1001 et 2 The State v. Gray, 8 Jones, N.C. seq.; Crim. Proced. 2d ed. II. § 851 170. et seq. 3 Reg. v. Lines, 1 Car. & K. 398. 326 CHAP. XX. ] PHYSICAL INJURIES TO PERSON. § 496 years.” } It is seen that this provision has many alternative clauses, and the indictment may be on one, or another, or several of them, at the pleader’s election. It is sometimes useful as well as pleasant, especially to students, to see exactly how papers are entitled and otherwise appear in practice (things of this sort, however, vary somewhat with fashion, and differ in the different States”), therefore let us present here, precisely as it appears, except with diminution of the spaces, a blank kindly furnished the author by the present district attorney of Albany. It is as follows: — IN THE COURT OF OF THE COUNTY OF ALBANY. Of Term, in the year of our Lord one thousand eight hundred and seventy- City and County of Albany, ss: Tur Jurors FoR THE Peorie oF tHE StaTE oF New YORK IN AND FOR THE BODY OF THE City anp County oF ALBANY, BEING THEN AND THERE SWORN AND CHARGBD, UPON THEIR OATH, Present, That late of the First Ward in the City of Albany, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, being then and there armed with a certain dangerous weapon, to the jurors aforesaid unknown, with malicious intent, and from premeditated design, evinced by lying in wait for the purpose, one then and there to maim and disfigure, in and upon the said feloniously did make an as- sault ; and that the said with the said instrument, from premeditated design, evinced by lying in wait for the purpose, the of the said then and there feloniously, wilfully and maliciously did on purpose from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT: That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and dis- figure, in and upon the said feloniously did make an assault; and that 1 2R. S. 664, marg. p. § 27,2 Edm. 2 See Bishop First Book, § 489- Stat. 683. 491, 327 § 496 LEADING STATUTORY OFFENCES. [BOOK Iv. the said with from premeditated design, evinced by lying in wait for the purpose, the of the said then and there felo- niously, wilfully, maliciously, on purpose did from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, the said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force arms, at the of in said County of Albany, with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and disfigure, in and upon the said feloniously did make an assault; and that the said from premeditated design, evinced by lying in wait for the purpose, the of the said then and there feloniously, wilfully and maliciously, on purpose did from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, the said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FuRTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, being t.en and there armed with a certain dangerous weapon, to the jurors af resaid unknown, with malicious intent, and from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and disfigure, in and upon the said feloniously did make an assault; and that the said with the said instrument, from premed- itated desizn, evinced by lying in wait for the purpose, the of the said then and there feloniously, wilfully and maliciously did, on purpose from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FurTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and disfigure, in and upon the said feloniously did make an assault; and that the said with from premeditated design, evinced by lying in wait for the purpose, the of the said then and there feloniously, wilfully, maliciously, on purpose did from 328 CHAP. Xx.] PHYSICAL INJURIES TO PERSON. § 496 premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, the said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and dis- figure, in and upon the said feloniously did make an assault; and that the said from premeditated design, evinced by lying in wait for the purpose, the of the said then and there feloniously, wil- fully and maliciously, on purpose, did from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, the said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, being then and there armed with a certain dangerous weapon, to the jurors aforesaid unknown, with malicious intent and from premeditated design, evinced by lying in wait for the purpose, said then and there to maim and disfigure, in and upon the said feloniously did make an assault ; and that the said with the said instrument, from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, feloniously, wilfully and maliciously, cut off a member, to wit, the , of the said from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FuRTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and disfigure, in and upon the said feloniously did make an assault ; and that the said with from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, felo- niously, wilfully and maliciously, cut off a member, to wit, the of the said from premeditated design, evinced by lying in wait for the pur- pose, with malicious intent, then and there, and thereby, in manner 2 329 § 496 LEADING STATUTORY OFFENCES, [BOoK Iv. aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with malicious intent, and from premeditated design, evinced by lying in wait for the purpose, said then and there to maim and dis- figure, in and upon the said feloniously did make an assault; and that the said from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, feloniously, wilfully and mali- ciously cut off a member, to wit, the of the said from premedi- tated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in said County of Albany, being then and there armed with a certain dangerous weapon, to the jurors aforesaid unknown, with malicious intent and from premeditated design, evinced by lying in wait for the purpose, said then and there to maim and disfigure, in and upon the said feloniously did make an assault ; and that the said with the said instrument, from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, feloniously, wilfully and maliciously, disable a member, to wit, the of the said from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward and City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with malicious intent, from premeditated design, evinced by lying in wait for the purpose, the said then and there to maim and disfigure, in and upon the said feloniously did make an assault; and that the said with from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, feloniously, wilfully and maliciously, disable a member, to wit, the of the said from premeditated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such 330 CHAP. XX. | PHYSICAL INJURIES TO PERSON. § 496 case made and provided, and against the peace of the people of the State of New York and their dignity. AND THE JURORS AFORESAID, UPON THEIR OATH AFORESAID, DO FURTHER PRESENT : That said late of the Ward in the City aforesaid, on the day of in the year of our Lord one thousand eight hundred and seventy- with force and arms, at the of in the said County of Albany, with malicious intent, and from premeditated design, evinced by lying in wait for the purpose, said then and there to maim and dis- . figure, in and upon the said feloniously did make an assault; and that the said from premeditated design, evinced by lying in wait for the purpose, did, on purpose, then and there, feloniously, wilfully and mali- ciously disable a member, to wit, the of the said from premedi- tated design, evinced by lying in wait for the purpose, with malicious intent, then and there, and thereby, in manner aforesaid, said then and there to maim and disfigure, contrary to the statute in such case made and pro- vided, and against the peace of the people of the State of New York and their dignity. District Attorney. This bill, when it is folded, is indorsed on the back as fol- lows : — COUNTY OF ALBANY. THE PEOPLE against Inpictment: MAYHEM. NatHaniet C. Moax, District Attorney. A TRUE BILL. Foreman. Filed day of 187 Arraigned day of 187 Plead Guilty. Tried day of 187 331. § 499 LEADING STATUTORY OFFENCES. [Book tv. § 497. Indiana Statutes and Indictment — Malicious Mayhem. — Bicknell tells us, that, in Indiana, there are two kinds of mayhem, — malicious and simple. The statute creating the -former is as follows: ‘ Every person who, on purpose and of malice aforethought, shall unlawfully disable the tongue, put out an eye, cut or bite off the nose, ear, lip, or other member of any person, with intent to disfigure or disable such person, shall be deemed guilty of malicious mayhem, and, upon con- viction thereof, shall be imprisoned in the State’s prison for not less than two or more than fourteen years, and be fined not exceeding one thousand dollars.” And this author fur- nishes the following form of the indictment: — “ FLoyp Circuir Court, October Term, A.D. 1864. “The State of Indiana . v Malicious Mayhem. A B— State of Indiana, Floyd County, ss: “The grand jurors for the county of Floyd, upon their oath, present, that A. B., on the eighth day of August, a.p. 1864, at said county, feloniously, pur- posely, and of his malice aforethought, bit off the ear of C. D., with intent then and there feloniously, purposely, and with malice aforethought to disfigure the said C.D. [or, the charge may be thus: cut off the right hand of C. D., with intent then and there feloniously, purposely, and with malice aforethought to disable the said C. D.], contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana. “BS. F., Prosecuting Attorney.” 1 § 498. Continued — Simple Mayhem. — The statute of sim- ple mayhem is: “ Every person who shall violently and unlaw- fully deprive another of the use of any bodily member, or who shall unlawfully and wilfully disable the tongue or eye, or slit or bite the nose, ear, or lip of another, shall be deemed guilty of simple mayhem, and, upon conviction, shall be fined not exceeding two thousand dollars, nor less than five dollars, and may be imprisoned in the county jail not exceeding six months and not less than twenty days.”’ And the indictment, omit- ting the introduction, is as follows : — “That A. B. on the —— day of ——, in the year —, at said county, vio- lently, unlawfully, and wilfully bit off the right ear of C. D., contrary,” &c.? § 499. Conclusion. — By consulting the index, the reader will find references to various words explained in the earlier 1 Bicknell Crim. Pr, 800, 801. 2 Bicknell Crim. Pr. 468, 469. 332 . CHAP. XX.] PHYSICAL INJURIES TO PERSON. § 500 parts of this volume, employed in the statutes against may- hems and maims. It is best, therefore, not to pursue the sub- ject further here. IV. Other Aggravated Assaults. § 500. General View — How treated of in the Author's other Works. — The offence of simple assault, and the joint offences of assault and battery, enter into a great variety of compounds in the law. The author has treated of them, in the companion works to this, in most of their aspects and connections. Let us see what some of them are. 1. We have assault pure and simple, constituting an indict- able wrong of itself. 2. Then we have assault as the first step in a battery, and constituting a part of what is sometimes regarded as the com- pound crime of assault and battery.? 3. In the next place, assault is one of the forms of attempt; and, as such, is treated of under the title Attempt, and in other like connections.® 4. Then, again, assault is one of the elements of a consider- able number of the substantive crimes.* It is of affray,> though the indictment may be so drawn as not to include it ;® of bat- tery, as just observed; of duelling, where the case proceeds to actual combat ;7 of most indictable homicides, though per- haps not of all;® of false imprisonment and kidnapping, at least in most cases ;° of mayhem ;! of rape, but not necessa- rily of the carnal abuse of a young girl; sometimes, but not always, of riot; and of robbery, though this is not in all cases necessary.!® And the list of substantive offences into 1 Crim. Law, 5th ed. II. § 22 et seq. ; 8 Crim. Proced. 2d ed. II. § 502, 512, Crim. Proced. 2d ed. II. § 54 et seq. 518, 538, 558, 651-656. 2 Crim. Law, dth ed. II. § 70 et seq. ; 9 Crim. Law, 5th ed. II. § 56, 747 et Crim. Proced. 2d ed. II. § 54 et seq. seq.; Crim. Proced. 2d ed. IL. § 365, 3 Crim. Law, 5th ed. I. § 558, 746, 366, 690, 691. 750, 751; II. § 42-54; Crim. Proced. 10 Crim. Proced. 2d ed. II. § 865; 2d ed. II. § 77-85, 651 et seq. ante, § 496. 4 Crim. Law, dth ed. II. § 56. 11 Crim. Proced. 2d ed. I. § 949, 5 Crim. Law, 5th ed. II. § let seq. 955, 959, 960; ante, § 491. ® Crim. Proced. 2d ed. II. § 25. 22 Crim. Proced. 2d ed. IT. § 993. 7 Crim. Law, Sth ed. II. § 311 et 13 Tb. § 1002; Crim. Law, 5th ed. IL. seq. § 1166-1178. 833 § 503 LEADING STATUTORY OFFENCES. [BOOK Iv. which assault enters might be somewhat, but not much, en- larged beyond this. Let us, therefore, not attempting to traverse here the whole field, which has been pretty well examined in the author’s other works, call to mind a few points connected with our American statutes. § 501. The Indictment.— The leading principle regarding the indictment is, that it must contain a complete and formal charge of assault, the same as though it were for a simple assault only, and to this must be added an allegation of the aggravating matter.1 It must conform, likewise, to the statu- tory words.? How far, and whether at all, beyond covering the words of the statute, the indictment must go in setting out the particulars of the aggravating matter, we shall in a measure see as we go on, and it was somewhat considered in the work on Criminal Procedure.’ § 502. Assaults with Intent to kill, to murder, to commit Man- slaughter, and the like: — General View. — This subject is discussed, in various aspects, in the companion works to the present one.* The statutes creating or defining this offence differ in their terms; and, it is obvious, in every case the particular words of the statute must be attended to. § 503. Intent to. kill—To commit Murder — Manslaughter. — Some of the statutes make it an offence of a particular sort to assault one with intent to “kill”; others, to “ commit mur- der”; others, to “‘ commit manslaughter”; others, to “ com- mit murder or manslaughter.’ Now, in the construction of these statutes, and of an indictment drawn upon them, it is the general rule, that, if the verb “ to kill’ is used, it is satisfied by the intent to do what would constitute, if done, either mur- der or manslaughter. And if the two words “kill and mur- der” are used in the indictment, proof of an intent to commit manslaughter will satisfy the former, and proof of intent to commit murder will satisfy the latter; and there may be a 1 Crim. Proced. 2d ed. I. § 82; II. 3 And see Ib. § 77-85. § 78; Crim. Law, 5th ed. 11. § 52; 41 Crim. Law, 5th ed. I. § 413 and Adell v. The State, 84 Ind. 548. note, 558, 786, 788, 795; II. § 57, 742; 2 Crim. Proced. 2d ed. IL. § 80; post, Crim. Proced. 2d ed. II. § 77-83. § 504. 334 CHAP. XX.] PHYSICAL INJURIES TO PERSON. § 505 conviction of one or both, or a conviction of the one and an acquittal of the other, upon the same count! And the like practice may be resorted to where the statute has such words as “to kill or do other bodily injury,” and the indictment covers these words, using the copulative and for the disjunc- tive “or” of the statute.2 So, on such an indictment, the conviction may be for a simple assault ; unless the aggravated offence is by statute a felony, and the simple assault is a mis- demeanor, and the common-law rule applicable to such a case has not been altered by statute, as it has in many of our States. § 504. Continued. — But we have seen, in other parts of this volume, that the words of a statute may be bent from their natural and ordinary meaning by the connection in which they stand, and their relation to the other statutory words. Thus it has been in Mississippi, where the expression “intent to kill,” as it stands in the statutory provisions of the State, is construed to mean an intent to commit murder.6 § 505. Language of the Statute. — As already observed,® the indictment must conform to the language of the statute. Thus, in Missouri, where the statute provided that ‘“ every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to pro- duce death, or great bodily harm, with intent to kill, maim, 1 The State v. Butman, 42 N. H. 490; Hall v. The State, 9 Fla. 203; The State v. Reed, 40 Vt. 608. And see The State v. Calligan, 17 N. H. 253. 2 Beckwith v. People, 26 Ill. 500. Of course, if the two are separate of- fences against distinct statutes, the rule is otherwise. Morman v. The State, 24 Missis. 54. But where, in such a case, the indictment charges, in the same count, the assault to have been committed “with intent to do bodily harm,” and also “with intent to kill,” it is saved from duplicity by one of the averments being defective (see Crim. Law, II. § 367, note) ; as, if it is under the New York statute, by omitting to charge that the assault “to do bodily harm” was “ without justi- fiable or excusable cause.”’? Dawson v. People, 25 N. Y. 399. 3 Commonwealth v. Lang, 10 Gray, 11; The State v. Shepard, 10 Iowa, 126 ; Boyd v. The State, 4 Minn. 321; Strawn v. The State, 14 Ark. 549; Warrock v. The State, 9 Fla. 404. * Ante, § 268, 269. 5 Morman v. The State, 24 Missis. 54; Bradley v. The State, 10 Sm. & M. 618; Morgan v. The State, 18 Sm. & M. 242; Anthony v. The State, 18 Sm. & M. 268. § Ante, § 501; Crim. Proced. 2d ed. II. § 80. § 506 LEADING STATUTORY OFFENCES. [BOOK Iv. ravish, or rob such person,” &c., an indictment was held to be ill which omitted to cover, by averment, the words “ on pur- pose and of malice aforethought.”! But, where words of this sort are not in the statute, it is of no consequence to allege that the assault was of malice aforethought, or was on pur- pose.2 For example, it being provided in Iowa, that, “if any person assault another with intent to commit murder, he shall be punished,” &c., the court adjudged it to be sufficient to allege that the defendant “ wilfully, feloniously, and unlaw- fully did make an assault, &c., with intent him, &c., then and there to kill and murder, contrary,” &c.2 It is seen, that, as respects the assault, this form merely alleges a simple assault ; but, under some statutes, the assault must be in fact, therefore must be charged in the indictment as being, a compound one, and under some of them it must proceed to a battery. Thus, it being provided in Mississippi, that “every person who shall be convicted of shooting at another, or of attempting to dis- charge any kind of loaded fire-arms, or any air-gun, at another, or of any assault and battery upon another, by means of any deadly weapon, or by such other means or force as was likely to produce death, with intent to kill, &c., such other person, &e., shall,” &c., an indictment was heldeto be insufficient which alleged, that the defendant, at a time and place named, “ one Alson Shelby, &c., then and there feloniously and maliciously did, with a certain drawn knife, stab and wound, with intent then and there feloniously, wilfully, and of his malice afore- thought, the said Shelby to kill and murder”; because it did not allege that the drawn knife was, in the language of the statute, a “‘ deadly weapon,” or in terms charge a battery. In like manner, as respects the intent, it is not sufficient under this statute simply to allege the intent “to kill and murder,” the indictment must go further and specify the person whom the defendant intended to deprive of life. § 506. Continued — Intent to rob or steal. — Still it is not, 1The State v. Harris, 84 Misso. And see The State v. Murphy, 21 Ind. 347. 441. 2 The State v. Newberry, 26 Iowa, 4 Ainsworth v. The State, 5 How. 467; Rice v. People, 15 Mich. 9. Missis. 242. 3 The State v. Newberry, supra. 5 Jones v. The State, 11 Sm. & M. 816. 336 CHAP. Xx. ] PHYSICAL INJURIES TO PERSON. § 507 in every possible case, necessary that the allegations of the indictment should cover every word of the statute... Thus, to draw an illustration from a case where the intent is other than to kill, the Revised Statutes of Massachusetts having provided, that, “if any person, not being armed with a dangerous weapon, shall assault another with force and violence, and with intent to rob or to steal, he shall be deemed a felonious as- saulter, and shall be punished” &c., the following was held to be sufficient : — “That, &c , at, &c., on, &c., not being then and there armed with a dangerous weapon, in and upon one Rodman S. Sherman feloniously, and with force and violence, an assault did make, with the intent the moneys, goods, and chattels of the said Rodman S. Sherman,.from the person and against the will of the said Rodman S. Sherman then and there feloniously and by force and violence and by assault and putting in fear, to rob, steal, take, and carry away, against the peace and dignity of the Commonwealth, and contrary to the form of the statute in such case made and provided.” The objection, which was overruled, was, that the indict- ment did not charge the offender to have been “a felonious assaulter, or to be deemed and taken as such.”2 The reader will observe, that this part of the statute merely states its conclusion from the facts,— in other words, a conclusion of law, — which, as already seen,? need never be alleged in any indictment.* § 507. “ Any Crime,” &c. — Manslaughter. — In a certain chap- ter of the New Hampshire Revised Statutes are certain pro- visions regarding crimes ; and, among the rest, the punishment for manslaughter is defined. Then we have the following: 1 Ante, § 382, 383, 440, 441, 473,474, ly shot and wounded one B., then and 487, 488. there being, with the intent then and 2 Commonwealth v. Sanborn, 14 there to kill and murder the said B.”; Gray, 398. not stating that the person shot at ‘“ did 3 Ante, § 421. not die thereby,” or covering the statu- 4 In Kentucky, a statute provides, that, ‘‘if any person shall wilfully and maliciously shoot at and wound an- tory words “ loaded with a leaden bul- let or other hard substance.”” Burns v. Commonwealth, 3 Met. Ky. 18. But other, with an intention to kill him, so that he does not die thereby, with a gun or other instrument loaded with a leaden bullet or other hard substance, he shall” &c. And it was adjudged suf. ficient to aver that the defendant “with a certain pistol, which he then and there had and held, feloniously and malicious- this decision was compelled by certain statutes rendering necessary less of al- legation than the common-law rules re- quire. On principle, and according to the common-law rules, perhaps the former omission is unimportant, but the latter is evidently important. See, also, Dawson v, People, 25 N. Y. 399. 837 § 508 LEADING STATUTORY OFFENCES. [BOOK Iv. “Tf any person shall make an assault upon another, with an intent to commit any crime described in this chapter, the pun- ishment whereof shall be, &c., he shall be punished,” &c. And it was held that this provision embraced, among the rest, an assault with intent to commit manslaughter.! § 508. Continued. — Somewhat like the above statute of New Hampshire is that of Indiana, as follows: “‘ Every person who shall perpetrate an assault, or an assault and battery, with intent to commit a felony, shall, upon conviction thereof, be imprisoned,” &c.2 Upon this, a writer on the Indiana crimi- nal law observes, that “there can be no indictment for an assault and battery with intent to commit the crime of man- slaughter ; because the peculiarity of manslaughter is, that it is free from unlawful intention to kill.” This point does not appear, however, to have been decided by the Indiana court; it is contrary to the actual course of things in the other States ; * and, without inquiring whether manslaughter is different under the Indiana statute from what it is at the common law, we may conclude that the proposition is not sound as general American doctrine. It is true, that these aggravated assaults do require the specific intent to bring about the particular criminal result ; though, in matter of proof, the intent may be inferred from the tendency of the act, and from other circum- stances.» As a general proposition, manslaughter does not admit of accessories before the fact; because, when one insti- gates another to kill a man at a future time, and it is done not in his presence, the killing thus predetermined is murder.® But where this sort of prior planning does not exist, if one intends to kill another and does kill him, the offence is in some circumstances manslaughter, while in others it is murder.’ Therefore it follows that there may be an assault with intent to commit manslaughter as well as murder. 1 The State v. Calligan, 17 N. H. 258. 18 Sm. & M. 242; Ike v. The State, 2 Bicknell Crim. Pr. 290, referring to 2% Missis. 525; Morman v. The State, 2 R. S. 897, § 9. 24 Missis. 54; People v. Yslas, 27 Cal. 3 Bicknell Crim. Pr. 292. 630; Rumsey v. People, 19 N. Y. 41; 4 See ante, § 503, 507. King v. The State, 21 Ga. 220; Wea- 5 Crim. Law, 5th ed. I. § 729, 730, ver v. The State, 24 Texas, 387. 736 ; Il. § 741, 742; Jeff v. The State, 6 Crim. Law, 5th ed. I. § 678. 89 Missis. 593; Morgan v. The State, 7 Crim. Law, 5th ed, II. § 676, 695. 338 CHAP. XXx.] PHYSICAL INJURIES TO PERSON. § 511 § 509. Assaults with other Special Intents : — Larceny. — We have already ! seen the form of an indictment for assault with intent to commit larceny. Bicknell, treating of the Indiana statute? says:3 “‘ As larceny is a felony under the laws of Indiana, a person may be indicted for an assault and battery with intent to commit the crime of larceny.* But in such case it will not be sufficient, in charging the indict- ment, to say, ‘ with intent to commit the crime of grand lar- ceny.’ You must say, ‘ with intent then and there, unlawfully and feloniously, to steal, take, and carry away the personal goods and chattels of O. D. then and there being,’ or, you may say, ‘with intent feloniously to steal, take, and carry away divers goods and chattels then and there being,’ — not naming any owner.”5 Now, it is reasonably certain that some courts would hold to be adequate the form of allegation which this * writer thus pronounces to be insufficient ; indeed, such appears to be the better doctrine, though most of the forms in actual use go to the extent indicated by him as necessary. But this sort of question is sufficiently discussed elsewhere.® § 510. Conclusion. — It is not proposed, in these elucidations, to exhaust the subject. The reader will find, in the author’s other works, an abundance of matter relating to the topic of this sub-title. What is here said will be suggestive to the reader ; and, for most purposes, of itself a sufficient guide. V. Simple Assaults. § 511. General View. — Assault, at the common law, has been defined, in another connection, to be “ any unlawful phys- ical force, partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being: as, raising a cane to strike him; pointing, in a threatening manner, a loaded gun at him; and the like.” Still other defi- nitions have been proposed ;7 and, on the whole, though the offence is in most respects easy of comprehension, it is not quite easy to be defined. Itis much the same with larceny ; 1 Ante, § 506. 5 See 1 Car. & K. 421. 2 Ante, § 508. § Crim. Proced. 2d ed. II. § 77-92. 3 Bicknell Crim. Pr. 292. 7 Crim. Law, 5th ed. II. § 28 and 416 Ind. 282; 21 Ind. 441. note. 389 § 513 -LEADING STATUTORY OFFENCES. [BOOK Iv. and we have seen that, in consequence of this fact, there has ceased to be any very close connection between the better form of the definition of larceny, and the better form of the indict- ment.} : § 512. Indictment — Compared with Definition. —In conse- quence, probably, of the difficulty of defining assault, the com- mon-law indictment does not undertake to set out the facts which constitute the offence. It simply declares that the defendant ‘ did make an assault,” &. And though the tech- nical word “ assault ” ought properly to be used, it is not quite clear that some other form of expression will not answer in- stead of this word.? The case seems to fall within the doctrine that necessity will excuse what else would be required in the pleading ; as, where the charge of being a “‘ common scold,” of keeping a “‘ common gambling house,” or the like, is ad- mitted in this general form, because the pleader cannot well be more precise.? § 513. Statutory Definition — Indictment.—In some of our States, but not generally, statutes have undertaken to define assault. Thus, in Indiana: “ An assault is an unlawful at- tempt, coupled with a present ability, to commit a violent in- jury on the person of another,” &c.4 And the question becomes important, whether, by reason of such a statute, the form of the indictment should be changed. It is plain, that, according to one class of opinion,® it need not be. Indeed, our American books of the law are full of instances in which, after a statute has defined an offence, in words not following the common-law form of the indictment, the old form has been continued, and no question has been made of its adequacy. But the Indiana court has held, contrary to the common practice, that the fore- going statute requires a change in the indictment, and the old form can no longer be followed. The question arose on an indictment for assault with intent to commit a rape. “It may be,” said Downey, J. in delivering the opinion of the court, “ that indictments similar in form to this may have been in 1 Ante, § 411. * Act of Dec. 2, 1865, 8 Ind. Stats. 2 Crim. Proced. 2d ed. II. § 55-58. 258. 3 Crim. Proced. 2d ed. I. § 498 et * Ante, § 471, 472. seq. 340 CHAP. XX.] PHYSICAL INJURIES TO PERSON. § 514 use in this State prior to the enactment of the statute defining an assault. But since the legislature has furnished a defini- tion of an assault, and thus placed it in the same category with other defined offences, we must apply, in prosecutions for that offence, the same rule which is applied to prosecutions for other offences; that is, that the offence must be described according to its statutory definition, by stating all the facts necessary to show that the act is in violation of the statute. A learned jurist of this State has, with reference to the statute of 1865, furnished the following precedent : — “ The grand jurors for the county of Floyd, and State of Indiana, upon their oath present, that A. B., on the third day of August, a. p. 1864, at said county, did feloniously attempt to commit a violent injury upon the person of C. D., he, the said A. B., then and there having a present ability to commit said injury, by then and there feloniously, purposely, and with premeditated malice, shoot- ing at and against the said C. 1., with a certain gun, then and there loaded with gunpowder and leaden shot, which the said A. B. then and there in both his hands had and held, with intent then and there and thereby, him, the said C. D. feloniously, purposely, and with premeditated malice to kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.” And so the court held, that, as respects the part which charges the simple assault, the old form is not adequate, but the assault must be alleged in the terms of the statutory defi- nition. ; § 514. Continued. — If, as often as the statutory law does any thing by way of defining a crime, the pleader must weave the definition into his indictment, it is evident that much of our American practice in criminal cases has been wrong. On the other band, it is necessary to cling firmly to 1 Adell v. The State, 34 Ind. 543, 545, 646, referring to Bicknell Crim. Pr. 479 ; Malone v. The State, 14 Ind. 219, where, among other things, Perkins, J. said: “ As, under our law, we are to look to the statute alone for the definition of offences, it follows that, as a general rule, it will be sufficient in an indict- ment or information, to charge them in the language of the statute,” p. 221; The State v. Bougher, 3 Blackf. 307. As to the form from Bicknell, it may be observed, if important, that in other cases of indictments for compound as- saults, this author employs the old form, p. 290, 291. I do not find, in the book, any indictment for a simple assault only. If we look carefully at this form, we shall see that it omits the statutory word “ unlawful” ; which, on general principles, it plainly ought to cover. Still the indictment has the word “ feloniously ” ; and, quite likely, some courts would hold this to be suffi- cient as a substitute, while certainly others would not. Crim. Proced. 2d ed. I. § 508, 612-620 and the notes ; II. § 48, 163, 959; ante, § 459. 841° § 515 LEADING STATUTORY OFFENCES. [BooK Iv. the doctrine, about which there can be no question, that, when a statute, in whatever form, makes a particular thing essential to the punishment which itself prescribes, the indictment must in some way contain an allegation of this thing.’ But, in the present instance, we are considering whether the statute defining assault has rendered it necessary to set out the par- ticular facts entering into the offence. In essence, if the word “ assault,” as used in the indictment, meant, before the statu- tory definition was given, such a combination of facts as con- stitutes assault at the common law, it now means such a combination of facts as constitutes assault under the statute. And it is believed that the majority of our American tribunals would hold, under like circumstances, that, since the one word “assault” extended sufficiently into the particulars be- fore the statute, it does so now. This case is thus distin- guished from those in which the words of the common-law indictment are specific in meaning, and the statute then adds to the offence an element which the common law did not re- quire. If, in such instance, the common-law allegation does not embrace this added element, it must be expanded by added words until it will. The application of these principles may not always be easy, but the principles themselves appear to be plain, and to be sufficient guides. CHAPTER XXI. OTHER FORMS OF INDICTABLE PHYSICAL FORCE. 515, 516. Introduction. 517-531. Robbery and its Affinities. 532, 533. Burglary and its Affinities. 534-588. Arson and its Affinities. 589-542. Riot and its Affinities. § 515. General View — Scope of this Chapter. — Physical force, employed by a man to the injury of another, or to the disturbance of the community, may be either actual or con- 1 Ante, § 870-872. 342 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 517 structive, and it may be carried into effect or only attempted. In the last chapter, we considered such force as is employed against the persons of individuals; in this chapter, we shall take a view of the remaining kinds of indictable force. Yet it should be remembered, that, in the present Book, we are contemplating only such statutory offences as have a close affinity to the common law, — those, therefore, which in their leading aspects were brought under review in the author’s other works. Such pure statutory crimes as are not discussed elsewhere by the author are left for later pages of this volume. § 516. How the Chapter divided. — We shall consider I. Rob- bery and its Affinities; IJ. Burglary and its Affinities; III. Arson and its Affinities; IV. Riot and its Affinities. I. Robbery and its Affinities. § 517. Robbery at the Common Law : — General Doctrine — The Law.— Robbery, at the common law, has been defined elsewhere by the present author to be “larceny committed by violence from the person of one put in fear.” 1 This definition differs in the form of expression, though not in substance, from what has been given by preced- ing authors. There has been no one form of words uniformly used ; but Lord Hale’s language accords in the main with what has been more commonly employed, as follows: ‘ Robbery is the felonious and violent taking of any money or goods from the person of another, putting him in fear, be the value thereof above or under one shilling.”* To constitute this offence, there must be, 1. Violence; but it need only be slight, for any thing which calls out resistance is sufficient ; or, what will answer in place of actual violence, there must be such demon- strations as put the person robbed in fear. The demonstrations or fear must be of a physical nature, with the single exception, that, if one parts with his goods through fear of a threatened charge of sodomy, the taking is robbery. There must, there- fore, be, 2. A larceny, embracing the same elements as a simple larceny.‘ And, 8. The taking must be from what is ’ technically called the “ person ;” the meaning of which ex- 1 Crim. Law, 5th ed. II. § 1156. of definitions, see Crim. Law, supra, 21 Hale P. C. 532. Foracollection note. 343 § 519 LEADING STATUTORY OFFENCES. [BOOK Iv. pression is, not that it must necessarily be from the actual contact of the person, but it is sufficient if it is from the personal protection and presence.! § 518. The Indictment.— The indictment charges, in the first place, an assault ; but it is probable that the offence may be sufficiently set out in some other form of words, though the author is not aware that this has been decided. Where the usual form is employed, “ the assault,” says Chitty,? “‘ must be stated to have been feloniously made, and it will not suffice to add this word to the allegation of the taking and putting in fear.2 The indictment must show that the property was taken with violence from the person, and against the will of the party injured, but it does not seem so certain that it is neces- sary to state that an actual terror was excited, though this is unquestionably more secure.* The putting in fear need not be stated in the indictment, so that the fact be charged to be done violently and against the will of the party. [But if, instead of alleging violence, the pleader alleges a putting in fear, which is the other alternative in the offence, this allegation must be proved.®] The term violently is not requisite; it will suffice if from the whole statement it is clear that a robbery has been committed by a forcible taking of property against the will of the owner.’ The offence itself should be described according to the facts;’’ and the indictment should set out a larceny of the goods, the same as in simple larceny.® § 519. Robbery under Statutes : — In General. — There are, in our States, many statutes against robbery, but the effect of most of them is merely to reassert the common law. Thus, in 1804, a statute in Massachusetts made punishable “ any person who shall, by force and violence, or other assault and putting in fear, feloniously steal, rob, and take away from the person of another, any money, goods,” &c. ; 1 Crim. Law, 5th ed. II. § 1158- 8 Glass v. Commonwealth, 6 Bush, 1178. 436. 2 8 Chit. Crim. Law, 805. 7 2 East P. C. 788, 784. 8 Rex v. Pelfryman, 2 Leach, 4th ed. 8 Commonwealth v. Clifford, supra ; 663 ; Anonymous, 2 Dyer, 224 0. Crim. Proced. 2d ed. II. § 772, 1001, 4 Foster, 128; 1 Hale P. C. 634. 1002 ; and see § 1002-1008, for various 5 5 Burn. Just. 24th ed. 67; Com- views respecting the form of the indict- monwealth v. Humphries, 7 Mass. 242; ment. Commonwealth v. Clifford, 8 Cush. 215, 844 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 520 and this was held to be a mere reénactment of the common law. Consequently an indictment was adjudged to be good, which omitted the words “ putting in fear; ”’ because it would have been good at the common law.’ And in Ohio, where they have no common-law crimes,? but a statute provides, “ that, if any person shall forcibly and by violence, or by putting in fear, take from the person of another any money or personal property, of any value whatever, with intent to rob or steal, every person so offending shall be deemed guilty of robbery, and, upon conviction thereof, shall,’ &c.,3— this is held to create a crime identical with robbery at the common law. Said Ranney, J.: “On recurring to the common-law definition of this crime, as laid down by Hale, Hawkins, and Blackstone, works of acknowledged authority, we find the legislature have incorporated it almost literally into the statute. What is the irresistible implication? Plainly, that they were used in the legal sense, and with the settled construction placed upon them.” Therefore it was adjudged to be sufficient, in the proofs, to show that the taking was from the immediate presence and control of the individual robbed, though not from the actual contact of his person.*| And the same was held on a Tennessee statute defining robbery to be the “felonious taking, from the person of another, goods or money of any value, by vio- lence or putting in fear.”® In like manner, the robbery of the California statute is deemed to be the same as at the com- mon law; it is as follows: “‘ Robbery is the felonious and vio- lent taking of money, goods, or other valuable thing from the person of another by force or intimidation.”® We have al- ready seen,’ that, where a statute merely provides a punish- ment for “robbery,” it means robbery as defined by the common law. § 520. How the Indictment.— According to principles already 1 Commonwealth v. Humphries, 7 The Indiana statute defines robbery in Mass. 242. the same terms; and there the common- 2 Crim. Law, 5th ed. I. § 35. law doctrines are deemed to be applica- 3 Stat. Mar. 7, 1885, § 15, Warren ble in determining the limits of the Crim. Law, 246. offence. Brennon v. The State, 25 Ind. 4 Ante, § 517; Turner v. The State, 403. 1 Ohio State, 422, 425. 6 People v. Shuler, 28 Cal. 490, 492. ® Crews v. The State, 3 Cold. 350. T Ante, § 363. 23 845 § 521 LEADING STATUTORY OFFENCES. [BOOK Iv. laid down,} it seems perhaps to follow, that, when the statute is in any of the forms mentioned in the last section, or in any analogous form, any indictment drawn as at the common law and concluding against the form of the statute will be suffi- cient. In a sort of general way, this is so; but, in some circumstances, and as respects some of the statutes and par- ticular facts, the result seems to be otherwise. At all events, it appears to be the prevailing custom where these statutes exist, and the custom is evidently to be commended, to draw the indictment, not after the common-law model, but expressly upon the statute ; and, when it is so, the terms of the statute must be reasonably regarded. § 521. Continued — Ohio, &.— In Mr. Warren’s book, we have the following form of the allegation upon the Ohio statute quoted in the section before the last : — “That, &., in and upon one M. N. then and there being, feloniously and for- cibly did make an assault, and then and there six pairs of linen table-cloths, of the value, &c., the personal goods, chattels, and property of the said M. N., from the person and against the will of the said M. N. feloniously, forcibly, by vio- lence, and by putting him the said M. N. in fear, did steal, take, and carry away, with intent, then and there, the goods, chattels, and property aforesaid, feloni- ously to steal.’’ 2 Now, without saying that this form is not adequate in law, a little examination will show it to be loosely drawn, and, at least, not in good legal taste. The statute, the same as the common law, provides, in the alternative, for two sorts of rob- bery, either “forcibly and by violence,” or “ by putting in fear.” The allegation opens with the word “ feloniously,” which is right, showing that the crime which is to be set out is a felony ;° then it seems to proceed on the first alternative of the statute, employing the word “ forcibly,” but it does not add “‘ and by violence” as it ought, in this view, in order to cover the statute. Afterward there is a sort of lame attempt, possibly one which the court might hold to be sufficient, to cover the other alternative of the statute ; but further criticism of this kind is not necessary. When one draws an indictment in such a case as this, the first question is, whether both alter- natives shall be covered or only one, and, if the latter, which 1 Ante, § 881, 413. 3 Ante, § 886. 2 Warren Crim. Law, 8d ed. 253. 346 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 522 one. In matter of law, this indictment would be good, drawn on either of the alternatives, without mentioning the other ; but, in such a case, the proofs must sustain the charge as laid. But, though in law, when the indictment is adequate, it is sufficient to prove either the force and violence or the putting in fear, and both need not be shown, there is no repugnance between them ; therefore the alternative clauses may be cov- ered by a single count, and for most cases it is practically best they should be. Let, therefore, the indictment on this statute be as follows : — That A, &c., on, &c., at; &c., in and upon one B, then and there being, an assault did feloniously and forcibly and by violence make, and did then and there feloniously put the said B in fear, and thereby did then and there feloniously steal, take, and carry away [or perhaps the single statutory word “ take ” is suf- ficient,? but the full form will sustain a conviction for simple larceny if the force or fear is not proved,] from the person of the said B six pairs of linen [better omit this adjective °] table cloths, of the value, &c., of the personal property of the said B [then and there being found 4], with the intent to rob him the said B thereof, and to steal the same, against the peace, &c., and contrary to the form of the statute, &c. From some analogies’ and from one case® it might be in- ferred, that, wherever actual larceny is set out in the full form as above, the indictment will be sufficient though it does not proceed to allege the intent to steal or rob. But it has been held, that, even in such a case, this intent must be averred.’ § 522. Continued — Indiana, &c.—In Indiana (and it is the same in Tennessee ®) the words of the statute are: “ Every person who shall forcibly and feloniously take from the per- son of another any article of value, by violence or putting in fear, shall be deemed guilty of robbery, and, upon convic- tion thereof, shall,” &c. And the following is deemed to be an adequate form of the indictment : — “That A. B., &., on, &e., at, &c., forcibly and feloniously took from the person of C. D., by violence and putting him in fear, one gold watch, of the 1 Ante, § 518; Glass v. Common- Law, Sth ed. II. § 116; Crim. Proced. wealth, 6 Bush, 436. 2d ed. II. § 148. 2 See post, § 522. 6 Turner v. The State, 1 Ohio State, 3 Ante, § 448. 422. * Common, but not necessary. See 7 Matthews v. The State, 4 Ohio ante, § 421 and note. State, 589; Boose v. The State,. 10 5 See, under the title burglary, Crim. Ohio State, 575. 7 8 Ante, § 519, 347 § 524 LEADING STATUTORY OFFENCES. [BOOK Iv. value of one hundred dollars, of the [personal!] goods and chattels of the said C. D., contrary, &c. and against,” &c.? We have seen,® that, under this statute, the offence is bounded as by the common law. This form of the indictment, though it covers the statutory terms, comes short of filling the common-law idea of the offence. Particularly it fails in not alleging a larceny of the watch; because plainly the phrase * feloniously took one gold watch, of the value, &., of the goods,” &c., comes far short of charging a larceny of it, ac- cording to common-law doctrines. On principle, then, the allegation would require to be expanded beyond the statutory terms, to embrace a full charge of larceny.*| And so the Mas- sachusetts court held that it must be, on a statute the words of which were, “if any person shall, by force and violence, or by assault and putting in fear, feloniously rob, steal, and take from the person of another,” &c. The point decided was, that the ownership must be alleged, but the principle is the same. In the absence, therefore, of adjudication in one’s own State, it is safer, if this form is to be followed, to expand it as thus suggested. § 523. Continued — California— Ownership in Third Person. — The California statute defines: ‘‘ Robbery is the felonious and violent taking of money, goods, or other valuable thing from the person of another by force or intimidation.” And the fol- lowing has been adjudged sufficient : — “That A, &c., on, &c., at, &c., upon B, did feloniously make an assault and put him in fear and danger of his life, and from his person and control, and against his will, did [then and there] feloniously, forcibly, and violently steal, take, and carry away, &c., the property and money of C,” &c. It is perceived, that, in this case, the indictment lays the ownership in a person other than the one robbed, and such form of the allegation was held not to be objectionable.® § 524, Continued —“By Force” — “ Intimidation” — “From the Person.”— Some of the statutes have the words “‘ by force; ” 1 This word “ personal,” it seems to 4 Crim. Proced. 2d ed. I. § 623-630; me, is better omitted. Bates v. The State, 31 Ind. 72. 2 Bicknell Crim. Pr. 319; referring 5 Commonwealth v. Clifford, 8 Cush. to 28 Ind. 22; and, for the statute, to2 215. See ante,§518. And see People R. 8. 408, § 18, 2G. & H. 442, v. Vice, 21 Cal. 344. 8 Ante, § 519. 6 People v. Shuler, 28 Cal. 490. 348 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 525 others, “ by force or intimidation.” The consequence is, that the statutory term must be used in the indictment.’ In like manner, the statutory words “ from the person” must be fol- lowed, else the indictment will be ill.2 In the latter instance, it is not sufficient to say “from another person,” — words of a different meaning.® § 525. Aggravated Robberies : — From the Dwelling-house — Highway Robbery. — Remember- ing, therefore, that the proof of the foregoing statutory robber- ies is the same in substance as of robbery at the common law, let us look a moment at certain aggravated robberies. These appear to have begun, in England, with Stat. 23 Hen. 8,c. 1, § 8, which took away clergy from defendants under conviction “ for robbing of any person or persons in their dwelling-houses, or dwelling place, the owner or dweller in the same house, his wife, his children, or servants then being within, and put in fear and dread by the same, or for robbing of any person or persons in or near about the highways.” The date of this provision is 1581. In 1547 it was confirmed, but not much changed, by Stat. 1 Edw. 6,c. 12, § 10, as follows: “ That no person, &c., attainted or convicted of . . . breaking of any house by day or by night, any person being then in the same house where the same breaking heretofore hath been or hereafter shall be committed, and heretofore hath been or hereafter shall be thereby put in fear or dread, or of or for robbing of any person or persons in the highway, or near to the highway,” should be admitted to clergy. Thus stood the law creating the two kinds of robbery known as robbery in the dwelling-house and highway robbery; till, in 1691, a statute (8 Will. & M. c. 9, § 1) rendered the foregoing provisions un- important by taking away clergy from all who should “ rob any person:” that is, from every sort of robbery as defined by the common law.* Now, if the reader will consult the author’s “ First Book of the Law,” ® he will see that the first two of the above statutes are of dates sufficiently early to have been com- 1 Collins v. People, 39 Ill. 233. 4 Rex v. Wardle, Russ. & Ry. 9; 2 Stegar v. The State, 39 Ga. Rex v. Summers, 2 East P. C. 785; “583. Rex v. Darnford, 2 East P. C. 785. 3 People v. Beck, 21 Cal. 385. 5 Bishop First Book, § 56. 349 § 527 LEADING STATUTORY OFFENCES. [BOOK Iv. mon law in all the colonies which now compose our older States; and the third is early enough to have been so in Georgia, but not in the colonies generally. There are, in our States, few, if any, traces of the offence of robbery in a dwell- ing-house ; but there are, among us, localities in which high- way robbery appears to be an aggravated form of robbery. 1} § 526. Highway Robbery, continued. — The statutes on this subject have the expression “in or near any public high- way.”? In spite of the general doctrine in criminal pleading that the allegation in an indictment should not be in the dis- junctive even though the statute on which it is drawn is,’ there is old authority for the use of the disjunctive in the present instance. Thus, says Lord Hale, “an indictment of robbery in vel prope altam viam regiam, though in the disjunctive, is usual at Newgate; for, if it be either in or near it, though an indictment ought to be certain, yet this is not the substance of the indictment, nor that which makes the crime, but only to ascertain the court as to the point of clergy to serve the stat- ute.”* The form adopted by Chitty has merely the words “in the king’s highway there.” * It would seem, on principle, that “in the highway ” is one place, and “ near the highway” is another; therefore it would not be strictly correct to say “in and near,” and we must either adopt the old form or employ different counts if we would charge the offence within the full statutory bounds. Probably, therefore, a modern court would hold the old form to be adequate. At all events, if the charge is, that the offence was committed “in” the highway, it is not supported by showing a robbery “near” it.6 And the one form only may properly be used, and so the indictment may, according to the evidence, charge the offence to have been committed in the highway, or near the highway.7 § 527. Robbery with Dangerous Weapon. — The statutes of some of our States, and of England, have made it a heavier offence than common robbery, to take from one money or goods 1 The State v. McCune, 5 R. I. 60; 41Hale P. C. 585; 2 East P. C. The State v. Cowan, 7 Ire. 239. 784. 2 The State v. Cowan, 7 Ire. 239; 5 3 Chit. Crim. Law, 806. ante, § 425. § The State v. Cowan, supra. 3 Crim. Proced. 2d ed. I. § 484-436, 7 The State v. Anthony, 7 Ire. 685-592 ; II. § 224, 488-440, 647. 234, 800 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 528 by the use of a dangerous weapon. Thus, in Massachusetts : *¢ Whoever assaults another and feloniously robs, steals, and takes from his person money or other property which may be the subject of larceny, such robber being armed with a dan- gerous weapon, with intent if resisted to kill or maim the per- son robbed ; or, being so armed, wounds or strikes the person robbed ; shall be punished by imprisonment in the State prison for life.’ 1 The form of indictment and the proofs on such a statute will in most respects be obvious ; on this statute it was lield not to be necessary either to charge or prove, that the wounding or striking was done with the dangerous weapon with which it is alleged the defendant was armed. ‘ There is,’ said Bigelow, 0. J. “no provision, either express or im- aited, that the striking or wounding is to be inflicted with the weapon with which the robber is armed. The gist of the crime is in committing a robbery while armed with a dangerous weapon, and in striking and wounding the party robbed, by whatever means the blows or wounds may be inflicted.” 2 More might be said, relating to statutes of this sort, but it is deemed best to. pass on. § 528. Degrees in Robbery : — Missouri. — The statutes of some of the States have made what are termed degrees in robbery. The provisions on this subject are not uniform; those of Missouri are the follow- ing: — ‘** Hvery person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree. “‘ Hivery person who shall be convicted of feloniously taking the personal property of another, in his presence and from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the threats of the person so receiving or taking 1 Gen. Stats. c. 160, § 22. 2 Commonwealth v. Mowry, 11 Allen, 20, 24. 801 § 529 LEADING STATUTORY OFFENCES. [BOOK Iv. such property, shall be adjudged guilty of robbery in the second degree. “Tf any person shall, either verbally or by a written or printed communication, accuse, or threaten to accuse another of a crime against nature or any other felony whatever, or threaten to do any injury to the person or property whatever of any one, with a view or intent to extort or gain any money or property of any description, belonging to another, and shall, by intimidating him with said accusation or threat, extort or gain from him any money or property, every such offender shall be deemed guilty of robbery in the third degree.” The next section provides the penie for each of these three degrees.1 § 529. Continued — Construction — Indictment. — The reader perceives, that, though nominally there are here three degrees of rubbery, yet robbery of the first degree comprehends all, or nearly all, which is embraced in the common-law offence. Probably if the provision stood alone, it would be held to be bounded in construction precisely where the common law is ;? but, as robbery effected by a charge of sodomy is here included in robbery of the third degree, doubtless the courts would hold it to be excluded from the first degree, since the statute does not in terms embrace it. The following form of the indictment for robbery of the first degree appears to be approved : — “That A, &c., on, &., at, &c., in and upon one B, with force and arms, feloniously did make an assault, and the said B in bodily fear of some immedi- ate injury to his person then and there feloniously did put, and one horse, of the value of one hundred dollars, the property of the said B, then and there al ously did rob, steal, take, and carry away,” &c. But it is held, that, on this indictment, there cannot be a conviction for robbery in the second degree. There may, how- ever, be a conviction for grand larceny. These two degrees of robbery are not such, in their nature, as to be included within each other.? If the indictment should employ the words “ by putting him in fear of some great bodily harm,” instead of the statutory phrase ‘“‘ by putting him in fear of some immediate 1 Wagner Stats. p. 456, § 20-22. 3 The State v. Jenkins, 86 Misso. Ante, § 519; The State v. David- 872; The State v. Farrar, 38 Misso. son, 38 Misso. 874. 457. 852 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 5382 injury to his person,” it would, though not to be commended, still be in law sufficient.? § 580. New York.—The statute of New York, from which the Missouri one seems to be in part copied, makes two degrees of what it terms robbery, corresponding to the first and second degrees in Missouri. Here, it is perceived also, the first degree is properly robbery,” while the second degree is a new offence under the same name. But it is not necessary to discuss this statute here.’ § 581. Kindred Statutory Offences : — In General — Garroting.— The reader, by consulting the statutes of his own State, will find more or less provisions analogous to the foregoing ; but it is believed that the foregoing expositions, and others to be found in this volume, will satisfy him in respect of them. A very useful provision has been made in England, to suppress garroting, and the like, as follows: ‘** Whosoever shall, by any means whatsoever, attempt to choke, suffocate, or strangle any other person, or shall, by any means calculated to choke, suffocate, or strangle, attempt to render any other person insensible, unconscious, or incapable of resist- ance, with intent in any such cases thereby to enable himself or any other person to commit, or with intent in any such cases thereby to assist any other person in committing, any indict- able offence, shall be guilty of felony.” 4 Il. Burglary and its Affinities. § 582. General View.— Burglary, at the common law, is a particular kind of indictable attempt to commit a felony. And though attempts to commit felony are, at the common law, in general mere misdemeanors, this attempt is a felony. It consists of an unlawful breaking and entering, in the night time, into another’s dwelling-house, with the intent to.commit a felony therein.© This common-law doctrine has been from time to 1 The State v. Davidson, supra. * 24 & 25 Vict. c. 100, § 21. Further 2 And see McCloskey v. People, 5 punishment provided by 26 & 27 Vict. Parker C. C. 299, 306. c. 44. 3 For a form of the indictment for ° Crim. Law, 5th ed. II. § 90, 112, robbery of the first degree, see Quinlan 120. v. People, 6 Parker C..C. 9; also, Peo- ple v. Hall, 6 Parker C. C. 642. 353 § 535 LEADING STATUTORY OFFENCES. [BOOK Iv. time expanded, so to speak, by statutes which have rendered it indictable in like manner to break into shops and other places besides dwelling-houses for the like ulterior object. But the statutes have not affected fundamental doctrines; the conse- quence is, that the author’s discussions in his other works, under the title “‘ Burglary and other Breakings,” have super- seded the necessity of minute elucidations here. § 533. Particular Words. — The meaning of particular terms employed in these statutes becomes important,— such as “night time,” ! “ dwelling-house,”’? “house,” ® “ curtilage,’ ¢ “ out-house,”® “building,” ® “ warehouse,” 7. “ storelouse ” and “ store,’ 8 “ shop” and “ junk-shop,” ® “inn,” “ break” and “forcibly break.” 4! These have been discussed in the foregoing pages, together with some others which may be found by consulting the index. Though the reader would gain some advantage from seeing here a collection of statutes with their particular expositions, it is deemed best, on the whole, not to pursue the subject further at the present time. Ill. Arson and its Affinities. § 534. Arson at Common Law.— At the common law, arson is a felony, and it consists in the malicious burning, not of another’s ‘ dwelling-house,”’ but of his “ house.” ” The mean- ing of the word “ house’ has already been discussed in this volume;!2 so also has that of the word “burn.” Unlike burglary, it is immaterial whether the act is committed in the night or the day. § 535. Under Statutes. — Something of the offence under statutes was said in the work on the Criminal Law.® And in the work on Criminal Procedure there is given, in connection with some discussions, a form of the statutory indictment.% 1 Ante, § 276. 10 Ante, § 297. 2 Ante, § 277-288. 1 Ante, § 312, 313. 3 Ante, § 277, 289. 2 Crim. Law, dth ed. II. § 8, 11, 18. 4 Ante, § 286. 13 Ante, § 213, 277, 289. 5 Ante, § 291. 4 Ante, § 310. ® Ante, § 292. 15 Crim. Law, 5th ed. II. § 17 and 7 Ante, § 293. note. 8 Ante, § 294, 295, 16 Crim. Proced. 24 ed. IL. § 35. ® Ante, § 295, 296. 354 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 536 Though statutory arsons are numerous, and the proceedings against the offender are more often on a statute than at the common law, still almost all the principles involved in statutory arsons have been discussed in the author’s other works, in ex- positions of common-law arson. The meaning of various words in the statutes relating to this offence are given in the earlier parts of this volume, and they may be found by con- sulting the index. § 586. Indiana Statute.— As a specimen of the departures, to be found in the statutes, from common-law arson, while still the principles of the common-law control the statutory offence, the Indiana enactment may be quoted, as follows: ‘ Every per- son who shall wilfully and maliciously set fire to! the dwelling- house,” out-house,? barn,? stable, boat, water-craft, mill, mill- house, distillery, manufactory, mechanic’s or artificer’s shop,® storehouse ® or room occupied as a shop or office for professional business, or building’ of any kind, or printing-office of another, or any public bridge ;® court-house, jail,® market-house, church or meeting-house, seminary or college edifice, or building thereto belonging, or to any cord-wood” in piles, or ricks or stacks or shocks of grain or hay, or any fence or growing grain of the value of twenty dollars; or to any house,! shop,® wood-house, water-station or other public building connected with any railroad, or shall in like manner set fire to any bridge,# 1 Ante, § 311; Crim. Proced. 2d ed. II. § 46, 47; Rex v. Smith, 4 Car. & P. 569; The State v. Johnson, 19 Iowa, 230; Mary v. The State, 24 Ark. 44, 2 Ante, § 277-288. 3 Ante, § 291. * The State v. Laughlin, 8 Jones, N. C. 354, 455; The State v. Jim, 8 Jones, N. C. 459; The State v. Cherry, 63 N. C. 493; The State v. Johnson, supra;’ Commonwealth v, Hamilton, 15 Gray, 480. * 5 Ante, § 295, 296. 6 Ante, § 294, 295. 7 Ante, ; 292; The State v. O’Con- nell, 26 Ind. 266. 8' Ante, § 301. 9 Ante, § 289; Phillips v. The State, 29 Ga. 105. 10 Ante, § 222. ll Ante, § 217. The Ohio statute “makes it penal to set fire to, or burn, stacks of wheat, but says nothing about shocks.” It was thereupon held that an indictment for burning stacks of wheat is not supported by evidence of burning shocks of wheat. “The shock,” said Caldwell, J. “is the term applied to the small collection and ar- rangement of a few sheaves together, in the field, in such a manner as to pro- tect them against the weather for a few days, until the farmer has time to gather them into his barn, or place them in the large conical pile, called a stack.” Denbow v. The State, 18 Ohio, 11. 12 Ante, § 218, 277, 289, 18 Ante, § 295, 296. 14 Ante, § 301. 305 § 587 LEADING STATUTORY OFFENCES. [BOOK Iv. or any part of the structure of any railroad; and every person who shall set fire to any building? or structure, whether finished or unfinished, whatever, or any goods,? wares,? merchandise, or other chattels* which shall be at the time insured against loss or damage by fire, with intent to defraud the insurer, whether such person be the owner of the property burnt or not, shall be deemed guilty of arson, and upon conviction shall be fined not exceeding double the value of the property de- stroyed, and be imprisoned in the State prison not less than one nor more than ten years; and, should the life of any person be lost thereby, such offender shall be deemed guilty of mur- der in the first degree, and shall suffer death, or imprisonment in the State prison during life.” ® : § 537. Continued — Interpretation of Statutes relating to Arson — Form of Indictment. — Now, the interpretation of the various statutes is not unfrequently attended with difficulty, but there are few or no particular difficulties pertaining specially to this class of statutes. For example, the foregoing Indiana enact- ment, like many other passages to be found in our American statutory laws, was evidently drawn, not by a competent lawyer, but by some stump orator “set fire to” by a great crisis; and, like stump speeches in general, it is better adapted to bewilder than to instruct. Let us not try to interpret it ourselves; what Bicknell’ says of it, and.of the form of the indictment thereon, is the following: ‘ This statute distributes the subject of arson into five different classes of property: 1. Buildings and structures of individuals and private cor- porations; 2. Public buildings, including the property of the community, and churches, meeting-houses, seminaries, college edifices, and buildings thereto belonging; 3. Personal prop- erty ; to wit, cord-wood in piles, and ricks or stacks or shocks of grain or hay, and fences and growing grain of the value of twenty dollars; 4. The structure of any railroad and.any building, bridge, or other structure therewith connected ; 5. 1 Ante, § 292. v. Schwartz, 32 Cal. 160; Dedieu v. 2 Ante, § 344, 345. People, 22 N. Y. 178, 4 Parker, C. C. 3 Ante, § 293. 593. 4 Ante, § 344, 345. 6 Bicknell Crim. Pr. 349, referring to 5 Crim. Law, 5th ed. II. § 12,15; Laws, 1867, p. 106. People v. Hughes, 29 Cal. 257; People 7 Bicknell Crim. Pr. 349, 350. 356 CHAP. XXI.] OTHER INDICTABLE PHYSICAL FORCE. § 588 Structures, finished or unfinished, and personal property in- sured against loss by fire. As to the first class of property, it does not include unfinished houses or barns, which have never been actually occupied or used as such. The language of the statute is held to embrace such building only as has been actually occupied for its appropriate purpose! And it will be observed that the value of the property fired is of the essence of the offence in one of the classes only; namely, the third class; that is to say, it is not arson to fire a heap of cord- wood or a stack of hay of less value than twenty dollars, but such firing will be arson if the value of the property fired exceed twenty dollars. As to the other three kinds of prop- erty, the value is not of the essence of the offence, but some value of the property must be charged in the indictment; and the value of the part destroyed by the burning must also be stated,? because a part of the penalty is a fine not exceeding double the value of the property destroyed. Therefore the form given in the Revised Statutes‘ is good for nothing. The proper form is as follows :— “ That [omitting here the introduction, &c.] A. B., on the first day of August, a. D. 1864, at said county, feloniously, wilfully, and maliciously set fire to a dwelling-house of C. D., there situate, of the value of one thousand dollars, and then and there and thereby feloniously, wilfully, and maliciously burned and destroyed a part of said dwelling-house of the value of three hundred dollars, to the damage of the said C. D., of three hundred dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.” § 588. Applications of Common-law Doctrines.— Now, from a consideration of principles already unfolded in this volume, it follows that, though the arsons created by this statute and other like enactments found in the other States are in the main such as were not known to the common law, yet they involve no new principles, — those unfolded in the works on Criminal Law and Criminal Procedure being applicable to them. In some of the States, there are various statutory degrees of arson; but it is believed that the principles govern- 120 Ind. 242; 8 B. & C. 461; 26 3 7 Blackf. 168. Ind. 266. 42 R. 8. 357, No. 59,2 G. & H. 2 See ante, § 444. 387. 3857 x § 542 LEADING STATUTORY OFFENCES. [BOOK Iv. ing them have already been pretty well explained in this volume and elsewhere by the author. IV. Riot and its Affinities. § 539. Common-law Offences — Riot — Rout — Affray — Un- lawful Assembly.—The common-law offences of riot, rout, affray, and unlawful assembly are very analogous to one another. If three or more persons congregate to do some un- lawful act, this is called an unlawful assembly ; or, at least, it is so when its object is riotous ; and, when it is not, it is indict- able either as an unlawful assembly, or as an attempt or con- spiracy to do the ulterior intended mischief. If the three or more persons, being together, take some step toward the com- mission of a riot, but do not go far enough to besome guilty of the complete offence, what they do is called a rout.? Lastly, if the three or more assembled persons wrongfully perform such an act or series of acts as is calculated to excite terror or apprehension of danger in the minds of other persons, or generally if they commit violence, they become guilty of riot. § 540. Continued — Affray.— Affray is like these; yet it differs in requiring only two persons instead of three, and in being more nearly related to assault and to duelling. It con- sists in the fighting together, of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people.* § 541. Continued — Forcible Entry and Detainer — Forcible Trespass — Disturbing Meetings. — These several common-law offences, which need not be particularly explained here, are not only analogous to one another, but they are analogous also to riot. And the general doctrine to be drawn from the whole is, that any actual or even attempted violence, of the legal standard in magnitude, creating a perturbation in the public repose, is indictable at the common law. § 542. Statutes. — These common-law offences have been by Crim. Law, 5th ed. IL § 1256- 4 Ib. § 1-7. 1258. 5 Ib. § 801 et seq., 480 et seq., 517 et 2 Tb. § 1183-1186. seq., Crim. Proced. 2d ed. II. § 284 et 3 Tb. § 1143 et seq. seq., 869 et seq., 389 et seq. 358 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 544 statutes confirmed, and in some respects extended, in our sev- eral States ; but it is deemed best not to add any thing here to what is said in the author’s other works. CHAPTER XXII. PUBLIC NUISANCES AND THEIR AFFINITIES, 543. Introduction. 544-551. Common-law Nuisances. 552-558. Statutory Nuisances. 559-566. Analogous Offences. § 548. How the Chapter divided. — We shall consider, I. Common-law Nuisances; II. Statutory Nuisances; III. Anal- ogous Offences. I. Common-law Nuisances. § 544. General View. — The subject of nuisance, at the common law, divides itself into public and private nuisances, the former -being indictable, and the latter actionable only. In determining what is indictable, we are obliged to take into the account many considerations; and the consequence is, that, under some circumstances, the question becomes diffi- cult, though under others it is plain and easy. Hawkins defines an indictable nuisance — or, in other words, a “ com- . mon nuisance” — to be “an offence against the public, either by doing a thing which tends to the annoyance of all the king’s subjects, or by neglecting to do a thing which the common good requires.” 1 Now, if this definition, which is perhaps as good as any to be found in the books, were accurate, it would still give us but little practical help in determining whether a particular act or neglect is indictable or not; for when may a thing be said to annoy “all” the subjects of the government ? and what does the ‘‘ common good require”? and is one at his peril compelled to do every thing which a judge may deem 1 1 Hawk. P. C. Curw. ed. p. 692, § 1. 859 § 546 LEADING STATUTORY OFFENCES. [BOOK Iv. to be demanded by the common good? Perhaps the author of this volume, in his companion work on the Criminal Law, was no more successful in furnishing practical help to the reader than preceding writers have been. He there observed, that “all acts (and a neglect to do what the law requires of one is an act,! as well as the doing of what the law forbids) which tend directly to create a sort of general evil in the community at large, may be deemed nuisances, when they are of such mag- nitude as to require the interposition of the judicial tribunals. But,” it was added, “in determining what are such acts, we are to look to the adjudications; because justice must travel in a uniform way, while yet it does bear the burden of a real equity.” ? § 545. Limits of the Doctrine. — It is, therefore, impossible to state in exact and brief words, such as should constitute a definition, what are the limits of the doctrine of indictable nuisance. And for a more extended description, the reader is referred to various disquisitions to be found, by consulting the Index, in the author’s work on the Criminal Law. Still, as this subject is important, the author will here bring together various points picked out principally from other books of the law. § 546. Continued. — Gabbett, whose capacity and diligence in collecting the old learning from the books are very consider- able, observes,! that all disorderly inns or alehouses, bawdy- houses, gaming-houses, unlicensed or improperly conducted play-houses, booths and stages for rope-dancers, mountebanks, ‘and the like are public nuisances, either by reason of their endangering the public peace, or as they affect public morals, or, perhaps, as being productive of idleness, or attended with public inconvenience; and it seems to be equally clear, that any thing which will endanger the public health, as by expos- ing persons infected with contagious disorders in places of public resort, is a public nuisance and indictable as such. All scandalous indecencies, or open breaches of morality, exhibited in the face of the people, may be here also men- 1 Crim. Law, 5th ed. I. § 488. 3 Crim. Law, 5th ed. I. § 88; IL. 2 Ib. § 1072. § 506, # 1 Gab. Crim. Law, 744-750. 360 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 546 tioned as nuisances of an odious and noxious description. . . . Offensive trades and manufactures, which are set up in such inconvenient parts of a town that they cannot but greatly incommode the neighborhood, seem, according to the better opinion, to be common or public nuisances. It was so adjudged in a case where a brew-house was erected near Serjeant’s Inn, London ;? and also in Pierce’s Case, where a soap-boilery was erected to the annoyance of the neighbor- hood;* and in Wigg’s Case, where the offence was keeping swine in a town. And though it was holden in Rankett’s Case,® that making candles in a vill was no nuisance, because the needfulness of them shall dispense with the noisomeness of the smell; yet the reasonableness of this opinion has been justly questioned; because it cannot be pretended that it is necessary to make them in the heart of a town. And, accordingly, in Tohayle’s and Pragnell’s Cases, erecting a tallow furnace was held to be a nuisance.’ . . . The principle estab- lished in these cases seems to apply, not only to such noxious smells as corrupt the air, or render it unwholesome or offen- sive, but also to such noises as are common and public annoy- ances, and interfere with the enjoyment of life. In a late case where, upon an indictment against a tinman for the noise made by him in carrying on his trade, it appeared that the noise only affected the inhabitants of three numbers of the chambers in Clifford’s Inn, and that by shutting the windows the noise was in a great measure prevented, it was ruled by Lord Ellenborough, ©. J. that the indictment could not be sustained, as the annoyance was at most a private nuisance.® But in Smith’s Case, the defendant was convicted on an in- dictment for making great noises in the night with a speaking trumpet, to the disturbance of the neighborhood, and fined accordingly. And in White and Ward’s Case,” it was said 14 Bl. Com. 65; 1 East, P. C. 1. 7 Tohayle’s Case, cited Cro. Car. 2-1 Vent, 26. 510; Morley v. Pragnell, Cro. Car. 3 Rex v. Pierce, 2 Show. 327. 510. 4 Reg. v. Wigg, 2 Ld. Raym. 8 Rexv. Lloyd, 4 Esp. 200. As to 1163. how many must be affected by a nui- 5 Rankett’s Case, 2 Rol. Abr. 139. sance to render it indictable, see Crim. 6 1 Hawk. c. 32, p. 694,§ 10. And Law, 5th ed. I. § 248, 244, 1078. see Crim. Law, 5th ed. II. § 1130- 9 Rex v. Smith, 1 Stra. 704. 1142. 10 Rex v. White, 1 Bur. 333. 24 361 § 548 LEADING STATUTORY OFFENCES. [BOOK rv. that the existence of the nuisance depends upon the number of the houses, and concourse of people, affected or liable to be affected by it. § 547. Continued. — “ Another species of noisy nuisance,” he continues, “is that of a common scold, which is an offence confined by our law to the female sex, or to such troublesome, angry women, as, by their brawling and wrangling amongst their neighbors, break the public peace, increase discord, and become a public nuisance to the neighborhood.! . . . Eaves- droppers, though not a noisy nuisance, do, by their slanderous and mischievous tales, also promote discord, and are indictable as a common nuisance.” § 548. Continued. — “‘ Upon the principles already laid down, any thing which is productive of imminent danger, or which causes reasonable terror to the inhabitants of a neighborhood, may be prosecuted as a public nuisance. Thus to erect gun- powder mills, or to keep gunpowder magazines in or near a town, is, it seems, a nuisance by the common law, for which an indictment or information will lie. And, therefore, where R. Williams was indicted for keeping two barrels of gunpowder near the town of Bradford, he was convicted accordingly? And in Taylor’s Case the court granted an information against the defendant as for a nuisance, on affidavit of his keeping great quantities of gunpowder, to the endangering the church and houses where he lived. .... It is said that a mastiff going in the street unmuzzled, being, from the ferocity of his nature, dangerous, and cause of terror to his majesty’s sub- jects, is a common nuisance; and consequently that the owner may be indicted for knowingly suffering him to go at large; but, as dogs of this breed are frequently quiet and gentle in their nature and habits, it seems that, in order to sustain such an indictment, it is necessary that it should appear and be alleged that the dog was of a fierce and ferocious nature, and that people could not pass, &c., through the highway where the dog was kept, without danger of being bit, &c.5 1 Crim. Law, 5th ed. I. § 1101- 4 Rex v. Taylor, 2 Stra. 1167. 1105. > Buxendin v. Sharp, 2. Salk. 662; 2 Tb. § 1122-1124. Smith v. Pelah, 2 Stra. 1264; Beck ». 3 Burn’s Justice, see title “Gun- Dyson, 4 Campb. 198. powder.” 862 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 501 § 549. Continued, —“ Furiously driving carriages or horses in the public highways, and thereby endangering the lives of his majesty’s subjects, seems to be an offence which may be also the proper subject of an indictment, as a species of public nuisance. In the case of Williams v. The East India Com- pany, where the plaintiff brought an action against the defend- ants who had chartered his ship, and put on board a package containing oil and varnish of a combustible and inflammable nature, by which a loss happened, without giving due or suff- cient notice or intimation thereof, to the captain or any other person employed in the navigation thereof, it was said by Lord Ellenborough, C. J. when pronouncing judgment in this case, that considering the probable danger thereby occasioned to the lives of those on board, it amounted to a species of delinquency in the persons concerned in so putting such dangerous article on board, for which they were criminally liable, and punish- able for a misdemeanor at least.1 And this principle seems to be equally applicable to the case of furiously driving on the public highways, which unquestionably endangers the lives of his majesty’s subjects, and, in many instances, has been attended with grievous, and even fatal consequences.” § 550. Continued. — Of the like sort with the foregoing, though not always treated of under the title Nuisance, yet plainly nuisances in fact, are such publicly injurious acts, as selling unwholesome food not fit to be eaten ;? making water unwhole- some, or supplying it to the people of a town to be drank,? and the like; and publishing obscene books and pictures.* § 551. Conclusion. — The foregoing sections will furnish the reader with a general idea of the doctrine of nuisance at the common law. It is not best to repeat here what is said in the author’s other works, where the matter is drawn out more into detail. The reader should bear in mind, that the fore- going are only illustrations of indictable nuisances; and that various other perturbations of the public repose, of the like 1 Williams v. East India Co., 8 East, 3 Crim. Law, 5th ed. I. § 491; Stein 192. v. The State, 37 Ala. 128; 1 Rus. 2 The State v. Smith, 3 Hawks, 378; Crimes, Grea. ed. 110. People v. Parker, 38 N. Y.85; Good- * Commonwealth v. Holmes, 17 Mass. rich v. People, 8 Parker C.C.622; 1 336; Commonwealth v. Sharpless, 2 Russ. Crimes, Grea. ed. 109. 8S. &R. 91, 363 § 553 LEADING STATUTORY OFFENCES. [BOOK Iv. sort, are at the common law indictable also, and for like reasons. Il. Statutory Nuisances. § 552. General Views. — While the common-law doctrines, as stated under the last sub-title, prevail wherever common-law crimes are known in the United States, they are in most or all the other localities made of force by statutes ; such, for example, as the Indiana one, which provides, “that every person who shall erect, or continue and maintain, any public nuisance, to the injury of any part of the citizens of this State, shall be fined not exceeding one hundred dollars.”! At the same time, in localities where these common-law doctrines are in force, their uncertain limits render it highly proper, while it is usual, to enact various statutes giving shape and bounds to the doc- trines, or making particular things nuisances under special penalties. And, while most of these statutes either confirm or enlarge the common-law offence, there may be, and some- times is, a statute contracting its bounds ; for what the statutory law allows cannot be indicted as nuisance.? These statutes are so numerous and varied that the author cannot, with a due regard to space, discuss them all in detail; nor is this neces- sary, since the principles to be applied to one statute are in the main applicable to another. Let us gather up some views which are at hand. § 553. Creating Nuisance by General Provision. — Says Russell: “ There are some offences which are declared to be nuisances by the enactments of particular statutes. And where a statute declares a particular thing to be a common nuisance, it is indictable as such. An act of Parliament prohibited the erec- tion of any building within ten feet of a road, and declared that, if any such building should be erected, it should be deemed a common nuisance. By another clause, justices were empowered to convict the proprietor and occupier of such building. It was held, that the party who erected a building 1 Bicknell Crim. Pr. 398, referring 65th ed.I. § 85 and note. See ante, to 2 R. S. 428, § 8; 2H. & G. 460. § 863. That this is a valid enactmenthe refers 2 People v. Law, 34 Barb. 494; to 27 Ind. 430. See, also, Crim. Law, Commonwealth v. Boston, 97 Mass. 555. 364 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 555 contrary to the act might be indicted for a nuisance.”! This sort of statute is not uncommon in the United States, and the like doctrine concerning it prevails in our courts. § 554. Continued — Whether constitutional. — But as, in this country, the legislative power is more or less restrained by written constitutions, it becomes under some circumstances a nice question whether a statute declaring’a particular thing to be a nuisance, and as such to be attended with the ordinary common-law consequences of a nuisance, is constitutional. If a statute merely makes indictable a wrongful act which it names, it demands no special consideration here, though it calls the act a nuisance; because a mere name is nothing, and the legal principle is the same whether the crime is called by one name or another. But the general idea of a nuisance is, that it is subject to some spevial consequences, particularly to abatement, even in pais, and without legal proceedings. And though the legislature may authorize the punishment of a man for a particular act, through a prosecution in court, it may not have authority to cause his property to be taken from him by abatement, without accusation, trial, or conviction. § 555. Whether Constitutional, continued.—In the author’s work on the Criminal Law, a chapter is devoted to the discus- sion of this and some kindred questions.2 It is not best to repeat here what is said there. It may, however, be stated in brief, that, unless there is some special provision in the consti- tution of the State, not generally introduced into this instru- ment, it is competent for the legislature to render subject to destruction by abatement, or otherwise liable to forfeiture, any property which is found in a situation declared to be illegal, either with or without judicial proceedings had. But it is not competent to punish a man for what he does, in a matter dis- connected from the situation or act of his property, by taking the property from him without due conviction for the offence. This subject will be adverted to again, in a future chapter, when we come to consider the doctrines governing liquor nuisances under the statutes. 1 1 Russ. Crimes, Grea. ed. 327, refer- 2 Crim. Law, 5th ed. I. § 816 et ring to Rex v. Gregory, 5B. & Ad. 555. seq. See The State v. Brown, 16 Conn. 54. ° 365 § 557 LEADING STATUTORY OFFENCES. [BOOK Iv, § 556. Continued — Bowling Alleys — General Views. — A good illustration of a statutory nuisance, competent in every _ respect for the legislature to provide for, may be seen in a New Hampshire case. A statute had made bowling alleys, situated within twenty-five rods of a dwelling-house, public nuisances ; and, though the defendant objected that it is a judicial func- tion, not a legislative, to determine what is a nuisance, the court overruled the objection.1_ Indeed, if legislation could not con- trol things of this sort, its arm would be powerless to regulate and protect the community under a great variety of circum- stances. Whether or not this particular provision was wise is another question, not now to be discussed; but, if legislation in our States would wisely interfere to regulate many more things of this sort, and do less overwork in some other direc- tions, it would prove itself to be a most beneficent power. For example, it should provide means whereby, in localities where the principal owners of the soil desire, and the public good will be promoted, protection may be given to the longing for repose and for beauty, and men may erect their dwellings without the fear of the incoming of noise, filth, and foul sights, of the minor sort not reached by the general laws; while, in other localities, noisy, and perhaps loathsome, yet neces- sary, industrial establishments may be erected, without the danger of being driven away by the incoming of inhabitants. Repose and noise, cleanliness and filth, the pleasing and the repulsive to the sight, should each have its time and place, and it belongs to the law-making power to divide the one from the other. Thus it will imitate Him who has divided from one another light and darkness, sea and dry land, storm and sun- shine, giving to each its own time and its place. § 557. Follow Statute — Common Law — Gambling-house — Bawdy-house, — It would be easy to present here almost endless illustrations of the doctrines which have been already several times urged in this volume, that the indictment should follow the words of the statute defining a crime; and that, when a crime is created by the use of a common-law term, the com- mon-law rules respecting it should likewise be regarded. Thus, as to the former rule, where the allegation ‘was, that, ata 1 The Statev. Noyes, 10 Fost. N. H. 279. 366 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 557 time and place named, the defendant “did keep and maintain a certain tenement, then and there used for illegal gaming, &c., whereby, and by force of the statute in such case made and provided, the said tenement then and there kept and maintained by the said, &c., and then and there used and resorted to as aforesaid, was then and there a common nuisance,” &c., this was held to be an insufficient charge of keeping a ‘common gaming-house”’ at the common law.! Neither did it set out an offence, as it was doubtless intended to do, within a statute declaring that “all buildings, places, or tenements, resorted to for prostitution, lewdness, or illegal gaming, or used for the illegal keeping or sale of intoxicating liquors, shall be deemed common nuisances,” and providing for the punishment of the keepers.?, The reason was, that the material statutory words, descriptive of the place and the offence, are “resorted to,” and neither these nor any equivalent for them were employed in the charging part of the indictment. Again, an indictment charged that the defendant, at a time and place named, kept “a certain common house of ill-fame, resorted to for the pur- pose of prostitution and lewdness,’’ — intended to be founded on a statute which appeared on examination to have been repealed. And it was held that the proceeding could not be maintained on the existing statute, which, nearly in the terms of the one above quoted, declared “ all buildings, places, or tenements used as houses of ill-fame, resorted to for prostitution, lewdness, &., to be common nuisances, and are to be regarded and treated as such,” and provided for the punishment of the keepers ;? because, under this statute, the indictment must in some form allege, as the present one did not, that the house was a common nuisance. The reason for this decision does not appear in the report; and, assuming it to be sound, as the author believes it on the whole perhaps to be, we shall derive instruction from inquiring what the true reason is, and what it is not. It is not simply because the words “common 1 For a form of such an indictment, * Mass. Stat. 1855, c. 405, § 1, 2. see Crim. Proced. II. § 488.. 5 Commonwealth v. Davis, 11 Gray, 2 Mass. Gen. Stats. c. 87, § 6, 7. 48, 51; s. ep. Commonwealth v. Floyd, 3 Commonwealth v. Stahl, 7 Allen, 11 Gray, 52, note. 304. 367 § 559 LEADING STATUTORY OFFENCES. [BOox Iv. nuisance ”’ are in the statute, and are there descriptive of the offence; because, as the words are there used, they express merely the law’s conclusion from the statutory facts set out in the earlier part of the quoted sentence ; and we have seen, that, in general, conclusions of law like this need not constitute a part of the allegation. But still the statute expressly makes the forbidden acts a ‘‘common nuisance,” which are common- law words; and thus we are conducted to the true reason for the decision, namely, that, by the common-law rules, every indictment for nuisance must perhaps conclude “to the com- mon nuisance,” or, at least, must in some way use the term “ common nuisance,” or must in this direction be more expanded in the allegations than this one was.2_ The repealed statute, upon which it was supposed this indictment was good, without the allegations required in a common-law in- dictment for nuisance,? was, ‘“ every person, who shall keep a house of ill-fame, resorted to for the purpose of prostitution or lewdness, shall be punished,” &c.* Under an enactment like this, therefore, it appears that the pleader need not contemplate the offence as a nuisance. § 558. Conclusion. — In the work on the Criminal Law,* and in that on Criminal Procedure,‘ more or less may be found relat- ing to statutory nuisances ; and, though some advantage might be derived from entering further into particulars in this place, it is deemed best on the whole to close the discussion here. TIL. Analogous Offences. § 559. At Common Law : — Name of Offence, &e. — When we understand that a particu- lar thing is indictable, it is not always quite certain whether it is to be called a nuisance or not. Neither is it ever of any legal consequence to know the name of a common-law misdemeanor. The name does not appear in the indictment, and it need not in the proofs; and, when we have ascertained 1 Ante, § 421, 506. mingled with the common-law discus- 2 Crim. Proced. 2d ed. II. § 105-_ sions, § 1071-11651, and at various other 108, 273-276, 488, 862-865. places. 3 11 Gray, 52. 6 Crim. Proced. 2d ed. II. § 868, 869, * Mass. R.S. c. 180, § 8. and at various other places. 5 Crim. Law, 5th ed. I. § 831-886, 368 CHAP. XXII.] | NUISANCES AND THEIR AFFINITIES. § 562 that the offence is not a felony, no further inquiry as to its name is of practical importance. § 560. Analogous Offences enumerated. — Of ascertained com- mon-law offences, akin to nuisance, though not generally called such, are riot, rout, unlawful assembly, affray, forcible entry and detainer, forcible trespass, and disturbing meet- ings, mentioned in the last chapter.! The offences of blas- phemy and profaneness? though embracing perhaps more than one criminal element, are, in the main, indictable for the same reason as those which are called nuisances; and the same is clearly true of Sabbath-breaking,? to the extent to which it is to be deemed a common-law offence. So barratry, or common barratry, as it is usually called, is of the like sort. But it is of no consequence to attempt a complete enumeration. § 561. Under Statutes : — General View. — The statutes which might be ranged under this head are very numerous; but they are for the most part such as differ in the different States, while yet, as to most of them, the foregoing discussions of this volume will furnish all needful rules for their interpretation, and for the procedure upon them. One of these statutes has been already, as respects its most important features, considered in this volume ; namely, one of the Massachusetts enactments to restrain the sale of adulterated milk.6 Indeed various others have been, and will be, in other connections, brought more or less promi- nently before the reader, and the discussions on them may be found by consulting the Index. § 562. Dlegal Tolls for grinding Grain — False Toll-dish. — There is a North Carolina case, which arose on the State statute regulating millers’ tolls, of considerable interest and importance. The statutory provisions are the following : — All millers of public mills shall grind according to turn, and shall well and sufficiently grind the grain brought to their mills, if the water will permit, and shall take no more toll for grinding than one eighth part of the indian corn and wheat, 1 Ante, § 539-541. § 950; Crim. Proced. 2d ed. II. § 812 2 Crim. Law, 5th ed. II. § 73-84; et seq. Crim. Proced. 2d ed. II. § 123-125. 4 Crim. Law, 5th ed. II. § 68 et seq. 3 Crim. Law, 5th ed. I. § 499; II. Crim. Proced. 2d ed. II. § 98 et seq. * 5 Ante, § 358, 385. 369 § 568 LEADING STATUTORY OFFENCES. [BOOK Iv. and one fourteenth part for chopping grain of any kind, and every miller and keeper of a mill, making default therein, shall, for each offence, forfeit and pay five dollars to the party injured. ‘¢ All millers shall keep in their mills the following measures, namely, a half bushel and peck of full measure, and also proper toll-dishes for each measure; and every owner, by himself, servant, or slave, keeping any mill, who shall keep any false toll-dishes contrary to the true intent and meaning of this chapter, shall be deemed to be guilty of a misdemeanor.” ? Upon this a mill owner, not satisfied with the statutory toll, but demanding more, kept openly and without fraud or reserve, a toll-dish larger than the above provisions permitted. And it was held to be a “ false toll-dish” within the meaning of this statute.? § 563. Continued — Form of the Indictment. — As to the form of the indictment for keeping a false toll-dish, the learned judge who delivered the opinion in the case observed, that the following would be a good one: — “That A. B., on the first day of January, a.p. 1857, and from that day, &c. was and has been the owner of a certain public mill, situate in the said county, for the purpose of grinding wheat and corn for toll, and that on the lst day of August, a.p. 1857, and on divers other days, &c. the said A. B., in his mill aforesaid, did keep a false toll-dish of the contents of more than one eighth of a half bushel and peck of full measure, to wit, of the contents of one seventh part of a half bushel, contrary to the form, &c.”’ A form much more cumbersome, and not to be commended, was, by rejecting a part as surplusage, sustained as adequate ; and, after disposing of one objection to it, the learned judge goes on to say: “ The other objection, that the indictment does not aver the contents of the false toll-dish, so that the court may know that it was more than one-eighth of a half bushel, is un- tenable. We think it sufficient to aver, that it was a false toll- dish, contrary to the form of the statute. The court knows, from the statute, that one-eighth is the proper measure ; so, of course, a false toll-dish is one the contents of which is more than one-eighth, and cuz bono aver under a videlicet that it was one-seventh, when the averment would be sustained by 1 Rev. Code, c. 71, § 6, 7. 2 The State v. Perry, 5 Jones, N. C. 252. 370 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 564 proof of a measure of the contents of one-fifth, or any other measure more than one-eighth ?”’? § 564. Regulations as to the Use of Property — Natural and Constitutional Rights. — The foregoing statutory provisions are of a sort about which there has been a good deal of dispute in the community. No one contends that it is not competent for legislation to forbid any improper use of fists, by those who possess them; as, that a man shall not give to his neigh- bors, with his fists, black eyes, and the like. But it is urged by many, that, though legislation may properly give direction to the action of the bodily members of a man, it cannot thus restrain the use of his property. In reason, however, and according to established legal doctrine, the property is as much within legislative control as the person. Thus, though a contract is a voluntary arrangement of a particular kind between two or more individuals, yet, from early periods, the statutory laws, such, for example, as the Statute of Frauds, have made special arrangements concerning contracts; and, if parties will not abide by them, their contracts will not be enforced by the courts. Consequently, for example, if a man wishes to sell a piece of real estate, he must make a writing as evidence of the sale, or the title will not pass. And all other arrangements relating to property, whether real or personal, must conform to such rules as the legislature may see fit to prescribe. And legislative directions respecting property are in many respects absolutely essential to the order and repose of the community. No man in North Caro- lina was obliged to establish a mill for grinding grists of grain; yet, if one chose to do so, he was properly compellable to conform to legislative regulations in the use of his mill. In like manner, in those States in which usury laws exist, no person is required to loan his money if he prefers to keep it in his own possession; yet, when one elects to loan it, he must be content with the interest which the law permits him to receive. How far laws of this sort are wise, is not matter 1 The State v. Perry, 5 Jones, N. C. was held not to be sustained by proof 252, opinion by Pearson, J. In The that the defendant took one sixth part State v. Nixon, 5 Jones, N. C. 257, of each half bushel of corn with a half there is another form of the indictment gallon toll-dish, that being the true on this same section, and the charge measure of the toll-dish under the act. 871 § 565 LEADING STATUTORY OFFENCES. [BOOK Iv. now under discussion, but the legislative power is plain. All men, who have power, will do, even in their private affairs, foolish things; but the wisdom or folly of a particular act has nothing to do with the rightfulness of the power, or its binding nature when done. § 565. Continued — Use of the Soil — Sand, &c, from a Sea- beach. — In further illustratidn of this doctrine it may be observed, that a statute in Massachusetts made indictable “any person who shall take, carry away, or remove, by land or by water, any stones, gravel, or sand from any of the beaches in the town of Chelsea, excepting,” &c. And when one was prosecuted under this statute for taking and carrying away a quantity of sand and gravel, admitted to be his own soil, he objected that the statute was not meant to apply to the owner; or, if it did, then it was in violation of the provision of the constitution, that ‘no part of the property of any indi- vidual can, with justice, be taken from him or applied to public uses without ... reasonable compensation therefor,”! the statute, in this instance, not providing for compensation. But, as the evident purpose of the statute was to preserve the har- bor of Boston, and its intent would be as much violated by the owner doing the forbidden act as by any third person doing it, the court decided against the defendant on this point. On the other point the decision was the same, Shaw, C. J. observing: “ All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community ; under the maxim of the common law, sic utere tuo ut alienum non ledas. When the injury is plain and palpable, it may be a nuisance at the common law, to be restrained and punished by indictment; as, where one bordering on a navigable river should cut away the embank- ment on his own land, and divert the watercourse so as to render it too shallow for navigation. But there are many cases where the things done in particular places, or under a particular state of facts, would be injurious, when, under a change of circumstances, the same would be quite harmless; as, the use of a warehouse for the storage of gunpowder in a 1 Const. Mass. part 1, art. 10. 872 CHAP. XXII.] NUISANCES AND THEIR AFFINITIES. § 566 populous neighborhood, or for the storage of noxious mer- chandise, or the use of buildings for the carrying on of noxious trades dangerous to the safety, health, or comfort of the com- munity. Whereas, in other situations, there would be no public occasion to restrain any use which the owner might think fit to make of his property. In such cases, we think it is competent for the legislature to interpose, and by positive enactment to prohibit a use of property which would be inju- rious to the public under particular circumstances, leaving the use of similar property unlimited where the obvious con- siderations of public good do not require the restraint. This is undoubtedly a high power, and is to be exercised with the strictest cireumspection, and with the most sacred regard to the right of private property, and only in cases amounting to an obvious public exigency. Still, we think, the power exists, and has been long exercised in cases more or less analogous. The right to restrain owners of land in towns from erecting wooden buildings, except under certain restrictions, has never been doubted, or, if it has been, the doubt has long since been removed. So of the like nature are all laws to regulate and restrain the erection and use of furnaces and steam-engines, and buildings designed for carrying on dangerous or noxious trades. The protection and preservation of beaches, in situa- tions where they form the natural embankments to public ports and harbors and navigable streams, is obviously of great public importance; although, on many parts of the coast, the situation of the shores is such that the removal of sand and gravel, by the owner, would not be of the least injury to anybody.” 4 § 566. Conclusion. — This subject admits of indefinite exten- sion; but it is deemed best that the discussion should close here. 1 Commonwealth v. Tewksbury, 11 Met. 55, 57, 58. 38738 § 568 LEADING STATUTORY OFFENCES. [BOOK Iv. CHAPTER XXIIT. OBSTRUCTIONS OF GOVERNMENTAL ‘ORDER. 567. Introduction. 668,569. Obstructions at Common Law, 570-574. Obstructions under Statutes. § 567. Scope of this Chapter — How divided. — It is not pro- posed to repeat, in this chapter, much of what is said in the companion works on the Criminal Law and Criminal Pro- cedure. What will be here attempted will be the bringing together of a few points, in connection with some illustrative statutory provisions. We shall consider, I. Obstructions at the Common Law; II. Obstructions under Statutes. I. Obstructions at the Common Law. § 568. Enumerated. — In the work on the Criminal Law, the various indictable forms of obstructing the government, in its several functions, were stated and discussed. Without under- taking to repeat all, the following may be mentioned: The great offence, which absorbs all others, is treason; the limits of which, though it existed at the common law, are defined with us by constitutional provisions and by statutes! Then we have such acts as corrupt justice in the courts; among which may be mentioned, perhaps, barratry,? though its appro- priate place is among the nuisances; champerty, maintenance, and the buying and selling of pretended titles; indictable contempts of court ;* embracery, being an attempt corruptly to influence a jury;5 certain kinds of malfeasance and non- feasance in office;® perjury and subornation of perjury, together with various tamperings with witnesses ;7 and various other things, of the analogous sort, which, as they impede 1 Crim. Law, 5th ed. I. § 177, 456; 5 Ib. IT. § 884 et seq. II. § 1202 et seq. 6 Ib. I. § 459 et seq.; II. § 972- 2 Crim. Law, 4th ed. II. § 68 et seq. 977. 3 Ib. IL. § 121-140. 1 Ib. I. § 468; II. § 1014 et seq. 1197, 4 Ib. Il. § 264-267. 1198, 374 CHAP. XXIII.] OBSTRUCTIONS OF GOVERNMENTAL ORDER. § 571 justice in the courts, are therefore indictable at the common law. Of the like nature, are such offences as prison breach, rescue, and escape,! bribery,? and some others. In a certain sense, under this head, forgery ® may be included, together with some of the forms of conspiracy ; but, for the most part, these are mere private cheats of the indictable sort. § 569. Limits of Doctrines. — In the nature of things, the doctrines limiting the indictable field under this head must, at some places, be vague, and they are found to be so in fact; while, at other places, they are reasonably distinct and precise. The consequence is, that here, as elsewhere in the criminal law, there is room for statutory definings, and for extensions of the indictable field. II. Obstructions under Statutes. § 570. General View — What discussed elsewhere. — In the works on Criminal Law and Criminal Procedure, various statu- tory obstructions of governmental order, as well as common-law obstructions, were discussed. Thus, something was there said, not only of extortion at the common law, but of statutory extortions,t of resistance to officers in violation of various statutes,° of statutory perjuries,® and of some other statutory offences coming under this head; while still other discussions of the statutes are interspersed with those on the common law. What remains to be said in this chapter is merely of a frag- mentary nature. § 571. Perjury — Oath to obtain Marriage License. — Though there are various statutes, State and National, relating to per- jury, the interpretations of most of them are plain, and it is plain that they leave the doctrines on this head as they stood at the common law. Still, the statutory words should always be attended to; and it will sometimes be evident that a common- law doctrine has been changed by them. Thus, by the common law, a false swearing, to be perjury, must be in a judicial pro- 1 Crim. Law, 4th ed. IT. § 1064 et seq. 5 Crim. Law, 5th ed. Il. § 1009- 2 Tb. II. § 85. 1018; Crim. Proced. 2d ed. II. § 879- 3 Ib. II. § 521 et seq. 898. * Crim. Law, 5th ed. IT. § 408, 404; 6 Crim. Law, 5th ed. IL. § 1051- Crim. Proced. 2d ed. II. § 364. 1058. 3875 [BOOK Iv. § 572 LEADING STATUTORY OFFENCES. ceeding or a course of justice.1_ Consequently, where, in Eng- land, one made a false oath before a surrogate to procure a marriage license, this was held not to be perjury. But Bicknell points out that it would be otherwise under the statutes of Indi- ana, where an oath is taken before the clerk of the court to pro- cure a marriage license; because this officer has by statute authority to require and administer an oath in such a case, and one of the provisions relating to perjury is, that ‘every person who shall wilfully, corruptly, and falsely, before any officer authorized to administer oaths, under oath or affirmation voluntarily make any false certificate, affidavit, or statement of any nature, for any purpose, shall be deemed guilty of perjury.” 3 § 572. Continued — Course of Justice — Oath before Fence- viewers. — Differing somewhat from this Indiana provision, is one in Massachusetts, as follows: ‘“¢ Whoever, being lawfully required to depose the truth in any proceeding in a course of justice, commits perjury, shall be punished, if the perjury is committed on the trial of an indictment for a capital crime, by imprisonment in the State prison for life or any term of years, and if committed in any other case, by imprisonment in the State prison not exceeding twenty years.”+ This pro- vision is followed by another somewhat like the Indiana one quoted in the last section; but this provision, the reader perceives, adopts, in the partial definition which it gives of the offence, the language of the Gommon law. It in effect, there- 1 Crim. Law, 5thed. II. § 1017. 2 Rex v. Foster, Russ. & Ry. 459. 3 Bicknell Crim. Pr. 382, 388. The provision here quoted is § 41 of the act defining felonies, and it contem- plates a case where the oath or affirma- tion was not required by law, but was voluntarily made by the party; and, in this case, it is not necessary that the false statements should be material to any issue. But § 40 of thesame act is different ; it provides, that “ any person who, having taken a lawful oath or affir- mation in any matter in which by law an oath or affirmation may be required, shall, upon such oath or affirmation, swear or affirm wilfully, corruptly, and 376 falsely touching a matter material to the point in question, shall be deemed guilty of perjury.” And under this provision it must appear in the allega- tion, either by express averment, or from other facts averred, and in the proofs, that the false swearing was “touching a matter material to the point in question.” The State v. Flagg, 25 Ind. 248; The State v. Thrift, 30 Ind. 211. For the interpretation of a somewhat similar provision to the one in the text, see Jones v. Daniels, 15 Gray, 488, 439. 4 Mass. Gen. Stat. c. 168, § 1. 5 Crim, Law, 5th ed. II. § 1015 and note. CHAP. XXIII.] OBSTRUCTIONS OF GOVERNMENTAL ORDER. § 574 fore, merely provides a punishment for the common-law offence. Yet, without probably departing from the common-law rules the court held under it, that perjury may be committed by giving false testimony before a board of fence-viewers, the wit- ness having been sworn in their presence by a justice of the peace in pursuance of a statutory authority. But this, unlike the proceeding for taking out a marriage license, was in a course of justice. The duties of fence-viewers, it was observed by the learned judge, *‘ require them to adjudicate upon contro- verted rights of parties. They have the minor duty of decid- ing whether fences actually existing are good and sufficient fences. They have also the much larger jurisdiction of assign- ing to contiguous owners of real estate their respective shares of fences to be by them severally maintained, which assign- ment, in the language of the statute, ‘shall be binding upon the parties and upon all the surrounding occupants of the lands,’ and ‘ the several owners of such lands and their heirs and assigns for ever shall erect and support said fences agreeably to such division.’ They have also the duty of apportioning the fences to be supported by the various proprietors of general ficlds.’’ 1 It may be observed, that, upon this statute, the indictment must show whether the perjury was in a capital case or not; or, at least, it must if the higher punishment is to be inflicted.” § 573. Bribery — Surplusage in Statute. — A statute of the United States? provides, that, if one shall bribe an officer of the United States, “and shall thereof be convicted,’ he shall be liable to be indicted, convicted, and punished. And, though no one can be convicted until he has been first indicted, and so the statute would seem to nullify itself, this folly cannot be attributed to the legislature. Therefore it was held, that the words “and shall thereof be convicted’’ must be rejected, in the construction, as surplusage.! § 574. Conclusion.— This discussion may seem inadequate; but the writer deems, on examining the material before him,that the remaining pages of this volume can be more profitably filled with other discussions which crowd upon the attention. 1 Jones v. Daniels, 15 Grey, 4388. * United States v. Stern, 5 Blatchf. 2 Ante, § 870-872, 444, 457. C. C. 512, And see ante, § 79-82, 3 Act of July 18, 1866, § 62. 146. 26 377 § 576 OFFENCES MORE PURELY STATUTORY. [BOOK v. BOOK V. OFFENCES MORE PURELY STATUTORY. CHAPTER XXIV. INTRODUCTORY VIEW. § 575. Scope of this Discussion. — It is proposed, in the series of chapters on which we are now entering, to present what may be deemed a full discussion of various leading statutory offences, chiefly, but not wholly, of the minor sort, not treated of in the last Book, or in the author’s other works as they appear in their last editions. Those which are brought under review in the places thus referred to are such as have grown out of attempts to expand and improve the common law. Those which follow in the present series of chapters may be regarded rather as independent creations. Such is the manner in which the distinction lies in the author’s own mind; yet all such divisions necessarily run into one another, and no two authors would draw the line separating the one class from the other at all points at precisely the same place. Yet even as the present author views the distinction, it is meant to be somewhat arbitrary; his principal purpose being the practical one of bring- ing together here the more purely statutory crimes, and chiefly those of the minor and popular sorts, which have not been dis- cussed by preceding writers on the criminal law. § 576. How treated of. — Shall we separate the law and pro- cedure in the following discussion ? This question is not free from embarrassment; but, on the whole, it is deemed best to do so in part. When there is little to be said about an offence, or 378 CHAP. XXV.] POLYGAMY. § 578 it is not complicated, it may be fully disposed of in one chap- ter. But when the offence is complicated, or incumbered with many points, we shall first consider the law, and then in a separ- ate chapter the procedure. The alphabetical arrangement will not here be followed, but one which will group the subjects having an affinity to one another. ' CHAPTER XXV. POLYGAMY. 677,578. Introduction. 579-597. Law of the Offence. 698-613. The Procedure. § 577. Definition — Name — Bigamy — Polygamy. — The offence of polygamy consists in entering into the form of a marriage, by one who, or whose partner in the matrimonial ceremony,! is bound by a prior marriage undissolved by death or divorce. It is not known under the ancient common law, and is, therefore, purely statutory.2 It is often, and perhaps more frequently, termed in our books bigamy. According to the canonists, a bigamist was one who married a second time, whether the former consort were living or not, or married a widow; and there were seven distinct connections by which the offence might be committed, so as to create an incapacity for orders.? Consequently it prevents confusion, and preserves equally well the proprieties of our language, to use the word polygamy when we are speaking of the act made criminal by our statutes.4 § 578. How the Chapter divided. — We shall consider, I. The Law of the Offence ; II. The Procedure. 1 As to this clause of the definition, 4 Shelford Mar. & Div. 224; 1 Hast see post, § 594. P. C. 464; 20 Howell St. Tr. 358, 2 Crim. Law, I. § 502. note. 3 Poynter Mar. & Div. 142; 4 Bl. Com. 163, note. 379 § 579 OFFENCES MORE PURELY STATUTORY. [BooK v. I. The Law of the Offence. § 579. Historical View — Stat. Jac.1.—In England, polyg- amy was always punishable canonically, but it seems not to have been a civil offence until the reign of James I.1 In the first year of his reign, Stat. 1 Jac. 1,c. 11 (a. D. 1604), made it felony when committed “within his majesty’s dominions of England and Wales ;” but an exceptive clause of the statute exempted from its operation persons whose husband or wife should have remained seven years beyond sea, or the same period within his majesty’s dominions not known by the other to be living, persons divorced,? persons whose marriages had been or should thereafter be judicially declared void, and per- sons married within the age of consent. This statute has been the model for all subsequent criminal legislation upon the sub- ject, both English and American. It provided (to state it more fully, but omitting the preamble), § 1. “ That, if any person or persons, within his majesty’s dominions of England and Wales, being married, or which hereafter shall marry, do at any time after the end of the session of this present Parlia- ment, marry any person or persons, the former husband or wife being alive, that then every such offence shall be felony,” &c. § 2. * Provided always, that this act, nor any thing therein contained, shall extend to any person or persons whose hus- band or wife shall be continually remaining beyond the seas by the space of seven years together, or whose husband or wife shall absent him or herself the one from the other by the space of seven years together, in any parts within his majesty’s dominions, the one of them not knowing the other to be living within that time.” § 3. “ Provided also, &c., that this act, nor any thing herein contained, shall extend to any person or persons that are or shall be at the time of such marriage divorced by any sentence had, &c., in the ecclesiastical court, or to any person or persons where the former marriage hath been or hereafter shall be by sentence in the ecclesiastical court declared to be void and of no effect, nor to any person 1 Poynter Mar. & Div. 144. East bigamis, it was treated as a capital says, that until this time it was left of offence, and ousted of clergy by that “doubtful temporal cognizance;” but statute. 1 East P. C. 464. so early as Stat. 4 Edw. 1, c. 5, de 7? Rex v. Lolley, Russ. & Ry. 287. 380 CHAP. XXV.] POLYGAMY. § 581 or persons for or by reason of any former marriage had or made, &c., within age of consent.” § 580. Stat. Jac. 1, continued — Whether Common Law with us. — If we observe the date of this enactment, we shall perceive that it is two years anterior to the earliest colonial settlement in this country, —that at Jamestown, Virginia, in 1606.1. The substance of it is adapted to our institutions; and, but for its peculiar phraseology, it must have been accepted as common law with us. And it was so accepted in the Maryland Colony, prosecutions under it having been had as early as 1682. After- ward, in 1706, a colonial statute expressly made it of force ;? and thus it became law in so much of the District of Columbia,? now constituting the whole, as formerly belonged to the State of Maryland.t But it is not mentioned by the judges among the British statutes in force in Pennsylvania ;® and there is little if any further recognition of it as a part of our common law. The difficulties are, that, by its terms, it is made local to England and Wales; and that the efficacy of a part of what is in its provisions depends on the action of ecclesiastical courts, which were never established in this country. § 581, Subsequent English Legislation. — In England, later legislation has corrected some obvious defects in this statute of James; particularly is a mere divorce from bed and board no longer a protection against the penal consequences of a second marriage, while a seven years’ residence beyond sea is no pro- tection where the absent party is known to the other to be living. Thus, Stat. 9 Geo. 4, c. 81, § 22, which prevailed in England until quite recently, is as follows: “If any person, being married, shall marry any other person during the life of . the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof shall, &c.; and any such offence may be dealt with, inquired of, tried, determined, and punished in the county where the 1 Bishop First Book, § 56. 5 Report of Judges, 8 Binn. 599, 622, 2 Kilty Rep. Stats. 170. 623. 3 Crim. Law, 5th ed. I. § 208. ® Shelford Mar. & Div. 226; Rogers 4 United States v. Jennegen, 4 Cranch Ec. Law, 2d ed. 634. c.C. 118. 381 § 584 OFFENCES MORE PURELY STATUTORY. [BOOK y. offender shall be apprehended or be in custody, as if the offence had been actually committed in that county: provided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his majesty, or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.” The present English statute is 24 & 25 Vict. c. 100, § 57; but it differs from this statute of George in no essential particulars, the revisers having made merely some slight verbal changes. § 582. American Legislation. — In most, perhaps all, of the United States, there are statutes, varying more or less from each other and from the English statutes, but substantially in accordance with the present amended English enactments. Some of the American statutory forms will more particularly appear as we proceed. § 588. Construction and Effect of the Statutes : — “Divorce.” — As already intimated, the “divorce” which would free one from the penalties of the statute of James includes as well the divorce from bed and board as from the bond of matrimony, “ notwithstanding,’ observes Hawkins, “there be not the word divortiamus, but only the word sep- aramus, in the sentence; because the statute, being penal, shall be construed favorably, and such separations are taken for divorces in common understanding.”! But there are not many modern statutes, perhaps not any, upon which this question would arise. § 584. “Within Age of Consent."— The construction of this exception is, “that,” as Hawkins observes, “not only such person as was within such age, but also the other who was above it, is within the exception of the statute; because 1 1 Hawk. P. C. Curw. ed. p. 686, § 5. 382 CHAP. XXvV.]_ - POLYGAMY. § 586 the power of disagreeing to such marriage is equal on both sides.’’} § 585. Place of the First Marriage. — Marriage being an insti- tution of international law, and it being, therefore, the custom of the courts to recognize foreign marriages the same as domestic ones, the place where the first marriage was cele- brated, whether at home or abroad, becomes immaterial ;? “because,” says Hawkins, “it is the latter marriage that makes the offence.’ But there may be special cases, excep- tions to the general law, in which a marriage deemed good abroad will be invalid at home. Thus, if, by the foreign law, a marriage is permitted to be good which our courts deem to be incestuous, not merely in consequence of some local stat- utory prohibition, but by the law of nature also, it will not be accepted with us as valid It is plain, therefore, though the author is not able to cite any case to the point, that if after such a marriage abroad the party marries again here, the act is not polygamy by our laws. A fortiori, if the marriage is void by the foreign law as well as by our own, a second mar- riage here will not be polygamous. Thus, says Lord Hale, where “‘ A takes B to husband in Holland, and then in Hol- land takes C to husband, living B, and then B dies, and living C she marries D, this is not marrying a second husband, the former being alive; for the marriage to CO, living B, was sim- ply void, and so he was not her husband. But, if B had been living, this had been felony to marry D in England.’ When facts like these transpire all in our own country or State, the result is the same.® § 586. Place of the Second Marriage. — Leaving out of view particular statutory terms which have been employed to ren- der nugatory the proposition now to be stated, “it is,” as observed in the last section, in the words of Hawkins, “ the latter marriage that makes the offence ;”’ therefore an offender 1 Tb. § 6. For the American doc- 81 Hawk. P. C. Curw. ed. p. 687, trine relating to the age of consent, and § 7, marriages within age, see 1 Bishop Mar. 41 Bishop Mar. & Div. § 3876 et & Div. § 148-158. seq. 21 Bishop Mar. & Div. § 851, 353, 5 Madison’s Case, 1 Hale P. C. 855, 861, 363; Anonymous, J. Kel. 79; 698. Commonwealth v. Johnson, 10 Allen, 6 The State v. Moore, 3 West. Law 196. Jour. 184, 383 § 588 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. can be indicted and convicted only in the country and in the very county wherein the latter marriage ceremony took place.1 Consequently, says Lord Hale, if ‘A takes B to husband in England, and after takes O to husband in Ireland, she is not indictable in England; because the offence was committed out of this kingdom.” ? § 587. Continued — Special Statutory Provisions. — It is ob- vious that the effect of the foregoing doctrine, if there were nothing to counteract it, would be to enable parties to escape the penalties of the statute by having their second marriages celebrated beyond the jurisdiction of the country. Therefore the present English statute, as we have seen,? makes it polyg- amy for a British subject to enter into a second marriage, subsisting the first, “ whether the second marriage shall have taken place in England or elsewhere ;”’ and, to get rid of the common-law difficulty as to a jurisdiction to try the offence, provides, that it may be dealt with “in the county where the offender shall be apprehended or be in custody.” And where the defendant was an Englishman and the two marriages were in Scotland, it was held that he was properly convicted under this provision.* It is obvious that this statute, limited as it is in its operation to British subjects, is proper and just, and conformable to the law of nations, on a principle elsewhere discussed. But if it were not thus limited, it could not prop- erly make punishable the subject of another government for what was done on foreign soil.® § 588. Continued — American Forms of the Provision — Con- tinuing to cohabit —- Where apprehended. — Upon this point, the American legislation has not, in general, precisely imitated the English. Thus, in Tennessee, the statute is as follows: “If any person being married shall marry another person, the former husband or wife then living, or continue to cohabit with such second husband or wife in this State, such person 1 Anonymous, J. Kel. 79; United 4 Reg. v. Topping, Dears. 647, 7 Cox States v. Jernegan, 4 Cranch, C.C.1; C. C. 108, 86 Eng. L. & Eq. 614. People v. Mosher, 2 Parker, 195; Put- 5 Crim. Law, 5th ed. I. § 109-128 and nam v. Putnam, 8 Pick. 433 ; 1 Hawk. notes, particularly the note to § 115, P. C. Curw. ed. p. 687, § 7. par. 7-9; People v. Mosher, 2 Parker 2 1 Hale P. C. 692. C. C. 195. 3 Ante, § 581. 384 eos CHAP. XXV.] POLYGAMY. § 589 shall,” &c. Now, in this State, the constitution guarantees to defendants the right to be tried in the county where the offence took place. But though there is, therefore, and can be, no jurisdiction out of the county, if a second marriage, living a former husband or wife, has taken place abroad, or in another county in Tennessee, an offender may be indicted and convicted in a county in which there was a “cohabitation” under it. This is not an unfrequent form of the statute in our States. But where, in New York, the statute, after having made pun- ishable “‘ every person, having a former husband or wife living, who shall marry any other person, whether married or single,” proceeded to enact, that “ an indictment may be found against any person for a second, third, or other marriage herein prohibited, in the county in which such person shall be apprehended; and the like proceedings, trial, judgment, and conviction may be had in such county, as if the offence had been committed therein;”? this was held to be merely a provision regulating the venue. Therefore when a defend- ant, who had a wife living in Pennsylvania, married another woman in Canada, and came and cohabited with her in New York, it was adjudged, not by the court of last resort, but, without doubt, correctly, that no offence under the statute was committed.§ § 589. The First Marriage. — We have already seen, that, if the first marriage is void, the second is not polygamous. But, recurring to the peculiar distinction of void and voidable in marriage, differing materially from the distinction in other 1 Finney v. The State, 8 Head, 544. been dissolved by divorce, or death, In this case, Caruthers, J. in delivering the opinion of the court, observed: “ We think it clear, that, by this sec- tion, ‘to continue to cohabit with such second husband or wife, in this State,’ is a distinct and complete offence, and as much cognizable in the county where it occurs, as the crime of bigamy is in the county where the second marriage took place. ... They are two dis- tinct offences. To make out the case for unlawful cohabitation, the offence of bigamy must be proved by establish- ing both the marriages, and that at the time of the second the former had not either actual or presumed. This new offence was created to prevent the scan- dal and evil example of permitting men and women to cohabit in any community of this State, upon an un- lawful second marriage, when the first, as well as the last, or either, may have taken place in any other State or country.” p. 546. 2 2 RB. S. 687, 688, § 8, 10. 3 People v. Mosher, 2 Parker, C. C. 195. For another view of the proper proceeding on facts like these, see post, § 593. 4 Ante, § 585. 885 § 590 OFFENCES MORE PURELY STATUTORY. [BOOK Y. departments of the law, if the first marriage is merely voidable and not void, and if it is not dissolved by judicial sentence, it is sufficient to sustain the charge of polygamy when one of the parties to it enters into a second formal marriage. What are voidable marriages, what are void, and what are in the full sense valid, are questions discussed in the author’s work on the law of Marriage and Divorce, and they need not be entered into here. § 590. The Second Marriage. — Of course, the second mar- riage is not, like the first, a voidable or valid one, but it is void. The Irish court has held that it must be such as, but for the impediment of the first, would be good in law.? This doctrine the English tribunal has overruled ; holding, in a case where by reason of too near an affinity the second marriage would be void under a statute if the first did not subsist, that still the offence of polygamy was committed. The ground on which the English court proceeded was, that, as the word “ marry,” in the penal part of the statute, could not have its first and true meaning as pointing to a valid union, and so must be bent by construction, it should receive such form in the interpreta- tion as will best respond to the spirit and purposes of the en- actment. “ When it becomes necessary,” said Cockburn, C. J. speaking for the whole court, “ to seek the meaning of a term occurring in a statute, the true rule of construction appears to us to be, not to limit the latitude of departure so as to adhere to the nearest possible approximation to the ordinary meaning of the term, or to the sense in which it may have been used before, but to look to the purpose of the enactment, the mis- chief to be prevented, and the remedy which the legislature intended to apply. . . . The ground on which such a marriage is very properly made penal is, that it involves an outrage on public decency and morals, and creates a public scandal by the prostitution of a solemn ceremony, which the law allows to be applied only to a legitimate union, to a marriage at least but colorable and fictitious, and which may be made, and too often is made, the means of the most cruel and wicked decep- tion. It is obvious that the outrage and scandal involved in 11 Bishop Mar. & Div. § 105, 2 Reg.v. Fanning, 17 Irish Com. Law, 116. 289, 10 Cox, C. C. 411. 386 CHAP. XXV. | POLYGAMY. § 592 such a proceeding will not be less, because the parties to the second marriage may be under some special incapacity to con- tract marriage. The deception will not be less atrocious, because the one party may have induced the other to go through a form of marriage known to be generally binding, but inapplicable to their particular case.” + § 591. Continued. —In anticipation of the doctrine thus finally reached by the English tribunal, it had been already held, by single judges, that, if parties to a polygamous marriage consent to make some slip in the form, such as would render it still invalid if the impediment of prior marriage did not exist, this will not avail the wrong-doer indicted for polygamy.” And suppose, as in the case finally adjudged, the second marriage would be void on the ground of too near consan- guinity or affinity, were no former husband or wife living, it is still a violation of the statutes against polygamy.® $ 592. Continued._—How in United States.—In our own country, this question has not been much considered. It is obvious, and it appears indeed to have been held, that, in those States in which the validity of a marriage does not depend on any precise forms, but mutual consent however informal will superinduce the marriage status, the second marriage need not, more than the first, be a formal one And it is the same where the marriage is by law good though celebrated by an unauthorized person: in this case, a polygamous marriage of 1 Reg. v. Allen, Law Rep.1 C. C. 367, 874, 875. The learned judge said in conclusion: “In thus holding, it is not at all necessary to say that forms of marriage unknown to the law, as was the case in Burt v. Burt, 2 Swab. & T. 88, 29 Law J. n.s. P.M. & A. 133, would suffice to bring a case within the operation of the statute. We must not be understood to mean that every fan- tastic form of marriage to which parties might think proper to resort, or that a -marriage ceremony performed by an unauthorized person, or in an unauthor- ized place, would be a marrying within the meaning of the 57th section of 24 & 25 Vict. c. 100. It will be time enough to deal with a case of this de- scription when it arises. Itis sufficient for the present purpose to hold, as we do, that, where a person already bound by an existing marriage goes through a form of marriage known to and re- cognized by the law as capable of pro- ducing a valid marriage, for the purpose of a pretended and fictitious marriage, the case is not the less within the stat- ute by reason of any special circum- stances, which, independently of the bigamous character of the marriage, may constitute a legal disability in the particular parties, or make the form of marriage resorted to specially inapplica- ble to their individual case.’ p. 376. 2 Rex v. Penson, 5 Car. & P. 412. 3 Reg. v. Brawn, 1 Car. & K. 144. 4 Hayes v. People, 5 Parker C. C, 326. 387 § 598 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. the like kind is sufficient to sustain the indictment.! It is sufficient also where the defendant, meaning seduction, conceals the fact of the prjor marriage, intending to make his victim believe a valid marriage ceremony is being performed, and thus enters into what would be a valid marriage were it not for the existence of the prior marriage.? And it is the same whatever be the defect in the ceremony, if the defect is not. such as in other cases would make the marriage invalid? But it is perceived that these adjudged points leave untouched the broader question which has been agitated on the other side of the Atlantic. In principle, while much may be said in favor of the Irish as well as the English view, it seems to the writer that the following, which is not exactly either, but is more nearly like the English, ought to be accepted as satisfactory. The primary purpose of the statute was, as indicated by the Trish decision, to make that indictable which would be a valid marriage but for the existence of the prior matrimonial union ; but the inducement to this primary purpose was to prevent the public exhibition of a breach of the order and decency which the matrimonial laws were intended to establish. Whatever, therefore, constitutes a practical marriage, in distinction from a mere intentional and proclaimed illicit cohabiting together by the parties, such as is itself indictable under another head,! is sufficient in violation of the statute against polygamy. It being understood that the marriage which the statute was enacted to punish was not meant to be such as would be bind- ing on the parties and third persons as marriage, and thus superinduce the status, we may here resort to the exposition of the English judges, and draw thence the result, that any thing which the community, prompted by the acts of the parties, accepts, in ignorance of the fact of the prior union, as marriage, comes within the prohibition. § 593. Continued — Marriage by Cohabitation.—If a man and woman, having in a foreign country entered into a marriage which they meant for valid, while really it was invalid by reason of some defect of form required by the law 1 Robinson v. Commonwealth, 6 3 Carmichael v. The State, 12 Ohio Bush, Ky. 809. State, 553. 2 Hayes v. People, 25 N. Y. 890. * Crim. Law, I. § 88, 501, 502. 388 CHAP. XXV.] POLYGAMY. § 594 of the place, should then come and reside in one of those States of our Union in which mere mutual consent without formal solemnization makes the union matrimonial, and should there live together as husband and wife, the mere living together with the actual or implied renewing of the matrimonal consent would be tantamount to a marriage ceremony in the new locality, and make them husband and wife de jure. Such is the clear and undoubted deduction of legal principle; and, though it may not rest so absolutely on authority as some other things, it is difficult to suppose that any court, if made to understand the proposition, could so far depart from sound doctrine as to decide the other way.1 This being so, then, whatever view may be taken of the suggestions of the last section, if, in a case like the New York one mentioned a few sections back,? a party who has committed polygamy in a foreign country comes with the other party to the polygamous marriage into one of these States of our Union, and there the two live together as husband and wife, holding themselves out to be such, they do what would make them married per- sons de jure but for the prior marriage, and are therefore, on principle, indictable for polygamy in the new locality.® The New York case, thus alluded to, possessed the elements of fact necessary to make this point available against the defend- ant; but they were not embraced in the indictment or brought in legal form to the attention of the court, therefore the case is not an adjudication adverse to this view. In England, and in States whose matrimonial laws, like the English, require a formal solemnization to constitute marriage, this question could not arise. § 594. How as to the Party competent to marry. — In terms, the statutes which we are considering — for the most part, not quite all of them — make punishable only the party to the polygamous marriage in whose case the impediment exists. How is it, in point of law, with the other party? If this party did not know of the existing impediment, then the principle, that, in respect of crime, one must be judged of by the facts as 11 Bishop Mar. & Div. § 227,229, 2 Ante, § 588. 246-252, 266, 457, 458, 504, and par- 3 And see, as illustrative, Crim. Law, ticularly 508, 511. - Oth ed. I. § 187-148, 389 § 594 OFFENCES MORE PURELY STATUTORY. [Book v. they appear to him, and his act is not to be deemed criminal unless his mind were so,} would exempt him from punishment.? And as in most instances such party is a dupe of the other, and is not in law guilty, it is seldom in practice that he is included in the indictment. Still, this has been done; but, in the only case of this sort now before the writer, the indictment was drawn on Stat. 9 Geo. 4, c. 81, § 22,3 which expressly makes punish- able persons “ counselling, aiding, or abetting such offender; ” and the allegation was that of “ counselling.” + Now, by the ordinary principles of the common law, the morally guilty participant in a crime, being present at the very fact, aiding and abetting at it, is indictable equally with the other as a principal in the second degree. This doctrine extends, as we have seen,® as well to statutory crimes as to crimes at the common law. And, upon this point, it has been adjudged that a third person, an unmarried man, who is present aiding and abetting a friend in committing polygamy, may be con- victed thereof as principal in the second dégree.? To this general doctrine, of the result of thus weaving by interpreta- tion a statute and the common law together, there are two excep- tions; the one, where the offence is quite small and not malum im se, there, as in the case of selling liquor without license, the person present and abetting the act is not generally deemed to be indictable ;® the other, where the particular words of the statute are such as to lead to the inference that the general rule of interpretation is meant to be excluded? Do these statutes of polygamy come within the general rule, or one of its exceptions? In the absence of adjudication, it is difficult to discover any principle which will bring them within an exception. The case, indeed, seems to be almost exactly like one mentioned by the author in his work on the Criminal Law, thus: The statute of 25 Edw. 38, stat. 5, c. 2, made it high treason “if a man do violate the king’s companion, or 1 Ante, § 351, 855-357. 5 Crim. Law, 5th ed. I. § 648-654. 2 Reg. v. Brawn, 1 Car. & K. 144. 6 Ante, § 139. 3 Ante, § 581. 7 Boggus v. The State, 34 Ga. 275. 4 Reg. v. Brawn, supra; mentioned, 8 Crim. Law, 5th ed. I. § 657-659, but briefly alluded to,as to this point, 759-764. in Reg. v. Allen, Law Rep. 1 C. C. 367, 59 Ante, § 145. And see, as illustra- 3870. tive, Hatfield v. Gano, 15 Iowa, 177. 890 CHAP. XXV.] POLYGAMY. § 595 the king’s eldest daughter unmarried, or the wife of the king’s eldest son and heir ;” and the construction was, that the woman, if consenting, was guilty as well as the man. In Georgia, —and the same may be true in some of the other States, — this question is put to rest by the form of the provisions them- selves, as follows: ‘If any person or persons within this State, being married, do or shall at any time hereafter marry any person or persons, the lawful husband or wife being alive, and ‘knowing that such lawful husband or wife is living, such person or persons so offending shall,” &c. “If any man or woman being unmarried shall knowingly marry the wife or husband of another person, such man or woman shall, on conviction, be punished,” &c.? § 595. The Exceptions : — Beyond Seas. — The statute of James contained, as we have seen,’ the provision that its penalties should not extend “ to any person or persons whose husband or wife shall be con- tinually remaining beyond the seas for the space of seven years together.” Upon this, the reader perceives, and so was the adjudged law, that, if the statutory absence beyond seas existed, and was continued seven years, the party marry- ing again was protected by this exception, even though the other party was, and was known to be, alive. In such a case, of course, the marriage for civil purposes would be void.4 This obvious defect has been avoided in the later enactments. In Massachusetts the provision is, that the general inhibition “shall not extend to any person whose husband or wife has been continually remaining beyond sea, or has voluntarily withdrawn from the other and remained absent for the space of seven years together, the party marrying again not knowing the other party to be living within that time.” And it is held that the last clause qualifies the first as well as the second; consequently, where an Englishman emigrated to Massachu- setts leaving his wife behind, and married again here a year or so afterward, he was adjudged to have committed polygamy, 1 Crim. Law, 5th ed. I. § 659, refer- 2 Rev. Code, § 4457, 4458. ring to 1 East P. C. 65; 1 Hale P.C. 3 Ante, § 579. 89, 128; 3 Inst. 1, 2,9; Eden Penal 41 Hale P. C. 698; 1 East P.C. Law, 3d ed. 125. 466. 391 § 597 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. though the first wife had always been beyond sea, for he knew she was living within seven years. § 596. “Knowing,” &c.— The reader has observed the terms of the Massachusetts enactment as to the knowledge of the existence of the absent party. The language of the modern English statutes is of the like sort, ‘and shall not have been known by such person to be living within that time.” ? Now, suppose a man’s wife has left him, and he is indifferent to her absence and so does not inquire after her, or purposely refuses to make inquiry, by reason of which he does not know that she is living, but might know if he chose to inquire, — then, if after seven years he marries again, does he commit the statutory offence? If it were a point on which the statute was silent, and the question was thereupon referred, as it should be, to the common law, the answer would be, that the mere carelessness about the matter, or, a fortiort, the wilful ignorance, was itself such an evil in the intent as to render him criminal the same as though he had actually known the woman to be living. But the statute is not silent on this question of the intent; it uses the word “knowing,” which refers directly to the state of the mind; and this word, like any other in a statute creating crimes, must be construed strictly, when it is relied on to subject a defendant to penal consequences. Therefore, if a defendant did not in fact “know” the former husband or wife to be living, though he might have known had he chosen to inquire, the case falls within the exception of the statute, and he is to be acquitted. § 597. Other Points — Voluntary withdrawing — False Ru- mor.— A question of a good deal of importance relating to these exceptions was discussed some chapters back.® Other questions, as respects the pleading and evidence, will be dis- posed of under our next sub-title. Still other questions re- 1 Commonwealth v. Johnson, 10 Al- criticism may show that this case does len, 196. not support my text; and, indeed, the 2 Stat. 24 & 25 Vict. c. 100, § 57; judges did not reason out the point in ante, § 581. the way I have done. I think, how- 3 Ante, § 351, 357, 858, 860, 362. ever, that the doctrine of the text is 4 Ante, § 190, 194 et seq. certainly correct, and that in a sense it 5 Reg. v. Briggs, Dears. & B. 98,2 is sustained by the case cited, though Jur. n. 8. 1195, 26 Law J.n.8.M.C. not as absolutely as one might wish. 7,7 Cox C. C. 175. Perhaps a nice 6 Ante, § 356 et seq. 892 CHAP. XXV. | POLYGAMY. § 598 main, but the author has not now before him judicial decisions pointing to their solution. The reader, of course, will care- fully consider the exact words employed in the statutes of his own State. Thus, in the Massachusetts exception above,! one clause covers the case of the married party having “ vol- untarily withdrawn from the other and remained absent for the space of seven years together;’ and, for a defendant to avail himself of this exception, the fact must appear, not only that’ the husband and wife had lived separate during the seven years, but the case must be one in which the absent party “voluntarily withdrew” from the cohabitation; or, in other words, committed something like desertion.?, In Pennsylvania, the act of March 18, 1815, having provided, that, if a husband or wife, upon any false rumor in appearance well founded of the death of the other, when such other has been absent two years, shall marry again, he or she shall not be liable to the pains of adultery, — it was ruled, that, to justify such second marriage by the wife, there must be a general report of the husband having died at some particular place, and by some particular means, as by shipwreck, which the report specifies.? II. The Procedure. § 598. Indictment : — Observations —Form.— There is some difference in the phraseology and minuter provisions of the various statutes against polygamy. The pleader, in drawing the indictment, should have before him the statute on which the prosecution is to be founded, and pursue carefully its terms.t Arch- bold’s form is based on Stat. 9 Geo. 4, c. 81, § 22.5 Itis as follows : — “That J. §., late of the parish of B,in the county of M, laborer, on the first day of April, in the year, &c., at the parish of C, in the county of D, did marry one A. C., spinster, and her the said A. C. then and there had for his wife; and that the said J. S. afterwards, and whilst he was so married to the 1 Ante, § 595. Terminer, Philadelphia, May, 1816, 2 See the adultery case of Common- before Rush, President (pamphlet, p. wealth v. Thompson, 11 Allen, 28,com- 229), 1 Whart. Dig. 826. mented on as respects another view of 4 Ante, § 384 et seq. it, ante, § 357. 5 Ante, § 581. 3 Commonwealth v. Smith, Oyer and 26 393 § 601 OFFENCES MORE PURELY STATUTORY. [BooK vy. said A. C. as aforesaid, to wit, on the third day of August, in the year, &., at the parish of F, in the county of G, feloniously and unlawfully did marry and take to wife one M. Y., and to her the said M. Y. was then and there married, the said A. C., his former wife, being then alive ; against the form of the statute in such case made and provided, and against the peace of our lady the now queen, her crown, and dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S. afterwards, to wit, on the tenth day of August, in the year last aforesaid, at the said parish of B, in the county of M aforesaid, was apprehended [or, that the said J. S. now is in custody at the said parish of B, in the county of M aforesaid] for the felony aforesaid.” 1 § 599. Apprehension of Prisoner.— Archbold adds: “The averment of the prisoner’s apprehension is only necessary where the second marriage did not take place in the county where the defendant is indicted; but, in such case, it has been held to be essential.2 So it was held also, by a majority of the judges, that, where the indictment is found in a different county from that in which the offence was committed, it must allege that the prisoner was in custody, at the time of the finding of the inquisition, in the county of the finding.” ? § 600. Indiana Statute and Form. — The Indiana statute is as follows: “If any person, being married, shall marry again, the former husband or wife being alive, and the bond of matrimony still undissolved, and no legal presumption of death having arisen, such person so offending shall be deemed guilty of bigamy, and, upon conviction thereof, may,” &c. And the following form of the indictment is adjudged to be sufficient : — “That A. B., on, &c., at, &c., being married to E. B. and she being alive and the bond of such marriage being still undissolved, and no legal presumption of the death of said E. B. having arisen, did unlawfully and feloniously marry another woman, to wit, one E. L., contrary,” &c.4 § 601. Allegation of First Marriage. — There are differences of opinion as to how much of allegation is required in these cases. One question relates to the first marriage. It is per- ceived that the foregoing English form sets it out, with time and place, and the maiden name of the woman, while the Indiana form does not. All the English forms which the 1 Archb. Crim. Pl. & Ev. 10th Lond. 4 Bicknell Crim. Pr. 488, referring, ed. 629. for the statute, to Felony Act, § 46, 2 2 Rex v. Fraser, 1 Moody, 407. G. & H. 452; for correctness of the form, 3 Reg. v. Whiley, 2 Moody, 186. to Hutchins v. The State, 28 Ind. 34. 394 CHAP. XXV. ] POLYGAMY. § 602 ° author has examined contain this allegation ;! and probably the English tribunals have never had occasion to consider whether less will answer or not. The necessity of it seems to be taken for granted. And in a jury case it was ruled by Maule, J. that, where there is a discrepancy between the Christian name of the prisoner’s first wife, as laid in the indictment, and as stated in the copy of the certificate pro- duced to prove the first marriage, there must be an acquittal, unless the further proofs explain the discrepancy, or it appears from them that she was known by both names.? Chitty ® says: “The indictment must state both marriages, and an averment must also be introduced that the former consort was alive at the time of the second marriage.t To this statement no venue need be inserted.6 The first marriage may be laid in the county where it actually took place, though the venue is laid in another.’’ § § 602. Continued. — How in this Country.— There may be some difference, as to this averment, whether the marriage took place at home or in another State or country. If there is a difference, the allegation of the foreign marriage may un- doubtedly be less specific as to time, place, and the like, than 1 See, among other places, 3 Chit. Crim. Law, 718-722; Cro. C. C. 10th ed. by Ryland, 97; Matthews Crim. Law, 525; 5 Burn Just. 28th ed. 254; Rex v. Edwards, Russ. & Ry. 288. The oldest form I have seen is in the very entertaining case of Mary Moders, who was indicted on Stat. Jac. 1, c. 11 (ante, § 579), in 1663, and acquitted. Itisas follows :— “That she the said Mary Moders, late of London, Spinster, othrewise Mary Sted- man, the wife of Tho. Stedman, late of the City of Canterbury in the county of Kent, Shoemaker, May 12, in the reign of his now majesty the sixth, at the Parish of St. Mildred’s in the City of Canterbury, in the county aforesaid, did take to husband the aforesaid Thomas Stedman, and him the said Thomas Stedman then and there had to husband. And that she the said Mary Moders, alias Stedman, April 21, in the 15th year of his said majesty’s reign, at London, in the Parish of Great St. Bar- tholomew’s, in the ward of Farringdon without, feloniously did take to husband one John Carleton, and to him was married, the said Tho. Stedman her former husband being then alive, and in full life: against the form of the statute in that case pro- vided, and against the peace of our said sovereign lord the king, his crown and dignity,” &c. There was no counsel for the pris- oner, and no question was made as to the sufficiency of the indictment. Rex v. Moders, 6 Howell St. Tr. 273. In the celebrated case of the Duchess of Kingston, the indictment in the first count simply charged that the defend- ant, “ being then married, and then the wife of thesaid Augustus John Harvey” did contract the second marriage. But the second count set out the first mar- riage substantially as in the case of Mary Moders. Rex v. Kingston, 20 Howell St. Tr. 355, 371. 2 Reg. v. Gooding, Car. & M. 297. 33 Chit. Crim. Law, 719, note. 4 1 East P. C. 469. 5 Stark. 62. 6 Stark. 484, note. 395 § 602 OFFENCES MORE PURELY STATUTORY. [BOOK Y. is required where the marriage was in our own State. Still, even in a case where it was in another State, the Vermont court held that the place of its celebration must be alleged in the indictment. Said Redfield, C. J.: “It seems to be regarded as a uniform rule of pleading, applicable to indict- ments, that every traversable fact must be directly alleged, with time and place. The first marriage, in prosecutions for bigamy, is always traversable, and must be established by positive proof of the very fact of marriage, if such proof is attainable. It is not claimed that such fact is here so alleged, the time and place being both blank.”+ The North Carolina court, on the other hand, held that the place of the first mar- riage need not be alleged.2 And in Indiana it was adjudged, that neither time and place nor the maiden name of the first wife need be set out, but the general allegation that the defendant “ did unlawfully, feloniously, and knowingly, being married, marry,” &c. was sufficient.? If we inquire what, in principle, adjudged in Kentucky.* 1 The State v. La Bore, 26. Vt. 765, 767. 2 The State v. Bray, 18 Ire. 289. 3 Hutchins v. The State, 28 Ind. 34. Frazer, J. observing: “It is objected that the indictment ought to have al- leged the time and place of the first marriage, by whom it was solemnized, and the maiden name of the first wife. And so it is said are the forms, which are some evidence of what the law is. In Vermont, these allegations were held to be necessary. It was there said: ‘ This is merely formal, and of the least possible importance, but, unless all form is to be disregarded, which we could not do without a statute to that effect, after having so long regarded it as essential, then this indictment is fatally defective. The State v. La Bore, 26 Vt. 765. Undoubtedly there could be no reason, save that of form, for such particularity; and the Ver- mont case, which, so far as we are aware, is the only one where it is ad- judged to be necessary, puts it upon that ground exclusively. But our stat- ute dispenses with needless forms, and 396 The like has been therefore makes this indictment suffi- cient. 2G. & H. p. 468, § 59, 60. The absence of the averments alluded to cannot, it is very certain, ‘ prejudice the substantial rights of the defendant upon the merits.’ It was adjudged in North Carolina, even in the absence of such a statute as ours, that it was not necessary to aver the time and place of the marriage. The State v. Bray, 13 Ire. 289. Mr. Wharton, in his Prece- dents (2d ed. 993), gives a form drawn by the Attorney-General of Pennsyl- vania, in 1790, in which the existence of the first marriage is alleged almost exactly asin the case before us. In- deed, as the first marriage is not crimi- nal, but its existence a mere condition which makes the second marriage a crime, it is of itself a fact, and there is, as was admitted by the Vermont court, no substantial reason why the aver- ment of it should ever, have been re- quired except in general terms.” See ante, § 421, 422. : 4 Commonwealth v. Whaley, 6 Bush, 266. CHAP. XXV.] - POLYGAMY. § 603 should be the doctrine, we find that the case is one which, at the common law, might be decided either way. If the par- ticular form of the allegation should be adjudged necessary, the adjudication would be supported by various analogies in the common-law rules of criminal pleading ; and, if the contrary should be adjudged, analogies also might be found to support the adjudication. But, if we turn to guaranties to be found generally in the written constitutions of our States, we shall find, that by them the particular allegation, or something ap- proximating toward it, becomes indispensable. Though the simple averment that the defendant was a married person when he entered into the second marriage covers, in terms, the full statutory inhibition as to this part of the case, still it leaves open to the prosecutor every sort and manner of proof, and gives to the prisoner no notice of any particular matter to which he is to direct his defence, upon this which is really in most instances the most important and delicate part of the controversy.1 Suppose the provision of the constitution is, as in some of the States, that “no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him;” then, in reason, though by the terms of the statute the offence con- sists, not in the first marriage, but the second, yet it does ' consist in the second, the former one existing, and the first is as much in controversy as the second. If, then, the first may be charged in this general way, the second may be; and the whole becomes a mere accusation, without any particulars, that the defendant is guilty of polygamy. Surely this is not setting out the offence “fully and plainly, substantially and formally.” Indeed, the very idea of such a constitutional guaranty is, that the things special to the particular instance shall be described, instead of a general accusation of having committed a crime bearing a particular name.? § 603. Second Marriage.— It has never been contended that it is adequate to charge the second marriage in the general way, but it is always set out with time, place, and name, as in the foregoing forms. And in a Vermont case, where the in- 1 Ante, § 378. 112, and particularly 101, 104, 108- 2 See Crim. Proced. 2d ed. I. §95- 111. 397 § 604 OFFENCES MORE PURELY STATUTORY. [BOOK v. dictment was, not for polygamy proper, but for unlawfully continuing to cohabit, under a statute like the Tennessee one before quoted,!— the provision being, “if any person, who has a former husband or wife living, shall marry another person, or shall continue to cohabit with such second husband or wife in this State, he shall, except, &c., be deemed guilty of the crime of polygamy, and shall,” &c., —it was held, that, if the second marriage was celebrated in another State, the indict- ment must charge this second marriage to have been unlawful in the State in which it was had; and, if this allegation is omitted, judgment will, on motion, be arrested.2 But the contrary was held in Minnesota.? The true view (and perhaps an examination of the cases will show them not to be adverse to this) plainly is, that the second marriage must appear in the allegations, either by direct averment or by infer- ence of law from what is stated, to be unlawful in the State in which the prosecution is being carried on. One of the methods of making this appear is by alleging its unlaw- fulness at the place of its celebration, but there are other methods. For example, if a first marriage is charged, and then a second is charged to have been contracted abroad while the first subsisted, this second is invalid with us, and the case is brought within the statute, whether it was lawful or unlaw- ful at the place of its celebration.* § 604. Continued. — Variance. — It being necessary to allege 1 Ante, § 588. 2 The State v. Palmer, 18 Vt. 570. Williams, C. J. said: ‘The second marriage being in the State of New Hampshire, of whose laws we cannot judicially take notice, the respondent committed no offence against the laws of this State by such marriage ; and, unless that marriage was unlawful by the laws of New Hampshire, Jane Cheney became his lawful wife, and perhaps the woman to whom he was formerly married, by the same law ceased to be his wife. It could be no offence in him to cohabit in this State, with the woman to whom he was law- fully married. There should, there- fore, have been an allegation that the 398 second marriage, in New Hampshire, was unlawful, or the respondent com- mitted no offence by continuing to co- habit with the woman in this State. . . . If the second marriage had been in this State, inasmuch as it was illegal, the former wife being living and the lawful wife of the person charged, the illegality of the second marriage would have been apparent, and the court could have judicially recognized its illegali- ty.” p. 578. 3 The State v. Johnson, 12 Minn. 476. *1Bishop Mar. & Div. § 372, 376; Hyde v. Hyde, Law Rep. 1 P. & M. 180; ante, § 585. CHAP. XXV.] POLYGAMY. § 606 the second marriage, it, of course, must be so done as to con- form in its descriptive matter with the proofs, and thus avoid a variance. Consequently, where, in an English case, the second wife was described as Elizabeth Chant, widow, and at the trial it appeared she was not a widow, the variance was held to be fatal. The judges were of opinion, that no addition to her name was necessary ; but, since it was given, it became a part of the description of the person, and must be proved as laid.} § 605. Exceptions or Provisos. — Negatived.— It may be a question with some pleaders, whether the indictment should not negative the matter contained in the proviso of the statute. It is seen, that the form given above from Archbold, which corresponds with other English forms in this particular, does not. The general doctrine relating to this subject is discussed in the author’s work on Criminal Procedure ;? and it is there seen, that there are some questions connected with it upon which the authorities are not quite distinct, or, at least, not quite clear. But, on the whole, it may be deemed to be the better view, that whether an exception or proviso requires to be negatived does not depend upon its being called by the one or the other of these two names, or upon its being in the same or a subsequent section® with the principal provision. The language of the statute and the particular reason of the special provision should both be taken into view; and, if the exception or proviso, as thus seen, is propérly mere matter of defence, it need not be negatived, otherwise it must be. § 606. Continued. — Thus, applying this doctrine to the particular matter in hand, where the statute is drawn in the Indiana form before quoted,* namely, “if any person, being married, shall marry again, the former husband or wife being alive, and the bond of matrimony still. undissolved, and no legal presumption of death having arisen, such person,” &c., no offence is affirmatively shown within the terms of the pro- vision, neither are the statutory words adhered to,> unless the exceptions are negatived, therefore they must be negatived. 1 Rex v. Deeley, 1 Moody, 303, 4 4% Ante, § 66, 67. Car. & P. 579. * Ante, § 600. 2 Crim. Proced. 2d ed. I. § 631- 5 Crim. Proced. 2d ed. I. § 636, 642. 637. 899 § 608 OFFENCES MORE PURELY STATUTORY. [BOOK v. The reason of a proposition like this as commonly stated in the books is, in language not quite intelligible, that the excep- tions are in the enacting clause.’ But where a statute is drawn in the English form before quoted,? — speaking now of this particular offence, and not saying how it would be if the offence was of a different nature, — the full affirmative crime appears when the indictment covers the main clause, and does not neg- ative the proviso; therefore, on this statute, the proviso need not be negatived. What is there set down is mere matter of defence.? “If it is reasonable,” said Lord Denman, C. J. sit- ting in the English court, “ that the indictment should negative the dissolution of the marriage, it may as well be required that the prosecutor should deny that the statute was repealed.” 4 And, in North Carolina, if the indictment charges that the first wife was alive at the time of the second marriage, this is held to be sufficient; and it need not be added, that the first mar- riage was then subsisting. Said the learned judge: “ All the precedents produced are so, except that of the Duchess of Kingston’s Case.” 5 § 607. Evidence : — General View. — In the author’s work on the law of Marriage and Divorce, not as it appeared in one-volume editions, but as it now appears enlarged into two volumes, there is given a full discussion of the law of the evidence of marriage, not alone in matrimonial causes, but in all judicial causes, before all tribunals, and relating to every issue, both of a civil and criminal sort. After that full discussion, covering the whole ground of inquiry, it seems needless to enter into repetitions here. Still a few points may profitably be stated. § 608. First Marriage. — The pressure, in point of evidence, in these cases, generally relates to the first marriage. It was so in what is believed to be the earliest reported case, already referred to in a note. There a witness swore, that he was present when the ceremony was performed, and gave away 1 Bicknell Crim. Pr. 86, 483, refer- v. Williams, 20 Iowa, 98; Common- ring to4 Ind. 601; Crim. Proced. 2ded. wealth v. Whaley, 6 Bush, 266; The I. § 635. State v. Johnson, 12 Minn. 476. 2 Ante, § 581. * Murray v. Reg.,7 Q. B. 700, 706. 3 Crim. Proced. 2d ed. I. § 688; The 5 The State v. Norman, 2 Dev. 222. State v. Abbey, 29 Vt. 60; The State © Ante, § 601. 400 CHAP. XXV.] POLYGAMY. § 609 the defendant as bride; but, though his testimony was well enough in form, the jury did not believe him. There is a great difference between the proof required of this first marriage, and the proof of marriage in most other issues. Thus, in general, semper presumitur pro matrimonio, every intendment of the law is in favor of the marriage.! And the reasons are, that marriage is a beneficent institution and therefore to be cher- ished, that virtue rather than vice is always to be inferred from facts which are susceptible of a double meaning; and that, where parties are conducting in a way which would be unlawful if they were not married, but lawful on the assumption of marriage, the presumption of innocence lends also its aid to the more general presumption which favors matrimony. But where, in a case of polygamy, it-is sought to prove a prior subsisting marriage, all the weight of presumption which before was in favor of matrimony, presses against this allega- tion of prior marriage. This prior marriage becomes, more than any other assumed fact in the case, the corpus delicti,? to be established by something like direct evidence. § 609. Continued. — Now, out of this condition of the law, which, the reader perceives, exists equally in ‘natural reason as in judicial authority, there has sprung up a great deal of misapprehension. It has been laid down — and correctly, if the expression is rightly understood — that, in these polygamy cases and in one or two others, a fact of marriage, in distinction from what comes from mere presumption arising out of cohabitation, must be proved.? Now, for an examination of this question in its various aspects, with the authorities, the reader is referred to the author’s work on the law of Marriage and Divorce. But, in reason, and according to what the author deems to be the better authority on a question con- cerning which the judicial utterances are in all sorts of dis- cord, this fact of marriage, which, as a sort of corpus delicti, must be clearly made out, may be established by any evidence, even circumstantial, which, not resting on presumption (for the ' 1 Bishop Mar. & Div. § 457. cases, to this point, are Morris v. 2 Crim. Proced. 2d ed. I. § 1070, Miller, 4 Bur. 2057, 1 W. Bl. 682 1071. (as to which see Mar. & Div. supra, 3 1 Bishop Mar. & Div. § 482 et § 490-492); Birt v. Barlow, 1 Doug. seq. Some of the leading English 170; Hemmings v. Smith, 4 Doug. 83. 401 § 610 OFFENCES MORE PURELY STATUTORY. [BOoK v. presumptions are all against the marriage), is, on general principles, admissible, and sufficient to satisfy the jury after overcoming the adverse presumptions. Record evidence, and the evidence of witnesses present at the ceremony, will be required where these can be had. But where the circum- stances of the particular case show that these cannot be had, and in all cases as confirmatory of them, and in the proper cases as even dispensing with them, it is competent to show the admissions of the party, or his prior cohabitation under pretence of marriage, and various other things of the like import. On the other hand, also, where a statute has, as in many of our States, directed that such evidence shall be received, the statute does not annul the prior legal presump- tions against the first marriage; and, in spite of the statute, the proof of the first marriage in a polygamy case differs from the proof of it in most civil causes! But, for more extended views on these points, with the authorities, the reader is referred to the work on Marriage and Divorce. § 610. Continued — The Usual Proof. — The admissibility and effect of marriage records, of examined copies of the record, of mere certificates by the officiating person to the fact of the marriage, and the like, were considered in the author’s other work.2, The common course of proof is to present the record evidence, and with it evidence to identify the parties ; and these are, prima facie, sufficient.2 The testimony of persons present at the marriage is good evidence without the record; though the absence of the record may, under some circumstances, create suspicion. But testimony of this sort to a foreign mar- riage, by a non-professional witness, has been held in England to be insufficient without proof of the foreign law.’ On the point of identity, Willes, J. in one case, permitted a photo- graphic likeness of the first husband to be shown to the wit- nesses present at the first marriage. But the particulars on all these points, with others liable to arise, are best seen in the author’s other work. 1 Case v. Case, 17 Cal. 598. Rex v. Moders, 6 Howell St. Tr. 273; 21 Bishop Mar. & Div. § 460 et ante, § 601, note, 608. seq. 5 Reg. v. Povey, Dears. 32, 6 Cox 3 Reg. v. Hawes, 1 Den. C.C.270. C. C. 83. * 1 Bishop Mar. & Div. § 494-496; 6 Reg. v. Tolson, 4 Fost. & F. 103. 402 CHAP. XXV.] POLYGAMY. § 611 § 611. Whether First Husband or Wife alive at Second Marriage. — Concerning one further question, the practitioner should be on his guard. Suppose the first husband or wife is not directly shown to have been alive at the time of the solemni- zation of the second marriage, but at some point of time anterior thereto, under what circumstances is death to be presumed? If the absence had continued for seven years, the law, both by its common-law rules and by the statute, presumes death; but, even then, there is no presumption as to the particular time when it took place, especially there is none that life continued up to within a day of the expira- tion of the seven years. Now, under the combined oper- ation of the polygamy statute and of the common law, if a man’s wife abandons him, and a year afterward, having no information whether she is dead or alive, he marries another woman, he, in point of law, does not commit polygamy should it turn out that she is really dead; but, should it turn out that she is alive, he does. Then, suppose he is indicted for polygamy, and, at the trial, there is no evidence whether she is dead or alive, except that she was alive a year before the second marriage, — what is the result? If, at the time of the trial, seven years have elapsed, and the woman has not been heard from, the law presumes that, now, she is dead, but it has no presumption as to the time of the death. The law, however, presumes the defendant to be innocent; and it would seem, on this state of the case, that, as there is no presumption of the life having continued even a year after the separation, the court should direct an acquittal. If, on the other hand, seven years have not elapsed at the time of the trial, then the presumptions of life and of innocence operate together, the one for the defendant and the other against him. They neutralize each other, and the jury must act on other presumptions and evidence, and decide, as matter of fact, between them all. Perhaps there is not sufficient authority carrying the point in the former supposed instance to the full extent there in- timated; but, at least, a verdict of acquittal in such a case would, on the authorities, and certainly in reason, be pre- ferred. This question, with others of the like sort, is dis- 403 § 613 OFFENCES MORE PURELY STATUTORY. [BOOK V. cussed in the author’s other work.1 In the latest English enunciation which he has seen on this subject, the dicta do not come quite to the point thus put as to the former supposed instance, but they do as to the latter. The case is as follows: In 1843, a married pair separated. In 1847, the woman, de- scribing herself as spinster, married again. In 1849, she was tried for polygamy, when nothing appeared to have been heard of the first husband after the separation. And the Court for Crown Cases Reserved held it to be wrong to direct the jury, “that, there being no circumstances leading to any reasonable inference that he died, Victor [the first husband] must be presumed to have been living at the date of the second marriage.” Lush, J. speaking for the whole court, observed: “In an indictment for bigamy, it is incumbent on the prosecu- tion to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date. If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter day, and the jury would in all probability find that he was so. If, on the other hand, it were proved that he was then in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus the question is entirely for the jury. The law makes no pre- sumption either way.’’ 2 § 612. Second Marriage. — There are no special difficulties relating to the proof of the second marriage. What is said of the proof of the first marriage, together with some points stated in preceding sections,’ will suffice, except as to what follows. § 613. The Two Husbands or Wives as Witnesses. — It will occur to the reader, that, according to familiar rules of evi- 1 1 Bishop Mar. & Div. § 452- 7? Reg.v. Lumley, Law Rep.1C. C. 456. 196. 3 Ante, § 586, 588, 590-593. 404 CHAP. XXv.] POLYGAMY. § 618 dence, if the theory of the prosecution in these cases is true, the first husband or wife, being lawfully married, is not a competent witness either for or against the defendant; but the second is competent, because the marriage is void. Yet, on the other hand, if the defendant denies the first marriage and admits the second, and his theory is right, the first supposed husband or wife is a good witness, while the second is not. Now, the books say “that,” in the language of Leach, one of the editors of Hawkins, “the first and true wife can- not be admitted to give evidence against her husband; and this rule has been so strictly taken, that even an affidavit to postpone the trial, made by the first wife, has been rejected ; but it is agreed that the second woman is a competent witness, even to prove the marriage, for she is not his wife so much as de facto.”1 Thus, to repeat the rule, the second wife is com- petent ;? but the first is not, even with the husband’s consent.? But it is plain that this is putting the case on the theory of the prosecution. The books, when more closely examined, present much of confusion, and little else, on the point. If we apply established principles to the question, it stands thus. It is for the judge to admit or reject a witness, and it must be done before the cause goes to the jury ; this being so, if any person is presented as a witness, such person is prima facie competent. If, according to the general course of things in a court, the party against whom the witness is called objects, then testimony is introduced to the judge, usually by an exam- ination of the person offered on the voir dire; and he decides, according to the testimony as it appears to him, whether or not the fact of the legal impediment is proved, and receives or excludes the witness as the combined law and proven fact may then require. In the actual trial of a polygamy case, however, some things are necessarily admitted, or proved otherwise than on the voir dire, by the prosecutor. His wit- nesses are first introduced; and, among them, cannot be the first husband or wife, because both the pleadings and the 11 Hawk. P. C. Curw. ed. 687,§ 8. Ev. § 839; 8 Ib. § 206, and the various 2 Finney v. The State, 3 Head. 544; books cited by this author ; Wakefield’s The State v. Patterson, 2 Ire. 346. Case, 2 Lewin, 279; Peat’s Case, 2 3 Wilson v. Hill, 2 Beasley, 143. Lewin, 288, and a note by the re- 4 See, among other places, 1 Greenl. porter. 405 § 615 OFFENCES MORE PURELY STATUTORY. [BOoK v. opening to the jury affirm the marriage, and the judge has no occasion to consider the question of fact. So the prosecutor goes on with his testimony, but does not, because with his admissions before the court he cannot, call the first husband or wife. If, after the first marriage is established to the sat- isfaction of the judge, he then offers the second husband or wife, this person is admitted ; but not otherwise, or until then. In other words, until the judge is satisfied with the prima facie proof of the first marriage, he cannot admit as a witness a party to the second marriage, the fact of which is averred and acknowledged before him. When the prisoner comes to his defence, if a prima facie case has not been made out against him, he has no occasion for witnesses; if a prima facie case has been made out, it is generally too late to change the previous rulings. Still; circumstances might be imagined in which the court would, on due proofs, act upon the defendant’s theory, and admit the first alleged husband or wife and exclude the second.! CHAPTER XXVI. ABDUCTION OF WOMEN. 614, 615, Introduction. 616-621. Law of the Offence. 622-624. The Procedure. § 614. General View. — The subject of this chapter is closely related to Seduction of Women, to be treated of in the next chapter. As distinguished from seduction, it is of but little practical importance in the United States. In England, abduction is more a living offence; while with us it is, at least, desirable that the offence should be understood. § 615. How the Chapter dividea.— We shall consider, I. The Law of the Offence ; II. The Procedure. 1 In Lewin’s.Reports we have the to prove that her marriage with the following: “The question in this case prisoner was illegal, and that she was was, whether the reputed first wife of not his wife. Alderson, B. held that she the prisoner was a competent witness was not.” Peat’s Case, 2 Lewin, 111. 406 CHAP. XXVI. ] ABDUCTION OF WOMEN. § 617 T. The Law of the Offence. § 616. Stat. 3 Hen. 7— 39 Bliz.— An old English statute, 3 Hen. 7, c. 2, after reciting ‘ that women — as well maidens as widows and wives, having substances, some in goods movable and some in lands and tenements, and some being heirs appar- ent unto their ancestors— have, for the lucre of such sub- stances, been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others by their assent, or defiled ; to the great displeasure of God,” &c., enacts, “That what person or persons from henceforth that taketh any woman so against her will unlawfully; that is to say, maid, widow, or wife; that such taking, procuring, and abet- ting to the same, and also receiving wittingly the same woman so taken against her will, and knowing the same, be felony ; and that such misdoers, takers, and procurators to the same, and receitors knowing the said offence in form aforesaid, be henceforth reputed and judged as principal felons.”! Stat. 39 Eliz. c. 9, takes away clergy from the principals and pro- curers before the fact.? § 617. How construed. —In construing this statute the courts have held, that the word “so,” in the body of it, makes the preamble substantially a part of the act. The taking must be for lucre,* and the woman must either be an heir apparent, or have property.6 Likewise force must be used either at the taking, or at the marriage or defilement, but not necessarily at both ;® yet both force and a marriage or defilement must occur in the county in which the indictment is found;7 a tak- ing not being sufficient unless followed by one of these.8 When the offence is complete, a consent given by the woman after- ward will not extinguish it. The receivers of the woman are 1 For this statute, and expositions 5 Baker v. Hall, 12 Co. 100; 1 Hawk. thereon, see 1 Hawk. P. C. Curw. ed. p. P. C. Curw. ed. p. 124, § 4. 123 et seq. And see Crim. Law, 5th 6 4 BL Com. 208, 209. ed. I. 555. 7 1 Stark. Crim. Plead. 2d ed. 2; 2 2 Baker v. Hall, 12 Co. 100. East P. C. 453; Fulwood’s Case, Cro. 8 Burton v. Morris, Hob. 182,188; Car. 488. Case of Stealing Women, 12 Co. 20. 8 Baker v. Hall, 12 Co. 100; Case of 44 Bl. Com. 208. And see Reg. v. Stealing Women, 12 Co. 20. Barratt, 9 Car. & P. 387. 9 Reg v. Swanson, 7 Mod. 101, 102. And see Crim. Law, 5th ed. I. § 733, 407 § 619 OFFENCES MORE PURELY STATUTORY. [BOOK V. principals ; those who receive the takers of her are only acces- sories after the fact.1 § 618. Whether Common Law with us.— The material ques- tion for us is, whether this statute is common law in the United States. Upon this question we have no decisions.? The Penn- sylvania judges, in their report to the legislature of English statutes in force in that State, omitted this one ;* and Kilty mentions it among the acts not found applicable in Maryland.! The matter evidently stands thus: It was as applicable in princi- ple to our colonies as to the mother country ; but, owing to the poverty of the early settlers, and to other local causes, the occasions did not arise here for its practical enforcement. This want of occasion is not generally held, by our tribunals, suffi- cient to exclude any particular provision of English law from among the provisions adopted by us; yet, on such a subject, judges are a little uncertain and variant in their determina- tions. § 619. How, at Common Law, aside from this Statute. — Aside from this statute, the acts it prohibits amount to the common- law misdemeanor of kidnapping. An attempt, therefore, to commit this offence, though it does not succeed, is indictable. Thus, an English case lays it down, that attempting to carry away forcibly a woman of great fortune is a great misdemeanor 1 Baker v. Hall, 12 Co. 100; Case of Stealing Women, 12 Co. 20. 2 Crim. Law, 5th ed. I. § 555. 3 Report of Judges, 3 Binn. App. 595, 617. 4 Kilty Report of Statutes, 67. He says: ‘ This offence was generally known in England under the term of stealing an heiress. The statute must be considered in connection with 39 Eliz. vc. 9, which took away the benefit of clergy. The question, as to the ex- tension of these statutes, if considered independent of what is to be inferred from the records of the courts, would be open to considerable doubt; for, although the felony was created and made more penal by acts of Parliament, yet they were enacted long before the settlement of the province, and, al- though the provisions are highly penal, 408 the offence may be viewed as one of a heinous nature, and as being liable to be perpetrated in this country, as well asin England. But I have not been ableto discover any instance of a pros- ecution under these statutes, either in the province or in the State, and the most certain conclusion seems to be, that they were not in force therein. There were some cases of prosecutions under the statute4 &5 Ph. & M.c.8 [this statute will be considered under the title Seduction], for what is termed an inferior degree of the same kind of offence.” 5 That is, supposing a transportation to a foreign country not to be an ingre- dient in the offence of kidnapping. See Crim. Law, 6th ed. II. tit. Kidnap- ping, § 746 et seq. CHAP. XXVI.] ABDUCTION OF WOMEN. § 622 at the common law; for “ sure,” says Lord Holt, “ this concerns all the people in England who would dispose of their children well.” 1 § 620. How at present in England. — In England, later statutory provisions seem to have covered this entire subject, leaving little space for the operation of prior written or unwrit- ten laws. There are not, in our country, sufficient analogous provisions, not speaking of seduction, to render it important here to insert the modern statutes and their expositions. § 621. How in the United States. — We have, however, pro- visions analogous to some of the modern English ones treated of in England under the title Abduction ; but they will be better considered in the next chapter under the title Seduction. Il. The Procedure. § 622. Indictment. — It is not probable that any reader will have occasion to draw or consider an indictment on the above recited statute of Hen. 7, c. 2; yet, for various purposes, it may become important to consider how the form should be, therefore Chitty’s observations with his form? will be here inserted. He says: “ The indictment must set forth that the woman taken away had lands, or goods, or that she was heir apparent, as well as that she was actually married or defiled ; because these things are set forth in the preamble to which the enacting clause refers. The place and manner of taking must also be set forth in the proceedings. It must also be alleged, that the taking was for lucre, to bring it within the meaning of the statute. But it is not necessary to state that it was done with an intention to marry or defile; because this is not required by the words of the act, nor would the absence of it lessen the injury.6 It seems, however, to be both safe 1 Rex v. Pigot, Holt, 758. see the indictment on which Sweeden 2 Stat. 24 & 25 Vict..c. 100, § 53-55; and his assistants were convicted for c. 95, repealing prior statutes. See carrying away Miss Rawlins, and the Greaves Crim. Law Acts, 78; Reg. v. Proceedings thereon, 5 Harg. St. Tr. Burrell, Leigh & C. 354; Reg. v. Tim- 465 [Reg. v. Bayton, 14 Howell St. Tr. mins, Bell C. C. 276. 597.]” 3 3 Chit. Crim. Law, 818. Hesays: + Cro. Car. 484. “See other precedents Cro. C. C. 475; 5 Hob. 182; 1 Hawk. P. C. c. 41, $5. Trem. P. C. 34; Pla. Cor. 174; West. © Cro. Car.489; 1 Hawk. P. C.c. 41, 224; Rast. Ent. 487; Stark. 482. And § 6. 27 409 § 623 ‘OFFENCES MORE PURELY STATUTORY. [BooK vy. and usual to insert it.” } is as follows: — The form furnished by this author “That A. B., late of, &c., on, &c., at, &c.,in and upon one M. W. spinster, then and yet being under the age of fourteen years, and a maid, and only daughter and heir of P. W. then lately deceased, she the said M. W. then and there having substance in movable goods to the value of one thousand pounds of lawful money of Great Britain, and in lands and tenements to the value of fifteen hundred pounds by the year of like lawful money,” did make an assault, and her the said M. then and there did put in great danger of her life, and her the said M. with force and arms, at the parish aforesaid, in the county aforesaid, unlawfully, feloniously, and against the will of her the said M., violently did take, force, and convey away, with intention that he the said A. B. for lucre, and the sake of such her substance, feloniously should marry and have the said M. to wife ;# and that the said A. B. afterwards, to wit, on, &c., by the assent, procurement, and abetment of [the said] A. M., J. J. and C. the wife of F. C. late of, &c., gentleman, and W. C. late of the same parish and county, clerk, with force and arms, at, &c., feloniously, and for luere of the said substance, of the said M. W. did marry, and had the said M. W. to wife; against the form of the statute, &c., and against the peace, &c. And the jurors, &c., do further pre- sent, that the said A. M.,J.J., C. the wife of F. C., and W. C. on the said four- teenth,day of November, in the year aforesaid, at, &c., in the county of —— aforesaid, with force and arms, knowingly, and feloniously were assisting, aid- ing, procuring, assenting, abetting, and maintaining the aforesaid A. B. in doing and committing the felony aforesaid, against the form of the statute, &c., and against the peace,” &c. § 623. Witness.—If the woman is forcibly married, and she does not afterward ratify the marriage by a voluntary cohabitation or in any other way, this does not make her in law the wife of the man between whom and her the formal ceremony was had;‘ therefore she may be a witness against him on his trial for the abduction.’ So, also, on an informa- ’ 1 Hale P. C. 660. 2 This allegation is necessary, Cro. Car. 484. 2 It is safest to insert this allegation, Cro. Car. 489, 1 Hale, 660. 41 Bishop Mar. & Div. § 210 et seq. 5 Wakefield’s Case, 2 Townsend St. Tr. 112, 2 Lewin, 279, 1 Bishop Mar. & Div. § 196 and note; Fulwood’s Case, 1 Hale P. C. 660, 661, Cro. Car. 488; Rex v. Fezas, 4 Mod.8; Brown’s Case, 1 Vent. 243. Speaking of the last cited case, Lord Hale says: “ But had she freely and without constraint lived with him that thus married her, any 410 considerable time, her examination in evidence might be more questionable.” 1 Hale P. C. 661. This would be held to make the marriage good by reason of the subsequent consent implied in the voluntary cohabitation. 1 Bishop Mar. & Div. § 214. Still, it might be a ques- tion whether or not she should be re- ceived as a witness under the same policy of the law which permits a wife to testify to a battery inflicted on her by the husband. And see the observa- tions and ruling of Hullock, B. who so held, in Wakefield’s Case, supra, at p. 287, 288 of Lewin. CHAP. XXVII.] SEDUCTION OF WOMEN. § 625 tion for attempting to debauch a young lady, she was very properly admitted to testify in the defendant’s favor.? § 624. Conclusion. —In these cases, as in all others, ques- tions will arise involving general considerations of pleading and evidence, not advisable to be entered into in such a con- nection as this.” CHAPTER XXVII. SEDUCTION OF WOMEN. 625, 626. Introduction, 627-648. Law of the Offence. 644-652. The Procedure. § 625. Relations of the Subject — Obscurity —- Conspiracy. — We have already seen, that the subjects of this chapter and the last are closely connected. Indeed, the line dividing the two is not run by all writers in the same place; and, in some particulars, what one would consider as belonging to the one is looked upon by others as pertaining to the other. Then, as a question of the common law, the doctrines of this chapter lie a little in obscurity. A conspiracy to bring about the seduction of a young woman, or even — suppose she is under guardianship, or under the legal constraint of her parents, being a minor — to procure her marriage without the consent of those who are legally entitled to forbid the nuptials, is plainly, both in England and this country, indictable at the common law.’ But conspiracies, as the reader is aware, rest on grounds peculiar to themselves. 1 Gray’s Case, Skin. 81. 5 Watts & §. 461; Rex v. Thorp, 5 2 See Reg. v. Barratt, 9 Car. & P. Mod. 221; Reg. v. Blacket, 7 Mod. 39; 887; The State v. Tidwell, 5 Strob. 1. Reg. v. Mears, 1 Eng. L. & Eq. 581, 2 3 Crim. Law, 5th ed. II. § 2385; Den. C. C. 79, Temp. & M. 414; Rex Twitchell v. Commonwealth, 9 Barr, v. Ossulston, 2 Stra. 1107. And see 211; Anderson v. Commonwealth, 5 Crim. Law, 5th ed. I. § 501, 502, 767, Rand, 627; Respublica v. Hevice, 2 768; Grey’s Case, 9 Howell St. Tr. Yates, 114; Miffin v. Commonwealth, 127, Skin. 81. 411 § 627 OFFENCES MORE PURELY STATUTORY. [BOOK Y. § 626. How the Chapter divided. — What is to be further said in this chapter will be divided into, I]. The Law of the Offence ; II. The Procedure. I. The Law of the Offence. § 627. Stat.4 & 5 Phil. & M.— In England, in the year 1557, the statute of 4 & 5 Phil. & M. c. 8, was passed. After recit- ing, § 1, “that maidens and women, children of noblemen, gentlemen, and others, as well such as be heirs apparent to their ancestors, as others, having left unto them, by their father or other ancestor and friends, lands, tenements, and hereditaments, or other great substances in goods and chattels movable, for and to the intent to advance them in marriage somewhat like according to their degrees and as might be most for their surety and comfort, as well for themselves as of all other their friends and kinsfolks, be oftentimes, un- awares to their said friends or kinsfolks, by flattery, trifling gifts, and fair promises, of many unthrifty and light person- ages, and thereto by the entreaty of persons of lewd demeanor, and others that for rewards buy and sell the said maidens and children, secretly allured and won to contract matrimony with the said unthrifty and light personages, and thereupon either with slight or force oftentimes to be taken and conveyed away from their said parents, friends, or kinsfolks, to the high dis- pleasure of Almighty God, disparagement of the said children, and the extreme continual heaviness of all their friends; which ungodly dealing, for lack of wholesome laws to the redress thereof, remaineth a great, familiar, and common mischief in this our commonwealth,” — it enacts, § 2,‘ That it shall not be lawful to any person or persons to take or convey away, or cause to be taken or conveyed away, any maid or woman- child unmarried, being under the age of sixteen years, out of or from the possession, custody, or governance, and against the will, of the father of such maid or woman-child, or of such person or persons to whom the father of such maid or woman- child by his last will and testament or by any other act in his lifetime hath or shall appoint, assign, bequeath, give, or grant the order, keeping, education, or governance of such maid or 412 CHAP. XXVII.] SEDUCTION OF WOMEN. § 629 woman-child; except such taking and conveying away as shall be had, made, or done by or for such person or persons as without fraud or covin be or then shall be the master or mistress of such maid or woman-child, or the guardian in socage, or guardian in chivalry, of or to such maid or woman- child.”1 And the statute proceeds to add various other pro- visions, and attach penalties for their violation. § 628. Whether Common Law in our States. — The date of this enactment is prior to the earliest settlements in this country. It would seem, therefore, to be a part of our com- mon law. Kilty says it was received in Maryland as such ;? but the Pennsylvania judges, not inclined to include a large number of English statutes, omit this one in their report.? It was made specially of force in South Carolina; and there it is construed as not being restricted to heiresses and persons of quality The Massachusetts Commissioners on a Penal Code observe, that its date “ would render it a part of our com- mon law, provided it should be deemed to be applicable to our laws and institutions and state of society; and it seems to be obviously so applicable.”’ > § 629. How by the earlier Common Law. — Returning to a consideration of the question as it stood in England before the statute came into operation, there are opinions to the effect that the offence was punishable under the earlier common law.6 Mr. East, however, contends, that it was not fully, and that something more than the bare act of marrying without leave of guardians was required to make fhe thing done a crime.’ When we look at this question as one of principle, we see, that under the common law no indictment lies for the employment of mere guile, when the parties stand on equal 1 See, for this statute, including sub- See also Anderson v. Commonwealth, 5 sequent sections, and for expositions of it, 1 Hawk. P. C. Curw. ed. p. 125 et seq. See also Rex v. Bastian, 1 Sid. 862; Rex v. Pierson, Andr. 310; Rex v. Cornforth, 2 Stra. 1162; Rex v. Lord Ossulston, 2 Stra. 1107; Reg. v. Hop- kins, Car. & M. 254; Reg. v. Mankle- tow, Dears. 159. 2 Kilty Report of Statutes, 167. 3 Report of Judges, 3 Binn. 595, 621. Rand. 627. 4 The State v. Findlay, 2 Bay, 418, 1 Brev. 107; The State v. Tidwell, 5 Strob. 1. . 5 Sup. Report Penal Code, 12. 6 Rex v. Moore, 2 Mod. 128; 1 Deac. Crim. Law, 6. Yet see contra, Rex v. Marriot, 4 Mod. 144. 7 1 East P. C. 458, 459. 413 § 631 OFFENCES MORE PURELY STATUTORY. [Boox v. ground toward each other.1_ Now, if the woman, though young and a niinor, is enticed away, the act of enticement is not, according to this principle, indictable as an offence against her; but, suppose she is under legal guardianship, or under the care of her parents, being therefore not authorized to con- tract marriage without their permission, and not authorized more than any other female to yield to defilement, a question may be made, whether the act of enticement and defilement, of such a person, is not one of those wrongs as against the guardian or parent, which, being done by way of unfair ad- vantage, are on this ground indictable. The question, howeyer, as one of principle, lies so near the line dividing the indictable from the unindictable, as to require judicial decision for its settlement. § 680. Continued. — The hints given in the last section will enable the reader to trace the matter out, on the principles laid down in the work on the Criminal Law. Yet it will be found, that, in most of the States, this subject is sufficiently regulated by statutes ; and, unless there is a conspiracy involved in the particular case under investigation, there will ordinarily be no need of resorting to the common law. § 631. View of the Modern Statutes and their Interpreta- tion : — Taking Girl under Sixteen out of Lawful Custody. — It is per- ceived that the above-quoted provisions of Stat. 4 & 5 Phil. & M. c. 8, do not render marriage or defilement essential to the constitution of the offence ; yet, by subsequent sections, offences of a like nature are created, in which this element is essential. Thus it has been, also, with subsequent legislation, English and American. For example, one of the provisions of the present English statute, following in substance the before quoted section of the statute of 4 & 5 Phil. & M. c. 8, is as follows: ‘ Whosoever shall unlawfully take, or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of misdemeanor; and, being convicted thereof, shall,” &c. A statute in Iowa is in like ! Crim. Law, 5th ed. I. § 546, 560-564, 581 et seq. 414 CHAP. XXVII.] SEDUCTION OF WOMEN. § 633 terms, except that the act is to be done for the illicit purpose. The words, at the point of coincidence with this English en- actment, are, however, slightly different, as follows: “If any person take or entice away any unmarried female under the age of fifteen years, from her father or mother, guardian, or other person having the legal charge of her person, without their consent,” &c. § 632. Continued — Mistaking Girl's Age. — We have already seen! what, in juridical reason and on the judicial authorities, is, upon the English enactment, the consequence of the defend- ant’s having been misinformed of the girl’s age, or for some other cause supposing it to be above the statutory period, while in truth it is below. In accord with the view intimated at the place thus referred to as being the sound one, the Iowa court has held it to be inadmissible for the defendant to show, in answer to the charge, that, before the enticement, the girl told him she was over fifteen years of age. “It is not,” said Wright, C. J. “like the case stated by appellant, and found in the books, of a married man, through a mistake of the person, having intercourse with a woman whom he supposed to be his wife, when she was not. In such a case there is no offence, for none was intended either in law or morals. In the case at bar, however, if the defendant enticed the female away, for the purpose of defilement or prostitution, there existed a criminal or wrongful intent, even though she was over the age of fif- teen. . . . The wrongful intent to do the one act is only trans- posed to the other. And though the wron$ intended is not indictable, the defendant would still be liable if the wrong done is so. 1 Bishop Crim. Law [Ist ed.] § 247, 249, 252, 254, note 4. In this last section the rule is thus briefly stated: ‘The wrong intended, but not done, and the wrong done, but not intended, coalesce, and together constitute the same offence, not always in the same degree, as if the prisoner had intended the thing unintentionally done.’ ? § 633. Continued — From whom taken or enticed. — Accord- ing to an exposition by the Iowa court, under the foregoing provision, the words “or other persons having the legal 1 Ante, § 359. 1s The State v. Ruhl, 8 Iowa, 447, 450, 415 § 635 OFFENCES MORD PURELY STATUTORY. [BOOK y. charge of her person” do not mean that such individual shall have all the authority over the child possessed by a par- ent, or legally appointed guardian ; neither do they mean such a one as has a mere temporary charge, like a schoolmistress or governess. If the parents are dead, and no guardian has been appointed, those with whom the girl resides as a member of the family, and who have her wholly under their care and protection, have “the legal charge of her person,” within the meaning of the provision under consideration.’ This doctrine appears to be in accord with the general spirit of the English cases, upon points apparently uot directly decided by them.? § 634. Continued — Consent of the Girl — Enticement. — It is plain, that, under these provisions, the consent of the girl is of no avail to the prisoner; though, under the English provision, there seems to have been at one time some doubt on this point.? Of course, therefore, the taking need not be by force, either actual or constructive. Yet, on the other hand, if the going away is voluntary, and without enticement by the prisoner, there is no offence, though he received her. Yet enticement is sufficient; and, if at one time a person entices the girl, and she does not go away then, but goes at a subsequent time, and this person receives her, though not approving of the going then, the offence is committed.® § 635. Continued — Consent of Parents or Guardians — Fraud. 1 The State v. Ruhl, 8 Iowa, 447. 2 Reg. v. Burrell, Leigh & C. 354; Reg. v. Tinkler, 1 Fost. & F. 513; Reg. v. Meadows,1 Car. & K. 899 ; ante, § 359. Archbold says: “Itis an offence within this statute to take away a natural daughter under sixteen from the cus- tody of her putative father. 1 Hawk. ce. 11, § 14; Rex v. Cornforth, 2 Stra. 1162; Rex v. Sweeting, 1 East P. C. 457. Upon the death of the father. the mother retains her authority, though she marry again, unless the father has disposed of the custody of his child to others; the assent of the second husband is not material. Rat- cliffe’s Case, 3 Co. 87a, 39... . And it is not clear from the statute whether it would be an offence to take away a girl against the consent of her parent, but 416 by the consent of one who has the tem- porary care of her. 1 East P. C. 457.” Archb. Crim. Pl. & Ev. 10th Lond. ed. 477, 478. 3 Reg. v. Mankletow, Dears. 159, 6 Cox C. C. 148; Reg. v. Biswell, 2 Cox C. C. 279; Reg. v. Handley, 1 Fost. & F. 648; Reg v. Baillie, 8 Cox C. C. 288; Reg. v. Timmins, Bell C. C. 276, 8 Cox C.C. 401; Reg.v. Robb, 4 Fost. & F. 59. 4 Reg. v. Mankletow, supra; Reg. v. Frazer, 8 Cox C. C. 446. 5 Reg. v. ‘Olifier, 10 Cox C. C. 402. And see and compare Reg. v. Kipps, 4 Cox C. C. 167; Reg. v. Biswell, 2 Cox C. C. 279; Reg. v. Handley, 1 Fost. & F. 648. & Reg. v. Robb, 4 Fost. & F. 59; Reg. v. Olifier, supra. CHAP. XXVII.] SEDUCTION OF WOMEN. § 636 —These statutes are plain, that the taking must be against the will of the person having lawful charge of the girl. Of course, then, the consent of this person, intelligently given and not improperly obtained, is a complete defence. But it was laid down to the jury by Gurney, B. in a case which there was no occasion to take for consideration before the other judges, as he proposed to do had there been occasion, that the consent of a parent will not avail the prisoner if obtained by fraud. It is no consent. ‘ And,’ he observed, “ there are sev- eral cases which illustrate this doctrine; as, for instance, if aman pretends that he wants your horse to go to Windsor, and promises to bring it back, it will be a stealing if he parts with it, although you gave your full consent to his taking it, provided the jury think, at the time he took it, he did not intend to borrow but to steal it. So, if a burglar pre- tends that he is a person who has particular business with you, which induces you to open your door, and he gets in, it is as much a breaking as if he himself had opened the door by violence.”’! Archbold observes, that “it seems to be doubtful whether, if the parent once consent, but afterwards dissent, a subsequent taking away can be said to be against the will of the parent.”? To the present writer it seems to be sufficiently plain in principle, that, if at the time when the act is done there is no consent, the case is made out against the defendant, whatever may have happened before. Plainly a consent, given without consideration, is not irrevocable. § 636. Continued — “ Possession.” — What is the possession ® of the parent or other person, out of which the girl must be taken, as an element of this offence, was partly considered in another connection.4 The English cases are not quite clear on all points of this question; but, on some points, the doc- trine is entirely distinct. Thus, if, by previous arrangement with the prisoner, a girl leaves her father’s house and then joins him;* or, a fortiori, if he puts up a ladder to the win- 1 Reg. v. Hopkins, Car. & M. 254. 3 Ante, § 681. 2 Archb. Crim. Pl. & Ev. 10th Lond. 4 Ante, § 359. ed. 478, referring to Calthrop v. Axtel, 5 Reg. v. Mankletow, Dears. 159, 6 8 Mod. 169; 1 East P. C. 457. Cox C. C. 188. 417 § 638 OFFENCES MORE PURELY STATUTORY. [BOOK v. dow, and she comes down on it and goes away with him;} this is a taking of the girl out of the father’s possession. Ifa man meets in the street a girl who is out on an errand, or for any temporary purpose, and allures her away with him with- out inquiring or caring whether she has a home or not, this ought to be deemed as much a taking from the parent or guardian, within this statute, as if he had found her at the house; but whether it is so deemed is not quite clear on the English adjudications.? § 687. Continued — How long away. — It is not necessary that the guilty person should keep, or intend to keep, the girl permanently away from her parent or other guardian. Thus, where she was taken from her father’s house for an hour or two, and married, but not defiled, this was held to be suffi- cient.2 A fortiori it was sufficient where the defendant had her three days, sleeping with her at night.* § 638. “Promise of Marriage.” — By the statutes of some of our States, it is made a special offence to seduce a woman, of whatever age, under promise of marriage. Thus, in New York, a legislative provision in 1848 made indictable “ any man who shall, under promise of marriage, seduce and have illicit connection with any unmarried female of previous chaste character.” ® And it has been held, that, as an element in the offence, an apparently valid promise of marriage between the seducer and the seduced is necessary; therefore, where’ the man is married, living with his wife, and the woman knows it, his act of seduction is not within the statute. If she were ignorant of his subsisting marriage, the consequence would be otherwise ;® because the promise then would be binding on him, to the extent of enabling her to maintain against him her civil suit for its breach.? Moreover, he need not be of age; it is sufficient if he has arrived at puberty. If the marriage promise is made at the time when she yields to him, 1 Reg. v. Robins, 1 Car. & K. 456: 5 Stat. 1848, ¢. 111. 2 Ante, § 859 and note. The cases 6 People v. Alger, 1 Parker, 333. ; are there referred to. 1 Wild v. Harris, 7 C. B. 999; Mill- 8 Reg. v. Baillie, 8 Cox C. C. 288. — ward v. Littlewood, 5 Exch. 775, 1 Eng. 4 Reg. v. Timmins, Bell C. C. 276, L. & Eq. 408. 8 Cox C.C. 401. Andsee Reg. v. Hop- kins, Car. & M. 254. 418 CHAP. XXVII. | SEDUCTION OF WOMEN. § 640 and not before, and is the inducement for her yielding, the case is still within the statutory provision.! § 639. “Previous Chaste Character.” — Under this statute, and under Stat. March 20, 1848, c. 105, the terms of which are, ‘‘any person who shall inveigle, entice, or take away any unmarried female of previous chaste character, &c., for the pur- pose of prostitution,” — a “ previous chaste character” in the woman is expressly made necessary. It is so also in the stat- utes of some of the other States. The meaning is, that she shall possess actual personal virtue, in distinction from a good reputation. A single act of illicit connection may, therefore, be shown on behalf of the defendant.2 But though she had fallen, yet, if at the time of the seduction she is reformed, the case is within the statute.? Evidently, therefore, although a single incontinent act may be shown against the woman, it may not be such as, in point of law, to take away her “ pre- vious chaste character ;” for it may be one of which she in- stantly repents, and which she does not repeat. § 640. Seduce — “ Inveigle,” &e. — Under the New York stat- ute, quoted in the last section, the woman must be inveigled away by the offending man; if she leaves her home of her own volition, and without his interference, the offence cannot after- ward be committed. Something on this subject was said in another connection.> The kind and extent of seductive arts, which will satisfy the law, do not appear to depend upon an absolute rule, but upon the circumstances of each case ; among which are the character, age, intelligence, and education of the woman. In general, if in fact they accomplished the object, they are sufficient in law.® 1 Kenyon v. People, 26 N. Y. 203. The State v. Groome, 10 Iowa, 308. 2 The State v. Shean, 382 Iowa, 88; Kenyon v. People, 26 N. Y. 203. 3 Carpenter v. People, 8 Barb. 603; Crozier v. People, 1 Parker, 4538; Kenyon v. People, 26 N. Y. 203; The State v. Carron, 18 Iowa, 372, 875; Andre v. The State, 5 Iowa, 889; Boak v. The State, 5 Iowa, 480. See Safford v. People, 1 Parker, 474. # Carpenter v. People, 8 Barb. 603. 5 Ante, § 634. 6 The State v. Higdon, 32 Iowa, 262 ; Archbold says: “It was held to be no legal excuse that defendant made use of no other means than the common pblandishments of a lover, to induce her to elope with and marry him.” Archb. Crim. Pl. & Ev. 10th Lond. ed. 478. This is reasonable; but whether his references sustain the proposition in matter of authority the reader will judge for himself. They are Rex v. Twisleton, 1 Lev. 257, 1 Sid. 887; 2 Keb. 32; 1 Hawk. c. 44, § 10. 419 § 642 OFFENCES MORE PURELY STATUTORY. [Boox v, § 641. “Purpose of Prostitution.” — In oné of the above-quoted New York statutes, and in some others, the enticing away, to come within the penalty, must be “ for the purpose of prostztu- tion.” The word * prostitution ” is construed to mean some- thing more than a single illicit act, or a series of such acts with the one person ; it being satisfied only by an indiscrimi- nate unlawful connection. There are also intimations in the cases, that the thing contemplated shall be the indiscriminate yielding, by the woman, of her person for lucre, instead of mere gratification; in other words, her becoming a common prostitute.1 As observed in one of the cases, “‘ a prostitute is a female given to indiscriminate lewdness for gain.”? It seems to the writer, that, while this interpretation of the word * prostitution,” by which its first and leading meaning is given it, is correct as applied to some statutes, yet a statute may be in such terms as to require a different construction. The meaning of particular words, in statutes, is determined, not alone by an arbitrary standard, but much also by their relations to other words, and the subject to which they are applied.’ And a word in an enactment however penal may have, even against the defendant, its largest popular or secondary mean- ing, instead of its primary or technical one. Now, there are connections in which the word “ prostitution ”’ may be used as signifying, to every understanding, no more than a single incontinent act with one person. § 642. “Seduce and Debauch”— Chaste Character. — The words of the Michigan statute are “‘ seduce and debauch any unmarried woman ;”’ and there are no words, which, in terms, require a previous chaste character. And it has been held by the majority of the court, that, if the defendant has already seduced the complainant under a promise of marriage, then, if afterward she yields to his embraces under a fresh prom- ise, and she would not yield but for this fresh promise, such subsequent misconduct renders him indictable, though the earlier act is barred by the statute of -limitations. Said 1 The State v. Ruhl, 8 Iowa, 447; 2 The State v. Stoyell, supra, by Commonwealth v. Cook, 12 Met. 98; Appleton, C. J. Carpenter v. People, 8 Barb. 608; The 3 Ante, § 82, 121, 189, 268, 269. State v. Stoyell, 54 Maine, 24. 4 Ante, § 204, 212. 420 CHAP. XXVII.] SEDUCTION OF WOMEN. § 644 Christiancy, J.: ‘“ While we express no opinion as to a female who is shown to be unchaste with other men, we think all that is necessary in a case like the present, where there is no such evidence, is, that her personal character should be such as to satisfy the jury that she would not have yielded in the particu- lar case without the express promise of marriage. To require any higher standard of virtue would be to nullify the statute, by making seduction impossible in any case, as well in refer- ence to the first as to any subsequent act of intercourse.” ? § 643. Distinguished from Rape. — In Wisconsin, a jury hav- ing been charged, that, “if the woman ultimately consented to the illicit intercourse, the crime was seduction, although she consented partly through fear and partly because the defend- ant hurt her;” this was held to be error, because there is a marked distinction between seduction and rape. In the one, the will of the woman yields, and in the other it does not. The case before the jury was rape, and it could not, therefore, be seduction.? II. The Procedure. § 644. Form of the Indictment : — Taking Girl under Sixteen, &c.— Archbold’s form of the indictment on the before recited English statute? is as fol- lows : — “That J. S. late of, &c., on, &c., at, &c., unlawfully did take and cause to be taken one A. N. out of the possession and against the will of R. N. her father, (‘out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her’), she the said A. N. then and there being an unmarried girl, under the age of sixteen years, to wit, of the age of fifteen years ; against the form of the statute in such case made and provided, and against the peace,” &c.4 ' People v. Millspaugh, 11 Mich. 278, before the late changes in the English 288. And see The State v.Groome,10 law of criminal procedure; because Towa, 808. As to the Connecticut stat- the later editions are not quite reliable ute, see The State v. Bierce, 27 Conn. for American use. This form, from 319. Archbold, was employed in Reg. v. Rob- 2 Croghan v. The State, 22 Wis. 444. ins, 1 Car. & K. 456; Reg. v. Biswell, And see Furman v. Applegate, 3 Zab. 2 Cox C. C. 279. For other forms on 28. this statute, see Reg. v. Hopkins, Car. 3 Ante, § 631. . &M. 254; Reg v. Meadows, 1 Car. & * Archb. Crim. Pl. & Ev. 10th Lond. K. 399; Reg. v. Timmins, Bell C. C. ed. 477. Icopy from anedition published 276, 8 Cox C. C. 401. 421 § 646 OFFENCES MORE PURELY STATUTORY. [BOOK Y. This author observes, that the allegation “ being an unmar- ried girl” is sufficient.? § 645. Wisconsin Statute and Form of Indictment. — The stat- ute of Wisconsin is, or was, in the following words: “ Any unmarried man, who, under promise of marriage, or any married man, who shall seduce and have illicit connection with any unmarried female of previous chaste character, shall be guilty of a misdemeanor, &c.; but no conviction shall be had under the provisions of this section on the testimony of the female seduced, unsupported by other evidence,” &c. And, in one case, the indictment, to which no objection appears to have been made, was in the following form : — “That William\ West, &e., on, &e., at, &c., the said William West being then and there a married man, did seduce and have illicit connection with one Eliza Pierce, the said Eliza Pierce being then and there an unmarried female of previous chaste character,” &c.? § 646. Indiana.— An Indiana statute is: “If any person shall entice or take away any female, of previous chaste char- acter, from wherever she may be, to a house of ill-fame, or elsewhere, for the purpose of prostitution, and every, person who shall advise or assist in such abduction, shall,” &c. And the following has been given as a sufficient form of the indict- ment : — “That A. B. on, &c., unlawfully and feloniously took away one C. D. a female of previously chaste character, from the town of Bloomington, in said county, to the town of Bedford, in the county of Lawrence, in the State of Indi- ana, for the purpose of having illicit sexual intercourse with the said C. D.,con- trary,” &c.3 This offence is called, in Indiana, not seduction, but abduc- tion; it would be so termed in some of the other States and in England. Whether this form of the indictment would be sustained by the Indiana courts, as sufficient, we need not inquire; it certainly would not be by those of most of the other States under a like statutory provision. Passing over other points which might be subjected to criticism, it alleges 1 Referring to Rex v. Moore, 2 Lev. ring, for the statute, to 2 R.S. 401, 179; Rex v. Boyall, 2 Bur. 882. §16; 2G. & H. 441. I do not find 2 West v. The State, 1 Wis. 209. any reference to authorities sustaining 3 Bicknell Crim. Pr. 808, 810, refer- this form of the indictment. 422 i CHAP. XXVII.] SEDUCTION OF WOMEN. § 647 that the taking of ‘the woman was “ for the purpose of having illicit sexual intercourse,’ whereas the statutory words are “for the purpose of prostitution;” and we have seen,’ that these words are generally interpreted as signifying much more than what is here charged. § 647. Continued. — The statute creating the offence of what is called seduction in Indiana, and would be so called elsewhere, is as follows: “ Any person who, under promise of marriage, shall have illicit carnal intercourse with any female of good repute for chastity, under the age of twenty-one years, shall be deemed guilty of seduction, and, upon conviction, shall be imprisoned, &c.; but, in such a case, the evidence of the female must be corroborated to the extent required of the principal witness in case of perjury.’ And the following has been supposed to be, and perhaps correctly, a sufficient form under this provision : — “That A. B. on, &c., at, &c., feloniously had illicit sexual intercourse with, and carnal knowledge of, C. D., a female of good repute for chastity, and under the age of twenty-one years, by means of a promise of marriage to her previously made by the said A. B. contrary,” &c.? It will be noticed that there is here, at one place, a needless departure from the statute, though perhaps not such as will vitiate the allegation. It cannot be too often urged, as matter of practical advice, that the pleader do not try experiments of this sort. As to the indictment in other respects, where, in this State, the allegation was, in effect, that the defendant had illicit carnal intercourse with one D,a female of good repute for chastity, and below the age of twenty-one years, under a promise of marriage made by him to her, it was held to be sufficient. Most pleaders would add, after the allegation that the female was under twenty-one years of age, “ to wit, of the age of twenty years,” or whatever age she was supposed really to be. This would be held to be unnecessary in some other States besides Indiana,® and perhaps every where unneces- sary. 1 Ante, § 641. 3 Ante, § 386. 2 Bicknell Crim. Pr. 307, referring, 4 The State v. Stogdel, 18 Ind. 565. for the statute, to 2 R. S. 401, § 15; 2 5 And see, ante, § 563. G. & H. 441; see 26 Ind. 82. 428 § 649 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. § 648. The Evidence : — ? Previous Chaste Character — Burden of Proof. — As the reader has already observed, the statutes of some of the States require that the female seduced shall have been of “ previous chaste character.” This, therefore, is one of the issues on which the jury are to pass.1 According to the doctrine of the Iowa courts, this previous chastity is to be presumed ; no evidence is required to establish it in the first instance, and the burden is on the defendant if he would attack it.2 On the other hand, it is held, in Wisconsin, that, since such a presumption would be inconsistent with the presumption of the defendant’s inno- cence, it cannot of itself prevail, but evidence must be intro- duced to sustain this allegation.? This latter doctrine appears better to accord with legal reason and the analogous precedents than the former. Still there should be a due weight given to a sort of presumption of chastity ; since, but for the presump- tion of the defendant’s innocence, it would be alone controlling. And both for this reason and for others, only slight evidence of the previous chastity should be required. § 649. Evidence as to Previous Chastity. — We have seen,* that what is meant by previous chastity is personal virtue in fact, as distinguished from the mere reputation of it. Now, in subsequent chapters, we shall consider, in some measure, by what evidence adultery and fornication are to be proved. Do the doctrines there to be discussed apply to the present issue, and are the’parties here to resort to the same measures of proof, with the same limitations, as there? In reason, as pre- vious unchastity is in law one of the elements involved in the issue of not guilty, — is a part of the case itself, —it is diffi- cult to restrain the parties, if they so demand, from going into the elaborate proofs thus suggested, together with the particu- lar proofs applicable to this issue alone. Yet, under some circumstances, in an adultery case, unchaste acts, committed subsequently to those charged in the indictment, may be shown 1 The State v. Carron, 18 Iowa, 372, 3 West v. The State, 1 Wis. 209. See, 376. also, Safford v. People, 1 Parker C. C. 2 The State v. Higdon, 82 Iowa, 262; 474. The State v. Shean, 32 Iowa, 88; Andre 4 Ante, § 639. v. The State, 5 Iowa, 389; Boak v. The State, 5 Iowa, 430. 424 CHAP. XXVII.] SEDUCTION OF WOMEN. § 651 against a prisoner to give significance to the proofs of those which are alleged; while, on the other hand, the Georgia court has held, that, on the trial of an indictment for seduc- tion, evidence of acts of unchastity on the part of the woman seduced, two months subsequent to the date of the offence charged in the indictment, is not admissible in behalf of the prisoner.? § 650. Continued. —In an Iowa case, a witness having tes- tified, that, on two occasions prior to the seduction charged, he had committed the unlawful act with the woman, “the State, as rebutting evidence, introduced many witnesses, who proved that the prosecutrix was a young woman of good character for chastity, was correct and modest in her deportment, and that, until the occurrence with the defendant, she was considered a virtuous girl.” And the majority of the court held, that this rebutting testimony had been rightly received. Said Beck, J.: “The observation of all experience establishes, that a woman of good reputation for virtue with those who well know her, of modest deportment when in the society of men and women, will not likely be guilty of the conduct charged against the prosecutrix. When such accusations are brought against women of such character, they are regarded in a degree as improbable. This rule is of constant application in every-day life, and preserves the peace and name of the virtuous against the tongue of slander and hate. Without its protection, the life of many good women would be embittered. It is, in truth, the only incentive to and reward of a life of innocence and purity, so far as this world alone is concerned. A rule of such con- stant application in every-day life cannot be ignored in a court of justice. The fact that a life of purity, such as will secure and sustain a reputation for virtue, renders, in a degree, charges of lewduess and sexual indulgence improbable, is the ground upon which the evidence objected to was admitted. It is in accord with all experience, and not in conflict with legal principles.” 2 § 651. Married Man.— If, in Wisconsin, under the statute 1 Mann »v. The State, 84 Ga. 1, 5. 2 The State v. Shean, 82 Iowa, 88, 91, 92. 28 425 § 655 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. before quoted,! the indictment alleges that the defendant was a married man, this allegation must be proved.? § 652. Court or Jury — Previous Chastity — “Seduce” — “ Prostitution.” — The question of the previous chastity of the woman is for the jury.2 The meaning of such words as “ seduce,” 4 ‘+ prostitution,’ ® and the like, is to be determined by the court, as a question of law; while the evidence is for the jury. CHAPTER XXVIII. ADULTERY. - 6538. Introduction. 654-668, Law of this Offence. 669-690. The Procedure. § 653. How the Chapter divided. — We shall consider, I. The Law of this Offence; II. The Procedure. I. The Law of this Offence. § 654. Simple Adultery — Nuisance by Open Repetitions. — There is a difference in the law between a single act of adul- tery, and an open and notorious adulterous cohabitation. The latter, which will be discussed in another chapter, may, under some circumstances, be, and perhaps it always is, a nuisance at the common law. But, in the absence of a statute on the subject, the former is not indictable.® § 655. Under Statutes — Differences of Views. — In a con- siderable number of our States, adultery, even a single act, is made indictable by statute. The general form of the pro- vision is, that one who commits “adultery” shall be punished in a way pointed out; leaving it for the courts to say what is adultery, and what is not. If adultery were a common-law 1 Ante, § 645. 4 The State v. Bierce, 27 Conn. 319. 2 West v. The State, 1 Wis. 209. 5 Carpenter v. People, 8 Barb. 603. 3 The State v. Carron, 18 Iowa, 6 Crim. Law, 5th ed. § 38, 89, 601; 872, ante, § 625. 426 CHAP. XXVIII. ] ADULTERY. § 656 offence, accurately defined, like, for example, ‘‘ robbery,” or “larceny,” such a statute would create a statutory crime, identical with the common-law offence, and there would be no difficulty in its interpretation... As it is, various differences of judicial opinion have arisen. Thus, according to some opin- ions, the criminal offence is committed whenever there is an intercourse from which a spurious issue may proceed; and, in such a case, both parties are guilty of it, though one only is married.? Therefore it is said, that “ the crime of adultery consists in the illicit commerce of two persons of different sexes, one of whom, at least, is married.”® This doctrine, it ‘is perceived, makes the essence of the offence consist in the danger of a spurious issue. And, carrying out this theory, it is by some held, that even a married man does not commit adultery where the woman is unmarried, since in this instance the issue, if there should be any, is not imposed upon the marriage.+ The reader cannot but perceive that this theory ignores other and weighty considerations; such as the moral contamination, the blight on the happiness of the other party to the marriage, the corruption of the fountain of public virtue, and many more considerations of the like sort. According to this view, too, after a married woman has arrived at a certain age, her adultery ceases to be a crime; yet nothing of this sort has ever been judicially held. § 656. Differing Views, continued — Definition — (Scotch Law, in the Note). — There is in the books some language seeming to favor still another proposition, namely, that where either of the parties is married, the criminal act is adultery in both ;§ but probably no adjudication has affirmed that a single woman commits the offence by a carnal intercourse with a married man.® The Virginia court held, that, when the woman is 1 Ante, § 361. 2 The State v. Wallace, 9 N. H. 515; The State v. Pearce, 2 Blackf. 318; The State v. Armstrong, 4 Minn. 335. And see the reasoning in Galbraith’s charge (Pennsylvania), £ Am. Law Register, 209. 3 The State v. Hinton, 6 Ala. 864; Hall v. Hall, 2 Strob. Eq. 174, 187; Tebb’s Essay, 6,7; 85 Law Mag. 68; Shelford Mar. & Div. 886; Rees Cyc. tit. Fornication. * Galbraith’s Charge, 4 Am. Law Register, 209; The State ». Lash, 1 Harrison, 880. And see The State v. Armstrong, 4 Minn. 335. ® The State v. Hinton, 6 Ala. 864; Hull v. Hull, 2 Strob. Eq. 174, 187. 6 The case of The State v. Hinton, ‘supra, appears to be one of living 427 § 656 OFFENCES MORE PURELY STATUTORY. [BOOK V, married, the act by an unmarried man is only fornication in him. And this conducts us to what is believed to be the more common view in point of authority, and the better view in legal principle, that, in all cases where one of the parties to an act of criminal intercourse is unmarried, it is fornication in such one, and adultery in the married one.? together in adultery; between which and simple adultery there may be a dis- tinction. The unmarried woman, how- ever, would be guilty of the offence under the statute of Iowa. Post, § 657. Whether she would be a principal of the second degree, under a familiar common-law rule, see post, § 662. 1 Commonwealth v. Lafferty, 6 Grat. 672. Inarecent charge to the grand jury, Galbraith, P. J. laid this down as the better law for Pennsylvania. He considered that the authorities in this State (see the next note) have not established a different doctrine. 4 Am. Law Register, 209. See post, § 657. 2 Commonwealth v. Call, 21 Pick. 509; Commonwealth v. Elwell, 2 Met. 190; Respublica v. Roberts, 2 Dall. 124, 1 Yeates, 6; The State v. Hutchin- son, 386 Maine, 261; Cook v. The State, 11 Ga. 58, 56; Commonwealth v. Bur- ton, Recorder’s Decisions, 88, 85; 2 Greenl. Ev. § 48; 6 Dane Abr. 677; 1 Bishop Mar. & Div. § 703 ; Bouvier Law Dict. tit. Adultery; Train & Heard Preced. 22. And see Godol. Abr. 469, 476; Ayl. Parer. 43 ; The State v. Way, 6 Vt. 811. In Scotland, adultery is a statutory crime — “heinous, and in some cases capital ;’”” — but Hume, who wrote near the beginning of the present century, remarked that it ‘‘ has not, for many years, been the subject of a crim- inal prosecution.” 1 Hume Crim. Law, 2d ed. 449. An examination of the modern Scotch reports shows also an entire absence of cases relating to this offence. Hume says: “ Adultery, in our practice, is committed, alike, whether it be that a married man has knowledge of an unmarried woman, or that a married woman is known to an unmarried man. It is true, the civil- ians and foreign doctors have much 428 And hence disputed, and not without plausible grounds, whether such was the rule of the civil law, or the law of Moses. Neither can it be said, that the expres- sions of our statutes are of themselves decisive of the question either way; , and certainly it is not to be denied, that the more heinous mode of this offence is in the seduction of a married woman, which is so severe a blow at the hus- band’s peace, and the credit and wel- fare of his family. Yet our custom perhaps, on the whole, with a wiser policy and sounder judgment, though chiefly actuated of old by consideration of the sin and the peril to the souls of the parties, has always disowned any such distinction ; and in this article, as in that of divorce, has invested the spouses with equal privileges, pre- scribed to both one line of duty, and exposed them to the same hazards.” 1 Hume Crim. Law, 2d ed. 451. In Ers- kine’s Principles of the Law of Scot- land, 12th ed. p. 531, it is said: “‘ This crime [adultery] could, neither by the Roman law (1. 6§ 1, ad leg. Jul. de adult.), nor the Jewish (Lev. xx. 10; Deut. xxii. 22), be committed, but where the guilty woman was the wife of another. By ours, itis adultery if either the man or the woman be married.” Mackenzie says: “ Adulterium est vitiatio allerius thori, the violation of another’s bed, and is committed by a married person’s ly- ing with one unmarried, or an unmarried person lying with one who is married.” He, however, adds: “ By the civil law, when a man who was married did lie with a woman who was free, that was judged to be no adultery,” — a proposi- tion to which he does not assent as be- longing to the law of Scotland. Mac- kenzie Crim. Law, 1, 17, 1. CHAP. XXVIII. ] ADULTERY. § 658 we derive what is believed to be the better definition of the offence, that adultery is the voluntary sexual intercourse of a married person, with a person other than the husband or wife. § 657. Statutory Definings. — Partly to promote certainty in consequence of these differing views, and partly to establish a rule different from what the courts would otherwise hold, the statutes of some of the States in which adultery is a crime have made special provisions, more or less full, regarding these conflicting doctrines. Thus, in Massachusetts, “ when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery.’’2 And recently, in Pennsylvania, to settle a doubt which had arisen, the statute prohibiting and punishing adultery was revised to read as follows: “If any married man shall have carnal connection with ‘any woman not his lawful wife, or any married woman have carnal connection with any man not her lawful husband, he or she so offending shall be deemed guilty of adultery ; and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprison- ment not exceeding one year, or both, or either, at the discre- tion of the court.2 In Iowa, ‘‘ when the crime is committed between parties only one of whom is married, both are equally guilty of adultery, and shall be prosecuted accordingly.” 4 § 658. How in Principle. — Returning now to the law as it stands on the single statutory word “ adultery,” let us make some further inquiry into the principles by which the question should be decided. When a word like this is found in a stat- ute, we determine its meaning by referring, either, 1st, to the adjudged law on the subject; or, 2dly, to common usage; or, 3dly, to the legal reason of the thing; and we entertain doubt 11 Bishop Mar. & Div. § 703; Hel- frich v. Commonwealth, 9 Casey, 68. 2 BR. S. c. 180, § 1; Gen. Stats. c. 165, § 8; Commonwealth v. Reardon, 6 Cush. 78; Commonwealth v. Elwell, 2 Met. 190. 3 Act of March 31, 1860, § 38, Prud. Dig., 9th ed. 223. About the time when the statute was revised, the Penn- sylvania court settled the law in accord- ance withits terms. Helfrich v. Com- monwealth, 9 Casey, 68. In Georgia, to say to a white man, “Negroes have been with your wife, I can prove it,” thereby imputing sexual connection, is not actionable per se; as, under the code, the adultery of the woman is not punishable. McDonald, J., doubting. Castleberry v. Kelley, 26 Ga. 606. * The State v. Wilson, 22 Iowa, 364. 429 § 659 OFFENCES MORE PURELY STATUTORY. [BOOK v. only when there is a contrariety in the responses from these several sources, or when, there being no contrariety, the re- sponse from no one of them is clear and distinct. We do not look to the etymological construction of the word; because hearers and speakers of all language, alike, understand the words and phrases employed to be used in their actual com- binations and present meanings, not in other combinations or in ancient meanings, — as the painter understands himself, and is understood by others, to make his canvas impart to the eye of the beholder, the impression which comes from the re- flection of light as it actually falls on the combinations of colors there found, not on the original elements of his colors. § 659. Continued. — Consulting, then, these three several sources, we have the following results : — 1. The Adjudged Law. — Adultery, though not punishable by the common law of England in the common-law courts, is punishable by its unwritten law in the ecclesiastical courts. And one of the oldest and best of the writers on this subject, Godolphin, says: “ Adultery . . . is the inconstancy of mar- ried persons, or of persons whereof the one at least is under the conjugal vow.” 1! Further on he adds: “So, then, adul- terium, being quasi accessio ad alterius thorum, is the violation of another’s bed ; whence it is required that either both or one of the parties be under the matrimonial vow, for that conjugal circumstance, either in the male or female, is the causa sine qua non that the luxurious act falls under the notion of adul- tery, in distinction from acts of the same kind under other circumstances. For the law holds, that it may be committed in a threefold manner, either ex parte viri, vel femine, vel utri- usque ; always supposing that one or both are matrimonialized, and both living.”? To the same effect is the civil branch of that body of the English common law known as the ecclesi- astical law; for, in it, adultery is committed likewise in three ways; namely, by a married man having sexual intercourse with an unmarried woman, by a married woman having the same with an unmarried man, and by either having the like intercourse with a married person of the opposite sex, other 1 Godol. Abr. of the Ecclesiastical 2 Godol. Abr. 475. Laws, 469, tit. Adultery. 430 CHAP. XXVIII. ] ADULTERY. § 661 than such person’s husband or wife. The civil suit for crim- inal conversation could not, indeed, be practically maintained in the common-law tribunals, for an unlawful intercourse with the husband; because the wife could sue in those tribunals only when the husband joined her, and he would not join her in suing a woman with whom he had committed adultery, or, if he did, his participation in the act complained of, he being a principal plaintiff, would bar him on another ground. Yet even this suit was not termed a suit for adultery, as was the divorce suit; but a suit for criminal conversation. So that, looking to the adjudged law, we have a clear response, accord- ing with our definition. § 660. 2. Common Usage of the Language. — In common ac- ceptation, adultery is a word of somewhat broad meaning: sometimes it is even extended to designate the criminal act when neither of the parties is married. But it is more fre- quently and certainly more properly restricted to mean the same as stated in the last section; or, at least, to be applica- ble only when one of the parties is married, in which case, both are often spoken of as committing the offence. No man, in popular speech, ever called it fornication, as distinguished from adultery, for a married person, man or woman, to com- mit the unlawful act with an unmarried person. § 661. 3. The Legal Reason of the Thing. — From this source we receive the same response as from the others. It cannot be primarily deemed adultery in an unmarried person to com- mit this act with a married one, because the law must be un- derstood to extend its obligations particularly over those who have assumed the marital status. But no reason, existing in the law, can distinguish between the act as committed by the husband or by the wife, or between the act with a married or an unmarried particeps eriminis. Suppose, to test this statement, we inquire, whether the offence is not to be viewed by the law as one tending to the begetting of illegitimate children. It is not; because fornication tends as strongly as adultery to this result, while the legal distinction between it and adultery is plain and marked. Then, is it not to prevent a married man from having imposed upon him an illegitimate child as legiti- mate? Not at all; for, if it were, the crime would not arise 431 § 663 OFFENCES MORE PURELY STATUTORY. _ [BOOK VY, when the wife was past the age of childbearing, or was other- wise barren, or was already in pregnancy by her husband; but no one ever supposed that such a circumstance could fur- nish a defence to an indictment against her for adultery. § 662. Aiding at the Fact.— There is, however, a question of real difficulty upon this subject. It is, whether, by force of the common-law rule and the rule of reason whereby one present and lending the concurrence of his will to a criminal thing done by another becomes guilty as doer, the particeps criminis with an adulterer does not incur the statutory offence of adultery. We saw, in a previous chapter, that, where an English statute made it treason “if a man do violate the king’s companion, or the king’s eldest daughter unmarried, or the wife of the king’s eldest son and heir,’ the courts held the consenting woman to be guilty as well as the man, though the terms of the enactment included only the man. But the reader observes, that this offence was by the words creating it made the heaviest of all offences; and the law does recognize a distinction between aider and doer, where the shade of guilt is very light. We may therefore suppose, that, if the statute of a State makes fornication and adultery both punishable, the somewhat less guilty and unmarried particeps criminis in an act of adultery will be deemed to be within the penalty against fornication merely. Where also the offence of adultery itself is made a light one by statute, and fornication is not punish- able at all, the case may lie within reasons brought to view in the work on the Criminal Law,? and the unmarried particeps criminis altogether escape. But where the offence of adultery is heavily punished, especially where it is felony, and fornication is not punished, no rule of the law, which the author has ever seen developed in any book, can prevent the result from fall- ing, that the guilty participator must be punished together with the doer. If the other result is to be established, it must be as an anomalous one, or as one resting on a reason to be here- after unfolded ; or, perhaps, in some States, on the peculiar phraseology of the statute.’ § 663. Voluntary — Mistake of Person — Mistake of Status. — 1 Ante, § 594. 3 And see ante, § 145, 594; The 2 Crim. Law, 5th ed. I. § 657-659. State v. Brady, 9 Humph. 74. 432 CHAP. XXVIII.] ADULTERY. § 664 According to our definition, the carnal act, to constitute adul- tery, must be voluntary. If, therefore, it is so compelled by force, or committed through such mistake of the person, as brings the case within principles relating to these points dis- cussed some chapters back,! there is no offence.? How it would be, in those localities where the act in the man is adultery when he is single and the woman is married, if he honestly believed her to be unmarried also, is a question which has not probably received judicial determination.® But how this is in principle appears from some previous discussions ;+* and we shall presently consider the subject further. Where the parties accused have been married in form to each other, if the marriage is void in law, and known by them to be so,® it will not protect them from a charge of adultery, fornication, or incest.é § 664. Continued — Mistake of Facts — Carelessness — Assault on Foreign Minister.— In the examination of the points pre- sented in the last section, it is necessary to widen a little the range of our discussion. We saw, in another connection, that, within limits not easily defined, carelessness is criminal.’ A man may therefore be responsible, mistaking the facts, because he did not use proper caution, or make the necessary inquiry.® We have also seen, that, when a person intends to do one wrong, and accidentally does another which he did not intend to do, he is, in certain classes of cases, not all, answerable criminally for the wrong done; the intent to do the one being transferred in law to the other. Likewise we have seen, that in these cases the wrong intended need not always be indict- able, if the wrong done is so.? On these several principles there may be a criminal liability for acts performed under a 1 Ante, § 351 et seq. 7 Crim. Law, 5th ed. I. § 818 et 21 Bishop Mar. & Div. § 710. See seq. ante, § 357. § Rex v. Lediard, Say. 242; Har- 3 See Commonwealth v. Elwell, 2 wood’s Case, 1 Mod.79; Barnes v. The Met. 190; Delany v. People, 10 Mich. State, 19 Conn. 398; Sturges v. Mait- 241, 244. land, Anthon, 153; Commonwealth v. # Ante, § 359, 596, 632. Mash, 7 Met. 472, as to which query, ® See Crim. Law, 5th ed. I. § 803; and see 1 Alison Crim. Law, 535, 536, ante, § 357. 541, and McDonald’s Case, 1 Broun, § The State v. Fore, 1 Ire. 378. See 288. Crim Law, 5th ed. I. § 308, 304. The State v. Pearce, 2 Blackf. 318. 8 Vol. I. § 823 et seq.; ante, § 395, 632. 433 § 665 OFFENCES MORE PURELY STATUTORY. [BooK v. mistake of facts.1_ Thus, where one assaults a foreign minister in ignorance of his official character, it has been held that the graver offence is committed.2, The offender meant to violate the law, but in a less degree. Yet there may be doubt, whether this doctrine concerning an assault on a foreign minister would be correct if extended to all circumstances. Suppose a man does intend to do an act violative of the law, no good reason appears why he should be universally held criminal for the result, as respects facts he was ignorant of, more than if he had not intended an unlawful act; because this would be to apply one rule to the innocent, and another rule to the guilty. In accordance with this suggestion seems to be the decided law, as concerns some cases.’ But there is such a diversity of things of this general sort, that one rule could hardly in justice be applied to all. § 665. Continued. — If, therefore, a married man should have carnal intercourse with a woman whom he supposed to be his wife, while she was not, mistaking the person, he would commit no offence; because neither in law nor in morals did he intend any. Yet, if the man were unmarried, and on apparently good authority believed the woman to be unmarried also, while in truth she had a husband, would the act in him be adultery, or only fornication? This precise question has probably not been decided in this country. Baron Hume, a writer of great authority on the Scotch law, speaking of incest, says: “It is essential to the guilt of this, as of all other crimes, that the parties, at the time of offending, have been in the knowledge of that circumstance wherein the wrong lies; so that either of them, who was then ignorant of the relation (if such a thing should happen), shall be free of all punishment.” ® 1 Crim. Law, 5th ed. I. 827, note, officer. Commonwealth v. Kirby, 2 830; 1 East P. C. 102; Barnes v. The State, 19 Conn. 898. 2 United States v. Liddle, 2 Wash. C. C. 205; United States v. Ortega, 4 Wash. C. C. 531; United States »v. Benner, Bald. 234, 240. But see United States v. Hand, 2 Wash. C. C. 4385. An indictment for assaulting and obstruct- ing an officer should in substance allege, that the defendant knew he was an 434 Cush. 577. 2 Crim. Law, 5th ed. II. § 651. But see the doctrines discussed Ib. I. § 323 et seq. 4 1 Bishop Mar. & Div. § 710; ante, § 663. 5 In this connection the reader may consult what is said ante, § 357, and the accompanying sections. 61 Hume Crim. Law, 2d ed. 448. As to adultery, see ib. p. 453. CHAP. XXVIII. ] ADULTERY. § 667 Whether we should follow the Scotch law would depend on our views of the points presented in the last section. § 666. The Marriage — Divorce — Guilty Party marrying con- trary to Statute — Polygamy — Absent and not heard from. — To constitute the offence of adultery, there must be subsist- ing, as we have seen! a marriage. If, therefore, there has been a divorce of married parties, neither of them can, after the divorce, commit the crime of adultery. Even where the statute law of a State forbids a second marriage of the guilty party against whom the innocent one obtained the divorce, the tule remains the same; such guilty one does not commit polygamy by marrying again, but only an offence against the prohibiting statute; neither does he commit adultery by co- habiting under such second marriage, though the marriage is void.? So, since there can be no adultery where there is no marriage, if one of the married parties ‘has been absent and unheard of so long as to create the legal presumption of death, and the other, believing such party to be dead, contracts a: second marriage, the cohabitation under this second marriage is not punishable as adultery.? § 667. Attempts — Conspiracies, &c. — The subjects of soli- citations and other attempts, and conspiracies, to commit adultery, or to procure the commission of it by others, were sufficiently discussed in the work on the Criminal Law. 1 Ante, § 654, 655. 2 2Bishop Mar. & Div. § 700. See this section, and accompanying sec- tions, and the sections there referred to, for many views on this general sub- ject. In The State v. Weatherby, 43 Maine, 258, 268, 264, where it was held that a man whose wife has obtained a divorce from him for his fault, and who marries again contrary to a prohibiting statute, cannot be convicted of adultery for cohabiting under this second mar- riage, Rice, J. observed: “ Adultery, in this State, can only be committed by parties one of whom, at least, is mar- ried, and by parties who are not married to each other. To affirm that a person is married, and yet has no legal hus- band or wife, is manifestly a solecism ‘In the very nature of things, the mar- riage coutract under such circumstances cannot exist. There cannot be a hus- band without a wife, nor a wife without a husband. . . . There is no law of this State which declares, that such acts as have been proved against the defend- ant constitute the crime of adultery. Nor would those acts constitute that crime at the common law.” 53 Commonwealth v. Thompson, 6 Allen, 591. As to which case, see fur- ther Commonwealth vr. Thompson, 11 Allen, 23. And see ante, § 357. 4 Crim. Law, 5th ed. I. 501, 767, 768 ; II. § 184, 235; Reg. «. Pierson, 1 Salk. 382; The State v. Avery, 7 Conn. 266; Shannon v. Commonwealth, 2 Harris, Pa. 226. 435 : § 671 OFFENCES MORE PURELY STATUTORY. [BOoK Vv. § 668. Degree of the Offence. — Adultery, in Connecticut, is felony ;! in Pennsylvania? and Vermont,’ it is misdemeanor. The principles on which this distinction, arising under the statutes of the respective States, is, with its consequences, to be determined, are stated in the work on the Criminal Law.! Il. The Procedure. § 669. The Indictment : — General View. — We have seen,* that, according to the gen- eral form of the statutory laws on this subject, this offence is created by force of the one word “adultery.” It results, therefore, from principles already explained,’ that the struc- ture of the indictment, with most other things relating to the procedure, depends mainly upon general and common-law principles. § 670. Separate Indictments — Joint. — The parties, in a case of adultery, may be indicted separately,’ or, supposing the act to be in law adultery in both, together,’ at the election of the power which prosecutes. § 671. Form of Joint Indictment. — If the indictment is joint, it must show, in some way, that the defendants committed the offence with each other; because, if it is open to the inference that the acts were distinct and with third persons, it will be bad for duplicity.° Now, in Massachusetts, as we have seen,” if a married woman, and a man whether married or unmarried, but not the woman’s husband, commit the forbidden act to- gether, both are guilty of adultery. Then, in this condition of the law, a joint indictment against the two may run as follows : — That A, of, &c. [the man] and’B, of, &c. [the woman] on, &c. at, &c., not being then and there married to each other, but the said B then and there having a hus- 1 The State v. Avery, 7 Conn. 266; 7 The State v. Dingee, 17 Iowa, 232; Crim. Law, 5th ed. I. § 501 and note, The State v. Wilson, 22 Iowa, 364. 768. 8 The State v. Bartlett, 53 Maine, 2 Crim. Law, 5th ed. I. § 768. 446 ; Commonwealth v. Elwell, 2 Met. 3 The State v. Cooper, 16 Vt. 551. 190; Frost v. Commonwealth, 9 B. 4 Crim. Law, dth ed. I. § 614-625. Monr. 362. 5 Ante, § 655. 9 Maull v. The State, 37 Ala. 160. 5 Ante, § 368, 866, 381, 418. 10 Ante, § 657. 436 CHAP. XXVIII. ] ADULTERY. § 673 band living other than the said A, to wit, one C, did then and there have carnal knowledge together, each of the body of the other, and thereby committed adul- tery, against the peace, &c. and contrary, &c.t § 672. Form of Separate Indictment. — If the man is indicted separately from the woman, the following form, which was held to be good on a motion in arrest of judgment, will suit the views of some practitioners : — “That, &c., did commit the crime of adultery with one Catharine Ann Smith, then the lawful wife of Peter J. Smith, by then and there having carnal knowl- edge of the body of the said Catharine Ann Smith.” ? § 673. Allegation of Marriage — Not Husband and Wife. — We have seen,’ that, in indictments for polygamy, there is a differ- ence of opinion as to what must be set out in alleging the first marriage. But does the same rule, whatever it is, which properly governs the indictment for polygamy, necessarily govern the indictment for adultery? If we assume, that, in a polygamy case, the first marriage must be set out with time and place, and the maiden name of the woman, it does not, to the writer, seem to follow that the same thing would be required in a case of adultery. Not to advert to the fact that polygamy is a heavier offence in the law than adultery, it is in respect of the first marriage a thing of a different nature. In polygamy, the offence itself is a marriage in form, and to balance this an equal formality of marriage ought on the other hand to be shown. But the offence of adultery rests rather on a subsisting status of marriage, than on a marriage solemnization, it being a breach of the duty of one on whom the law has cast this status. At all events, no such formal setting out of the marriage is necessary in an adultery case. And though, in the first of the above forms, the writer intro- duced, under a videlicet, the name of the woman’s husband, even this is believed not to be, on the authorities, necessary, Thus, in one case, it was averred in the indictment that the particeps criminis was a married woman; but it was not added, either in words or effect, that the defendant was not her husband; and this was held to be inadequate. Shaw, 1 And see Commonwealth v. Elwell, 2 Commonwealth v. Reardon, 6 Cush. 2 Met. 190; Commonwealth v. Thomp- 78. son, 99 Mass. 444. 3 Ante, § 601, 602, 437 OFFENCES MORE PURELY STATUTORY. [Book Y. § 674 C. J. said: “An averment that one had committed the crime of adultery, without alleging how and in what manner, would be clearly insufficient. The purpose of an indictment is to allege and set forth those facts which constitute that crime; and, for that purpose, it must appear that the woman, with whom the illicit connection is alleged to have taken place, was not the wife of the accused. This is commonly done by alleg- ing, that, at the time, she was the wife of a person named, then living; but perhaps that is not necessary. Any form of words, stating that she was the wife of some person other than the accused, would be sufficient.”1 There may be some doubt in legal reason; but, on the whole, there seems to be no prin- ciple known to criminal pleading on which it becomes necessary to mention the,name of the third person in such a case as this; there are forms in the books in which the name is not men- tioned ;? and, assuming the indictment to be good without such name, it is prudent not to give it in a way requiring proof, since thus the danger of a variance is avoided. § 674. “ Adultery "— Carnal Knowledge. — It has been held, in Pennsylvania, not to be necessary to allege that the adultery was committed by having carnal knowledge, &c.; but an in- dictment is sufficient which charges that the defendant “ did commit adultery with a certain” person whom it names. Said Lowrie, C. J.: “In describing the offence in the indict- ment, no greater particularity has heretofore been required than is found here, and this ought to be enough to sustain this indictment. We do not 1 Moore v. Commonwealth, 6 Met. 243. 2 Train & Heard Preced. 23, 24; Whart. Preced. 2d ed. pl. 995 et seq. See, also, The State v. Hutchinson, 36 Maine, 261; The State v. Hinton, 6 Ala. 864; The State v. Clinch, 8 Iowa, 401. The following was, on motion in arrest of judgment, held to be good: That the defendant, Tompson, “ did, &c. with a certain woman whose name to said jurors is unknown, &c.; he the said Tompson being then and there a married man, and having then and there a lawful wife alive other than the said woman whose name to said jurors 438 think that more ought to be is unknown as aforesaid.” Common- wealth v. Tompson, 2 Cush. 551. 3 The form of indictment, which in this case was adjudged good, is as fol- lows :— “That Erasmus H. Helfrich, late of the county of Lehigh, yeoman, on the seven- teenth day of July, in the year of our Lord one thousand eight hundred and fifty-eight, in the county aforesaid, and within the jurisdiction of this court, then and there being a married man and having a wife in full life, to wit, Mary Ann Helfrich, did commit adultery with a certain Matilda Moyer, then late of the same county; con- trary to the form of the act of Assembly in such case made and provided, and against the peace and dignity of the Com- monwealth of Pennsylvania.” CHAP. XXVIII. ] ADULTERY. § 676 allowed [alleged], unless it might be in stating the place. ‘Commit adultery’ does not merely imply, but expresses, carnal knowledge; for that is its very meaning. Having carnal knowledge is but a euphemism of it.’’4 And this Pennsylvania doctrine appears to prevail also in Alabama, under a somewhat different form of statutory provision.? This method of stating the act, namely, by the words “ did commit adultery,” is not, even in Massachusetts, held wrong, otherwise than is implied by an invariable course of practice; and, on principle, it is no more loose than some other things which are everywhere allowed. Still it is a needless blending of law and fact in a single form of words. We have seen,* that, in seduction cases, if the words of the statute are, for example, “seduce and have illicit connection with,” the same words in the indictment are adequate without more. But the words employed in those statutes are more purely expressive of fact, and less compounded with ideas of the law, in their meaning, than the word “ adultery.” § 675, Allegation of Knowledge. —— Whatever may be the true view of the law'as to a mistake in the person, or condition of the person, with whom the act is committed,® it is not neces- sary to allege, or prove in the first instance, that the defendant knew the status of such person. Matter like this, if available, is only so when shown by the defendant in his defence.® § 676. Then and There. — Where the indictment was, that the defendant, at a place and on a day named, committed adultery “ with one H, the wife of one F, she, the said E, being a married woman and the lawful wife of the said F;” this was held to be insufficient; because, “to the fact that she was a married woman and the wife of another, no time is averred.”7 There aré various analogies which, not intending to call in question the correctness of this decision, lead the writer to believe that some courts, especially under the guidance of statutes prevail- 1 Helfrich v. Commonwealth, 9 Casey, 4 Ante, § 645-647. 68, 70, 71. 5 Ante, § 663-665. 2 The State v. Hinton, 6 Ala. 864; § Commonwealth v. Elwell, 2 Met. Lawson v. The State, 20 Ala. 65; 190; ante, § 357, 358. Maull v. The State, 37 Ala. 160. 7 The State v. Thurstin, 35 Maine, 3 Crim. Proced. 2d ed. I. § 829--384, 205. 514. 439 § 678 OFFENCES MORE PURELY STATUTORY. [BOOK v. ing in some of our States, would hold this form of the allega- tion to be adequate. § 677. The Evidence : — General Views — Compared with Divorce Cases. — The two facts to be proved in these cases are the marriage and the adultery. In the author’s work on the law of Marriage and Divorce, the evidence by which the fact of marriage,! aud the fact of adultery,? are to be established, was considered in full. As to the fact of marriage, which must be proved as a part of the evidence of adultery, the discussion there is complete in its application to the present issue.? Besides, in the chapter on polygamy, in the present volume, various points were brought forward, applicable as well to this offence as to that.* In another connection we saw,® that, as a general ‘proposition, the evidence in civil and criminal cases is the same; the result whereof would seem to be, that the discussion concerning the proof of adultery in divorce causes applies equally to the issue presented by an indictment for the criminal offence. This, however, which we may think ought in just principle to be so, is practically not quite so in fact. § 678. Comparison with Divorce Cases, continued. — The Eng- lish ecclesiastical judges, through whom our divorce law has been principally transmitted to us, were perhaps men of greater breadth of judicial understanding than the average of those who preside at our criminal trials. Perhaps also there isa tendency in those tribunals in which the evidence is passed upon by the judge, to permit a wider scope to the witnesses than is given them where the evidence is delivered to a jury. And, perhaps, in spite of theory, all judges will hold the reins of the evidence more tight in criminal than in civil matters, and in matters quasi civil. At all events, if the real purpbse of admitting and excluding testimony is to help the jury to arrive at the truth, there is growing up in our country, in criminal cases for adultery, a series of wide departures from the better rules which exist in the ecclesiastical divorce law. 1 1 Bishop Mar. & Div. § 408-545. wealth v. Belgard, 5 Gray, 95; The 2 2 Bishop Mar. & Div. § 612-647. State v. Libby, 44 Maine, 469, 479. 3 1 Bishop Mar. & Div. § 441,442, 4 Ante, § 607-611. 485, 490-502. And see Common- 5 Crim. Proced. 2d ed. I. § 1047. 440 CHAP. XXVIII. | ADULTERY. § 680 § 679. Continued — Other like Acts — Intent and Opportu- nity. — For example, it is an established principle in the crim- inal law, that, when a defendant is on trial for one crime, the jury shall not be prejudiced by having another proved against him, unless the proof of the latter has some direct tendency to aid in the proof of the former. But if it has this direct tendency, it is admissible! Now, according to the doctrine prevailing in divorce causes, the fact that a party committed adultery, or took improper liberties, with the alleged particeps criminis on one occasion, does directly tend to prove adultery on another occasion, when the opportunity is shown to have existed. And in some circumstances, proof of an adulterous intent, as appearing in improper or unlawful familiarities with still other persons, is relevant, and therefore admissible. The case is like the familiar one in which, in the criminal law, a man’s intent in passing a piece of counterfeit money is made to appear by proof of his having passed or offered to pass other counterfeit money at other times.? If a man is shown to have the intent to commit adultery, and then he is shown to have the opportunity, the presumption is more or less strong that he commits it; while evidence of the opportunity alone, without the intent, would go but a little way in this direction.? So it is held in divorce law; and so, on principle, it should be on an indictment for adultery. § 680. Adulterous Intent — Other like Acts, continued. — And in accordance with this doctrine it has indeed been decided, that, when an act of adultery is attempted to be proved as committed at a particular time, acts of improper familiarity with the same particeps criminis at an anterior time are ad- missible.* But strangely enough the Massachusetts court further held, on an indictment for adultery, that, if the ante- rior familiarities extend so far or are of such character as to show adultery actually committed on this previous occasion, 1 Crim. Proced. 2d ed. I. § 1064— wealth v. Pierce, 11 Gray, 447; The 1067. State v. Marvin, 835 N.H. 22; Common- 2 Tb. I. § 1066. wealth v. Lahey, 14 Gray, 91; McLeod 3 And see 2 Bishop Mar. & Div. v. The State, 35 Ala. 395; People v. § 619. Jenness, 5 Mich. 805, 820; Common- * 2Greenl. Ev. § 47; Commonwealth wealth v. Morris, 1 Cush. 891; Com- v. Durfee, 100 Mass. 146; Common- monwealth v. Merriam, 14 Pick. 518. 29 441 § 682 OFFENCES MORE PURELY STATUTORY. [BOOK v. the evidence of them — that is, of the previous adultery — is not admissible:! according to which doctrine, if the evidence is a little weak, yet tending remotely to establish the crime, it may be submitted to the jury; but, if it is a little stronger and tends more clearly to the same result, it must be ex- cluded ! § 681. Continued.— If the familiarities took place subse- quently to the time when the adultery is attempted to be proved, they do not perhaps tend so strongly to the establish- ment of the crime as they do when they took place before. And it is at least an open question in matter of authority,? pos- sibly it may be even so also in principle, whether they should be admitted in evidence, since the adulterous mind may have come to the accused party subsequently to the time to which the accusation relates.2 And in Massachusetts, where the proof showed actual adultery committed at a subsequent time and in another county, it was held not to be admissible; because, in the language of Merrick, J. speaking for the majority of the court, “‘ it tended to prove the commission of an offence, simi- lar to that charged in the indictment, but still wholly distinct from it, both in time and place; and was, therefore, in no way pertinent to the matter in issue.” # § 682. Continued. — Since the last two sections were ‘pub- lished, in the first edition of the author’s work on Criminal Procedure, the Massachusetts court, in a divorce case, over- ruled the doctrines to which objection is there made; and the language of the court leaves it clear, that the new and better doctrine would be followed likewise in a criminal cause. In 1 Commonwealth v. Thrasher, 11 Gray, 450. A statute in Indiana pro- vides, that, if a wife shall have left her husband, and shall be living, at the time of his death, in adultery, she shall take no part of his estate. And under this statute the fact that the crime was once committed, under circumstances showing a deep degree of abandon- ment, may, it has been held, be sub- mitted to the jury with the other cir- cumstances of the case, to enable them to determine as to her course of life at the time of her husband’s death. Gay- lor v. McHenry, 15 Ind. 383. 442 2 Commonwealth v. Pierce, 11 Gray, 447. In Indiana, on an indictment con- taining a single charge of incest, which was proved in time and place as laid, it was held that the particeps criminis, who had testified to this, could not then pro- ceed to strengthen the case by testify- ing also to incest committed between the same parties at subsequent times. Lovell v. The State, 12 Ind. 18. 3 2 Bishop Mar. & Div. § 625. + Commonwealth v. Horton, 2 Gray, 304, 355. CHAP. XXVIII. | ADULTERY. § 682 the case thus referred to, it was held, that actual adultery, committed by the accused parties out of the Commonwealth subsequently to the bringing of the suit, might be shown in aid of other testimony tending to establish the anterior adultery, charged in the libel, within the Commonwealth. The learned judge, who spoke for the whole court, after referring to the leading cases in support of the doctrines objected to in the last two sections,! observed: “ In the opinion of the court, there is in each case a plain misapplication of the rules of evidence to the facts presented. The evidence by which the act of adultery is proved is seldom direct. The natural secrecy of the act makes it ordinarily impossible to prove it, except by circumstantial evidence. The circumstances must be such, indeed, as‘ to lead the guarded discretion of a reasonable and just man to the conclusion of guilt.? But when adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, with comparatively slight ‘circum- stances showing guilt, will be sufficient to justify the inference that criminal intercourse has actually taken place. The intent and disposition of the parties towards each other must give character to their relations, and can only be ascertained, as all moral qualities are, from the acts and declarations of the parties. It is true, that the fact to be proved is the existence of a criminal disposition at the time of the act charged; but the indications by which it is proved may extend, and ordina- rily do extend, over a period of time both anterior and subse- quent to it. The rules which govern, human conduct, and which are known to common observation and experience, are to be applied in these cases, as in all other investigations of fact. An adulterous disposition existing in two persons to- wards each other is commonly of gradual development; it must have some duration, and does not suddenly subside. When once shown to exist, a strong inference arises that it has had and will have continuance, the duration and extent of which may be usually measured by the power which it exer- cises over the conduct of the parties. It is this character of permanency which justifies the inference of its existence, at 1 Commonwealth v. Horton, 2 Gray, 854; and Commonwealth v. Thrasher, 11 Gray, 450. 443 § 683 OFFENCES MORE PURELY STATUTORY. [BOOK v. any particular point of time, from facts illustrating the pre- ceding or subsequent relations of the parties. The rule is, that a condition once proved is presumed to have been pro- duced by causes operating in the usual way, and to have con- tinuance till the contrary be shown. The limit, practically, to the evidence under consideration, is, that it must be suffi- ciently significant in character, and sufficiently near in point of time, to have a tendency ‘to lead the guarded discretion of a reasonable and just man’ to a belief in the existence of this important element in the fact to be proved. If too remote or insignificant, it will be rejected, in the discretion of the judge who tries the case. The fact that the conduct relied on has occurred since the filing of the libel does not exclude it; and proof of the continuance of the same questionable relations during the intervening time, as in the case at bar, will add to its weight.” ? § 683. Continued. — It is encouraging to note, that, at last, a common-law court has been induced to recognize those better doctrines which have long been seen and followed by those able English judges whose special duties have rendered them famil- iar with this subject, in divorce causes. Let us see whether our common-law courts cannot be further impressed with the like wisdom from the same source. In divorce causes, it may be observed, those judges who are particularly acquainted with the subject deem it to be of the highest importance to show, against the party accused, such facts and circumstances as point to the offence, and render its commission probable; and, where these were wanting, they have even refused to grant the divorce though the very fact was testified to by persons who professed to be eye-witnesses.? Now, this is a doctrine sound in human nature, and worthy to be followed by every court and jury sitting in a cause of this kind, whether civil or crimi- nal. It was, therefore, further observed in the author’s work on the law of Marriage and Divorce, that “every act of adul- tery implies three things: first, the opportunity ; secondly, the disposition in the mind of the adulterer; thirdly, the same in 1 Thayer v. Thayer, 101 Mass.111, 22 Bishop Mar. & Div. § 617, 118, 114, opinion by Colt, J. And see 618. Carotti v. The State, 42 Missis. 384. 444 CHAP. XXVIII. ] ADULTERY. § 685 the mind of the particeps criminis. And the proposition is substantially true, that, wherever these three are found to con- cur, the criminal fact is committed. This proposition, how- ever, should in reason be qualified thus: if these three things do concur, still the parties may not know the state of each other’s minds on the subject, or they may be restrained by fear, or they may be under some temporary incapacity, or tem- porary absence of desire. And plainly wherever they do not concur, the offence is not committed. The proof of their con- currence may lie in detached testimony, no one witness being able to establish more than a single one or two of the links in the chain, or it may come in any other form.” ! It is not pro- posed to draw out here all the consequences of these proposi- tions, but a single one may be noted. § 684. Continued. — Thus, while evidence of antecedent or even subsequent adulterous conduct between the defendant and the particular particeps criminis accused is pertinent, it is also relevant, though somewhat less convincing, to show the like conduct of the defendant toward still another person ; at least, if it has gone so far as to constitute an actual attempt, whether successful or not, to commit the offence.2 This doctrine is as applicable in a criminal case as in a divorce cause. Such evi- dence shows that the defendant had no principle restraining him from the act, but had the adulterous intent, which awaited only an opportunity. But it is not best to follow these doctrines further here; they will be found, in detail, in the author’s work on Marriage and Divorce. It is, in these criminal cases, let us add, held, in accordance with the doctrines prevailing in divorce law, that, if familiarities indicating adultery are proved against a male defendant, evidence is then admissible that the alleged female particeps criminis bears the general reputation of being an unchaste woman.’ § 685. Time and Place. — In divorce law, it is not necessary to prove at what particular time and place the adulterous act occurred ; though the judge or jury must be satisfied that it did occur at some time and some place. Of course, in crimi- 12 Bishop Mar. & Div. § 619. 3 Blackman v. The State, 86 Ala. 2 2 Ib. § 625. 295. 4 2 Bishop Mar. & Div. § 613. 445 § 686 OFFENCES MORE PURELY STATUTORY. [BooK vy. nal cases, the place must be shown to have been within the county in which the indictment was found.1 But whether in other respects the same rule applies in criminal as in divorce cases it is perhaps not so easy to state on authority. In one case, ‘‘ the defendants requested the court to instruct the jury, that, as the indictment charged a single act of adultery, as committed on a particular day, they must be satisfied that the defendants committed the crime on some particular day or occasion; and that it would not be sufficient for them to be satisfied, from the admissions of the parties, that they com- mitted the crime at some time, without being able in any way to designate that time.” This instruction the court declined to give; but told the jury, “that, if the evidence satisfied them beyond a reasonable doubt that the crime was committed at any time while the defendants were so living together, they might be convicted, though the particular time or occasion could not be ascertained more definitely.” And this was held to be correct.2 It is probably never required, in the criminal law, that the jury should be satisfied of the precise day when an alleged crime was committed, any more than of the precise hour, or the precise minute. And if the precise minute must be shown,‘then there could be no proof of any crime which the witness did not actually see perpetrated. § 686. Confessions. — For reasons peculiar to the law of divorce, this remedy cannot be granted to the plaintiff on the strength of the mere unaided confessions of the defendant. But on the trial of an indictment, these reasons do not pre- vail; and, as a general proposition, subject undoubtedly to exceptions, the defendant may be convicted of the crime of adultery on his own confessions,’ and particularly so when - they are corroborated by circumstances.‘ Still, if the man and woman are jointly indicted, in a single count, for one act of adultery, both cannot be convicted on the confession of one to an act committed at a particular time, and the confession of 1 Crim. Proced. 2d ed. I. § 884, Lawson v. The State, 20 Ala. 65 ; Frost 385. v. Commonwealth, 9 B. Monr. 362. 2 Commonwealth v. Cobb, 14 Gray, £ Commonwealth v. Tarr, 4 Allen, 57. 815. And see Bergen v. People, 17 Ill. 3 The State v. Libby, 44 Maine, 469; 426. 446 CHAP. XXVIII. ] ADULTERY. § 688 the other to an act committed at a different time.! And, when the indictment is thus joint, the jury should be expressly instructed that the confession of one is not to be accepted by them as evidence against the other.? § 687. Continued — Marriage. — These criminal cases for adultery belong to the class in which what is sometimes called a fact of marriage, in distinction from cohabitation and repute, must be proved.? Under the statutes of some of our States, and by the rulings of the courts without the aid of a statute in others, evidence of confessions may be received to establish even this fact of marriage.t But where such a confession is admissible, it must be that of the particular defendant. Therefore, if a man and woman are indicted to- gether for adultery, she being alleged to be the wife of another man, her confession of the marriage is good against her; but, supposing it to have been made in the absence of the defendant, it is not admissible against him.5 Other points relating to the proof of the marriage were brought to view under the title Polygamy,® and the whole subject is fully discussed in the author’s work on the law of Marriage and Divorce. § 688. Wife — Husband. — A wife, in these cases as in most others,’ is incompetent to testify as a witness against her hus- band.’ It has, therefore, even been held, that she cannot so much as prefer a complaint on oath before a magistrate for his arrest for this offence. In Iowa, however, by a statute, complaint must be made by the wife, and the husband cannot be prosecuted otherwise. Still, under this statute, if the prosecution is commenced by the wife, it may then be carried on without her presence or consent." She need not go before the grand jury.” If several persons are indicted for a con- 1 Commonwealth v. Cobb, 14 Gray, 7 Crim. Proced. 2d ed. I. § 1019; II. 57. § 69, 649. 2 Lawson v. The State, 20 Ala. 65; 8 The State v. Armstrong, 4 Minn. Frost v. Commonwealth, supra. 835. 3 1 Bishop Mar. & Div. § 442, 482 et 9 The State v. Berlin, 42 Misso. 572; seq. Commonwealth v. Jailer, 1 Grant, Pa. 41 Ib. § 497-502, 544, 545; ante, 218. See Crim. Proced. 2ded.I. § 230- § 609. 232. 5 Commonwealth v. Thompson, 99 1° Crim. Proced. 2ded. I. § 232; The Mass. 444. State v. Wilson, 22 Iowa, 264. 6 Ante, § 607-618. M The State v. Baldy, 17 Iowa, 39. 22 The State v. Dingee, 17 Iowa, 282. 447 § 691 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. spiracy to charge the wife of one of them with adultery, this wife cannot be a witness in the case.? § 689. Jury to judge of Facts. — In these cases, as in others, though the court receives or rejects the evidence offered, the jury are to pass upon the result of it when admitted. Thus» when, on a trial for fornication, the judge charged the jury, that, if they believed the parties were found on a bed together, that the room-door was closed, that there was no one else present, that the woman was a prostitute, and that the de- fendant was in the habit of visiting her, they were bound to find him guilty of the crime, this was held to be wrong ; for, though the evidence was thus conclusive as a question of fact, yet, as a question of law, it was for the jury, not the court, to draw the inference? § 690. Marriage not proved. — Where, by law, fornication is ind ctable, the defendant may be convicted of it, on an indict- ment for adultery, if the marriage is not proved.? In order to justify the conviction for fornication, however, the indict- ment, omitting the allegation of marriage, must contain suffi- cient of averment to charge fornication.* CHAPTER XXIX. FORNICATION. § 691. General View. — A single act of fornication, like a single act of adultery,’ is not indictable at the common law. In some of our States it is made indictable by statutes ;7 and, where it is, there may be, as already observed,’ a conviction of this offence on an indictment for adultery, as well as on 1 The State v. Burlingham, 15 Maine, 5 Ante, § 654. 104. 6 The State v. Rahl, 38 Texas, 76. 2 Ellis v. The State, 20 Ga. 438. 7 See The State v. Way, 6 Vt. 311; 3 The State v. Cowell, 4 Ire. 281; The State v. Cox, 2 Taylor, 165 ; Com- Crim. Law, 5th ed. I. § 795; post, monwealth v. Jones, 2 Grat. 555. § 691. 8 Ante, § 690. 4 Post, § 692; Commonwealth v. 9 Respublica v. Roberts, 2 Dall. 124, Murphy, 2 Allen, 163. 1 Yeates, 6; The State v. Cowell, 4 Ire. 448 CHAP. XXIX. | FORNICATION. § 693 the indictment for fornication only. It differs from adultery in being constituted without the element of a marriage. § 692. Form of Indictment. — It is plain that, as a general rule, the parties to this offence, the same as to adultery,’ may be indicted either separately or together at the election of the pleader.? And, unless there is some peculiarity in the statute, the indictment for fornication differs from that for adultery simply in omitting to charge a marriage. Yet an indictment for fornication, it has been held, though it need not aver a marriage, as is required in the indictment for adultery,? must allege that the parties were not married to each other; be- cause, without this allegation, no offence appears. Upon this view of the law, the following form is drawn: — “That C. D., late of, &c. on, &e. at, &c., did commit the crime of fornication with one J. N., by then and there having carnal knowledge of the body of the said J. N., the said C. D. being then and there a single and unmarried man, and the said J. N. being then and there a single and unmarried woman, and the said C. D. and J. N. not being then and there lawfully married to each other, against,” &e5 § 693. Continued. — Such is the doctrine in Massachusetts ; but, in considering it, we should bear in mind the words of the statute, which are, “if a man commits fornication with a single woman, each of them shall be punished,” &c.6 Now, in this instance, the indictment, in order so to conform to the statute as to show an affirmative offence,’ must contain, in some form, the sort of negative averment that the parties were not married to each other; or, exactly, that the female was, in the language of the statute, “a single woman.” And the manner of the averment, in the foregoing form, is well enough. But, where the statute does not contain this clause, or any other of the like import, and the indictment employs the statutory term “fornication,” together with the other appro- ‘priate allegations, it is believed that, on general principles, 231; The State v. Hinton, 6 Ala. 864; 4 Commonwealth v. Murphy, 2 Allen, Crim. Law, 5th ed. I.§ 795. Otherwise 163. now in Alabama. Smitherman v. The 5 Train & Heard Preced. 233. State, 27 Ala. 23. 6 Mass. Gen. Stats. c.165,§ 8. The 1 Ante, § 670. language of the Revised Statutes was 2 The State v. Cox, 2 Taylor, the same. R. S.c. 180, § 5. 165. 7 Crim. Proced. 2d ed. I. § 614, 687; 3 Ante, § 671-673. ante, § 378 et seq. 449 § 694 OFFENCES MORE PURELY STATUTORY. [BOOK V. and according to the practice of most courts, there is no need to aver that the parties were not married to each other. The rule of certainty required in dilatory pleas — namely, “to a certain intent in every particular’ — would doubtless demand this averment; but, in indictments, no greater certainty is necessary than will show a prima facie case, and the prosecu- tor, it is believed, is not required to prove, therefore in the absence of particular statutory words he should not be called upon to allege, that the parties are not married. A marriage would seem to be in its nature matter of defence, while it is matter lying peculiarly within the knowledge of the defendant.? The author is not able to refer to any case in which this ques- tion has been discussed; but a book of Indiana practice, written by a competent lawyer and judge, omits the allegation in an indictment for open and notorious fornication ;* and a book of forms prepared by a Pennsylvania lawyer, who ought to know what is required by the courts of his own State, has the following for fornication and bastardy : — “That A. B., late, &c. on, &e. at, &c. and within the jurisdiction of this court, did commit fornication with a certain C. D., anda male bastard child on the body of her the said C. D. then and there did beget, contrary, &c., and against,” &e.4 § 694. Conclusion. — This offence, at other points, is so analogous to adultery, that no further separate discussion of it is required. In the last chapter, therefore, and in the chapter next following, various things helpful to those who are con- sidering this offence are brought to view. 1 Crim. Proced. 2d ed. I. § 324- tion need not negative a marriage; 828. The State v. Gooch, 7 Blackf. 468 ; and 2 See, as illustrating this proposition, it is believed that, in principle, there is ante, § 358, 485-488. no difference between that case and 3 Bicknell Crim. Pr. 448. Itisheld, this. Post, § 700. in this State, that an indictment for 4 Whart. Preced. 2d ed. No. 1008. living in open and notorious fornica- 450 CHAP. XXX.] LIVING IN ADULTERY OR FORNICATION. § 697 CHAPTER XXX. LIVING IN ADULTERY OR FORNICATION. 695, 696. Introduction. 697, 698. Law of the Offence. 699-709. The Procedure. § 695. General View. —If the subject of the last chapter was closely connected with the one next before it and with this one, s6 this is closely connected with the last two and with the one next following. We have, in our States, statutes in various forms making punishable, not a single act of private adultery or fornication, but a series of acts, more or less continuous, and more or less open, and more or less offensive to the public sense of decency, according to the special terms of the partic- ular statute. And, though it was deemed best to divide the discussion of these things into two chapters, there is no exact and certain line distinguishing what is for this chapter from what is to be considered in the next. § 696. Order of the Chapter.— We shall consider, I. The Law of the Offence ; II. The Procedure. I. The Law of the Offence. § 697. Living in Adultery, &e. — The statutes of the different States vary considerably in their terms; therefore the practi- tioner must look specially into the particular words of the enact- ment in his own State. A “living in adultery” is not constituted by a single act of unlawful commerce; ! and it is the same with the words “living together” in adultery or fornication. Even if the one act is had in pursuance of a previous agreement between the parties, this does not make it a “living together in adultery or fornication”? by them.? Something more, therefore, than mere occasional private inter- course is required; there must be a notoriety to the conduct of the parties, or they must live or lodge, at times at least, 1 McLeland v. The State, 25 Ga. 477. 2 Smith v. The State, 39 Ala. 554. 451 § 699 OFFENCES MORE PURELY STATUTORY. [BOOK V. under the same roof, or something must be done of the sort.? But it has been held, that a married man who visits and remains with a lewd woman one night in every week for seven months, at her residence half a mile from his own, commits this offence, though he does not otherwise abandon his own home ;? also, that there is no legal impossibility of the com- plete crime being committed in a single day.’ It was, there- fore, deemed, in one case, not to be necessary, “that,” in the words of Phelan, J. “the guilty parties should live together in the same house or continually, as man and wife. Any habitual illicit intercourse between them, though living apart, will constitute the offence. How long such habitual illicit intercourse must be continued is not settled.” Each case, it was considered, must depend on its own special facts.* § 698. Open and Notorious Living, &e. — By a statute in Indiana, “every person who shall live in open and notorious adultery or fornication shall be fined,” &c.; and it was held, that, to constitute such open and notorious acts, there must be a living together, as it was called, in distinction from occasional instances of incontinence.® Il. The Procedure. § 699. The Indictment : — General View — Follow Statute.— There are no special diff- culties as to the form of the indictment under these statutes. But, as the statutes differ in their terms, the pleader should be particularly careful to note the exact language of the provi- sion on which he is proceeding, and follow it, at least, suff- ciently to prevent a variance. Thus, in Arkansas, the statute being, “if any man and woman shall live together, as hus- band and wife, without being married,’ &c.; an indictment, alleging that the defendant unlawfully and wickedly did bed and live with a person named, was held to be defective in not charging a living together as husband and wife without being married.® ; 1 Wright v. The State, 8 Blackf. 385; ® The State v. Glaze, 9 Ala. 283. Searls v. People, 13 Ill. 597; Collins v. 4 Smith v. The State, supra. The State, 14 Ala. 608. 5 The State v. Gartrell, 14 Ind. 280. 2 Collins v. The State, 14 Ala. 608. ® Crouse v. The State, 16 Ark. 566. 452 CHAP. XXX.] LIVING IN ADULTERY OR FORNICATION. § 701 § 700. Indiana — (Ohio, in the Note). — The statute of this State has already been given.! It provides both for fornica- tion and for adultery. “It is held,” says Bicknell,? “ that an indictment against an unmarried man, for living in open and notorious fornication with a woman, need not aver that she is unmarried; although, if the proof should show her to have been married at the time, the prosecution would fail, on the ground that the crime would be adultery and not fornica- tion.”8 And he furnishes the following form of the indict- ment on the clause which makes the act fornication : — “That A. B., on, &c., at, &c., and from that day until the day of zi in said county, unlawfully lived in open and notorious fornication together with one C. D., a woman, contrary,” &c.* On the adultery clause his form of the indictment is as fol- lows : — “That A. B. on, &c., at, &c., and from that day continuously until the day of ,in the year , at said county, unlawfully lived in open and notorious adultery together with one C. D.,a woman who was then and there, and during all the said time, the wife of one E. D., who was then and there living, contrary,” &c. § 701. Disjunctive Allegation — “Or” — “And” — Duplicity. —On a statute like this,> employing the words “ adultery or fornication” (the Alabama provision is so also, and so are those of some of the other States); it is not permissible to allege that the parties lived together in “adultery or fornication.”’® Neither, it is believed, would it do to say “‘ adultery and fornication ;”’ for then the count would be incongruous,’ likewise it would be double. 1 Ante, § 698. 2 Bicknell Crim. Pr. 446, 447. 3 The State v. Gooch, 7 Blackf. 468 ; post, § 701. And see, ante, § 693. 4 On the question whether the allega- tion should negative a marriage, the reader will compare this form with the form and discussion, ante, § 692, 693. In Ohio, the statute is different; and, according to the doctrine laid down in the discussion thus referred to, the indictment should negative the mar- riage. It is: “If any unmarried per- sons shall live and cohabit together, in a state of fornication, such persons, so Therefore, on this form of the provision, the Indiana offending, shall .each, on conviction thereof, be,” &c. And the following is the form given in Warren’s Criminal Law (8d ed. p. 607, 617, 618): — “That A.B. and C. D., on, &c., and from that time until the, &c., at, &c. (the said A. B. being then and there an unmar- ried man, and the said C. D. being then and there an unmarried woman), unlawfully did live and cohabit together in a state of fornication,” &c. 5 See Crim. Proced. 2d ed. I. § 434- 446, 484, 588-592; II. § 488-440, 646. 6 Maull v. The State, 37 Ala. 160. T Ante, § 526. 453 § 703 OFFENCES MORE PURELY STATUTORY. [BOOK v. pleader has wisely chosen to draw separate indictments on the two clauses of the one provision. Doubtless, however, the two forms of the charge could be included in one indictment, in distinct counts. Indeed, the broad doctrine is maintained, about which, however, there may be some doubt in matter of principle, that adultery and fornication under a statute in this form are so distinct as to render it impossible there should be a conviction for the one on an indictment for the other To the writer it would seem better to hold, that, if the indictment charges a marriage, and this is not proved, there may be a con- viction for living in fornication ;? and, on the other hand, if it is ‘silent as to the marriage, this is a waiver of any claim by the prosecuting power to take advantage of such a fact, and the defendants cannot be permitted to escape by showing a marriage.? The latter point, however, is less clear in principle and in authority than the former. § 702. “Together.” — The word “together”? must in some way be covered by the allegation. Thus, where the charge was, that the defendants “ did live in a state of adultery,” &c., it was held to be insufficient ; because, as observed by A. J. Walker, C. J. the wrongful things done “do not appear from the indictment to have been perpetrated by any joint act; but, for aught disclosed, may have been altogether distinct, neither defendant participating in the criminal act of the other.’ 4 § 703. Continuando. — Again, while this offence is properly laid with a continuando if the pleader chooses, and is indeed one in which this form of the allegation is particularly appro- priate,®> the Alabama court has held, no doubt correctly, that it need not be. .‘¢ Our statute,” said the learned judge, “ uses the terms ‘ who shall live together in adultery,’ but we see no 1 Thus, in Alabama, “the statute,’ is a fatal variance between the offence it was observed, “has disjoined the offences of adultery and fornication, by declaring, that, ‘if any man and wo- man livetogether in adultery or forni- cation,’ &c.”’ And the court held, that, under this statute, on an indictment for adultery, containing but a single count, no conviction can be had if the evi- dence shows both the parties to have been unmarried. ‘In such case, there 454 charged [‘adultery’], and that proved [‘ fornication ’].””. Smitherman v. The State, 27 Ala. 28. And see ante, § 700. 2 Ante, § 691. 3 Ante, § 485 et seq. * Maull v. The State, 37 Ala. 160, 161. And see post, § 720, 721. 5 Crim. Proced. 2d ed. I. § 892-395 ; II. § 108, 866. CHAP. XXX.] LIVING IN ADULTERY OR FORNICATION. § 706 reason to suppose they [the parties] could avoid a conviction for this specific offence, if the connection had only existed for one day. The living together in this condition is a question of fact for the jury.” } § 704. North Carolina Statute and Form. — A provision in North Carolina is in the following words: “If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed, and cohabit together, they shall be deemed guilty of a misdemeanor.” And the following indictment was held, on motion in arrest of judgment, to be good : — “That George M. Lyerly (a male), late of said county of Rowan, and Jane May (a female), late of said county of Rowan, on the first day of January, in the year of our Lord eighteen hundred and fifty-nine, and on divers other days and times, both before and after that day, with force and arms, in the said county, unlawfully did bed and cohabit together without being lawfully married ; and then, and on said other days and times, and there, did commit fornication and adultery ; against the form of the statute in such case made and provided, and against the peace and dignity of the State.” ? § 705. Views of this Form — Sex — “Live together,” &c. — Alabama Form. — This form contains more than is strictly necessary. Thus, there is no occasion to mention the sex of the parties; although, of course, if they were not of opposite sex they could not commit the crime. So it was held in Ala- bama, where the allegation, “ that Daniel McLeod and Delany Waters, alias Lany Waters, did live together in a state of adultery and fornication,” was adjudged to be sufficient.2 Yet where, as in North Carolina, the statute uses the expression “man and woman,” the pleader who wishes to be nicely exact will introduce the same words or their equivalent into the indictment, though he may not deem them to be strictly necessary. § 706. “ Live together,” continued. — According to the Alabama doctrine, therefore, it is sufficient for the indictment simply to charge, that the defendants, who appear to be a man and a woman, “ did live together in fornication.” Taking into the 1 The State v. Glaze, 9 Ala. 283, 158. See, for a form under the Ala- opinion by Goldthwaite, J. And see bama statute, Lawson v. The State, 20 ante, § 697. Ala. 65. 2 The State v. Lyerly, 7 Jones, N. C. 3 McLeod v. The State, 35 Ala. 895. 455 § 708 OFFENCES MORE PURELY STATUTORY. [BOOK Y. account the difference between the Alabama and Indiana stat- utes, this view accords with the Indiana forms before given,} and is doubtless correct. Said Goldthwaite, J. in a case of this sort: “If a singlé act of fornication was indictable, it might perhaps be necessary to allege the constituents which make up the offence; although, even then, upon the reasoning of the case of The State v. Hinton,? it would be sufficient to charge the offence in the terms of thisindictment. But enter- taining some doubts as to the correctness of the reasoning in the case cited, we prefer to rest our decision on different grounds. The offence contemplated by the statute was, not a single act, but the living together in fornication; and the facts which enter into the composition of this offence are necessarily so complicated, that it is impossible to state them so that the legal conclusion of guilt will result with certainty and precis- ion, and for this reason it is unnecessary to allege them.” ® § T07. Another Form of Statute and Indictment.— There is a North Carolina statute in which the crime is defined to be “a man taking a woman, or a woman a man, into his or her house, and having one or more children, without parting, or an entire separation ; or, where they bed or cohabit together, they not being lawfully married.” And an indictment alleging, that the defendant, Joel Fore, “did take into his house one Susan Chesnut, and they did then and there have one or more children, without parting, or entire separation, they, the said Joel Fore and Susan Chesnut, never having been lawfully married,” was held to be, though “ very carelessly drawn, .. . sufficient.”* Again, an indictment charging that the defend- ants, “being persons of lewd and vicious habits, on, &., and for a long time, to wit, for, &c., unlawfully did bed and cohabit together as man and wife, without being joined together in the holy bands of matrimony, contrary to the form of the statute,” &c., was held to be good.5 § 708. Joint or Several Prosecutions. — Though it seems to be 1 Ante, § 700. 4 The State v. Fore, 1 Ire. 378. 2 The State v. Hinton, 6 Ala. 864. 5 The State v. Jolly, 8 Dev. & Bat. 3 Lawson v. The State, 20 Ala. 65, 110. To the like effect, see The State 74. As to this doctrine of necessity inv. Gartrell, 14 Ind. 280. the form of the allegation, see Crim. Proced. 2d ed. I. § 498 et seq. 456 CHAP. XXXI.] OPEN AND NOTORIOUS LEWDNESS. § T11 the more proper form to make the indictment for this offence joint, against the two participants, yet this is not necessary. It is good against one of them alone! And if the two are joined in the indictment, but one only of them is taken, it may proceed against the one; and, if there is a general verdict of guilty, this will not furnish ground for a motion in arrest of judgment.? § 709. The Evidence : — General View. — The evidence in these cases is like that in simple adultery ; modified in some particulars which will occur to every reader. There is no need, therefore, to enter upon a separate discussion of it here. CHAPTER XXXI. OPEN AND NOTORIOUS LEWDNESS. 710. Introduction. 711-718. Law of the Offence. 719-725. The Procedure. § 710. Order of the Discussion.— We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § T11. How at Common Law. — The common law protects, to a certain extent, the morals of the community; and though, as we have seen,’ it does not punish a single private act of adultery or fornication, it does visit with its penalties repetitions of the act, if of a public and openly scandalous nature. Consequently, as observed elsewhere, “ the keeping of bawdy-houses, the publishing of obscene prints and writings, the public utterance of obscene words, the indecent and public 1 Wasden v. The State, 18 Ga. 264. * Crim. Law, 5th ed. I. § 501. And 2 The State v. Lyerly, 7 Jones, N. C. see Crouse v. The State, 16 Ark. 566 ; 158. Delany v. People, 10 Mich. 241. 3 Ante, § 654, 691. 80 457 § 718 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. exposure of one’s person or the person of another, and gen- erally all acts of gross and open lewdness, are indictable at the common law.”! For a like reason, while slavery existed among us, if a master caused or permitted his slave to pass about in public view, indecently naked, he was punishable at the common law for the offence against morality and decency ; and an express command by him to the slave need not be shown to establish in proof the crime.? But most of these forms of public indecency, being considered in other connec- tions, do not belong to this chapter. § 712. Lewdly and lasciviously associate, &e. — In some of the States, adultery, fornication, lewdness, or whoredom, when open and notorious, is by statute indictable, though the single act is not so, or punishable more severely than the single act; and then the party, to render himself liable, must proceed further or less far, according to the words of the statute. Where the words were, “shall lewdly and lasciviously asso- ciate and cohabit together,” the cohabitation meant was held to be, not simple incontinence in a single instance, or in two instances,? but a dwelling or living together by the parties ; the design of the enactment being, in the language of the court, ‘to prevent evil and indecent examples, tending to corrupt the public morals.’’* Therefore, under a statute like this, something more must be shown against a defendant than mere private incontinence, continued to however great a degree.® § 713. Lascivious Carriage. — But the Connecticut court has held, that, under a statute against “lascivious carriage,” wanton and lascivious acts of one person only, practised to- ward and against the will of another of the opposite sex, may constitute the offence, though no third person is present. Said the judge: “It is evident from the preamble to the act, and the plain import of the expressions, that they meant to include and suppress all those wanton acts, between persons 1 Crim. Law, 5th ed. I.§ 500. And 153; The State v. Moore, 1 Swan, see ante, § 546, 550. Tenn. 136. 2 Britain v. The State, 3 Humph. > Commonwealth v. Catlin, 1 Mass. 208. 8; The State v. Marvin, 12 Iowa, 499. 3 The State v. Marvin, 12 Jowa, 499. See, however, The State v. Cagle, 2 * Commonwealth v. Calef, 10 Mass. Humph. 414. 458 CHAP. XXXI.]| OPEN AND NOTORIOUS LEWDNESS. § T17 of different sexes, flowing from the exercise of lustful passions, which are grossly indecent and unchaste, and which are not otherwise punishable as crimes against chastity and public decency.”’ § 714. Lascivious Behavior, &c. — And the Vermont court has decided, that, where a man indecently exposes his person to a woman, and solicits her to have sexual intercourse with him, and persists in this solicitation against her opposition and remonstrance, his conduct amounts to ‘ open and gross lewdness and lascivious behavior,” within the statute of this State.? § 715. Whoredom. — In Indiana it has been laid down, that any single act of adultery between a married female and a male not her husband, is “‘whoredom.”? The reader will compare this interpretation with what is said of the word “ prostitution”? in a previous chapter.t Though doubtless these two words are not identical in meaning, we may still imagine situations and connections in which they ought to be deemed more nearly so than the naked expositions given there and here would indicate. § 716. Lewdness.— This word, it appears from an exami- nation of the foregoing sections, differs in meaning both from whoredom and from prostitution. In a Massachusetts case, the court, without defining it, observed: “The argument for the defendant, that the word ‘lewdness’ in the statute applies only to the common-law offence of open and public indecency, cannot be supported. We have no doubt that it includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private.” ® § T17. Public Indecency. — An Indiana statute having made punishable “ public indecency,’ the court held that these words were too indefinite in meaning to be the foundation of a criminal proceeding.® Thereupon the legislature expressed its own sense of their meaning, by substituting for the pro- 1 Fowler v. The State, 5 Day, 81, 84, 5 Commonwealth v. Lambert, 12 Al- opinion by Baldwin, J. len, 177. Compare this with Common- 2 The State v. Millard, 18 Vt. 574. wealth v. Catlin, 1 Mass. 8. See, also, 3 Rodebaugh v. Hollingsworth,6 Ind. The State v. Rye, 9 Yerg. 886. 339. 6 Jennings v. The State, 16 Ind. 335 ; 4 Ante, § 641. The State v. Huey, 16 Ind. 838. 459 § 720 OFFENCES MORE PURELY STATUTORY. [BOOK V. vision one against the indecent exposure of the person in a public place. And Bicknell observes: “The term ‘ public indecency’ was always held to apply especially to indecent exposures of the naked human body; and our statute, as amended, is substantially a re-enactment of a part of the common law.” 4 § 718. Cohabitation under Invalid Marriage. — It may be a question whether, or how far, a cohabitation under a polyg- amous or otherwise invalid marriage is obnoxious to provisions of statutory law like those discussed in this chapter. From one case it would seem, that, in these circumstances, the inhibitions now under consideration are not violated.” II. The Procedure. § 719. Indictment : — General View.— It will be helpful, in this connection, to con- sult the discussions of the last chapter; for the analogies between the procedure there discussed and here are very close. But as the statutes creating this offence differ in their terms, what is most important, in framing the indictment, is to follow the particular statutory words. § 720. Massachusetts Statute and Form.— The Massachusetts statute is as follows: “If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmar- ried, is guilty of open and gross lewdness and lascivious be- havior,” &c.2 Now, it is to be observed, that here are two clauses; and, according to principles before laid down,‘ if the indictment is on the former clause, the marriage of the parties must be negatived, while if it is on the latter it need not be. In Train and Heard’s Precedents we have the follow- ing form, drawn on the former clause; but, for a reason of another sort, as we shall see in the next section, it is insuffi- cient according, at least, to the opinions of some courts : — 1 Bicknell Crim. Pr. 448, 449. * Ante, § 692, 698. In Iowa, an in- 2 Commonwealth v. Hunt, 4 Cush. dictment under the Code should charge 49. And see ante, § 666. that the parties were not married to 3 Gen. Stats. c. 165, § 6. In the each other. The State v. Clinch, 8 Revised Statutes, the provision was in Jowa, 401. the same terms. R. 58. c. 180, § 4. 460 ‘ CHAP. XXXI.] OPEN AND NOTORIOUS LEWDNESS. § 721 “That C. D., late of, &., on, &., at, &e., and from that day continually to, &., at, &c., did lewdly and lasciviously associate and cohabit with one J.N.; the said C. D. being then and there an unmarried man, and the said J. N. being then and there an unmarried woman, and the said C. D. and the said J. N. not being then and there married to each other; against the peace, &c., and con- trary,” &e.! It is plain that this negative averment, though legally well enough, is more extended in its terms than it need be.? Therefore, and because this form will be deemed by some, and perhaps by all, to be insufficient in another respect, the following substitute is proposed : — That A, &c., and B, &e., at, &c., on, &c. and from that day continually until the, &c., not being there at the said several days and times married to each other, did lewdly and lasciviously associate and cohabit together, against the peace, &c., and contrary, &c. § 721. “Together” —“ With each other." — Some of the stat- utes use the words “ together;”’ others, “ with each other;” in describing the cohabitation. We saw, in the last chapter, that the allegations in the indictment for the offence there treated of must cover these words ;? and there appears to be no difference in this respect, between the offence there and here. If this doctrine is sound, then the Massachusetts pre- cedent given in the last section is not adequate. Therefore, in Missouri, a statute having provided, that “every man and woman, one or both of whom are married and not to each other, who shall lewdly and lasciviously abide and cohabit with each other,” shall, &c., an indictment setting out that the defendant, a married man, lewdly and lasciviously abode and cohabited with one B, not saying that the two cohabited “ with each other,’ was held to be insufficient. And in Michigan, where the term is “together,” the statute being, ‘if any man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together,” &c., not only is this doctrine held, but the language of the court goes to the further point, that separate informations cannot be maintained, the parties must be charged jointly, though they need not be jointly tried; ‘“ unless,” added the learned judge, “ one of the parties be unknown, or since dead.” 1 Train & Heard Preced. 352. 3 Ante, § 702. 2 Ante, § 382. 4 The State v. Byron, 20 Misso. 210. 461 § 722 OFFENCES MORE PURELY STATUTORY. [BOOK V. Consequently, where the allegation was, that the one defendant “did lewdly and lasciviously associate and cohabit with B, &c., they not being then and there married to each other,” it was adjudged ill as not charging a joint offence against B also. § 722. Divers Days — Continuando — “Then and There.” — This is one of those offences which are generally laid as continuing from day to day. The forms of doing this are various, and they have been by the author discussed else- where.2. The Massachusetts form above given suggests the inquiry whether, after the allegation of different days has been made, it is sufficient in a subsequent averment to set out the time and place simply by the use of “then and there.” On this point, the author has sought in vain for authorities as distinct as he would like. In Massachusetts, a defendant was indicted for that he, “on, &c., and at said Greenfield from said last mentioned day to the day of finding this indictment, without then and there having any license, appointment, or authority therefor first duly had and obtained according to law, was then and there a common seller of spirituous and intoxicating liquors ;”’ and the court sustained the indictment against an objection to the manner in which the latter day was set out. But the point now under discussion was not agitated. Lord Hale, on the authority of the Year Books, lays it down as insufficient to charge that the defendants, on the first day of May, and also on the second day of May, made 1 Delany v. People, 10 Mich. 241. In this case, the court considered that it was not legally possible for one of the parties to commit the offence unless the other was guilty also. Said Christian- cy, J.: “ The analogy, therefore, so far as this question is involved, is complete between this offence and those of con- spiracy and riot, which cannot be com- mitted by asingle person. The charge, therefore, must be joint; and both must be joined as defendants in the same information or indictment, unless one of the parties be unknown, or since dead,” p. 245. Now, it seems to me, that, as the learned judge observed, the anal- ogy is complete between this offence and the offences of conspiracy and riot. But 1 understand that, if the prosecuting 462 power pleases, parties guilty of those offences may be indicted, as well as tried, separately ; though, in practice, such a course is unusual. The form of the allegation, however, should, even in such a case, charge, in some appro- priate form of words, that the criminal act was committed jointly. Crim. Proced. 2d ed. II. § 225, 998. Now, the forms held ill in Missouri and Michi- gan do not quite come to the point of charging a joint act; and, at the same time, they do not fully cover the words of the statute. And see Ashworth v. The State, 9 Texas, 490. 2 Crim. Proced. 2d ed. I. § 892- 397. 3 Commonwealth v. Wood, 4 Gray, 11. CHAP. XXXI.] | OPEN AND NOTORIOUS LEWDNESS. § 723 an assault on one, and then and there feloniously took, &c. ; because, two days having been mentioned before, it is not evident to which of them the felonious taking relates! And this doctrine has been repeated in all the books since ;? and, so far as the author is aware, practised upon. But the case put by Lord Hale was not one of an offence in its nature con- tinuing. As applied in ordinary criminal cases, there can be no question of the soundness of the doctrine. But, if the offence is continuing in its nature, and the opening allegation puts it in this form, the writer of these sections does not per- ceive why “then” may not refer as well to the whole series of days as to a single twenty-four hours. It is established doctrine that “then” will mean less than twenty-four hours when its antecedent does;* consequently, when its antece- dent is larger, it should be construed as being larger also. Still, those forms to which we usually resort as evidence of the law are not drawn on this idea of the effect of the word “ then.” 4 It is not necessary to charge the offence now under discussion as continuing, though the pleader may do so if he chooses.® '§ 723. “Lewd,, &c, Person.” — A statute in Massachusetts provides for the conviction, before a magistrate, of “lewd, wanton, and lascivious persons in speech or behavior;”’® and the following allegations in a complaint were held to be suffi- cient : — “That A, at, &c., on, &c., and on divers other days and times, at, &c., between that day and the day of making this complaint, was and still is a lewd, wanton, and lascivious person in speech and behavior,” &c. The charge was held to be neither uncertain nor double; it entered sufficiently into the particulars; and it need not, as it did not, conclude to the common nuisance. On the last point, Merrick, J. observed: “In prosecuting offences which are in strictness nuisances, this form in pleading is considered essential ;7 but, in relation to the several offences enumerated 12 Hale P. C. 178; 1 Chit. Crim. 5 Hinson v. The State, 7 Misso. Law, 218. 1244. 2 And see Crim. Proced. 2d ed. I. 6 Mass. Gen. Stats. c. 165, § 28. § 414. 7 As to which, see Crim. Proced. 2d 3 Tb. I. § 412. ed. II. § 863, 864. 4 Ib. IT. § 98, 108, 105, 278, 488, 812, 875, 1042. 463 § 725 OFFENCES MORE PURELY STATUTORY. [BOOK V. in the statute referred to, the charge will, in general, be suffi- ciently set forth if the complaint and accusation are in the words by which the offence is created and described.” 1 § 724. How full the Allegation — Statutory Words. — In draw- ing the indictment, the pleader should keep the language of the statute in mind. Therefore, in Tennessee, it must be averred that the acts constituting the offence were openly and publicly committed.? But while thus the indictment must follow the terms of the statute, there may be some difference of judicial opinion as to whether it need go beyond such terms, and allege more specific matter. We saw, in the last section, that such further expansion was not deemed essential in the case there mentioned. So a Missouri statute makes punish- able “every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior ;” and it was held, that an indictment simply in these statutory words is good;® but this appears to be contrary to an earlier decision in the same State, where it was deemed that specific acts should be set out.4 It is believed that our courts generally would not require the setting out of specific acts. § 725. Evidence : — Circumstantial — Hearsay. — This offence may be proved by circumstantial evidence,® but not by hearsay,® such as rumor and talk in the neighborhood. 1 Commonwealth v. Parker, 4 Allen, 4 Dameron v. The State, 8 Misso. 313, 314; ante, § 557. 494, 2 The State v. Moore, 1 Swan, Tenn. 5 Peak v. The State, 10 Humph. 99. 186. 6 Belcher v. The State, 8 Humph. 3 The State v. Bess, 20 Misso, 419. 68; Buttram v. The State, 4 Cold. 171. 464 CHAP. XXXII. | INCEST. § 728 CHAPTER XXXII. INCEST. 726. Introduction. 727-730. Law of the Offence. 731-736. The Procedure. 8 726. Order of the Discussion.— We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 727. Defined — Form of Marriage. — When the parties to an act, or series of acts, of unlawful carnal intercourse, are related to each other within the degrees of consanguinity or affinity wherein marriage is prohibited by law,! their offence is called incest. If there were the form of a marriage between them, and it were voidable only, then, until sentence of nullity pronounced, the cohabitation would be lawful ;? but, if it were a void marriage, it could give to the carnal commerce no protection.? § 728. Common Law — Statutes. — The offence of incest, like simple adultery and fornication, appears not to be indictable at the common law;* but it is indictable under the statutes of some, perhaps most of our States.® 1 1 Bishop Mar. & Div. § 318 et seq. 21 Bishop Mar. & Div. § 105, 116, 119, 320. 3 1 Bishop Mar. & Div. § 105, 119. Blackstone says: “In the year 1650, when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes ; but also the repeated acts of keeping a brothel, or committing forni- cation, were (upon a second conviction) made felony without benefit of clergy. But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to resume a law of such un- fashidnable rigor. And these offences have been ever since left to the feeble coercion of the spiritual court, accord- ing to the rules of the canon law ; a law which has treated the offence of incon- tinence, nay even adultery itself, with a great degree of tenderness and lenity ; owing, perhaps to the constrained celi- bacy of its first compilers.” 4 Bl. Com. 64, 65. Incest seems always to have remained an offence in Scotland. 4 Crim. Law, 5th ed. I. § 502. 5 Cook v. The State, 11 Ga. 53; Peo- 465 § 732 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. § 729. IMlegitimate Children. — Where the relationship is by consanguinity, there is little doubt that illegitimate children are the same as legitimate, in respect of this offence; since the rule is so as to marriage ;! indeed, the law seems to have been so held.? § 730. Knowledge of the Relationship. — According to the Scotch law, this crime of incest is not committed when the party has no knowledge of the relationship.? It is so also by the express provision of many of our statutes. How, in prin- ciple, it is where the statute is silent on this subject, the reader will see by consulting some earlier discussions in this volume.* II. The Procedure. § 731. General View. — The discussions in the last four chapters will stand in the place of any minute elucidations in this. The statutory offence of incest assumes the various forms brought to view in those chapters, simply swelled by the aggravating matter of the relationship. The relationship, therefore, must be set out in the indictment and proved at the trial. With the exception of this particular, the indict- ment and the proofs are the same here as have been described in the last four chapters. § 732. The Relationship. — In these cases, as in others, the pleader must attend to the words of the statute on which he draws the indictment. Thus, where the words of the statute were, ‘if any father shall have sexual intercourse with his daughter, knowing her to be such;” and the indictment alleged, that the defendant A “unlawfully did have sexual intercourse with his daughter B, the said B then and there knowing that she, the said B, was his, the said A’s, daughter ;” this was held to be insufficient, as not containing any averment of his knowledge of the relationship. The word “ unlawfully ” ple v. Harriden, 1 Parker, 344; Attor- 1 1 Bishop Mar. & Div. § 315. ney General v. Broaddus, 6 Munf. 116; 2 Baker v. The State, 80 Ala. 521. ° Baker v. The State, 80 Ala. 521; How- 31 Alison Crim. Law, 563; ante, ard v. The State, 11 Ohio State, 328; § 356, 857. See Morgan v. The State, United States v. Hiler, 1 Morris, 880. 11 Ala. 289; Delany v. People, 10 Mich. See the last case for an interpretation 241, 244. of the Iowa statute. 4 ‘Axtte, § 851-359, 362, 664, 665. 466 CHAP. XXXII. ] INCEST. § 734 is not an equivalent for the words of the statute, therefore it does not constitute such an averment.! It is not, however, necessary in all cases that the exact statutory words should be used. Thus, in Michigan, the words of the statute are, “within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void ;”’ and an allegation was held to be sufficient which simply charged, that the defendant “did commit the crime of forni- cation” with one B, his daughter.” § 733. Continued — Knowing.— As to alleging knowledge of the relationship, the two instances mentioned in the last section will furnish the rule. If the statute expressly makes such knowledge an ingredient in the offence, it must be alleged ; otherwise, it need not be.8 And so, in simple adultery, the indictment need not aver that the defendant knew the other party to be married, in a case where the statute is silent on the point of knowledge.t In Alabama, under the statute against incest, an indictment charging that the defendant, “being then and there the father of one Elizabeth Baker, and within the degree of consanguinity within which marriages are declared by law to be incestuous and void, and then and there knowing the said Elizabeth to be his daughter, did then and there live with the said Elizabeth in a state of adultery,” was held to be sufficient. And it was held not to be neces- sary to charge a common knowledge of the relationship; but it is enough to allege, that the relationship was known to the defendant. ‘It is true,” said the learned judge, “ the statute defines the offence to be the living in a state of adultery of persons within the degrees of consanguinity, or relationship, whose marriages are declared by law to be incestuous and void, knowing of such consanguinity; but this, in our judg- ment, warrants no inference that the knowledge is to be common to both the parties, before the guilt of either can attach.” ® § 734. Continued. — In Illinois, the allegation that the act 1 Williams v. The State, 2 Ind. 4 Commonwealth v. Elwell, 2 Met. 489. 190. 2 Hicks v. People, 10 Mich. 395. 5 Baker v. The State, 80 Ala. 521. 3 See, for the doctrine in this class § Morgan v. The State, 11 Ala. 289, of cases, ante, § 358. 290, opinion by Goldthwaite, J. 467 § 737 OFFENCES MORE PURELY STATUTORY. [BOOK V. was done by the defendant A, on the person of B, the said B then and there being the daughter of him, the said A, was held to be an adequate averment of the relationship of the parties. § 735. Proof of Relationship. — In Tennessee it is held, that, on an indictment for incest, the relationship and pedigree of the parties may be proved by reputation.? § 736. Continued — Confessions. — On the indictment for incest, the same as for common adultery,? evidence of con- fessions by the defendant is admissible.. Even the relation- ship of the parties may be proved in this way.* CHAPTER XXXIII. MARRIAGE LAWS. § 737. General View. — There are statutes in the several States intended to protect the institution of marriage, by in- flicting penalties on the parties, and on magistrates, who vio- late their prohibitions. But these enactments are so diverse, and, at the same time, are so far considered in the ‘“ Com- 1 Bergen v. People, 17 Ill. 426; s.r. Hicks v. People, 10 Mich. 395. See also Howard v. The State, 11 Ohio State, 828. In Virginia, the following indict- ment for an incestuous marriage pur- sues the words of the statute :— “That William Tankersly, of the said County of Washington, yeoman, on the first day of March, in the year of our Lord, 1819, with force and arms, at the county aforesaid, and within the jurisdiction of the Superior Court of Law holden in and for the said County of Washington, unlaw- fully, willingly, and incestuously, did inter- marry with, and take to be his wife, a certain Nancy Hutchins, the niece of the said William Tankersly, being the daugh- ter of Elizabeth Hutchins, the sister of the same William Tankersly, and within the degrees prohibited by an act of the Gene- ral Assembly of Virginia, intituled ‘An Act to regulate the solemnization of mar- riages, prohibiting such as are incestuous, or otherwise unlawful, &e.’ And that the said William Tankersly and the said Nancy Hutchins, then and there, from the 468 said first of March, in the vear aforesaid, until the taking of this inquisition, did un- lawfully, willingly, and incestuously con- tinue to cohabit and live together as man and wife, against the form of the Acts, &e., &e.”? Upon this indictment, both parties were arrested and convicted ; and the proceeding was held to be correct. On writ of error brought by her, who ob- jected that she was not charged with having intermarried with him, White, J. observed: ‘It was impossible that he could have intermarried with her unless she had also intermarried with him.” Hutchins v. Commonwealth, 2 Va. Cas. 881, 832. See also Attorney- General v. Broaddus, 6 Munf. 116. 2 Ewell v. The State, 6 Yerg. 364. See 1 Bishop Mar. & Div. § 546-548. 3 Ante, § 686. 4 People v. Jenness, 5 Mich. 305; Morgan v. The State, 11 Ala. 289. CHAP. XXXIV. | ABORTION. § 740 mentaries on the Law of Marriage and Divorce,” written by the author of this work, that it does not seem wise to enter into a minute consideration of them here.! § 738. Particular Points. — A few points were mentioned in the earlier discussions of this volume ;? others, in the author’s work on the Criminal Law. The offence of polygamy has already been treated of in the foregoing sections.* In the work on Marriage and Divorce were considered the construc- tion and effect of a statute forbidding, after a divorce, the guilty party to enter into a second marriage. It was there seen that such a transaction is not polygamy, but is a special dereliction to be punished by an indictment drawn on the particular statute.® § 739. Continued. — The reader is referred, in a note,® to some cases in which a few other points will appear. And, on the whole, though some benefit to the reader would come from further extending this chapter, it is deemed best it should here close. CHAPTER XXXIV. ABORTION. 740, 741. Introduction. 742-750. Law of the Offence. 751-762. The Procedure. § 740. General View. — Abortion is in some sense a common- law offence, as well as a statutory one. Perhaps, therefore, the proper place for its treatment was in the author’s other 1 For a full discussion of the ques- 5.2 Bishop Mar. & Div. § 700; ante, tion of marriage, see 1 Bishop Mar. & § 666. Div. § 105-549 ; for a chapter on the 6 The State v. Bray, 13 Ire. 289; “Wrongful Solemnization of Mar- The State v. Loftin, 2 Dev. & Bat. 31; riage,” considered in respect of the The State v. McWhinney, 5 Blackf. criminal law, see ib. § 341 et seq. 364; Smyth v. The State, 8 Eng. 696 ; 2 Ante, § 222, 254, 614, et seq. Bailey v. The State, 34 Maine, 77; 3 Crim. Law, Sth ‘ed. I. § 878, 509, Reg. v. James, Temp. & M. 300, 14 555. Jur. 940, 19 Law J. n.s. M.C. 179, 1 4 Ante, § 577 et seq. Eng. L. & Eq. 552, 2 Den. C. C.1; Wyckoff v. Boggs, 2 Halst. 188, 469 § 748 OFFENCES MORE PURELY STATUTORY. [BOOK v. works. But the fact, that, in England, from an early period, and generally in our States, its punishment is, in practice, almost exclusively under statutes, induced the author to assign it to the present volume. § 741. Order of the Chapter.— We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 742. Connected with Homicides. — Abortions, actual or attempted, not unfrequently result in the death of the woman. In such a case, the guilty party is indictable for the homicide as murder! Or, again, if the pregnancy has progressed far enough, it may cause the child to be born alive, and then to die from injuries inflicted in the operation, or from premature exposure to the external world; the consequence of which will be, that, in this case the same as the other, the guilty person will be indictable for murder.? These are doctrines of the common law. § 743. Continued — Statutes. — In some of our States there are statutes in aid or modification of the common law on this subject. Thus, in Massachusetts, a statute was in 1845 en- acted, which was afterward introduced into the General Statutes, as follows: ‘“‘ Whoever, with intent to procure miscarriage of any woman, unlawfully administers to her, or advises or pre- scribes for her, or causes to be taken by her, any poison, drug, medicine, or other noxious thing, or unlawfully uses any in- strument or other means whatever with the like intent, or with like intent aids or assists therein, shall, if the woman dies in consequence thereof, be imprisoned in the state prison not exceeding twenty, nor less than five, years, and if the woman does not die in consequence thereof, shall be punished by imprisonment in the state prison not exceeding seven years, nor less than one year, and by fine not exceeding two thou- sand dollars.” ® The earlier statute had in it the words “ then ! Crim. Law, 5th ed. II. § 691; Reg. § 691; Reg. v. West, 2 Car. & K. 784, v. Fretwell, Leigh & C. 161, 9 Cox C. 2 Cox C.C. 500; Storer & Heard Abor- C. 158; Commonwealth v. Hersey, 2 tion, 153. Allen, 173; The State v. Moore, 25 3 Gen. Stats. c. 165, § 9; Common- Towa, 128. wealth v. Brown, 14 Gray, 419; Com- 2 Crim. Law, 5th ed. I. § 328; II. monwealth v. Jackson, 15 Gray, 187. 470 CHAP. XXXIV. ] ABORTION. § 744 ‘pregnant with child,’ which this one has not. Under the earlier statute, therefore, it is plain, that, for the offence to be committed, the woman must have been actually pregnant, and not merely believed to be so. And the court even ex- pressed the opinion, that, if the foetus, at the time of the oper- ation, had lost its vitality, so that it could not mature into a living child, the offence would not, in law, be committed. Yet it was no objection that the woman was not, as the phrase is, “quick with child.”! Probably, under the provision as it now stands, the court would hold actual pregnancy not to be necessary, if it were only believed to exist; at all events, this is plainly the better doctrine, though, on a point like this, judges appear to differ.? § 744. Abortion as Common-law Offence. — Whether, before the foetus has quickened, an abortion procured with the mother’s consent is an offence at the common law, the Eng- lish books do not distinctly inform us; and the question for England has long been settled by statute in, the affirmative. In this country, the tribunals of some of the States have decided in the negative; holding, that, until the woman is quick with child, if she consents, no indictment lies at the common law, — though, if she does not consent, the act is an aggravated assault. The Pennsylvania court, however, dis- carded this doctrine of the necessity of a quickening; and the learned judge who delivered the opinion remarked with great force: “It is not the murder of a living child which constitutes the offence, but the destruction of gestation by wicked means and against nature. The moment the womb is instinct with embryo life, and gestation has begun, the crime may be perpetrated.”4 If we look at the reason of the law, we shall prefer the Pennsylvania doctrine; because the public and private mischiefs are the same, whether the abortion takes place just before or just after the first movings of the coming human existence are perceptible to the expect- ant mother. 1 Commonwealth v. Wood, 11 Gray, 263; Commonwealth v. Bangs, 9 Mass. 85, 92. 887; The State v. Cooper, 2 Zab. 52. 2 See Crim. Law, 5thed.I.§74land . 4 Mills v. Commonwealth, 1 Harris, the accompanying discussions. Pa. 631, 633, opinion by Coulter, J. 3 Commonwealth v. Parker, 9 Met. 471 § 747 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 745. “Quick with Chila.”— The phrase ‘“ quick with child” has been defined to mean, that the woman has felt the child move within her;! and a distinction between this expression and “ with quick child,” once taken by a learned judge,? has been discarded.® § 746. Continued — Statute — Administering Drug.— A stat- ute in Ohio provides a punishment for “ any physician or other person who shall wilfully administer to any pregnant woman, any medicine, drug, substance, or thing whatever, with intent thereby to procure the miscarriage of auy such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose.” And it has been held, that the offenve may be committed at any time during the period of gestation. Likewise in Vermont, where it is a statutory offence to attempt to procure the “ miscarriage” of a woman “ pregnant with child,” the court has held it not to be essential that the foetus be alive at the time the attempt is made. “ We think,” said Redfield, C. J. “the mother is with child, whether the child be dead or alive, until the actual miscarriage by the expulsion of the foetus.”’® On the last point, as we have seen,° a contrary intimation has been made in Massachusetts ; yet, in the latter State, as in the others, the foetus need not have quickened. § 747. Differing Statutes — (Points, in the Note). — The offence of abortion, as actually perpetrated or as attempted, is defined and forbidden by statutes in England, and in probably every one of our own States. But the English statutory law has differed at different times in the terms in which it is ex- pressed,’ and there has been no uniformity of terms in our L Goldsmith’s Case, 3 Camp, 76; Rex o. Phillips, 8 Camp. 73. 2 Reg. v. Wycherley, 8 Car. & P. 262; and see this case for an interest- ing note by the reporter, showing, on medical authority, that “the popular idea of quick or not quick with child is founded in error.” The State v. Cooper, 2 Zab. 52, 57; and see the authorities there cited ; also Rex v. Russell, 1 Moody, 356, 472 360. See The State v. Smith, 82 Maine, 369. 4 Wilson v. The State, 2 Ohio State, 319. 5 The State v. Howard, 32 Vt. 380, 408. 6 Ante, § 748. There have been certainly three (I cannot say how many more) successive English statutes against attempted abortion, in force at different times, the CHAP. XXXIV. ] ABORTION. § 747 American States. The only course, therefore, for the lawyer is to consult the statutes of. his own State, and the decisions of the courts upon them if such there are; then, from the general principles of the criminal law and the other material thus before him, to draw the legal conclusion which his case requires. It is in the highest degree unsafe to rely upon points adjudicated elsewhere, or in former times, under‘statutes differ- ing in their terms from his own. A few points adjudged will, nevertheless, be stated in a note.! . provisions whereof differ from one an- other so as to require, in some respects, different constructions; namely, Stat. 43 Geo. 38,c. 58, §1; Stat. 7 Will. 4&1 Vict. c. 85, § 6; and the present stat- ute of 24 & 25 Vict. v. 100, § 58, 59. See Crim. Law, 5th ed. I. § 741 and note; Greaves Crim. Law Acts, 82. 11. England. The prisoner was con- victed on an indictment, under § 6 of 7 Will. 4&1 Vict. c. 85, for adminis- tering and causing to be taken by E. C. certain poison with intent to procure her miscarriage. It appeared that E. C., being pregnant, applied to the pris- oner to get her something to procure miscarriage, and that the prisoner did procure a drug, which drug was given by the prisoner to I. C.,and taken by her with intent to procure, and did in fact procure, miscarriage ; but that the taking by E. C. was not in the presence of the prisoner. Held, that the convic- tion was right, inasmuch as there wasa “causing to be taken,” within the meaning of the statute. Reg. v. Wil- son, 87 Eng. L. & Eq. 605, Dears. & B. 127, 7 Cox C.C.190. In another case, under the same statute, the prisoner was convicted on an indictment con- taining several counts, for administer- ing and causing to be taken by L. C. certain noxious drugs, with intent to procure abortion. It appeared that the prisoner delivered certain drugs to L. C., in order that she might take them with a view to produce abortion, and told her where she could procure other drugs with the same view ; that the last- mentioned drugs were procured by L. C., and afterward made into pills 31 by the prisoner, and that L. C. did, for the purpose aforesaid, take, not only the drugs so delivered to her by the prisoner, but also the drugs so pro- cured by L. C., and made into pills by the prisoner; and that enough of each was taken to be noxious; but it did not appear that the prisoner was present when any of the drugs were taken. Held, that the conviction was right, and that the case was not distinguishable from the above case. Reg. v. Farrow, 40 Eng. L. & Eq. 550, Dears. & B. 164. See also Reg. v. Fretwell, Leigh & C. 161. Upon an indictment under 24 & 25 Vict. c. 100, § 59, for supplying a certain noxious thing, knowing that the same is intended to be used to pro- cure a miscarriage, there must be proof of the noxious quality of the thing sup- plied. The supplying of innoxious drugs, with whatever intent, is not an offence within the statute. Reg. »v. Isaacs, Leigh & C. 220. In order to constitute the offence created by this statutory provision, there is no need the intent to have the drug employed for the unlawful purpose should exist in the mind of any other person than the one supplying it. Reg. v. Hillman, Leigh & C. 348. 2. Iowa. Since the code, itis not a criminal offence to kill an unborn quick child, as the code repealed the former special provision, and such a child is not a human being within § 2508, at least before quickening. Abrams v. Foshee, 8 Iowa, 274. 8. New Jersey. In an indictment under the act providing, that, “if any person or persons maliciously, or with- 473 § 749 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 748. Administering Drug, continued — Attempt.— A person indicted under a statute, for administering a drug, or doing some other like act, with the intent to procure an abortion, may be convicted, not alone when the proofs show an unsuccessful attempt, but equally when they show the attempt made suc- cessful; that is, show an abortion actually committed.! § 749. Guilt of Woman— Consent, &c.— A statute in Iowa is in the following words: ‘“ Every person who shall wilfully administer to any pregnant woman any medicine, drug, sub- stance, or thing whatever, or shall use or employ any instru- ment, or other means whatever, with the intent thereby to procure the miscarriage of any such woman, unless the same shall be necessary to preserve the life of such woman, shall,” &c. And it was held not to be an offence, within this pro- vision, for a woman to procure an abortion on herself. “It is,” said Baldwin, C. J. “clear to us from the wording of this act, that it was the person who used the means with the pregnant woman to procure the abortion, and not the woman herself, that the legislature intended to punish. We arrive at this conclusion from the direct and specific language of the act itself.”’? So, in New York, on the trial of an indictment for advising and procuring a pregnant woman to take a cer- tain medicine with intent to procure her miscarriage, the female does not, it is deemed, stand legally ‘in the situation of an accomplice. The law regards her rather as the victim out lawful justification, with intent to cause and procure the miscarriage of a woman then pregnant with child, shall administer to her, prescribe for her, or advise or direct her to take or swallow, any poison, drug, medicine, or noxious thing,” he shall be punished, &c., it is not necessary to aver that the poison, &c., was actually taken or swallowed, nor need this be proved at the trial. “ Under the statute,” said the learned judge, “the defendant’s guilt is com- plete by giving the advice with the intent specified in the act, and it is im- material whether the advice be followed or not.” The State v. Murphy, 3 Dutcher, 112, 115. 4. Ohio. The statute passed Feb. 474 27, 1834, providing for the punishment of the offence of killing a woman preg- nant of a quick child, by administering to her medicine, or, &c., with intent to produce abortion, and thereby destroy the unborn child, was not repealed by the act of March 7, 1885. Robbins v. The State, 8 Ohio State, 181. 1 Reg. v. Wilson, Dears. & B. 127. 2 Hatfield v. Gano, 15 Iowa, 177, 178. See, ante, § 594, and the places there referred to. In England, a woman who procures, or attempts to procure, her own miscarriage is made criminal by express words of the statute, 24 & 25 Vict. c. 100, § 58. And see Reg. v. Fretwell, Leigh & C. 161, 9 Cox C. C. 152. CHAP. XXXIV. ] ABORTION. § 751 than the perpetrator of the crime.! And it is of no avail for the prisoner, on the trial of an indictment for abortion, that the woman consented ;? or that her parents, desiring to screen her from disgrace, consented.? Of course, if the woman does not consent, the separate offence of assault is committed ; but not if she does consent.* § 750. Felony or Misdemeanor.— The offence of abortion is misdemeanor at the common law, and it is the same under the statute of Illinois. There are statutes in which it is, in some of its branches, felony ; but the practitioner will be able readily to determine this question for himself, by examining the stat- utes of his own State. Il. The Procedure. § 751. The Indictment : — Common Law — Assault and Administering, with Intent, &c. — It will be useful, in the first place, to see something of the common-law forms. The following is the first count of a form furnished by Chitty,® for assault and administering drugs, &c., to procure a miscarriage : — “ That E. F., late of, &e. [being a wicked, malicious, and evil disposed person, and not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil”], on, &c. [with force and arms], at, &c., afore- said, in and upon one A. E., the wife of F. E. [in the peace of God, and our said sovereign lord the king, then and there being 9], and also then and there being big and pregnant with child, did make a violent assault, and that he the said E. F. then [and on divers other days and times, between that day and the day of the taking of this inquisition, with force and arms 19], at, &c., aforesaid, knowingly, 1 Dunn »v. People, 29 N. Y. 523. But see Peoplew. Josselyn, 39 Cal. 393. 2 Crim. Law, 5th ed. I. § 257-260. 3 Commonwealth v. Wood, 11 Gray, 85. 4 Ante, § 491, 492, 500, 511. 5 Holliday v. People, 4 Gilman, 111. 6 8 Chit. Crim. Law, 798. 7 This allegation is never necessary in an indictment. Crim. Proced. 2d ed. J. § 501. And see ante, § 488 and note. 8 In most of the States, expressly rendered unnecessary by statute, and generally held to be unnecessary even if there is no statute on the subject. Ante, § 376, 488 and note. 9 Unnecessary. Crim. Proced. 2d ed. II. § 57, 504. 1° It is unwise to use these words in a case of this sort. If the pleader is not particularly careful, there is in all cases danger from them; therefore, unless an offence is in its nature continu- ing, they are better omitted. Should an allegation refer all the acts to a par- ticular day, the proof may still show them to have been performed on differ- ent days. The rule, on this point, is, that, if the acts are such as in their nature cannot all be done on one day, or, if so 475 OFFENCES MORE PURELY STATUTORY. § 752 [BOOK v. unlawfully, wilfully, wickedly, maliciously, and injuriously, did give and admin- ister, and cause and procure to be given and administered, to the said A. E., so being big and pregnant with child as aforesaid, divers deadly, dangerous, unwholesome, and pernicious pills, herbs, drugs, potions, and mixtures, with intent feloniously, wilfully, and of his the said E. F.’s malice aforethought, to kill and murder the said child, with which the said A. E. was so then big and pregnant as aforesaid, by reason and means whereof, not only the said child whereof she the said A. E. was afterwards delivered, and which by the provi- dence of God was born alive, became and was rendered weak, sick, diseased, and distempered in body, but also the said A. E., as well before as at the time of her said delivery, and for a long time, to wit, for the space of six months then next following, became and was rendered weak, sick, diseased, and distempered in body, and during all that time underwent and suffered great and excruciating pains, anguish, and torture, both of body and mind [and other wrongs to the said A. E., he the said E. F. then and there unlawfully, wilfully, wickedly, maliciously, and injuriously, did to the grievous damage of the said A. E.?] and against the peace of,” &c. § 752. Continued — Administering, where Woman consents, — In Pennsylvania, the following was held to be adequate, — the objection, which was overruled, being, that the indictment should have charged “the intent to cause and procure the miscarriage and abortion of the child,” instead of the preg- nant mother: — “ That Jonathan Gibbons Mills, of, &c., on, &c., in the county, &c., with force and arms, wilfully, maliciously, unlawfully, and wickedly did administer to, and cause to be administéred to and taken by, one Mary Elizabeth Lutz, single woman, she the said Mary Elizabeth Lutz being then and there big and pregnant with child, divers large quantities of deadly, dangerous, unwholesome, and per- nicious pills, herbs, drugs, potions, teas, liquids, powders, and mixtures; with intent thereby then and there to cause and procure the miscarriage and abortion of the said Mary Elizabeth Lutz, and the premature birth and destruction of the said child, of which the said Mary Elizabeth Lutz was then and there big and pregnant; to the great damage of the said Mary Elizabeth Lutz, to the evil example of others in like cases offending, and against the peace and dignity of the Commonwealth of Pennsylvania.” 3 done, will not constitute in law the offence, then they must be charged as done on more days than one; but, in other cases, where, in their nature, they may be performed on more days than one, it is within the election of the pleader whether to set them out thus, or not. Crim. Proced. 2d ed. I. § 887- 401. 1 Davis says, in a note to one of his precedents: “It may be advisable in all cases, when the name of the medi- cine or drug is unknown, to allege in 476 the indictment that it was a certain dangerous, &c., drug, potion, &c., ‘the name of which is to the jurors aforesaid unknown.’ But see 3 Chit. 798, note, where it is said the name of the poison is not material; cites 8 Camp. 75.” Davis Pre. 35, note. See, as to this, post, § 755, 757. 2 None of this necessary. Ante, § 488 and note; Crim. Proced. 2d ed. II. § 55, 56. 3 Mills v. Commonwealth, 1 Harris, Pa. 631. Compare this case with Peo- CHAP. XXXIV. ] ABORTION. § 755 § 758. Observations on the Foregoing Forms — Quick with Child — Attempt.— By comparing the foregoing forms with the adjudged law,! the reader will perceive, that, except as regards the simple assault charged in the English one, both are inade- quate according to the views prevailing in some of our States. Thus, in Massachusetts, it is held to be necessary at the com- mon law to charge, that the woman was quick with child.? Moreover, it appears to have been laid down in one of the Massachusetts cases, that an actual abortion, and not merely. an attempt to procure it, should be charged.? This point, if so intended to be held, is clearly wrong. The other is right or wrong according to the view which the court may take of the law itself. § 754. Under Statutes. — This offence. assumes, under stat- utes, a great variety of forms. It will not, therefore, much aid the, practitioner to give him here a single general form of the indictment; and, indeed, it will in most instances be best for him to draw the indictment himself, with respect to the particular statute, and the particular facts of the case. Still, from an illustration or two, some advantage may be derived. § 755. Indiana Statute and Form.— A statutory provision in Indiana used to be in the following words: ‘“ Every person who shall wilfully administer to any pregnant woman any medicine, drug, substance, or thing whatever, or employ any instrument, &c., with intent thereby to procure the miscarriage of any woman,” &c. And the following form of indictment was held to be sufficient; namely, — “That, &c., on, &e., at, &c., did feloniously, wilfully, hnd unlawfully administer. to one Lucinda Hill, then and there being pregnant with a child, a large quantity of medicine, with intent thereby feloniously, &c., to procure the miscarriage of said Lucinda Hill; the administering said medicine to said Lucinda Hill not then and there being necessary to preserve the life of said Lucinda Hill; con- trary to the statute,” &c. It was deemed not necessary to set forth the name of the medicine, or to describe it as noxious. Blackford, J. observed: “This statute, so far as the present case is concerned, is simi- ple v. Lohman, 2 Barb. 216. For other 887; Commonwealth v. Parker, 9 Met. forms, see Davis Prec. 33 et seq. 263. 1 Ante, § 744. 3 Commonwealth v. Bangs, supra. 2 Commonwealth v. Bangs, 9 Mass. / 4TT § 757 OFFENCES MORE PURELY STATUTORY. [BOOK v. lar to the 2d section of the statute of 48 Geo. 8; and it has been held, that, on the trial of an indictment on that section, the name of the medicine administered need not be proved; that the question is, whether the prisoner administered any matter or thing to the woman with intent to procure abortion. If the name of the medicine need not be proved, there seems to be no good reason for naming it in the indictment.” ? § 756. Continued. — A present Indiana statute is, as far as concerns the present matter, as follows: “‘ Every person who shall wilfully administer to any pregnant woman, or to any woman whom he supposes to be pregnant, any thing whatever, or shall employ any means with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, . . . shall,’ &c. And Bicknell furnishes the following form of the indictment : — “That A. B. on, &c., at, &c., unlawfully and wilfully administered to C. D., who was then and there a pregnant woman [or ‘a woman whom he then and there supposed to be pregnant,’| a large quantity of medicine, with intent then and there and thereby, unlawfully, to procure the miscarriage of the said C. D., the administration of said medicine not being then and there necessary to pre- serve the life of the said C. D., contrary,” &c.3 § 757. Naming the Drug. — Notwithstanding the doctrine that it is not necessary to name the medicine or drug; it is often done in practice. The pleader will generally find it as con- venient to name it, or to allege the name to be unknown, as to follow the Indiana forms. It will be better, therefore, that he should do so, at least, in one of the counts; for it is the fairer way, and it saves all question.® Still, Bicknell observes: “If the name of the medicine be stated, the proof need not corre- spond therewith.”® The contrary doctrine to this was, how- ever, laid down in the New York Supreme Court, though it was in a measure overturned in the Court of Appeals; the ground taken in the Supreme Court being, that the name of the drug is descriptive of the main allegation; and, in such 1 Referring to Rex v. Phillips, 3 ring, for the statute, to Laws, 1859, p. Camp. 73. 2 The State v. Vawter, 7 Blackf. 592. 8.p. Shotwell v. The State, 37 Misso. 859; The State v. Van Houten, 87 Misso. 857. 3 Bicknell Crim. Pr. 469, 470; refer- 478 180; 2G. & H. 469, § 36. 4 Ante, § 751, note, 755. 5 And see Train & Heard Preced. 9 and note. ® Bicknell Crim. Pr. 470, referring to 2 Ind. 617. CHAP. XXXIV. | ABORTION. § 760 a case, it will not avail the pleader that he has laid the name under a videlicet. § 758. “Cause and procure.” — As many times observed, the pleader should attend to the particular words of the statute. Thus, where, in New Jersey, it was made indictable to do the criminal act “ with intent to cause and procure the miscarriage of a woman,” &c. an indictment was held to be bad which al- leged, in some of the counts, that the intent was to ‘“‘ cause” the miscarriage, and in others, that it was to “ procure” it, but in none of them connected the words “cause and procure,” as in the statute. The reader will observe, that, if the statutory term had been “ cause or procure,” the indictment would have been well enough; but, to commit any offence under the statute as actually drawn, the defendant must both “ cause and procure.” § 759. Duplicity — Homicide. — Under the Massachusetts statute before quoted,’ it does not render a count double, but it is perfectly permissible, to charge that the defendant used instruments and administered drugs, and by both of these means the woman died. The indictment, moreover, need not charge the offence as murder.® § 760. The Hvidence :— Woman as Witness. — The woman is a competent witness in these cases; but whether or not she is to be regarded as an accomplice, whose testimony needs confirmation, is a question on which the authorities appear to be not quite harmonious.® In California, it was deemed that this witness requires corrob- oration,’ while the contrary appears to be the New York doc- trine. So in Massachusetts it is held, that the woman is not technically an accomplice, therefore the rules on the subject of accomplices do not apply to her. But the court apparently approve the course of the judge at the trial, who, after laying down this doctrine to the jury, added, “but, inasmuch as she 1 Crichton v. People, 6 Parker C. C. 5 Commonwealth v. Jackson, 15 863, 1 Keyes, 341. Gray, 187. See, also, Commonwealth 2 The State v. Drake, 1 Vroom, v. Holmes, 103 Mass. 440. 422. 6 Ante, § 749. 3 Ante, § 748. 7 People v. Josselyn, 39 Cal. 393. 4 Commonwealth v. Brown, 14Gray, §& Dunn v. People, 29 N. Y. 523. 419. 479 § 761 OFFENCES MORE PURELY STATUTORY. [BooK Vv. was in a moral point of view implicated in the transaction, it would be proper for the jury to consider that circumstance in its bearing upon her credibility.” ! Now, according to some of the statutes, the woman would be actually an accomplice ; then, probably, the rules governing the testimony of accom- plices in other cases would apply to hers. According to other and most of the statutes she is not an accomplice; and, in such a case, the observation above quoted may not mislead. But, if we consider why an accomplice, in the technical sense, needs confirmation, we shall be satisfied that it is not so much because he is in morals a delinquent, as because he is guilty in law, and is testifying under the motive of screening himself from punishment. Such a person is, by his position, tempted to falsehood; not so a woman who, without legal guilt, has submitted to drugs or an instrument for the purpose of suffer- ing a-miscarriage. ~~ § 761. Other Points — Secretion of Foetus, &c. — It would be easy to state a variety of other points adjudged; but, as they are special to the special cases, they will be dismissed with a mere digest of some of them 1 Commonwealth v. Wood, 11 Gray, 85, 90, 93. 2 In one case, the prisoner’s counsel having avowed their intention to insist that one H. was the father of the child, and not the prisoner, it was held to be competent for the prosecutor to prove by the testimony of H., that he never had sexual intercourse with the woman upon whom the crime was committed. Dunn v. People, 29 N. Y. 523. In another case, it was held to be incompetent to prove that others than the prisoner had sexual intercourse with the woman ; because the paternity of the child was of no consequence in this issue. Crichton v. People, 6 Par- ker C. C. 368. Various points have been adjudged on the Massachusetts statute quoted ante, § 748. Thus, on an indictment for procuring a miscar- riage, the Commonwealth may intro- duce evidence of the health and spirits of the patient, and of stains and marks upon her bed-clothes, 4 month after- ward. Again, after evidence intro- 480 in a note.2 It may be added, duced by the defendant that the patient was pregnant some months after the operation is alleged to have been performed, the Commonwealth may prove by her that she had sexual inter- course with the defendant between the times of the alleged operation and of the subsequent pregnancy. Common- wealth v. Wood, 11 Gray, 85. On the trial of an indictment upon this statute, against a physician for administering ergot, with intent to procure a miscar- riage, whereby the woman died, evi- dence that the defendant was in the habit of receiving patients at his house for medical treatment, and that two young women, inmates of his family, were in the habit of attending them under the defendant’s direction, and of carrying their meals to them, and that they so attended the woman whose death was alleged in the indictment, and did her chamber work, and under the defendant’s directions gave her medicines and food; that they were present when the child was born, and CHAP. XXXV.] CONCEALMENT OF BIRTH. § 763 that, in an abortion case, the fact of a secretion of a foetus about the building where the offence is alleged to have been committed, is admissible in evidence as tending to prove the corpus delicti. § 762. Burden of Proof. — On a statute drawn like the Indi- ana one copied into a previous section,” it is a question of a sort upon which courts disagree,’ whether it is for the prose- cuting power or for the defendant to show, in the first instance, the necessity, or want of necessity, for procuring the miscar- riage. According to a decision in Ohio, the burden of proof is not on the government to show that the abortion was not necessary to save the life of the mother; but on the defendant to establish, that it was done by the advice of two physicians.* CHAPTER XXXV. CONCEALMENT OF BIRTH, OR CHILD MURDER. 763. Introduction, 764-776. Law of the Offence. 777-780. The Procedure. § 763. How the Chapter divided. — We shall consider, I. The Law of the Offence; II. The Procedure. told the defendant that they had got rid of her child, and that after the death of the woman the defendant directed them to say they gave her opium and camphor, not opium and calomel, and to say nothing about the ergot, and that he urged them to leave the house, which they did; is sufficient proof of a common purpose, to render evidence of other acts and declarations of the same persons, not in the defend- ant’s presence, tending to show that they gave ergot to her, admissible against him, with instructions that it is to affect him only if the jury should be satisfied that the parties had a common purpose and design, and that the acts and declarations were done and made in pursuance thereof. And on an in- dictment for using instruments to pro- cure a miscarriage, thereby causing death, injured parts of the body of the deceased woman preserved in spirits, may be exhibited to the jury in con- nection with the testimony of the physi- cian who made the post mortem examina- tion. Commonwealth v. Brown, 14 Gray, 419. For other points, see Com- monwealth v. Holmes, 103 Mass. 440. And see Commonwealth v. Hersey, 2 Allen, 173. 1 The State v. Howard, 32 Vt. 880, 405. 2 Ante, § 756. 3 See, for illustration, ante, § 648. 4 Moody v. The State, 17 Ohio State, 110. 481 § 765 OFFENCES MORE PURELY STATUTORY. [BOOK V. I. The Law of the Offence. § 764. Historical View : — In General — 21 Jac. 1. — The facility with which the life of aninfant at birth is extinguished, and the temptation to take it away, especially in cases of bastards, have led to the enact- ment of statutes both in England and in some of our States, as well as in Ireland and Scotland previous to their union with England, for the protection of the infant. By Stat. 21 Jac. 1, c. 27, it is provided, “that, if any woman . . . be delivered of any issue of her body, male or female, which, being born alive, should by the laws of this realm be a bastard ; and that she endeavor privately, either by drowning or secret burying thereof, or any other way, either by herself or the procuring of others, so to conceal the death thereof as that it may not come to light whether it were born alive or not, but be concealed ; in every such case the said mother so offending shall suffer death, as in case of murder; except such mother can make proof, by one witness at the least, that the child whose death was by her so intended to be concealed was born dead.” } § 765. 43 Geo. 3— 49 Geo. 3 —9 Geo 4. — This act and the Irish statute were, by the Parliament of the United Kingdom, repealed in 1803; namely, by Stat. 48 Geo. 3, c. 58, § 3. Afterward, in 1828, the statute of 9 Geo. 4, c. 31, § 14, was passed, and it was for many years in practical force and use in England; though it has now given place to a somewhat better drawn enactment, founded upon it, being Stat. 24 & 25 Vict. ¢. 100, § 60. The statute of Geo. 4 was as follows: “ That, if any woman shall be delivered of a child, and shall, by secret bury- ing or otherwise disposing of the dead body of the said child, endeavor to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned, with or without hard labor, in the common jail or house of correction, for any term not exceed- ing two years ; and it shall not be necessary to prove whether the child died before, at, or after its birth: Provided always, 1 See, for expositions of this statute, 1 Russ. Crimes, Grea. ed. 572; Archb. 1 East P. C. 228; 2 Hale P. C. 288; New Crim. Proced. 297. 482 CHAP. XXXV.] CONCEALMENT OF BIRTH. § 767 that, if any woman tried for the murder of her child shall not be convicted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find, in case it shall appear in evidence, that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavor to conceal the birth thereof, and there- upon the court may pass such sentence as if she had been con- victed upon an indictment for the concealment of the birth.” The act which appears to be now in force in Scotland, — 49 Geo. 3, c. 14, — repealing the old Scotch law, is more broad than this one; declaring, that, if any woman, “in that part of Great Britain called Scotland, shall conceal her being with child, during the whole period of her pregnancy, and shall not call for, or make use of, help or assistance in the birth, and, if the child be found dead or be missing, the mother being law- fully convicted thereof shall be imprisoned for a period not exceeding two years.” 1 § 766. 24 & 25 Vict.— The present English enactment, there- fore, is 24 & 25 Vict. c. 100, § 60, as follows: “If any woman ‘ shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavor to con- ceal the birth thereof, shall be guilty of a misdemeanor, &c. ; Provided, that, if any person tried for the murder of any child shall be acquitted, it shall be lawful for the jury, by whose verdict such person shall be acquitted, to find, in case it shall so appear in evidence, that the child had recently been born, and that such person did, by some secret disposition of the dead body of such child, endeavor to conceal the birth thereof ; and thereupon the court may pass such sentence as if such per- son had been convicted upon an indictment for the conceal- ment of the birth.” ? § 767. American Common Law.— The date of Stat. 21 Jac. 1, c. 27 (a.p. 1623), is sufficiently early to make it common law in the greater part of our States. And though the Penn- 1 1 Alison Crim. Law, 153; Brown’s 34, § 17, Irish; but was intended also Case, 1 Swinton, 482. to meet some defects which had been 2 Mr. Greaves tells us, that this stat- found to existin those statutes. Greaves ute was framed from Stats. 9 Geo. 4,c. Crim. Law Acts, 84. 81, § 14 (ante, § 765), and 10 Geo. 4. ¢. 483 § 769 OFFENCES MORE PURELY STATUTORY. [BOOK V. sylvania judges do not include it in their list,’ Kilty says it was received in Maryland, and there were numerous convic- tions under it in early times.? The legislation, however, of most of the States has rendered this question one of little practical importance. § 768. American Statutes. — The American enactments differ from one another; but the prevailing form is substantially what is adopted in Massachusetts; namely, “If any woman conceals the death of any issue of her body, which, if born alive, would be a bastard, so that it may not be known whether such issue was born alive or not, or whether it was not murdered, she shall be punished,” &c.2 The reader will per- ceive, that this enactment is very nearly a copy of Stat. 21 Jac. 1, c. 27, before quoted; while yet it so differs from it as to render a following of the interpretations given to that enact- ment a little unsafe. § 769. Interpretations of the Statutes : — General View. — The multiplicity of statutes, present and repealed, English and American, and their diverse terms, | render it difficult to draw from the decisions of the past such general doctrines as can be made available in constru- ing the differing enactments in our several States, in future causes. It may be observed, however, that the purpose of these statutes is to punish acts which, of themselves, are nearly or quite innocent, because of their being such as may, but do not necessarily, point to the perpetration of a heavier crime. While, therefore, all criminal statutes should be con- strued strictly, these should be specially so. In accordance with this view, Mr. Hast observes of Stat. 21 Jac. 1, c. 27: “This, being a very severe law, has always been construed most favorably for the unfortunate object of the accusation. If she called for help, or confessed herself with child, she is not within the construction of the statute; and then it will lie on the prosecutor to prove, that the child was born alive and 1 Report of Judges, 3 Binn. 595, of the next Parliament ;” but it was 6238. further continued by 8 Car. 1, c. 4, 2 Kilty Report of Statutes, 172. § 22, and made perpetual by 16 Car. 1, This statute of 21 Jac. 1, c. 27, was c. 4. originally, by its terms, to continue 3 Mass. Gen. Stats. c. 165, § 11; only “until the end of the first session formerly R. S. c.:180, § 6. 484 CHAP. XXXV. | CONCEALMENT OF BIRTH. § 771 murdered. Upon the same principle, evidence is always allowed of the mother’s having made provision for the birth, as a circumstance to show that she did not intend to conceal it, Again, if the child be born before its time, which is to be collected from circumstances, as if it have no hair, or nails, this is presumptive evidence that it was born dead; but it must be left to the jury upon all the circumstances of the case. At all events, if there be no concealment proved, the case stands as at common law ; and the woman is not put to the absolute necessity of proving, that the child was born dead. And even the presence of an accomplice has been held to take the case out of the statute.” 4 § 770. Concealment. — It is perceived that the object of these statutes is to punish, and so to prevent, what they term “ con- cealment,” — some of them punishing the concealment of the “ death,” others the concealment of the “birth,” of the child which may be shown to have died; the idea being, that such concealment is a badge of murder. We saw, in the last sec- tion, that, under the statute of James, which made punish- able the concealment of the “death,” if there was any person present, even an accomplice, the offence was not committed. Thus, continues Mr. Hast: ‘Jane Peat was indicted for the murder of her bastard child, and Margaret Peat her mother was indicted at the same time for being present aiding and abetting. It appeared that the prisoner Jane when in labor was heard by persons in an adjoining room to call to her mother, who was present with her. Heath, J. held that this took the case out of the statute; for, if any person be pres- ent, although privy to the guilt, there can be no concealment by the mother within the statute, and the case stands as at commonlaw. And there being no evidence of guilt but the con- cealment by both the prisoners, they were acquitted by his direction.”’ ? § T71. Continued — On Stat. Geo. 4.— This negative state- ment, as to what is not a concealment, will be of some help; but the question does not depend solely on the meaning of the word “conceal,” for it is to be construed in connection with other words, and they differ in the different statutes. Thus, 1 1 East P. C. 228. See post, § 771. 2 Rex v. Peat, 1 East P. C, 229, 485 § 771 OFFENCES MORE PURELY STATUTORY. [BOOK V. Mr. Greaves observes: “The terms of the former enactments were ‘by secret burying or otherwise disposing of the dead body,’ and on these terms many questions had arisen.” 4 These words were in Stat. 9 Geo. 4, c. 81, § 14. Let us look at some points decided, as to what is a concealment under this statute. One point is, that, to constitute a concealment within the meaning of this enactment, it was not necessary the body should have been put in what was meant to be its final resting place.? Still there must have been some act of disposal after the child was dead, and a mere denial was not sufficient ;* for, if the woman went to a privy for another purpose, and there the child came from her unawares, and fell into the soil and was suffocated, her offence did not come within the statute, though she denied the birth;+ or, if the woman was detected with the body in her possession, about to dispose of it, she could not be convicted of the offence. _ Moreover, the con- 1 Greaves Crim. Law Acts, 84. 2 Thus, when the mother, recently delivered, placed the dead body of her child under a bolster on which she laid her head, meaning thereby to conceal it from a surgeon and to bury it after- ward, the English judges, Pollock, C. B., dissenting, held the disposing of the child sufficient to bring the case within the statute. Said Parke, B.: “The body was not put in a final place of deposit, but that is not necessary ; and there was a secret disposal of it within the statute.” Reg. v. Perry, Dears. 471, 478, 6 Cox C. C. 581. 8. p. Reg. v. Goldthorpe, 2 Moody, 244, Car. & M. 385; Reg. v. Farnham, 1 Cox C. C. 849. And see Boyles uv. Commonwealth, 2S. & R. 40. 3 Reg. v. Turner, 8 Car. & P. 755. 4 Reg. v. Turner, 8 Car. & P. 755; Reg. v. Coxhead, 1 Car. & K. 623. See Rex v. Cornwall, Russ. & Ry. 336. 5 Rex v. Snell, 2 Moody & R. 44. In one case, the prisoner being a servant girl, “she appeared to be very ill, and her mistress sent for a surgeon. In the mean time the prisoner went up stairs, and when she came down she fell into a chair in a state of insensibility, and was so found by the surgeon. On ex- 486 amining the bedroom where she slept, which was also the room where her mistress, slept, blood was observed on the floor, and, in an attic above, the_ dead body of a male child was found on the floor wrapped in bed-sheets, which had been removed from the room below. ‘The head of the child was separated from the body, and a table-knife was lying on the floor near it. According to the medical evidence, the child had not been born more than two hours, and there was no doubt of its having been born alive. The pris- oner stated, immediately after the dis- covery of the body of the child, that it was dead, and she cut off its head. The prisoner had not been suspected of pregnancy, and it appeared from her youth and inexperience that she might have been herself unconscious of the fact. Although it was proved that the knife was usually kept in the kitchen, it appeared that it might, at the time of its use, have been lying in the attic. The sheets, with the body, were found in the middle of the room.” Talfourd, J. expressed the opinion that this was not a case of concealment. Reg. v. Goode, 6 Cox C. C. 318. . CHAP. XXXV.] CONCEALMENT OF BIRTH. § 772 cealment, to be within this statute, must have been .for the purpose of keeping the knowledge of the offence from the world at large ; consequently, on the one hand, there might be a con- cealment though the fact was communicated to a confederate ; 1 and, on the other hand, if the girl put the child away merely through fear of provoking her father, but for which she would have caused it to be, buried in the churchyard, the offence is not committed.” § 772. Continued. — Moreover, under this statute, according to a ruling by Erle, J. there could be no concealment unless the child had been so long in its mother’s womb, that, in the ordinary course of things, it would have a fair chancé of being born alive. ‘It is not necessary,” said the learned judge to the jury, “that it should have been born alive, but it must have reached a period when, but for some accidental circum- stance, such as disease on the part-of itself or of its mother, it might have been born alive. There is no law which compels a@ woman to proclaim her own want of chastity; and, if she had miscarried at a time when the foetus was but a few months old, and therefore could have no chance of life, you could not convict her upon this charge. No specific limit can be as- signed to the period when the chance of life begins; but it may, perhaps, be safely assumed that under seven months the great probability is, that the child would not be born alive.’’3 The statutory word, it should be remembered, is “ child; ” and the same word is employed in the present English enact- ment. Under this, on a trial before Smith, J. in a case where the woman had gone less than seven months, it was contended on her behalf, that here was a foetus, but not a child. The learned judge said, he “‘should leave it to the jury to say, whether the offspring had so far matured as to become a child, or was only a foetus, or the unformed subject of a premature miscarriage.” + On the other hand, Martin, B. in a case before him, refused to yield to this doctrine, “stating that he saw nothing to limit the word ‘child’ in the statute to a child 1 See ante, § 769. 3 Reg. v. Berriman, 6 Cox C. C. 888, 2 So the doctrine was laid down by 890." Coltman, J. before a jury. Reg. v. + Reg. v. Hewitt, 4 Fost. & F. 1101. Morris, 2 Cox C. C. 489. 487 § 7738 OFFENCES MORE PURELY STATUTORY. [BOOK v. likely to live or likely to die, but that as soon as the foetus had the outward appearance of a child [in this case it was about the length of a man’s finger] it was sufficient.”+ The question appears never to have gone before the full bench of judges. Of course, though there is a concealment, if it was done by some other person without the privity of the woman, she must be acquitted; therefore an acquittal was ordered where it appeared that she had made child’s clothes, and at her confinement had sent for a surgeon.? § 778. Continued — On 24 & 25 Vict. — A few cases have arisen on the present English enactment, 24 & 25 Vict. c. 100, § 60, before quoted. We saw, in the last section, that, on this statute as on the preceding one, the judges differ as to the meaning of the word “child.” The endeavor to conceal the birth must be by putting the child in some place where it is not likely to be found, for example, putting it in an open box in the prisoner’s bedroom, and, on inquiry by the medical man, telling him it is in the box, is not a secret disposition within the statute In a late case, where the prisoner had put the body in a place partly exposed and partly not so, Bovill, C. J. said, in the Court for Crown Cases Reserved, in an opinion concurred in by the other judges: “It seems to me that what is a‘ secret disposition’ must depend upon the circumstances of each particular case. The most complete ex- posure of the body might be a concealment ; as, for instance, if the body were placed in the middle of a moor in the winter, or on the top of a mountain, or in any other secluded place, where the body would not be likely to be found. There would, in such a case, be a secret disposition of the body; and the jury must say, in each case, whether or not the facts show that there has been such a disposition. In this case, ... the evidence of a secret disposition consisted in the situation 1 Reg. v. Calmer, 9 Cox C. C. 506. note; Reg. v. Halton, 2 Moody & R. 2 Rex vu. Higley, 4 Car. & P. 366. 295, note; Rex v. Watkins, 1 Russ. For further authorities on the earlier Crimes, Grea. ed. 574. And see Com- English statutes, see Reg. v. Bird, 2 monwealth v. Clark, 2 Ashm. 105. Car. & K. 817; Rex v. Snell, 2 Moody 3 Ante, § 766. & R. 44; Reg. v. Ash, 2 Moody & R. # Reg. v. Sleep, 9 Cox C. C. 559. 294; Reg. v. Jones, 2 Moody & R. 295, And see Reg. v. George, 11 Cox C. C. note; Reg. v. Bell, 2 Moody & R. 294, 41. 488 CHAP. XXXV. | CONCEALMENT OF BIRTH. § 775 in which the body was placed; and it was a question for the jury to say, whether placing the body in such a situation was, in fact, a secret disposition of the body.” 1 This statute, it is per- ceived, makes punishable the secret disposing, not of a living child, but of the “dead body.” Therefore, where a child was born alive, and the mother, to conceal the birth, left it in the corner of a field to die from exposure, and it was found dead, she was held not to have committed this statutory offence,? though she was guilty of a crime at the common law. § 774. Within the Mischief — Whether born alive. — From what has been already said it. follows, that the mere conceal- ment is not alone sufficient, but the case must come fully within the mischief to be remedied by the statute. There is no need, as already observed,* the child should have been born alive.® § 775. Accomplices. — In Rhode Island it is held, that the mother alone can commit the offence created by this enact- ment, as a principal of the first degree; but, when she is guilty, other individuals may be guilty also of the principal offence, or guilty as accessories, on the ground of aiding and 1 Reg. v. Brown, Law Rep. 1 C. C. 244, 246. And see Reg. v. Opie, 8 Cox C. C. 332; Reg. v. Clarke, 4 Fost. & F. 1040. 2 Reg. v. May, 10 Cox C. C. 448, 15 W. R. 751, 16 Law Times, wn. s. 362. 3 Commonwealth v. Clark, 2 Ashm. 105; 1 East P. C. 228; ante, § 282. 4 Ante, § 772. 5 Reg. v. Cornwall, Russ. & Ry. 336; Reg. v. Wright, 9 Car. & P. 754. See further, on the English law, Rex v. Maynard, Russ. & Ry. 240; Rex v. Cole, 2 Leach, 4th ed. 1095, 3 Camp. 871; Rex ». Dobson, 1 Lewin, 48. Contra, in North Carolina. The words of the statute were: “If any woman be delivered of issue of her body, male or female, which, being born alive, would by the laws of this State be a bastard, and she endeavors privately, either by drowning, or secret burying thereof, or in any other way, either by herself or the procuring of others, so to conceal the death thereof as that it may not come to light whether it were born alive or not, but be concealed,” &e. And the majority of the court, one judge dissenting, held, that the offence consists in concealing the death of a being on whom murder could be committed. Therefore, if the child is still-born, the concealment is no offence ; but the burden of proof is on the de- fendant to show this fact. The State v. Joiner, 4 Hawks, 350. Under the Pennsylvania statute of 1718, conceal- ment of the death was evidence that the child was born alive and killed by the mother. But under statutes of 1786 and 1790, concealment was not sufficient evidence to convict the moth- er; there must also have been pre- sumptive proof that the child was born alive. And by statute of 1794, con- cealment is not conclusive evidence, unless the attendant circumstances are sufficient to satisfy the jury that the mother wilfully and maliciously de- stroyed the child. Commonwealth v. McKee, Addison, 1. 82 489 § TTT OFFENCES MORE PURELY STATUTORY. [BooK Vv. abetting her! The reader perceives, that the same doctrine likewise would follow from the terms of the English statute of 9 Geo. 4, c. 81, § 14;2 the consequence of which would be, that, unless the woman was found guilty, all other. guilty persons must escape. Therefore Mr. Greaves observes of this statute: “Cases have not unfrequently occurred where en- deavors have been made to conceal the birth of children, and there has been no evidence to prove that the mother partici- pated in those endeavors, though there has been sufficient evidence that others did so, and under the former enactments [that is, Stat. 9 Geo. 4, c. 31, § 14, &c.], under such circum- stances, all must have been acquitted,’ — a defect met by the late provisions. If the mother employed an accomplice to do | the active work of concealment, she could be convicted as principal in the first degree, though she was not continually present with the accomplice; as, for example, though she remained in bed while he buried the body.* But where the woman was not personally concerned in the disposal of the body, “you must show,” said Montague Smith, J. “ that the child was taken away at her request or privity.” § 776. Conclusion — Statute. — What is thus said under this sub-title will be of help to the practitioner, if, instead of im- plicitly following it, he will look carefully into the terms of the statute of his own State, compare them with the English provisions, and make use of the English expositions as hints, not as absolute guides. But here, as under every other title in the law, it is impossible that the elucidations of an author should supply the place of thought and carefulness in those who use his book. II. The Procedure. § T77. Indictment. — We have seen, that the statutory pro- visions on this subject are not uniform. Still it will be everywhere helpful to the practitioner to have before him an 1 The State v. Sprague, 4 R. I. Car. & K. 817; Reg. v. Skelton, 3 Car. 257. & K. 119. 2 Ante, § 699. 4 Ib.; Rex v. Douglas, 7 Car. & P. 3 Greaves Crim. Law Acts, 84. And 644. see, on this question, Reg. v. Bird,2 5 Reg.v. Bate, 11 Cox C. C. 686, 688. 490 CHAP. Xxxv.] CONCEALMENT OF BIRTH. § 779 indictment drawn upon a statute which has been set out in full. He can then compare tht statute with his own, and make use of the form here given as suggestive of the proper form of the indictment upon his own statute. Archbold fur- nishes the following, drawn upon the before recited statute of 9 Geo. 4, c. 31, § 14: — “That A, of, &c., on, &c., in the county aforesaid, being then and there big with a child, was then and there delivered of the said child alive, which said child then and there instantly died; and that the said A, being so delivered of the said child as aforesaid, did then and there unlawfully endeavor to conceal the birth of the said child, by secretly burying (‘by secret burying or otherwise dis- posing of’) the dead body of the said child; against the form of the statute in such case made and provided, and against the peace of our lady the queen, her crown, and dignity.” } § 778. Views concerning this Form.— This author proceeds: “ Add a second count, stating that the child was born dead, and state the means of concealinent specially, when it is other- wise than by secret burying. An indictment for concealing the birth ‘by secretly disposing of the dead body,’ &c., with- out showing the mode of disposing of it, is bad.2 Where the indictment charged that the defendant cast and threw the dead body of the child into the soil in a certain privy, ‘ and did thereby then and there unlawfully dispose of the dead body of the said child, and endeavor to conceal the birth thereof, it was held sufficient; the word ‘thereby’ being re- ferred as well to the endeavor as to the disposing of the body. The indictment need not state whether the child died before, at, or after its birth.’ Still it “must expressly allege the child to be dead, for it is only an offence to conceal the dead body.” 4 § 779. Death — Manner of Death — Pennsylvania. — The Pennsylvania statute is, or was, as follows: “If any woman shall endeavor privately, either by herself or by the procurement of others, to conceal the death of any issue of her body, male or female, which, if it were born alive, would by the law be a bastard, so that it may not come to light, whether it was born 1 Archb. Crim. Pl. & Ev. 10th Lond. 3 Reg. v. Coxhead, 1 Car. & K. ed. 435. 623. 2 Reg. v. Hounsell, 2 Moody & R. 4 Rex v. Davis, 1 Russ. Crimes, 292. Grea. ed. 574, 491 § 780 OFFENCES MORE PURELY STATUTORY. [BOOK v. dead or alive, or whether it were murdered or not, every such mother, being convicted,” &c. And, in accordance with the English doctrine as stated in the last section, it is held to be necessary that the fact of the death shovld appear in the allegation! Still it has been held to be)sufficient, on this point, to charge, that the defendant afterward, &c., “ the said infant having, on the day and year aforesaid, died, did en- deavor privately to conceal the death of said infant;”? because, as we have seen,? a material allegation in an indictment is good though made in the participial or even adverbial form. But, contrary to the doctrine of the last section, it is held in this State not to be necessary for the indictment to set out in what manner or by what acts the mother endeavored to conceal the death.* § 780. Evidence — Verdict. — ‘“ Upon a prosecution under [the statute mentioned in the last section],” said Rogers, J. “the prosecutor must prove the birth of the child, its death, an endeavor to conceal its birth, and that if born alive it would be a bastard.”® Hence it follows that a verdict of “ouilty of concealment in manner and form as she stands indicted,” is insufficient; because it does not pass upon the question whether or not the child was a bastard.® In one case, the only evidence on the point of bastardy was, that the de- fendant had said to a witness “she had never told any one but the father of the child, and he was a long way in the country, his name was Thomas Harris, and he had lately got married.” Littledale, J. expressed to the jury the opinion, that, if this evidence was believed, it was sufficient.’ Clear identification of the body has been held, in these cases the same as in murder, to be important.2 Some further hints respecting the evidence may be gathered from the discussions in other parts of this chapter. 1 Douglass v. Commonwealth, 8 Watts, 585. And see Rex »v. Poulton, Watts, 585; Act of 1794, § 17. 6 Car. & P. 329; Commonwealth v. 2 Boyles v. Commonwealth, 2 S. & McKee, Addison, 1, 2. R. 40. 6 Boyles v. Commonwealth, 2 S. & 3 Ante, § 421, in brackets, in the R. 40. second form. T Rex v. Poulton, supra. * Boyles v. Commonwealth, supra. 5 Reg. v. Williams, 11 Cox C. C. 5 Douglass v. Commonwealth, 8 684. 492 CHAP. XXXVI.] CARRYING WEAPONS, § 7838 CHAPTER XXXVI. CARRYING WEAPONS. 781,782. Introduction. 783-793. Law of the Offence. 794-801. The Procedure. § 781. Diversities of Statutes. — In this chapter, as in the last, the author and reader must alike beg embarrassed by the diversities in the language of the statutes of the several States, and those of the same State at different times, on the general subject.’ Still, if the discussion will be less interest- ing and less satisfactory on this account, it is not the less demanded; and, though it cannot accomplish all which might be desired, it will be in its measure helpful to courts and practitioners. § 782. How the Chapter divided.— We shall divide the dis- cussion into I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 783. Stat. of Northampton, &c. — Blackstone says: “ The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and it is particularly prohibited by the statute of Northampton, 2 Edw. 3, c. 3, upon pain of for- feiture of the arms, and imprisonment during the king’s pleas- ure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armor.”! This statute, with the exception of the part providing for its en- forcement, is as follows: “That no man, great nor small, of what condition soever he be, — except the king’s servants in his presence, and his ministers in executing of the king’s precepts, or of their office, and such as be in their company assisting them, and also [those of feats of arms of peace] upon a cry made for arms to keep the peace, and the same 14 Bl. Com. 149. 493 § 786 OFFENCES MORE PURELY STATUTORY. [BOOK v. in such places where such acts happen, — be so hardy to come before the king’s justices or other of the king’s ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armor to the king, and their bodies to prison at the king’s pleasure.” ! § 784. Common Law. — The offence created by this statute is said in England to have been such also by the earlier com- mon law.2. The same thing has moreover been very properly held in the Unitéd States; and so here, whether we receive the English statute or not, we hold as criminal by our common law the going or riding about armed, with unusual and dan- gerous weapons, to the terror of the people.? But the statute bears date long anterior to the settlement of this country, it is of a sort adapted to the wants of every civilized community ; and, if the question is deemed important, no reason can well be assigned why it should not be regarded as common law in our several States. § 785. Statutes — Dangerous Weapons. — The offence thus described, it is seen, is the going about with dangerous weap- ons, to the terror of the people. In aid, also, of the common law with us on this subject, statutes have been passed in some of the States.* § 786. “Secret” or “Concealed” Weapons. — But a greater ‘danger may, under some circumstances, be found in the act of going about with secret or concealed weapons; therefore we have, in some of the States, statutes upon this subject. They are intended for the protection of the community against the assaults of those who carry such weapons.> The words of the Indiana enactment were, “every person, &c., who shall wear or carry any dirk, pistol, sword, or any cane or other 1 And see Crim. Law, 5th ed. II. relating to the carrying of arms by ne- § 492. groes and slaves : The State v. Harris, 2 Knight’s Case, 3 Mod. 117, Comb. 6 Jones, N. C. 448; The State v. Han- 388. nibal, 6 Jones, N. C. 57; The State v. 3 The State v, Huntly, 2 Ire, 418. Chavers, 5 Jones, N. C. 11. * Nunn v. The State, 1 Kelly, 243. 5 Haynes uv. The State, 5 Humph. The following cases are under statutes 120; Evins v. The State, 46 Ala. 88. 494 CHAP. XXXVI. ] CARRYING WEAPONS. § 787 dangerous weapon concealed, shall,” &c., proceeding then to point out the punishment; } but they were afterward slightly altered to read as follows: “every person, not being a traveller, who shall wear or carry any dirk, pistol, bowie knife, dagger, sword in cane, or any other dangerous or deadly weapon, con- cealed, or shall carry or wear any such weapon openly, with the intent or avowed purpose of injuring his fellow-men, shall, on conviction thereof, be,” &c.2 The language of the statutes of the other States which have adopted this provision is similar.’ § T87. “Carries” — “Conceals” — One Instance — Habit. — The statute of Alabama provides a punishment for “‘ any one who carries concealed about his person a pistol, or any other description of firearms; not being threatened with or having good reason to apprehend an attack, or travelling, or setting out on a journey.” And the court, by Rice, C. J. observed : “The word ‘carries, in the section above cited, was used as a synonym of ‘bears;’ and the word ‘concealed,’ as therein used, means wilfully or knowingly covered or kept from sight. Locomotion is not essential to constitute a carrying within the meaning of that section.” Therefore it was held, that one, who, being in another’s room wherein there are several per- sons, has in his vest-pocket a pistol, and wilfully or knowingly covers or keeps it from sight, commits the offence defined by the statute And in Georgia, under a like statute, it was held to be inadmissible for the defendant to show, that, at times other than the one in question, he carried the weapon openly ; and such, indeed, was his habit.2 So, in a Virginia case, where the evidence showed that in a single instance only the defendant had been seen with a weapon concealed, yet the circumstances were such as to render it probable this was his general practice, the majority of the court affirmed a judg- ment of conviction against him. These authorities establish, what is plain in principle, that this offence, like larceny, mur- der, and most other crimes, may be committed by a single 1 The State v. Duzan, 6 Blackf. 81. 5 Washington v. The State, 86 Ga. 2 Bicknell Crim. Pr. 397, referring 242. to Laws, 1859, p. 129; 2 G. & H. 480. 6 Hicks v. Commonwealth, 7 Grat. 3 See Haynes v. The State, supra. 597. * Owen v. The State, 31 Ala. 387, 389. 495 § 790 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. transaction, and need not, to be indictable, be ripened into a habit or continuing practice. § 788. Partly concealed — “ Secrete.” — Moreover, the Georgia court held, that, though the weapon is partly hidden from view, yet, if a pistol, for example, is so far exposed upon the person as to enable every one plainly to see what it is, the act of so carrying it does not violate this statute.1 This seems not to be the doctrine in Florida; the statute of which State, however, is in different words. Itis: “That hereafter it shall not be lawful for any person in this State to carry arms of any kind secretly on or about their person, &c. Provided, that this law shall not be so construed as to prevent any person from carrying arms openly outside of all their clothes.” Upon this it is held, that a man violates the statute who carries about his person a weapon partly concealed.? § 789. Motive. — The motive for carrying the weapon, it has been held in Indiana, is not material, and so the offence is committed if the purpose is merely to exhibit it as a curi- osity.2 And, in a Kentucky case, it is somewhat indistinctly laid down, that proof of the defendant’s having been shot at two years previously is not admissible in his defence.* On questions of this sort there may be some difference of opinion ;® but the latter doctrine, as thus stated, is undoubtedly correct, and so may be the former. Yet, in reason, there may be cir- cumstances in which the right of self-defence will justify the carrying of a concealed weapon for the purpose; and, should such a case arise (and it must be an extreme one, out of the ordinary course of things, or it could not arise), doubtless this should be held to be an exception, engrafted by the com- mon law upon the general terms of the statute.® § 790. “ Bowie-knife.”— Under a statute of this kind, a knife which in some of its essential particulars is like a bowie-knife, is a “ bowie-knife or knife or instrument of like kind or de- 1 Stockdale v. The State, 82 Ga. 4 Hopkins v. Commonwealth, 3 Bush, 225; Killet v. The State, 82 Ga. 480. 292. 5 Ante, § 238. 2 Sutton v. The State, 12 Fla. 185. ® Ante, § 7, 128, 181, 141, 851-359, 3 Walls v. The State, 7 Blackf. 3862. 672, 496 CHAP. XXXVI. ] CARRYING WEAPONS. ’ § 792 scription ;”’ but, where all the essential particulars are differ- ent, it is not such a knife. § 791. “ Pistol”— The Indiana court has held, that a pistol, carried concealed about the person, need not be loaded to be within the act.2 Still, according to the Alabama court, if the instrument has no mainspring or other necessary parts of a lock, and can be fired off only by the use of a match, or in some other such way, it is not a pistol. Said Peck, OC. J.: “A pistol, to be within the purview and meaning of the statute and the mischief and evil intended to be prevented, must have such a degree of perfectness as that it may reason- ably be carried and used as a weapon.” 8 § 792. Constitutionality of these Statutes : — Right to keep and bear Arms. — The Constitution of the United States provides, that, “‘a well-regulated militia being necessary to the security of a free State, the right of the peo- ple to keep and bear arms shall not be infringed.”’* This provision is found among the amendments; and, though most of the amendments are restrictions on the General Government alone, not on the States, this one seems to be of a nature to bind both the State and National legislatures; and doubtless it does. As to its interpretation, if we look to this question in the light of juridical reason, without the aid of specific authority, we shall be led to the conclusion, that the provision protects only the right to “keep” such “ arms” as are used for purposes of war, in distinction from those which are employed in quarrels, brawls, and fights between maddened individuals ; since such, only, are properly known by the name of “‘arms;” and such, only, are adapted to promote “the security of a free State.” In like manner, the right to “ bear ” arms refers merely to the military way of using them, not to their use in bravado and affray. Still, the Georgia tribunal seems to have held, that a statute prohibiting the open wearing of arms upon the person violates this provision of the Consti- tution, though a statute against the wearing of the arms con- cealed does not.6 And, in accord with the latter branch of 1 Sears v. The State, 33 Ala. 847. * Const. U. S. amendm. art. 2. 2 The State v. Duzan, 6 Blackf. 31. 5 Nunn v. The State, 1 Kelly, 243; 8 Evins v. The State, 46 Ala. 88, 89. Stockdale v. The State, 32 Ga. 225. 497 § 793 OFFENCES MORE PURELY STATUTORY. [BOOK V. this Georgia doctrine, the Louisiana court has laid it down, that the statute against carrying concealed weapons does not infringe the constitutional right of the people to keep and bear arms; for this statute is a measure of police, prohibiting only a particular mode of bearing arms, found dangerous to the community.} § 793. Continuea.— Of a similar nature to this provision in the Constitution of the United States, are provisions found in the constitutions of several of the States. And the Alabama court has held, that the statute against carrying concealed weapons is not in violation of the constitutional guaranty, to every citizen, of the right ‘‘ to bear arms in defence of himself and the State.”2 The Constitution of Kentucky declares, that “the rights of the eitizens to bear arms in defence of them- selves and the State shall not be questioned ;” and a majority of the court held the statutory provision against carrying con- cealed weapons, to be in violation of this constitutional guar- anty. The learned judge who delivered the opinion said: “ To be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; itis the right to bear arms in defence of the citizens and the State that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the ex- plicit language of the constitution.” On the other hand, a similar clause in the Arkansas Constitution was declared by the Arkansas court not to be violated by this enactment, — the object of which is, the court considered, not to prevent the carrying of weapons in self-defence, but only to regulate the manner of carrying them. And the Arkansas doctrine is the one approved generally by the American tribunals. 1 The State v. Jumel, 18 La. An. 899. 2 Owen v. The State, 81 Ala. 3887. And see Cockrum v. The State, 24 Texas, 394, 3 Bliss v. Commonwealth, 2 Litt. 90. 4 The State v. Buzzard, 4 Ark. 18. 5 Aymette v. The State, 2 Humph. 154; The State v. Reid, 1 Ala. 612; The State v. Mitchell, 8 Blackf. 229, 498 The North Carolina court held, that the “act to prevent free people of color from carrying fire-arms ” does not vio- late this constitutional provision ; for, first, these people are not in the fullest sense citizens; or, secondly, if they are, they ‘occupy such a position in society as justifies the legislature in adopting a course of policy in its acts peculiar to them.” The State v. New- CHAP. XXXVI.] CARRYING WEAPONS. § 794 II. The Procedure. § 794. Indictment : — New York Statute and Form.— The New York amended act of 1866, c. 716, provides as follows : — “§ 1. Every person who shall within this State use, or attempt to use, or, with intent to use against any other person, shall knowingly and secretly conceal on his person, or with like intent shall wilfully and furtively possess any instrument or weapon of the kind commonly known as slung-shot, billy, sand club or metal knuckles, and any dirk or dagger (not con- tained as a blade of a pocket knife), or sword-cane or air-gun, shall be deemed guilty of felony, and, on conviction thereof, may,” &e. “§ 2. The having possession of any of the weapons men- tioned in the first section of this act by any other than a pub- lic officer, wilfully and secretly concealed on the person or knowingly and furtively carried thereon, shall be presumptive evidence of so concealing and possessing or carrying the same with the intent to use the same in violation of the provisions of this act.” This statute, it is perceived, differs considerably from most of those which were discussed under the last sub-title. It has certainly no relation to “ bearing arms” within the constitu- tional guaranty; in some respects, it resembles the English provision against garroting copied into a ‘previous section.! The following is a form of the indictment which has been used in Albany city and county : — “That A, &., on, &c., at the city and county aforesaid, did, knowingly and secretly, conceal on his person, and wilfully and furtively possess an instrument or weapon of the kind commonly known as slung-shot, billy, sand club and metal knuckles, and a dirk and dagger (not contained as a blade of a pocket knife), and also a sword-cane and air-gun, with intent to use the same, and each of them, against some other person ; against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.” ? 3 som, 5 Ire. 250. This was the doctrine 1 Ante, § 581. laid down before the late changes in 7? This form was kindly furnished our National and State constitutions me by N.C. Moak, Esq., the present placed all persons, who are native-born, district attorney. It was drawn, I pre- on equal footing among us, whatever sume, by some one of his predecessors, may have been their former status. I do not know by whom. — 499 § 795 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 795. Observations on this Form.— It is perceived that this form is drawn entirely on the first section of the statute, with no reference to the second. That is plainly correct; for the second section refers merely to the evidence. It uses the dangerous word “ or,” in one place, — “ instrument or weapon.” But, in the present instance, this cannot be said to be wrong; because, in the statute, the two words which are connected by the “ or,” namely, “ instrument” and “ weapon,” are employed as being alike in meaning, and explanatory each of the other.! Still, as the question might be raised whether this is so, why not avoid it by transferring to the indictment only one of the words, and dispensing with both “or” and “and”? Or, why not connect the two words by “and,” instead of “or”.? In the latter case, the thing must be proved to be both an “ instru- ment” and a “ weapon;”? and, if it is one of these, and the two words are identical in meaning, it is both. In another place, where the statute has the word “sand club o7 metal knuckles,” the pleader puts “ and” into the indictment for the statutory “ or;”’ and this is well as a mere question of plead- ing, but if the writer understands the meaning, it requires the proofs to show that the weapon is both. Why, then, use both words in the allegation, when one will do as well? But the real difficulty, in this case, is in construing the statute. Now, it is always necessary for the pleader, before proceeding to draw an indictment on any statute, to consider how the statute will be interpreted by the courts; and, in most instances, he cannot make the indictment right, unless he first understands how the interpretation will be.? If he is in doubt, he may, in different counts, draw his indictment on the several different theories which occur to his mind as to its interpretation. As to the present-statute, seeing that “and” may be inter- preted as “or”? when the sense requires it,t and the printed marks of punctuation are not necessarily to be regarded,® the author, if he were called upon to construe this statute, would insert a comma after the word “ cltb,” and another after the 1 Crim. Proced. 2d ed. I. § 590. and accompanying sections; post, 2 Tb. I. § 588. § 796, 797. 3 See Crim. Proced. 2d ed. I. § 628, 4 Ante, § 243, 5 Ante, § 78. 500 CHAP. XXXVI. ] CARRYING WEAPONS. § 796 word “ cane,” and he would change the word “and” occur- ring between “ knuckles” and “ any” into “or.” ‘The mean- '. ing is now plain; and, if this is the true meaning, the foregoing form of the indictment is not right. It charges the defendant with possessing a “ weapon of the kind commonly known as slung-shot-billy-sand club and metal knuckles,” while the statute does not contemplate the existence of any such weapon. To fill the statute, as thus interpreted, if the pleader wishes to put into the one count all which the statute prohibits, he should say, “a weapon commonly known as slung-shot, and another weapon commonly known as billy, and another weapon commonly known as sand club,” &e.1 Of course, if the statute is not interpreted in this way, the indict- ment should not be so drawn. And the writer has before him no means of ascertaining how the enactment is interpreted by the New York courts. § 796. Massachusetts — Having Weapon when arrested, &c. — In Massachusetts, also, there is a provision differing some- what from those which are discussed under the last sub-title. It is: “Whoever when arrested upon a warrant of a magis- trate issued against him for an alleged offence against the laws of this State, and whoever when arrested by a sheriff, deputy- sheriff, constable, police officer, or watchman, while committing a criminal offence against the laws of this State, or a breach or disturbance of the public peace, is armed with, or has on his person, slung-shot, metallic knuckles, billies, or other danger- ous weapon, shall be punished,” &c.2, Upon this, the author has before him two reported cases, and in both the indictment or complaint was held to be inadequate. In the first, the allegation was, that the defendant was arrested while com- mitting the crime of drunkenness, and, at the time of the arrest, was armed, &c. The court, in considering the suffi- ciency of what was thus set out against the defendant, followed the direction given in the last section ; namely, it, in the first place, construed the statute. Waiving the question whether drunkenness was one of the crimes meant by the statute, the learned judge observed: “This enactment was intended to apply only to legal arrests made by virtue of a warrant, or in 1 See Crim. Proced. 2d ed. I. § 588 and note. 2 Gen. Stats. 164, § 10. 501 § T97 OFFENCES MORE PURELY STATUTORY. [BOOK v. pursuance of some valid legal authority. Its manifest purpose was to prohibit and restrain the carrying of weapons by offend- ers, and thus to give security to officers when acting in the lawful discharge of their duty. But it was not designed to apply to cases where parties were unlawfully arrested, or to protect officers from injury or harm when they were mere trespassers, or doing acts which were unauthorized by law.” Therefore, in some way, the complaint must show that the arrest was a lawful one. By the law of Massachusetts, officers have no general authority to make arrests without warrant for drunkenness; they can do so only in certain specified instances. In this case, therefore, as the complaint neither set out a warrant, nor entered into particulars by which the lawfulness of the arrest without warrant appeared, it was insufficient! In the other case, the indictment set out an arrest on a warrant by a police officer; but, as by the laws of Massachusetts police officers have not necessarily the power of serving processes of this sort, and can do so only when par- ticularly appointed with the power, and the allegation did not mention the sort of appointment, it was held to be insuffi- cient.” § 797. Indiana — Concealed Weapons. — The terms of the stat- ute of this State have already been given.? And it is held that. an information on the clause against carrying concealed weap- ons, which substantially follows the words of the statute, is sufficient ; it need not go beyond them and allege, that the defendant unlawfully carried, or was in the habit of carrying, or carried with intent, &c. If tle reader will look at the terms of the enactment, he will see that it was necessary for the court, as in the last section, to construe the statute, in order to determine what was sufficient in allegation; for, if another plausible meaning had been given to the provision, a different result as to the form of the information would have become necessary. The following form was deemed to be adequate : — 1 Commonwealth v. O’Connor, 7 Al- 2 Commonwealth v. Doherty, 103 len, 583, 584, opinion by Bigelow, C.J. Mass. 448. 3 Ante, § 786. 502 CHAP. XXXVI. ] CARRYING WEAPONS. § 801 “That A., &e., on, &e., at, &c., he not then and there being a traveller, did then and there wear and carry concealed about his person, a dangerous and deadly weapon, to wit, a fire-arm called a revolver, contrary,” &c.1 Moreover, an indictment for carrying concealed a pistol, contrary to this prohibition, need not aver the pistol to have been loaded; because the statute does not make this fact material to the offence.? § 798. Kentucky. — In Kentucky, an indictment under the act of March, 1854, prohibiting the carrying of concealed weapons, is held to be good if it distinctly charges, that the instrument carried was a deadly weapon, and carried con- cealed; though it does not add, that the defendant did not come within the exceptions mentioned in the second section of the act.8 § 799. Evidence : — Concealed Weapon. — If the indictment is for carrying a concealed weapon, the evidence must show, not only that the prisoner had a weapon at the time and place charged, but that he had it concealed about his person. § 800. How much of the Allegation. — Of course, it is neces- sary to prove only so much of the allegation as shows an offence. Thus, where the charge was, that the defendant carried “deadly weapons; to wit, a bowie-knife, and also a dirk or dagger ;”’ and he was shown to have carried a bowie- knife, this was held to be sufficient for his conviction, though there was no proof of his having carried the dirk or dagger.® § 801. Conflicting Testimony — Witness seeing — Not seeing —In Georgia, on the trial of an indictment for unlawfully carrying a deadly weapon, the prosecutor swore positively, that, during a quarrel between himself and the defendant, he saw a pistol about the person of the latter. Another witness swore, that he was present at the quarrel, saw no pistol, looked closely to see if he could see any thing of the kind, and must have seen it if the defendant had it about his person. It was held 1 The State v. Swope, 20 Ind. 106. 4 Washington v. The State, 36 Ga. 2 The State v. Duzan, 6 Blackf. 31. 242. And see The State v. Swope, supra; > Commonwealth v. Howard, 3 Met. ante, § 791. Ky. 407. 3 Commonwealth v. McClanahan, 2 Met. Ky. 8. See ante, § 605, 606. 503 § 803 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. not to be error for the court to charge the jury, that both wit- nesses might have sworn truly, and that the preponderance of the evidence was in favor of the positive testimony of the pros- ecutor, whose attention, excited by the quarrel, was directed toward the weapon. With regard to this case it may be observed, that, in an exact view, it is hardly a matter for the law to determine, what weight is to be given to the testimony of the conflicting witnesses under such circumstances, but this is peculiarly a question for the jury. When two persons look together at one point for an object, and one says he saw it, and the other says he did not see it, the testimony is certainly con- flicting ; though, assuming both tobe honest, it is somewhat more probable the one was mistaken who thinks he did not see than the one who thinks he did. But many a man has most sincerely believed he saw a thing, when, in truth, he did not. CHAPTER XXXVII. ELECTION FRAUDS AND OBSTRUCTIONS.” 802. Introduction. 803-826. Law of the Offence. 827-843. The Procedure. § 802. How the Chapter dividea. — Let us examine this sub- ject in the following order: I. The Law of the Offence ; II. The Procedure. I. The Law of the Offence. § 803. How at Common Law. — It being “of the highest importance that persons be elected to carry on the govern- ment in its various departments, and that in every case a suitable choice be made, any act tending to defeat these ob- jects — as, forcibly or unlawfully preventing an election from being held, bribing or corruptly influencing an elector, receiv- 1 Fitzgerald v. The State, 12 Ga. 2 For matter relating to this title, see 218, ante, § 206, 222 ; post, § 981 et seq. 504 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 805 ing as an elector a bribe, casting more than one vote, ‘ the taking or giving of a reward for offices of a public nature,’ and the like — is punishable under the criminal common law.” ! § 804. Under Statutes — Scope of this Discussion. — But, notwithstanding these broad and plain doctrines, the common law is not much resorted to on this subject. In fact, this subject, in all its branches, has been pretty fully covered by legislation in probably every one of our States; and, as re- spects what is supposed to be within the jurisdiction of the National Government, by acts of Congress. It is not proposed, in this chapter, to bring under review the national legislation and the principles governing it. We shall confine ourselves to various points, some of them of an isolated nature, which have arisen under the statutes of the several States. Election bribes were somewhat considered by the author in connection with the general subject of bribery ;? and betting on elections will come up for discussion in another connection in the pres- ent volume. § 805. As to the Officers of Elections : — In General — New Hampshire Statute — Mistake. — The stat- utes of the several States prescribe the duties of the respective officers who conduct the elections, and provide penalties for breaches of duty. Thus, by a statute in New Hampshire, “ if any selectman, at any session holden for the correction of any list of voters, shall neglect or refuse to insert, on said list, the name of any person who is a legal voter, having satisfactory evidence thereof,” “ or shall, at any time, insert on the list the name of any person not a legal voter, knowing such to be the case; or shall knowingly erase therefrom, or omit to insert, the name of any legal voter, he shall be punished,” &¢. And it was held, that a mere innocent mistake, as to whether a person is entitled or not to have his name put upon the voting list, will not subject to indictment a selectman who acts hon- estly and according to his best judgment. Though, in such a case,? a civil action may be maintained, an indictment cannot be. Said Gilchrist, J.: “The selectmen [to be indictable] 1 Crim. Law, 5th ed. I. § 471. 3 See Byler v. Asher, 47 Ill. 101; 2 Crim. Law, 5th ed. II. § 85 et seq.; Bevard v. Hoffman, 18 Md. 479. Crim. Proced. 2d ed. II. § 126 et seq. 88 505 § 807 OFFENCES MORE PURELY STATUTORY. [BOOK v. must know that the name rejected is that of a legal voter; that the facts that have been exposed to the notice of the board are true; and that they do, in point of law, constitute the right of the party to vote. This is not a case in which knowledge of the law must be presumptively imputed to the party proved to be in possession of all the facts.” 4 § 806. Mistake, continued — Judicial Capacity, — And, in general, though the statutes of the States differ in their terms, it is held that those who are intrusted by law with the duty to pass upon the qualifications of voters, whether in the act of making out or revising voting lists, or of receiving or re- jecting votes at the polls, perform therein judicial or quasi judicial functions, and are not answerable to an indictment when what they do through mistake either of law or fact is done honestly.2 Thus, it is on this ground held in Delaware, that a presiding officer at an election is not criminally respon- sible for any mistake which he may honestly make in receiving or refusing to receive a vote.® § 807. As to the Voter: — Nature of the Right.— Whatever theories may be maintained as to the sacredness of the right to vote, and as to the exist- ence of the right itself as a natural one, it is, among all nations, practically granted by the governing power to such, and such only, of the people as it pleases. In point of governmental theory, therefore, the right to vote is not a natural or an in- alienable one, but it is a mere political privilege allowed by the governing power.t Now, by the political theory on which our institutions are built, the governing power is in the people, who, therefore, are to determine in what hands the elective franchise shall be placed. In practice, the popular voice is spoken in constitutional conventions, and is embodied in the constitutions of the several States. And, from it, so embodied, 1 The State v. Smith, 18 N. H. 91, 3 The State v. McDonald, 4 Harring. 94. Del. 555; The State v. Porter, 4 Har- 2 Byrne v. The State, 12 Wis. 519; ring. Del. 556. See Crim. Law, 5th The State v. Daniels, 44 N. H. 888; ed. I. § 460, 462. Bevard v. Hoffman, supra. And see #4 Ridley v. Sherbrook, 3 Cold. 569; The State v. Staten, 6 Cold. 233. But Anderson v. Baker, 28 Md. 531; Blair see Huber v. Reily, 3 Smith, Pa. v. Ridgely, 41 Misso. 63. 112. 506 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 808 there is no appeal short of revolution. The law of the consti- tution is the measure of the right.1 § 808. Continued — Who the People to determine the Right. — But, behind the doctrine thus stated, there lies a question ; namely, who are the people whose voice, as thus explained, gives form to the right. For, if we undertake to be perfectly logical here in our reasoning, we are driven back to some law, having an existence independent of the constitutional conven- tion, by which the qualifications of voters to the convention shall be ascertained. It is not proposed to enter into a wide field of discussion here, or to cite authorities; but, by the public law of nations as now expounded and practised, such voters are, in the absence of a special rule, all the male per- sons who have reached the age of majority. Yet, in many instances if not in most, there is practically a special rule differing more or less from this. Thus, if one of our organ- ized Territories is to become a State, either the territorial legislature calls a constitutional convention, or Congress passes an act authorizing such a convention, and then the power moving in the matter, whether territorial or national, fixes the qualifications of voters for delegates to the convention. Or, a convention may even be held without any authority previously granted; and, in any one of these three cases, if a constitution is practically adopted, and approved by Congress, and the State has the machinery of government running, there is, as a general proposition, no way short of a revolution by which what has been done can be undone. An exception to this broad proposition is, that, if Congress deems the govern- ment of a State not to be “republican,” or a fortiori, if the State ceases to have a government, this national legislature may, and by the terms of the United States Constitution must, authorize the assembling of a new constitutional convention to be composed of delegates elected by such voters as Congress sees fit to designate? And what is thus done cannot, as in the former supposed instances, be undone except by revolution. 1 The State v. Staten, 6 Cold. 233; 2 And see Crim. Law, 5th ed. I. Huber v. Reily, 3 Smith, Pa. 112; § 160-171; Matter of Hughes, Phil- Blair v. Ridgely, supra; Anderson v. lips, 57. Bakex, supra. 507 § 809 OFFENCES MORE PURELY STATUTORY. [BOOK v. The doctrines of this section and the last are in a measure qual- ified by the fifteenth amendment to the national Constitution, which provides that the right of the citizen to vote shall not be denied or abridged on account of race, color, or previous con- dition of servitude. § 809. Legislative Power over Elections — Elective Franchise. — The right of voting, therefore, which is conferred by the constitution of the State, cannot be abrogated or abridged by the State legislature.2 Neither — speaking now of the vote for State officers — can it be taken away by Congress, except in the manner and to the extent pointed out in the last sec- tion.2 But it is competent for the legislature of the State to pass laws in aid and in regulation of the right. Such laws must be reasonable; and not, under color of regulating the right, take it away.1. For example, registration laws may be passed; and, when they are, one who by the constitution is entitled to vote, cannot exercise the right except in compliance with them ;° or, if an election is held without the prior regis- tration required by the statute, it is void.6 We saw, in an- other connection,’ that it is competent for the legislature to provide, as a punishment for crime, the forfeiture of an office, or of the capacity to hold office. Now, offices, the reader will note, are held under our written constitutions; and s0, by legislation, wrong-doers are compelled to forfeit, for their crimes, constitutional rights. In like manner, they may be thus made to forfeit the right to vote. This, which looks like a legislative power over a constitutional right, may perhaps be supported on a variety of reasons; but an obvious reason is, that, since a man may waive, should he choose, a constitu- tional right,? if he does what the legislature has declared shall debar him of it, he waives it by this act. 1 Cooley Const. Lim. 2d ed. 599. 5 Byler v. Asher, 47 Ill. 101; The 2 Monroe v. Collins, 17 Ohio State, 665; Davies v. McKeeby, 5 Nev. 369; Page v. Allen, 8 Smith, Pa. 388; The State v. Staten, 6 Cold. 283; Cooley Const. Lim. 2d ed. 599. 8 Huber v. Reily, 8 Smith, Pa. 112; Ridley v, Sherbrook, 3 Cold. 569. 4 Monroe v. Collins, supra; Patter- son v. Barlow, 10 Smith, Pa. 54. 508 State v. Staten, supra; Cooley Const. Lim. 2d ed. 601, 602. 6 The State v. Albin, 44 Misso. 346. 7 Crim. Law, 5th ed. I. § 944. 8 Huber v. Reily, 3 Smith, Pa. 112. 5 Crim. Law, 5th ed. I.§ 995; Crim. Proced. 2ded. I. § 112, 117 et seq. CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 811 § 810. Congress over State Voters. — It seems to have been conceded, that Congress may impose the forfeiture of the right to vote in a State for State officers, as a penalty for the viola- tion of national law;! but, on principle, there is more than doubt of this, except in a case where the State concurs in the arrangement. The State can permit any person it pleases to vote; not so much, perhaps, in the case now under considera- tion, by way of protecting any supposed right in the voter, as by serving itself by having the vote. Andif a State has ex- cluded from suffrage a person who has committed a crime against the United States, the pardon of the offender by the President, though it restores him to his national rights, does not reinvest him with the right to vote under the State laws.” § 811. Voting out of the State. — In several of our States, there have been adopted statutory or constitutional provisions, under which soldiers temporarily out of the State, in the ser- vice of the United States, are authorized to cast their votes, if - otherwise qualified, at elections for the choice of State officers. Where this is done by statute, the enactment has been in some of the States held to be unconstitutional and void, while in others it has been pronounced to be within the legislative authority. The constitutions of the States differ; and doubt- less the decision should be the one way or the other according to the terms of this instrument. Thus, where the provision was, that ‘‘ every white freeman of the age of twenty-one years, having resided in the State one year, and in the election dis- trict where he offers to vote ten days immediately preceding such election,” should be a voter, it was by the majority of the court deemed that the act of offering the vote implied the personal presence of the voter; therefore, that a statute per- mitting persons who were not even within the State to vote was unconstitutional. Said Woodward, J.: “To ‘ offer to vote’ by ballot is to present one’s self, with proper qualifications, at the time and place appointed, and to make manual delivery of the ballot to the officers appointed by law to receive it. The ballot cannot be sent by mail or express, nor can it be 1 Huber v. Reily, 8 Smith, Pa. 112. 2 Ridley v. Sherbrook, 3 Cold. 569; Crim. Proced. 2d ed. I. § 920. 509 § 813 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. cast outside of all Pennsylvania election districts and certified into the county where the voter has his domicile.” ? § 812. Continued. — Returning now to the question as it stands, aside from the special terms of the particular con- stitution, we saw in another connection,? that, as a general proposition, — perhaps as a proposition to which there is no exception, certainly as one to which the exceptions are few, — no State can extend her laws over persons, even her own citi- zens, who may be temporarily out of the State; and that there is a difference, in this respect, between the powers of the in- dividual States, and. those of tle United States. Yet we saw also,? that an act may, in law, be within a State, while the personal presence of him who performs it is out of the State. And it is sufficiently plain, in principle, that the case of an individual casting a vote at one of these elections is of this sort; that is, though he may be out of the State when he casts his vote, yet the act takes effect within the State, and not in the locality where his personal presence is. Upon this prin- ciple, therefore, the class of provisions now in contemplation stand, and they are no violation either of the Constitution of the United States, or of any general rule of international law or comity. § 813. Continued. — Yet a case came before the court of Pennsylvania, wherein, this principle not being adverted to, it was held, that, if at such an election a foreigner, serving the United States, and owing no allegiance temporary or other- wise to the State of Pennsylvania, casts illegally his vote, the Pennsylvania courts have no jurisdiction to punish the offence.* 1 Chase v. Miller, 5 Wright, Pa. 4038, 419. See Hulseman v. Rems, 5 Wright, Pa, 396. Of the like sort is Opinion of Justices, 44 N. H. 683. For other opin- ions on the one side and the other of the general question of the constitu- tionality of these enactments, see Bour- land v. Hildreth, 26 Cal. 161; Opinion of the Judges, 80 Conn. 591; Soldiers’ Voting Bill, 45 N. H: 595; Lehman »v. McBride, 15 Ohio State, 573; The State v. Main, 16 Wis. 898. 2 Crim. Law, 5th ed. I. § 162, 184, 510 3 Ib. I. § 110-112. 4 Commonwealth v. Kunzmann, 5 Wright, Pa 429. Woodward, J. ob- served as follows: “If the legislature of Pennsylvania provided by law, that any of her citizens, qualified electors, happening to be in the District of Co- lumbia on election day, might hold a valid election there, and an election was held pursuant to such law without ob- jection from the local authorities, we are to hold the jurisdiction of our courts to extend to any of our own citizens CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 816 § 814. Effect of Informalities.— There seems to be no certain rule, derivable from the cases, on the question of what infor- malities in the manner of holding an election will exempt persons from responsibility under the statutes against illegal voting. In North Carolina, certain irregularities of this sort were held not to invalidate the election itself; and, conse- quently, not to excuse the voter... And in Maine some such defects appear to be regarded in the same way ;? while other defects are deemed to render the proceeding void, and conse- quently to free the persons voting from criminal liability.? § 815. Oath — Perjury. — It is no impediment to sustaining a prosecution against one for illegal voting, that he took an oath affirming his qualifications, and is therefore indictable also for perjury. .The perjury and the illegal voting are, it is seen, distinct acts. § 816. What is Voting. — As to what constitutes a “ voting,” the Tennessee court held, on an indictment for illegal voting, that, if one is at the polls on an election day, and there, stand- who should violate any of the provi- bility in such a case, growing out of sions of the law. We could not call on the judicial tribunals of the District to punish the infraction. They would not execute our law, and the fraudulent vote of the defendant would be an offence against no law of their own. It would be an offence only against our statute, and must be so laid in the indictment. But the whole statute would be there, the penal sections as well as the enabling clauses; and, if in an attempt to exercise the privileges of the statute, a citizen incurred its penalties, he would be answerable in our criminal courts, when he returns into our jurisdiction. As much so as false swearing under a commission issued out of our courts, or a forged acknowledgment of a deed under our act of 1828, would be indictable and punishable here. His liability to our jurisdiction rests, however, be it ob- served, on his citizenship in Pennsyl- vania. [Here, as the reader has seen in the text, ante, § 812, the learned judge, through inadvertence, errs. Waiving the point, whether, under any circumstances, there would be a lia- citizenship, as suggested by the judge, the real and substantial ground of jurisdiction in all such cases is,that the act of wrong takes effect in Pennsyl- vania; and, if a foreigner should com- mit it, the Pennsylvania courts ought to punish it as much as if it were com- mitted by a citizen. And see Crim. Law, 5th ed. I. § 112-116.] Itis be- cause the volunteer soldier, in the ser- vice of the General Government, is a citizen of Pennsylvania, that the gen- eral election law attends him beyond our territory, and becomes a rule of action for him wherever he is. It is no rule for the citizens of other States, or for unnaturalized foreigners, simply because we have no power to prescribe rules of action for the citizens and sub- jects of foreign governments.” p. 487, 488. See The State v. Main, 16 Wis. 398. 1 The State v. Cohoon, 12 Ire. 178. 2 The State v. Bailey, 21 Maine, 62. 8 The State v. Williams, 25 Maine, 561. ‘ 4 The State v. Minnick, 15 Iowa, 123, oll § 820 OFFENCES MORE PURELY STATUTORY. [BOOK V. ing before the judges, delivers his vote to the proper officer, and by order of the judges his name is announced and regis- tered by the clerk, he has voted; though the officer should neglect till the polls are closed to put the vote into the box for safe-keeping.! § 817. Residence of Voter.— To gain a residence in a place, entitling one to vote, within the meaning of the election laws, he must be there with the intention of remaining ;? if he goes to the place merely for the purpose of voting, he does not become thereby a resident.2 So the mere presence of a person as a soldier in the service of the United States does not make him a resident entitled, therefore, to vote.* § 818. “ Offering” — “ Promising” — Municipal Corporation. — Under the Delaware statute it is held, that there is-no differ- ence between “offering” and “ promising” a reward to a voter.5 In Tennessee, it has been held not indictable to cast a ballot illegally for the officers of a municipal corporation.® § 819. Nature of the Evil Intent. — Questions of considerable difficulty have arisen as to what sort of evil intent is necessary to bring a defendant within the inhibitions of this class of stat- utes. The language of the enactments differs, the views of judges differ; and, out of these two causes combined, much confusion has grown. Let us, therefore, look at some of the statutory words; and at the expositions actually given them by the courts. § 820. “Knowingly and Fraudulently ”— Ignorance of Law — Opinions of Non-professional Persons — Of the Judges of Elections. —The statute of North Carolina provides a punishment, “ if any person shall hereafter knowingly and fraudulently vote at any election, who by law shall not be entitled to vote at such elec- tion.” And the court has decided, that, where one takes advice from a person not a member of the bar, concerning his right to vote, he cannot set up this advice as a defence to a 1 Steinwehr v. The State, 5 Sneed, ‘ 4 Devlin v. Anderson, 38 Cal. 92. 686. See The State v. Elwood, 12 5 The State v. Harker, 4 Harring. Wis. 651. Del. 559. 2 The State v. Marshall, 45 N. H. 6 The State v. Liston, 9 Humph. 281, 608. As to which, see query, Crim. 4 The State v. Minnick, 15 Iowa, Law, 5th ed. I. § 471, note. 128. 512 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 821 charge of illegal voting; and probably the result would be the - same, if the advice came from a member of the bar.’ But, said the judge: “It would have been a different question if the defendant had stated the facts to the judges of the elec- tion, and they had decided in favor of his right to vote; for their decision would rebut the presumption of knowledge on his part, in a manner contemplated by law.” The general doctrine of this case seems to be, that, under this statute, as at the common law,? defendants are conclusively presumed to know the law, while still they are excusable for a mistake of the facts. In a subsequent case, in the same State, it was held, that the mere opinions of the judges of the election, not com- municated to the defendant, favorable to his right to vote, could not avail him on an indictment for voting without right ; and, observed the learned judge: “It is neither a justification nor excuse for such an act, that other persons advised the party that it was lawful; and much less, that other persons thought and believed it to be lawful.” 4 § 821. Continued. — In almost the same language is the stat- ute of Tennessee; providing, that “any person who shall knowingly vote at any election, not being at the time a quali- fied voter in the county in which he so votes, shall be adjudged guilty of a misdemeanor.” And the court, after first remark- ing that the legislature did not intend by these words “ to violate a fundamental principle of the criminal law,” took the broad ground, that, though one does not “ know” he is not a qualified voter, yet if this lack of knowledge is produced by ignorance of the law it will not excuse an act of illegal voting. Thus, if a person under twenty-one years of age is not entitled by law to vote, and a defendant knowing himself to be under this age voted, yet supposed he was entitled, he violated the statute. The doctrine, in other words, was, that the defend- ant is to be convicted, whenever there is shown to have been, ‘ within his knowledge, a state of facts which would legally dis- qualify him from voting.® 1 See Crim. Law, 5th ed. I. § 298; 3 The State v. Boyett, 10 Ire. 336, post, § 824, 825. opinion by Pearson, J. 2 Crim. Law, 5th ed. I. § 292 et 4 The State v. Hart, 6 Jones, N. C.389. seq. 5 McGuire v. The State, 7 Humph. 013 § 823 OFFENCES MORE PURELY STATUTORY. [Boo v. § 822. Continued — Presumed Knowledge of Law.— If the reader will examine the discussion on “ Ignorance of Law and Fact,” in the author’s work on the Criminal Law,! he will see that the general doctrine is not exactly as it was thus assumed to be by the Tennessee court. Though pure ignorance of law is never an excuse for its violation, while pure ignorance of fact unaccompanied by carelessness or other moral fault always is, yet where, to constitute a crime, a person doing the forbid- den act must be in a particular frame of mind which the law points out, he is excused, if, by reason of his mistaking the law, the fact of this particular frame of mind does not exist. Thus, as there observed, “to constitute larceny, there must be an intent to steal, which involves the knowledge that the property taken does not belong to the taker; yet, if all the facts concern- ing the title are known to the accused, and so the question is one merely of law whether the property is his or not, still he may show, and the showing will be a defence to him against the criminal proceedings, that he honestly believed it his through a misapprehension of law.’’2 Therefore, applying this doctrine to the present case, if the statute punishes illegal voting, not in every instance, but only when the person illegally voting ‘“ knows’”’ he is not a qualified voter, — making the fact of knowledge in the mind of the defendant one of the elements essential to the crime, — it is immaterial whether the absence of this element from a case was produced by ignorance of law or ignorance of fact. § 823, Continued — “ Fraudulently.”— A decision in Rhode Island more nearly conforms to this better doctrine. There the statute made it punishable “if any person in any election shall fraudulently vote, not being qualified, or having voted in one town or ward or district, or shall vote twice at the same election for the same candidate, or for different candidates for the same office, or twice in different places at the same elec- tion; ”’ and, upon an indictment founded on the first clause, it was held, that, if a voter knows all the facts relating to his qualification, and, believing these facts to qualify him while 54. The English case of Reg. v. Price, 1 Crim. Law, 5th ed. I. § 292 et 3 Per. & D. 421,11 A. & E. 727, seems seq. to confirm this view. 2 Tb. I. § 297. O14 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 824 they do not, casts, illegally, yet with an honest purpose, his vote, he is not indictable. The prisoner, in the case before the court, had been challenged at the polls; yet he persisted in his right, and voted. Said Ames, C. J: ‘It is insisted, that, as the facts were called to the attention of the prisoner before he voted, by a person who challenged his vote, and threat- ened to prosecute him if he voted, the prisoner voted at his peril. It is evident that the prisoner regarded, as he treated, this as an attempt to scare him from the exercise of his right ; and we are yet to learn that a mistake about one’s rights, with full knowledge of all the facts relating to them, and an honest assertion of them, is equivalent to fraud, under such a statute as this. The Statute 9 Anne,c. 10, § 40, visited a penalty upon a postmaster, who wittingly, willingly, and knowingly detained letters, and caused them to be detained and opened ; but, in Mierelles v. Banning, the King’s Bench held, that a postmaster who delivered a bankrupt’s letters to his assignee, believing that the assignee was entitled to them for the pur- poses of the commission, and such having been the practice of the office for more than thirty years, was not liable to the penalty.’’2 - § 824. Continued — “ Knowingly ” —“ Wilfully.” — The words of the Massachusetts enactment are: “If any person, knowing himself not to be a qualified voter, shall, atany election, wilfully give in a vote for any officers to be then chosen, he shall forfeit,” &c.3 And the court does not hold defendants to be, under this statute, conclusively bound to know the law. “ In order,” said the judge, “to convict a party under this statute, which is extremely liberal in this respect, it is necessary to prove, not only that the party had no right to vote, but that he knew it. As this qualification depends upon domicile, and that is often a complicated question of law and fact, we have no doubt, that, if the voter in good faith and with an honest purpose to ascer- tain the right shall make a true statement of the facts of his case to a professional man, or any other man of skill and 1 Mierelles v. Banning, 2 B. & Ad. 3 Mass. R. S.c. 4, § 6. In the Gen. 909. Stats. c. 8, § 80, the provision is sub- 2 The State v. Macomber, 7 R. I. jected to slight verbal changes, but it 849, 358. is the same in substance. 615 § 825 OFFENCES MORE PURELY STATUTORY. [BOOK v. experience, capable of advising him correctly, the evidence of such advice, and the facts upon which it was taken, are com- petent, as bearing upon the question whether he knew that he had not a right to vote.” 4 § 825. Continued — Voting Twice.— We come now to a differ- ent form of the statutory provision; that is, a form in which such words as “ knowingly,” “ fraudulently,” “ wilfully,” and the like, are not employed. Thus, in Vermont, there is the following: “If any person shall on the same day vote in more towns than one for the same officers, he shall forfeit a sum not exceeding one hundred dollars.” And upon this it is held, that, if a man under no mistake of the facts, but, mistaking the law, votes in two towns, supposing, at the casting of each ballot, he is entitled to cast it, he is indictable, however inno- cent in point of morals may be his real motive. In the case in which this point was decided, a young man, just of age, voted in the town where his believing, that he had the right to vote there. father lived; being told, and He then went to his work in an adjoining town; and there he was told, that he was wrong in voting in the former town, but had the right -to vote here. Thereupon the case was submitted to those officers of the town who, by law, were intrusted with the duty of passing upon the qualifications of voters; he disclosed to them the facts without reserve, including the fact of his former vote; and they decided, that, under all the facts, and notwith- standing his former vote, he was still entitled to vote in this town. The court, however, held his act to be in wolation of the statute, and his conviction to be right.2, Now, that this is 1 Commonwealth v. Bradford, 9 Met. 268, 272, opinion by Shaw, C. J. Of the like sort, is the Iowa doctrine. The State v. Sheeley, 15 Iowa, 404. And see Reg. v. Dodsworth, 8 Car. & P. 218. As to the duties and liabili- ties of an inspector of elections in New York, see People v. Pease, 30 Barb. 588. 2 The State v. Perkins, 42 Vt. 399. Steele, J. in delivering the opinion of the court, observed: ‘The second ground of defence is, that the respond- ent, when he voted in Plainfield, be- 516 lieved himself a voter there, and after- wards, finding he was mistaken, voted in Barre, where he really belonged, and that he did not wilfully cast any illegal vote at all. This ground is not tenable; because the offence consists in voting in more than one town, and not in any corrupt design. After hav- ing voted in Plainfield, he was disrobed of all right to vote for the same officer elsewhere, even though his vote in Plainfield was illegal, and not entitled to be counted. His second vote was illegal, whether the first was or not, CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 826 a hard case, and one in which the prosecuting officer, if fully cognizant of the facts, ought not to press a conviction,’ no thoughtful reader will question. Still the decision is undoubt- edly sound in law, unless, adopting the view already men- tioned,? we hold that the officers of the election in the town where the man cast his second vote (for the first vote was of itself alone no violation of this statute) acted in a judicial capacity ; in which case, as they were the judges, the matter passed upon became, in the absence of any fraud practised by the defendant,-res judicata, and, though wrongly adjudged, protected him, who, with the public on the other side, was the party, from legal consequences following at the suit of the public. This point was not presented in the case, therefore in another case of the like sort it will be open for examination. In terms differing in no material respect from this Vermont statute is a California one, which provides a punishment for “ any person who shall vote more than once at any election ;” and it was held, that, if a person not knowing he has already voted (being, for example, too drunk to know) votes a second time, he is not punishable, though the word “ knowingly ” is not found in the statute. This case is not inconsistent with the Vermont doctrine ; for the Vermont case illustrates the rule that ignorance of the law does not excuse the otherwise criminal act, while the California case illustrates the proposi- tion that ignorance of fact does excuse.® § 826. Other Points : — Civil Suit — Corrupt Agreements, &c. — In a Vermont civil suit the following points were decided : The defendant being indebted to the plaintiff who was a candidate for the office of town repre- sentative, the parties agreed, that the former should use his influence for the plaintiff’s election, doing what he could to effect it, and that, if the plaintiff was elected, this should be and whether his action be attributable to corruption or only to’ ignorance. The policy of the statute is to guard against illegal voting, by throwing upon the voter the necessity of deter- mining for himself, to some extent, where he belongs; and, if in doubt, compelling him to confine his vote to one place. He, of his own free will, voted in more than one town for the same officer, and this is precisely the act against which the statute has pro- nounced a penalty.” p. 402. 1 Crim. Proced. 2d ed. I. § 290, 291. 2 Ante, § 806. And see ante, § 820. 3 Bishop First Book, § 398. * People v. Harris, 29 Cal. 678. 5 Crim. Law, Sth ed. I. § 292 et seq. 517 § 828 OFFENCES MORE PURELY STATUTORY. [BOOK v. ¥ equivalent to a discharge of the debt. Nothing was specifi- cally said about the defendant’s voting for the plaintiff, but he did vote for him, which he would not have done, neither would he have favored his election, but for the agreement. The plaintiff was elected. No actual discharge of the debt was given by the plaintiff after the election. And it was held, that this agreement was void, constituting no impediment to the plaintiff’s recovery of the debt. It was also held not to be necessary to the invalidity of such an agreement that it should be secret, or to be kept secret. If, for money or other personal profit, a voter agrees to exert his influence in an election against what he believes to be for the public good, the agree- ment is void, even though, in the exercise “ef such influence, he resorts to no unlawful means.} Il. The Procedure. § 827. Indictment : — General View. — The statutes creating the various offences discussed in this chapter are so numerous, and their terms are so diverse, that it is not best to attempt here to furnish the reader with forms of the indictment on every one of them. A few examples, followed by a statement of some decided points, will suffice; for the forms here given can be easily varied to fit the particular statute and occasion. § 828. Against Officers of Election — Refusing to receive Vote. — An Indiana statute is as follows: “Any inspector or judge of any election held within this State, who shall knowingly and wilfully, or corruptly, refuse or neglect to receive the vote of any legal voter, at any election held within this State, shall be deemed guilty of a misdemeanor, and, on conviction,” &c. And the following is a form drawn on this provision : — “That on, &c., at, &c., an election was held, pursuant to law, for a Governor for the State of Indiana, and that A. B. was then and there the inspector of said election, and that C. D. was [then and there] one of the electors competent to vote at said election; and that the said C. D. then and there offered to vote at said election, and then and there tendered his ballot to said inspector for that purpose; and the said A. B., being such inspector, then and there, know- 1 Nichols v. Mudgett, 82 Vt. 546. See also People v. Pease, 30 Barb. 588 ; Liness v. Hesing, 44 Ill. 118. 518 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 880 ® ingly and wilfully neglected and refused to receive the said vote of the said C. D., he, the said C. D., being then and there a legal voter competent to vote at said election, contrary,” &c.! § 829. Voter — Casting more than One Vote.— The following is a statute of Maine: ‘‘ At any meeting for the election of any public officer, where a list of voters is necessary, if any person wilfully votes before the presiding officer has had opportunity to find his name on said list, or knowing that it is not on it, or wilfully gives any false answer or statement to the select- men or other officers when previously preparing such list, or presiding at such meeting, in order that his name may be entered on such list or his vote received; or casts more than one vote at one balloting; or is disorderly at such meeting, he shall,” &c.?° And the following was held, on demurrer, to be a good indictment on the clause against casting more than one vote at one balloting : — “That on, &c., at Augusta, in the county of Kennebec, 2 meeting of the in- habitants of said Augusta, in the county aforesaid, for the election of Governor of the State aforesaid, and representative to Congress for the third congressional district of said State, and State senators for the seventh senatorial district of said State, and a sheriff, treasurer, county commissioner, clerk of the Supreme Judicial Court, judge of probate, and register of probate for the county of Kennebec aforesaid, and representatives to the legislature for said Augusta, was then and there duly held; and, at said election, a list of the voters of said Augusta was necessary. And the jurors aforesaid, upon their oath aforesaid, do further present, that William Boyington of said Augusta, in said county of Kennebec, did then and there, at the meeting and election aforesaid, wilfully, knowingly, and unlawfully, cast and give in more than one vote, ballot, and list of persons then and there to be elected and chosen into the said offices, at one balloting, at the choice and election aforesaid, against the peace of said State, and contrary to the form of the statute in such case made and provided.” 8 § 830. Voting not being qualified. — The Rhode Island stat- ute has already been given.* On this statute, the following form of the indictment was, in a sharply contested case, em- ployed without any objection appearing in the report : — “That A, &., at, &€., on, &c., at the annual election for State officers, to wit, for governor, lieutenant-governor, senators, representatives, secretary of state, attorney-general, and general treasurer, held in the town of Portsmouth, and 1 Bicknell Crim. Pr. 466, 467; refer- | 3 The State v. Boyington, 56 Maine, ring, for the statute, to Laws Spec. 512, Sess. 1858, p. 40. 4 Ante, § 828. 2 Maine R. S. of 1857, c, 4, § 61; R. S. of 1871, c. 4, § 64. 519 § 833 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. in all the other towns and cities of this State, on, &c., did fraudulently vote, not being qualified to vote according to the constitution and laws of this State ;1 and then and there well knowing that he had no right to vote at said election, according to the constitution and laws of this State,” &c.? § 831. Attempting to prevent one from Voting. — A statute in New Hampshire makes punishable “‘ any person who shall attempt or procure, by threats or intimidation, any other per- son to avoid voting at any town meeting.” And the following form of the indictment was held to be sufficient, and not ill as charging two offences in one count: — “That A, &c., on, &c., at, &c., with force and arms, did make an assault upon one B, and him the said B did then and there beat, bruise, kick, wound, and ill treat, attempting thereby by intimidations to procure the said B to avoid voting at the annual town meeting of said town of Haverhill, the said town meeting being then and there legally and duly held and in session, contrary,” &c.? § 832. Alleging the Election, &. — It seems to have been deemed necessary, in England, in this class of cases, to set out the writ or precept under which the election is held.‘ But, if this is so, the doctrine could apply in this country only to special elections held under writ or warrant, and not to our usual elections established in time and place by public law. It is seen that the foregoing forms do not contain matter of this sort; yet, in some way, the indictment must affirmatively show that the election was a lawful one, held for purposes known to the law. Even in an information against a justice of the peace for corruption in the election of a clerk, it must appear that an election was duly held, and the defendant’s vote was then given.® § 833. Continued.— In New Hampshire it has been adjudged to be sufficient, on the point now under consideration, to allege, in an indictment for illegal voting at a town meeting, that the meeting was duly holden, without stating how or by what authority it was called.’ So, in Maine, the allegation, in an indictment for illegal voting, “that the inhabitants were con- vened, according to the constitution and laws of the State, in 1 See post, § 885. 5 Tipton v. The State, 27 Ind. 492, 2 The State v. Macomber, 7 R. I. 493. 849. 6 Newell v. Commonwealth, 2 Wash. 3 The State v. Hardy, 47 N. H. 638. Va. 88. 4 Reg. v. Bowler, Car. & M. 559; 7 The State v. Marshall, 45 N. H. Reg. v. Ellis, Car. & M. 564. 281. 520 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 835 legal town meeting, for the choice of town officers,” is held to be sufficient to let in proof of the legality of the meeting. There need not be an averment, that the inhabitants were summoned by warrant from the selectmen, duly and legally served. Neither is it necessary to allege, that the inhabitants were assembled in town meeting to give in their votes, ballots, or lists for the persons to be voted for; nor that the accused was an elector entitled to vote at the meeting. And in Iowa, in an indictment for voting without being qualified, the aver- ment that the defendant voted at a certain election authorized by law, then and there held, implies the averment that it was held by the proper officers. It is not necessary to aver and prove in what the disqualification consists; but, if the defend- ant admitted his disqualification in general terms, this is sufficient.2 Where the indictment is for voting in a town in which the defendant is not a resident, it is not necessary to set out the name of the person voted for, or state what officers were to be elected.3 § 834. Continued. — If, in Massachusetts, the indictment contains the allegation that a meeting of the inhabitants of the town of A was duly held, this will be sustained by proof that a meeting was held of the inhabitants who were qualified to vote. It is no cause for arresting judgment, on an indict- ment for giving false answers to selectmen, and for voting wilfully, without being qualified, for governor, lieutenant- governor, and senators for the district of M, that the district of M is not alleged to be in the Commonwealth.‘ § 835. Want of Qualification. — The reader may have ob- served, that the foregoing form for voting without being qualified does not set forth the particular in which the lack of qualification consists.2 This, moreover, has been adjudged to be adequate. To the author, it seems to be adequate in principle; because, in the first place, this is a negative aver- ment, and negative averments do not in general need to be made so full as affirmative ones;7 and, in the next place, 4 The State v. Bailey, 21 Maine, 62. 4 Commonwealth v. Shaw, 7 Met. And see The State v. Marshall, supra. 52. 2 The State v. Douglass, 7 Iowa, 413. 5 Ante, § 830. 3 The State v. Minnick, 15 Iowa, 6 Ante, § 833. 128, 125. 7 Ante, § 382. 34 521 § 838 OFFENCES MORE PURELY STATUTORY. [BOOK ¥. qualification is a compound , fact, consisting of several particu- lars, and particulars of this sort need not generally be alleged,! therefore the particulars of its negation, or a denial of the fact, need not be? Still there might be a disqualification of such a special kind that, on principle, it ought to be alleged. And, contrary perhaps to the general doctrine of this section, it is held in New Jersey, that the indictment for illegal voting, to be sustained, must specify the particular disability of the defendant. Also in an indictment for unlawfully advising another to vote, the disability of the person advised must be stated.* § 836. Allegation of Voting. — An indictment for illegal voting, drawn upon the statute of New Jersey, charged that the defendant did wilfully and unlawfully give in his vote. And this was held to be, in substance, a charge that he unlaw- fully and wilfully voted.® § 837. Voting in Two Places. — In Rhode Island, the offence committed by one who, “having voted in one town or ward or district,”’ at the same election, “ shall vote in another town or ward or district,” as defined in the election law,® is a local offence; and the places at which the two votings occurred necessarily enter into the description of it. Therefore an indictment which does not with ‘legal certainty allege the places of voting cannot be supported under the statute; and, if the places are alleged, a variance from them, or either of them, in proof, will be fatal on the trial. Where an indict- ment contained two counts, which laid the votings alternately in the order of time, in Providence and North Providence, and the jury could not determine from the proof in which town the last, or illegal, voting took place, it was held that they were not warranted in returning a verdict of guilty upon either or both of the counts.’ § 838. Judge of the Election — Unlawfully receiving Vote — 1 Ante, § 828. And see ante, § 706. 5 The State v. Moore, 3 Dutcher, 2 And see Commonwealth v. Gray, 2 105. See Reg. v. Bowler, Car. & M. Duvall, 373; The State v. Daniels, 44 559. N. H. 883. 8 See ante, § 823. 3 The State v. Moore, 8 Dutcher, 7 The State v. Fitzpatrick, 4 R. I. 105. 269. 4 The State vu. Tweed, 3 Dutcher, "11. 522 CHAP. XXXVII.] ELECTION FRAUDS AND OBSTRUCTIONS. § 841 Other Judges. — A statute in Kentucky makes punishable “ any judge or sheriff who shall knowingly and unlawfully receive the vote of any other than a qualified voter.’ And an indictment against one of the judges, charging that he knowingly and unlawfully received the vote of a person not entitled to vote, omitting any mention of the action of the sheriff and other judges in the premises, was held to be good. “If, as charged,” said Robertson, J. ‘‘ Thompson voted, and the appellee, as one of the judges of the election, knowing that he was not a qual- ified voter, nevertheless received his vote, or did not object to it, his act was criminal, however the other judges and sheriff may have acted.” § 839. Continued — Appointment — Knowledge. — Where an indictment averred that certain persons were judges of the election, this was. held to be equivalent to an averment that these persons were duly made and appointed judges; therefore it was sufficient An indictment against a proper officer for refusing to put a name on the voter’s list, should allege that he knew the person was entitled to vote. § 840. “Palsely and Fraudulently” for “ Wilfully ” — “Unlaw- fully ” for “legally.” — In England, a statute‘ having made it punishable “if any person shall wilfully make a false answer ” concerning his qualifications as a voter, an indictment alleging that the defendant “falsely and fraudulently” did the for- bidden thing, omitting the word “ wilfully,” was adjudged to be ill. But where, in Tennessee, the statute had the words “ dlegally voting,” &e., and an indictment charged that the defendant did “ unlawfully vote,” &e., this was held not to be ill as departing from the terms of the statute; for, said the judge, ‘the words are synonymous.” 6 § 841. Hvidence : — Variance — Surplusage — Official Character. — An indictment, on the Revised Statutes of Massachusetts, for wilfully giving false answers to selectmen presiding at an election, alleged, 1 Commonwealth v. Gray, 2 Duvall, * The Municipal Corporations Act, 878. See People v. McManus, 34 5 & 6 Will. 4, c. 76, § 84. Barb. 620;* Byrne v. The State, 12 5 Reg. v. Bent, 1 Den. C. C. 157. Wis. 519. ® The State v. Haynorth, 8 Sneed, 2 The State v. Randless,7 Humph. 9. Tenn. 64. % The State v. Daniels, 44 N. H. 888. 523 § 843 OFFENCES MORE PURELY STATUTORY. [BOoK Vv. that such false answers were given by the defendant with the fraudulent intent to procure his name to be placed on the list of voters, and to obtain permission to vote. The evidence was, that the defendant’s name was on the list of voters when he gave the false answers. Thereupon it was held, that the alle- gation of the intent to procure his name to be placed on the list of voters could not be rejected as surplusage, and that there was a material variance between the allegation and the proof. On such an indictment, it is not necessary to prove that the selectmen were legally chosen and qualified; it is sufficient, if it be proved that they were acting as selectmen.! § 842. Residence — Domicile — Presumption. — To establish, in New Hampshire, the fact that the defendant was not entitled to vote under a statute requiring a six months’ residence in the ward where he offered his vote, it may be shown that he had not actually lived within the ward during the six months, and this will be sufficient in the absence of proof that he was away for a temporary purpose.” § 843. “Strong Corroborating Circumstances.” — A statute in Kentucky provides, that a person accused of receiving a bribe for his vote shall not be convicted “on the testimony of a sin- gle witness, unless sustained by strong corroborating circum- stances.” If, therefore, in addition to the direct testimony of a witness that he sent the defendant a bribe, it merely appears that on the day of the election several friends of the candidate had with the candidate private interviews, such interviews do not constitute the “strong corroborating circumstances” required by the statute for the conviction of the defendant. 1 Commonwealth v. Shaw, 7 Met. 52. 3 Russell v. Commonwealth, 3 Bush, 2 The State v. Marshall, 45 N. H. 469. 281. 524 CHAP. XXXVIII. } GAMING — THE LAW. § 846 CHAPTER XXXVIII. GAMING — THE LAW OF THE OFFENCE. 844, 845. Introduction. 846-848. Common Law of the Subject. 849-851. The old English Statutory Law. 852-854. The American Legislation. 855-881. Expositions of Doctrines. § 844. General View — Course of the Discussion. — The stat- utes of our several States are so numerous, and so diverse in their provisions, that it will not be wise to undertake any dis- cussion of the law of this offence which, to readers who do not first place before them the statutes of their own State, will seem full or even adequate. The discussion which will be given, however, will be helpful in two ways: in the first place, it will contain such a citation of adjudged cases as will enable the reader to find, in his books of reports, fuller elucidations of points which are here only touched; and, in the second place, it will impart absolute doctrines, intelligible to those who read the discussion with the statutes before them, at points where, without the statutes, it will seem unsatisfactory and perhaps not clear. § 845. How the Chapter divided. — We shall consider I. What is the Common Law on the Subject; II. The old Eng- lish Statutory Law; III. The American Legislation; IV. Ex- positions of Doctrines. I. What ts the Common Law on the Subject. § 846. Nature of Offence — Under ancient Common Law. — The vice of gaming has prevailed in all ages, and among all people. It seems founded on the love of the marvellous, one of the properties inherent in the human mind. And so, like every other departure from the true rule of right, it is, in another view, but the action, wrongful indeed, of a faculty given to man by his Maker for good and valuable uses. The 525 § 848 OFFENCES MORE PURELY STATUTORY, [BOOK v. offence is not recognized under the ancient common law of England ;! consequently an indictment will not ordinarily lie here for an act of gaming, not prohibited by some statute, English or American.2, Whether the old English enactments have the force of common law with us, we shall see presently. § 847. An Hlement of some other Offence. — But gaming may constitute an ingredient in a common-law offence; for we saw in another connection,’ that public gaming-houses are indict- able common-law nuisances. And we have elsewhere taken notice, that cheating by false dice is a crime. There seems also to be a doctrine, neither distinct in its limits nor firm on the authorities, that some kinds of games are, from their pecul- iar nature, offences at the common law.® § 848. Wagers — Civil Action. — Moreover, wagers, which are a species of game, are in civil jurisprudence held to be so far unlawful, that, under many circumstances, or even, according to the views of some judges, under all circumstances,® an action to recover them cannot be maintained. What are the limits of the doctrine concerning wagers, it not being uniform in all the States, is a question aside from our present inquiry.”?. And this caution will not be useless, that, although an action could not be sustained for the recovery of a particular wager, the result would not necessarily follow that the parties to it could be indicted. In Scotland, no action is maintainable on any gaming contract whatever; but undoubtedly no mere gaming, in distinction from keeping a gaming-house and the like, is indictable under the common law of that country.® 1 Bell v. Norwich, 3 Dy. 254b; Case of Monopolies, 11 Co. 84, 87 5. 2 Crim. Law, 5th ed. L § 504, 1185; 1 Hawk. ’P. C. Curw. ed. p. 721; 1 Crow v. The State, 6 Texas, 334; Bry- ant v. Mead, 1 Cal. 441; Trenton Ins. Co. v. Johnson, 4 Zab. 576; Gahan v. Neville, 2 Cal. 81; Dewees v. Miller, Russ. Crimes, Grea. ed. 455; 1 Gab. Crim. Law, 451; United States v. Mil- burn, 4 Cranch C. ©. 719. 3 Crim. Law, 5th ed. I. § 1185 et seq. ; ante, § 546. 4 Crim. Law, 5th ed. II. § 157. ® Th. I. § 504. 6 Lewis v. Littlefield, 15 Maine, 283. 7 And see Ball v. Gilbert, 12 Met. 397 ; Gibbons v. Gouverneur, 1 Denio, 170; Ellis v. Beale, 18 Maine, 387; Dunman v. Strother, 1 Texas, 89; 526 5 Harring. Del. 347; Nudd v. Burnett, 14 Ind. 25; Worthington v. Black, 13 Ind. 844; Murdock v. Kilbourn, 6 Wis. 468 ; Woodcock v. McQueen, 11 Ind. 14; Sipe v. Finarty, 6 Iowa, 394; Craig v. Andrews, 7 Iowa, 17; Common- wealth v. Gourdier, 14 Gray, 390, 391; Sutphin v. Crozer, 1 Vroom, 257, re- versed, 3 Vroom, 462; Lear v. McMil- len, 17 Ohio State, 464. See post, § 872 et seq. 8 Greenhuff’s Case, 2 Swinton, 236. CHAP. XXXVIII.] GAMING — THE LAW. § 851 Il. The old English Statutory Law. § 849. Stat. 17 Haw. 4 — 33 Hen. 8.— Stat. 17 Edw. 4, c. 3, made it a misdemeanor for any person to use the game of klosse, half-bowl, kayles, hand-in-hand, or queckbord, or to suffer another to play at either of these games in his house. But the subsequent enactment of 33 Hen. 8, c. 9, repealed “all other statutes made for the restraint of unlawful games ;”’ and so, as this act of Edw. 4 was not in force when our colonies were settled, there appears to be no principle on which it can be deemed a part of our common law. § 850. Stat. 33 Hen. 8, continued. — Stat. 33 Hen. 8, c. 9, is the leading one of the old English enactments. The “ bow- yers, fletchers, stringers, and arrowhead makers” complained, that their business had become unprofitable by reason of the people following gaming instead of archery; and so this stat- ute directs, that the people exercise themselves with ‘long bows, and every man have one bow and at least four arrows, and every boy over seven years of age have furnished him one bow and at least two arrows. It then lays down many inhibi- tions against gaming-houses, and against gaming under par- ticular circumstances. For instance, § 16 provides, “That no manner of artificer or craftsman of any handicraft or occupation, husbandman, apprentice, laborer, servant at hus- bandry, journeyman, or servant of artificer, mariners, fisher- men, watermen, or any serving man shall play at the tables, tennis, dice, cards, bowls, clash, coyting, logating, or any other unlawful game, out of Christmas, under the pain of twenty shillings, to be forfeit for every time; and in Christmas to play at any of the said games in their masters’ houses, or in their masters’ presence; and also, that no manner of persons shall at any time play at any bowl or bowls in open places out of his garden or orchard, upon the pain for every time so offending to forfeit six shillings eight pence.” } § 851. Continued — Whether Common Law with us — Other Statutes, and whether Common Law. — This statute, according to Kilty, had never any force in Maryland, and it was prob- 1 See 1 Hawk. P. C. Curw. ed. p. 2 Kilty Report of Statutes, 75. 721-725. 527 § 852 OFFENCES MORE PURELY STATUTORY. [BOoK v. ably not received in any of the colonies.! Its date (a. p. 1541) is sufficiently early to make it common law here; but there are several objections, apparent on the face of the whole en- actment, too obvious to need any explanation, showing, that it could not have become a part of our common law. There are, moreover, the acts of 16 Car. 2, c. 7 (a. p. 1664) ;? 10 & 11 Will. 3, c. 17 (a. v. 1699) ; 9 Anne, ¢. 6 (a. D. 1710) 54 9 Anne, c. 143° and 10 Anne, c. 26.6 But although these have furnished the basis for American legislation, none of them probably are common law with us; or are, at least, to be relied on as the foundation of an indictment.’ The conse- quence is, that our common law, like the English, does not make the playing at games of any kind, except as before explained,® an indictable offence. Il. The American Legislation. § 852. Particular Prohibitions enumerated — Authorities referred to. — The legislation of the several States need not be presented here at large; because each practitioner will refer for himself to his own statutes. But it may be observed, that the enact- ments on this subject have principally for their object the suppression of public gaming, which leads to public evils. For instance, the keeping of a bowling-alley,® a billiard-table,” 1 See Dunman v. Strother, 1 Texas, 89, 92. It is not set down by the Penn- sylvania judges as in force in that State. Report of Judges, 3 Binn. 595. 2 See 1 Hawk. P. C. Curw. ed. p 726, 729. 3 Ib. p. 783, 784. # Ib. p. 734. 5 Tb. p. 727, 728-781. 6 Ib. p. 734. 7 Dunman »v. Strother, 1 Texas, 89, 92. In United States v. Dixon, 4 Cranch, C. C. 107, 108, 109, Cranch, C. J. observed : “The British statutes 16 Car. 2, c. 7, against deceit in gaming; 9 Anne, c. 14, § 1, avoiding securities for money lost at gaming; ib. § 2, pro- viding, that, if more than £10 be lost at play at one sitting, it may be re- covered ; and § 3, requiring the winner 528 to answer on oath; are in force in this country. But the English and British statutes prohibiting certain games to certain classes of persons never were in force in Maryland, and consequently are not in force here.” 8 Ante, § 847. 9 The State v. Currier, 28 Maine, 43; Commonwealth v. Stowell, 9 Met. 572; Commonwealth v. Drew, 8 Cush. 279 ; Needham v. The State, 1 Texas, 139; The State v. Hay, 29 Maine, 457; Com- monwealth v. Goding, 3 Met. 130. 10 Smith v. The State, 22 Ala. 54; The State v. Mosely, 14 Ala. 390; Mayers v. The State, 3 Eng. 222; Blanton v. The State, 5 Blackf. 560; The State v. Mathews, 2 Brev. 82; Harbaugh v. People, 40 lll. 294; Gib- bons v. People, 33 Ill. 442: Common- wealth v. Emmons, 98 Mass. 6 ; Com- CHAP. XXXVIII.] GAMING — THE LAW. § 853 or a faro bank or other like device;} or, according to some of the statutes, the public racing of horses ;? or the having of facilities for gaming, or the allowing of gaming, in places where intoxicating liquors are sold,? or in public houses ; 4 or gaming in public places,® to which youth will be allured ; or on particular days, as, for instance, on the Sabbath day;® or the betting on games played by others,’ or betting on public elections,® together with some other forms of wager ;° .or the encouraging of gaming in others,!0— each of these, made in- dictable by statutes in various States, is distinguishable from mere private playing; because its tendency is to affect other persons than the players themselves. § 858. Secret or Open. — It may be added, that the evil is not confined to places the doors of which are thrown open, and to which all persons indiscriminately have access; but the lure is the more effectual when the idea of secrecy is woven monwealth v. Sylvester, 13 Allen, 247; Ward v. The State, 17 Ohio State, 32. 1 Commonwealth v. Wyatt, 6 Rand, 694; Ervine v. Commonwealth, 5 Dana, 216 ; Commonwealth v. Burns, 4 J. J. Mar. 177; The State v. Markham, 15 La. An. 498. 2 The State v. Fidler, 7 Humph. 502; Fiddler v. The State, 7 Humph. 508 ; Van Valkenburgh v. Torrey, 7 Cow. 252; Shropshire v. Glascock, 4 Misso. 536 ; Boynton v. Curle, 4 Misso. 599; Gibbons v. Gouverneur, 1 Denio, 170; The State v. Posey, 1 Humph. 384; Ellis v. Beale, 18 Maine, 337; The State v. Ness, 1 Ind. 64; Watson v. The State, 3 Ind. 128; Huff v. The State, 2 Swan, Tenn. 279; Redman v. The State, 33 Ala. 428; Goldsmith vu. The State, 1 Head, 154. 3 Ante, § 294; The State v. Black, 9 Ire. 878; The State v. Terry, 4 Dev. & Bat. 185; The State v. Coleman, 3 Ala. 14; Burdine v. The State, 25 Ala. 60; Marston v. Commonwealth, 18 B. Monr. 485 ; Cole v. The State, 9 Texas, 42; The State v. Hix, 3 Dev. 116. 4 Commonwealth v. Tilton, 8 Met. 232; The State v. Smitherman, 1 Ire. 14; The State v. Records, 4 Harring. Del. 554; Commonwealth v. Price, 8 Leigh, 757. 5 Ante, § 298, 299. 6 The State v. Fearson, 2 Md. 310; The State v. Conger, 14 Ind. 896. 1 Bagley v. The State, 1 Humph. 486 ; Crow v. The State, 6 Texas, 384 ; Torney v. The State, 13 Misso. 455; Horton v. The State, 8 Eng. 62; Ward v. The State, 22 Ala.16; Bachellor v. The State, 10 Texas, 258, 262; The State v. Bates,10 Misso. 166; Eubanks v. The State, 5 Misso. 450. 8 Doyle v. Commissioners Baltimore County, 12 Gill & J. 484; Veach v. Elliott, 1 Ohio State, 189; The State v. Cross, 2 Humph. 801; Morgan v. Pettit, 3 Scam. 529; The State v. Mc- Lelland, 4 Sneed, 487 ; Commonwealth v. Kennedy, 15 B. Monr. 581. 5 The State v. Posey, 1 Humph. 384; Parsons v. The State, 2 Ind. 499 ; Dun- man v. Strother, 1 Texas, 89; Com- monwealth v. Shelton, 8 Grat. 592; Dobkins v. The State, 2 Humph. 424; Bagley v. The State, 1 Humph. 486; Barret v. Hampton, 2 Brev. 226 ; Smoot v. The State, 18 Ind. 18. 10 Fugate v. The State, 2 Humph. 897; The State v. Ebert, 40 Misso. 186 ; Hitchins v. People, 89 N. Y. 454; The State v. Hall, 8 Vroom, 158. 529 § 855 OFFENCES MORE PURELY STATUTORY. [BOOK v. into the charm: therefore gaming under such circumstances comes within the mischief of public gaming, and statutes are directed for its suppression. § 854. Other Distinctions in the Statutes. — There is also a difference whether the playing is at a game of chance or of skill;1 whether there is betting or not;? whether the party offends in a single instance or habitually ;° and, in some of the States, whether the playing is with a white person, a negro,! or in former times with a slave.6 And the encouragement of gaming by permitting one’s premises to be used for this pur- pose is a thing of special consideration, which is sometimes made indictable.© But it is needless here to undertake a complete enumeration of the incidents in this general offence, against which legislation has been directed. IV. Expositions of Doctrines. § 855. Construction of the Statutes. — We have already seen what are the peculiar doctrines, applicable in some localities, concerning the interpretation of these statutes.7 1 The State v. Nates, 3 Hill, S.C. 200. 2 The State v. Purdon, 3 Misso. 114; The State v. Albertson, 2 Blackf. 251; Vicaro v. Commonwealth, 5 Dana, 504. 3 Estes v. The State, 2 Humph. 496 ; Commonwealth v. Hopkins, 2 Dana, 418; Commonwealth v. Moore, 2 Dana, 402. 4 Johnson v. The State, 8 Ga. 458; The State v. Nates, 8 Hill, S. C. 200. & The State v. Laney, 4 Rich. 198. See The State v. Pemberton, 2 Dey. 281. § The State v. Mathis, 8 Pike, 84; Roberts v. Commonwealth, 11 B. Monr. 38; Calvert v. Commonwealth, 5 B. Monr. 264. 7 Ante, § 55. And see ante, § 135, 294, 298, 299; Crim. Law, 5th ed. I. § 686. For the interpretation of sundry statutes concerning gaming, see Buck v. The State, 1 Ohio State, 61; John- son v. The State, 8 Ga. 458; Common- wealth v. Chubb, 5 Rand. 715 ; Eubanks v. The State, 5 Misso. 450; Ervine v. Commonwealth, 5 Dana, 216; Hinkle v. 530 Commonwealth, 4 Dana, 518; Veach v. Elliott, 1 Ohio State, 139; The State v. Laney, 4 Rich. 193; The State v. Mathews, 2 Brev. 82; The State v. Bates, 10 Misso. 166; Baker v. The State, 2 Har. & J. 5; Pitman v. Com- monwealth, 2 Rob. Va. 800; Lowry v. The State, 1 Misso. 722; The State v. Fidler, 7 Humph. 502; Fiddler v. The State, 7 Humph. 508; Shropshire v. Glascock, 4 Misso. 586; Boynton v. Curle, 4 Misso. 599; The State v. Nates, 8 Hill, 8S. C. 200; Smith v. The State, 5 Humph. 163; Howlett v. The State, 5 Yerg. 144; The State v. Smith- erman, 1 Ire. 14; Commonwealth v. Shelton, 8 Grat. 592; Grizewood »v. Blane, 20 Eng. L. & Eq. 290, 11 C. B. 526 ; Vicaro v. Commonwealth, 5 Dana, 504 ; Ervine v. Commonwealth, 5 Dana, 216; Commonwealth v. Drew, 3 Cush. 279; Commonwealth v. Goding, 3 Met. 180; Commonwealth v. Tilton, 8 Met. 232 ; Commonwealth v. Wyatt, 6 Rand. 694; Commonwealth v. Garland, 5 Rand. 652; The State v. Gupton, 8 Ire. 271; Ward v. The State, 22 Ala. CHAP. XXXVIII.] GAMING —— THE LAW. § 856 § 856. Whether Constitutional — Lotteries — Taxing Gaming- house — Prohibitory By-laws. — The question of the constitu- tionality of sundry laws prohibiting lotteries has been discussed by the courts ;! but we shall treat of lotteries under a separate title. So the courts have considered the questions of the right to tax gaming-houses,? and the power of municipal corporations to pass by-laws against gaming,’ affirming the right and power as to both in some cases and circumstances which have arisen, 16; Baker v. The State, 2 Har. & J. 5; McGowan v. The State, 9 Yerg. 184; The State v. Mosely, 14 Ala. 390; Bag- ley v. The State, 1 Humph. 486; Par- sons v. The State, 2 Ind. 499; The State v. Allaire, 14 Ala. 485; Ashlock v. Commonwealth, 7 B. Monr. 44; Ellis v. Beale, 18 Maine, 387; English v. Young, 10 B. Monr. 141; Van Valken- burgh v. Torrey, 7 Cow. 252; The State v. Posey, 1 Humph. 384; John- son v. Lansley, 12 C. B. 468, 22 Eng. L. & Eq. 468; Hickerson v. Benson, 8 Misso. 8; Smith v. The State, 22 Ala. 54; The State v. Black, 9 Ire. 378; Commonwealth v. Terry, 2 Va. Cas. 77; Windsor v. Commonwealth, 4 Leigh, 680; The State v. Terry, 4 Dev. & Bat. 185; Smith v. The State, 23 Ala. 39; Burdine v. The State, 25 Ala. 60; The State v. Mathis, 8 Pike, 84; Roberts v. Commonwealth, 11 B. Monr. 3; Cal- vert v. Commonwealth, 5 B. Monr. 264; Blanton v. The State, 5 Blackf. 560; Stith v. The State, 8 Eng. 680; Commonwealth v. Price, 8 Leigh, 757 ; Reg. v. Ashton, 1 Ellis & B. 286, 16 Eng. L. & Eq. 346; The State ‘v. Ness, 1 Ind. 64; Hinkle v. Commonwealth, 4 Dana, 518; The State v. Purdom, 3 Misso. 114; Estes v. The State, 2 Humph. 496; Higdon v. Heard, 14 Ga, 255; O’Blennis v. The State, 12 Misso. 811; Commonwealth v. Burns, 4 J. J. Mar. 177; The State v. Doon, R. M. Charl. 1; Rodgers v. The State, 26 Ala. 76; Bryan v. The State, 26 Ala. 65; Norton v. The State, 15 Ark. 71; Conner v. Ragland, 15 B. Monr. 6384; The State v. Hawkins, 15 Ark. 259; Huff v. The State, 2 Swan, Tenn. 279; Germania v. The State, 7 Md. 1; Elli- ott v. The State, 26 Ala. 78; Myers v. The State, 8 Sneed, 98; Spaight v. The State, 29 Ala. 82; The State v. McLelland, 4 Sneed, 487; Ritte v. Commonwealth, 18 B. Monr. 85; Ran- dolph v. The State, 9 Texas, 521; The State v. Herryford, 19 Misso. 877; Windham v. The State, 26 Ala. 69; Commonwealth v. Wilson, 9 Leigh, 648; The State v. Fulton, 19 Misso. 680; The State v. Smith, 19 Misso. 688; The State v. Horan, 11 Texas, 144; Cole v. The State, 9 Texas, 42; Barker v. The State, 12 Texas, 278; Commonwealth v. Kennedy, 15 B. Monr. 531; Jones v. The State, 26 Ala. 155; Marston v. Commonwealth, 18 B. Monr. 485; Watson v. The State, 3 Ind. 123; Wade v. Deming, 9 Ind. 385; Johnson v. The State, 4 Sneed, 614; The State v. Kelly, 24 Texas, 182; Goldsmith v. The State, 1 Head, 154; The State v. Maurer, 7 Iowa, 406; Commonwealth v. Pattee, 12 Cush. 501; The State v. Keisler, 6 Jones, N. C.73; The State v. Hope, 15 Ind. 474; People v. Markham, 7 Cal. 208. 1 Commonwealth v. Dana, 2 Met. 829; The State v. Allen, 2 McCord, 55; Freleigh v. The State, 8 Misso. 606; The State v. Sterling, 8 Misso. 697; Phalen v. Commonwealth, 1 Rob. Va. 713; The State v. Phalen, 3 Har- ring. Del. 441; Wendover v. Lexing- ton, 15 B. Monr. 258. 2 Washington v. The State, 8 Eng. 752. As to lotteries, see The State v. Allen, 2 McCord, 55. 3 The State v. Hay, 29 Maine, 457. As to the general power of making by- laws and their effect, see ante, § 18-26. 5381 § 857 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. while the contrary would be held under others. Concerning the power to pass prohibitory laws on the general subject, no doubt can be stirred; for it is clearly within the scope of legislation. § 857. Particular Terms explained : — Game — Unlawful Game — “ Game,” or “gaming,” is not one of those words which have received an exact meaning in the law.2. And though it is found in many statutes, ancient and modern, we must construe them on the idea, either that the makers had only an indefinite notion of its signification, or that, understanding it to be flexible in meaning, they meant to have its precise sense gathered from its relation to other words in the statute, from the reason of the law, and from the circumstances surrounding. Bouvier defines it to be, ‘a con- tract: between two or more persons, by which they agree to play by certain rules at cards, dice, or other contrivance, and that one shall be the loser and the other the winner.”? But while this definition may accurately express the signification of the word as sometimes used, it does not give correctly the 1 People v. Beatty, 14 Cal. 566, 573, Baldwin, J. observing: ‘Similar stat- utes exist in many of the States, and have been carried into effect without a question of the constitutional power of the legislatures.” There may, of course, be unconstitutional legislation on this subject by reason of the peculiar pro- visions employed, as well as on any other. The following is a digest of some points; but the reader is cau- tioned against inferring, that, because a point has been held in a way there mentioned in some other State than his own, it will consequently be held in the same way in his own State. The provisions of our State constitu- tions differ somewhat, and different judges differ somewhat in their inter- pretations: the statute of Arkansas (Rev. Sts. c. 128, § 5,) providing that “no person shall have or use any bil- liard-table or ninepin alley, without first paying to the sheriff the tax re- quired by this act,” is repugnant to the constitution, and void. Stevens v. The State, 2 Pike, 291. Keeping a 582 billiard-table is not a privilege within the meaning of the Constitution of Arkansas, allowing a tax to be imposed on merchants, hawkers, pedlers, and “privileges,” and therefore is not tax- able. Ib. Nor is the keeping of a stallion. Gibson v. County of Pulaski, 2 Pike, 309. A statute making the keeping of a billiard-table a penal of- fence punishable by fine, and at the same time providing that a person convicted under it shall not be again prosecuted for keeping the same table within one year from the conviction, is void as to the proviso of exemption, because it indirectly levies a tax upon the keeping of a billiard-table. The State v. Hanger, 5 Pike, 412. The legislature cannot restrain any one from making or using a billiard-table, but may, by law, so regulate the use of it as to prevent any injury there- from to the public morals or public good. Stevens v. The State, 2 Pike, 291. 2 Ante, § 268, 269. 3 Bouv. Law Dict. tit. Gaming. CHAP. XXXVIII. | GAMING — THE LAW. § 858 whole of it. In the South Carolina court, a learned judge observed: “The general meaning of the word game is to play at any sport, but in common parlance it means more commonly to play at some game of chance for money. This latter mean- ing is, however, narrowed by the act of 1817, which prohibited playing at all games of chance (except whist) with or without betting ; ever since its passage the word game has been under- stood to mean to play at an unlawful game, without any refer- ence to the fact whether any thing was bet or not.”! The Ten- nessee court has defined gaming to be “ any contest or course of action, commenced and prosecuted in consequence of a bet or wager, and with a view to determine the bet or wager, upon the event of such contest or course of action.”’? It is perilous to undertake to give an original definition of a word so elastic in its use, and of such uncertain meaning; yet the author will venture the following, as indicating the sense in which it is more commonly employed: a contest of chance, or of skill disconnected from the idea of useful production, wherein the party in whose favor the result appears, is termed the winner, and the other party is termed the loser. Whether or not the thing lost or won, to be within the true meaning of this defi- nition, need be any thing more than the reputation among the players for good playing, — as, whether it must be money or money’s worth, — and whether or not the contest must be in any or what sense unlawful, we shall consider in subsequent sections. § 858. Continued. — In a Tennessee case, the jury rendered the following special verdict, upon which the court adjudged the defendant to be guilty of gaming: “We find that the defendant, with some six or more other gentlemen, played at a game called tenpins or handicap. In this game no one played to beat any other gentleman, but each one had as- signed to him a certain number of pins to be got with a cer- tain number of balls, some more and some less, according as they were considered good or bad players. If the player did not get the number of pins assigned him, he was to treat to a 1 The State v. Nates, 2 Hill, S. C. 195,198; The State v. Smith, Meigs, 200. 99, copying the definition from the lat- 2 Harrison v. The State, 4 Cold. ter case. 533 [BOOK Vv. § 859 OFFENCES MORE PURELY STATUTORY. bottle of champagne. The defendant did play in this game, in Maury county, in less than six months preceding this present- ment, and did sometimes, on failing to get the number of pins allotted to him, treat to a bottle of champagne, and sometimes he did not. It was agreed by the parties, at the commence- ment of the playing, that the treat was a voluntary thing, and no one need do so unless he was perfectly willing. The jury further find, that the defendant and the other gentlemen en- gagéd in this play did not believe it to be gaming.” And the learned judge who delivered the opinion of the court said: “What is gaming? It is defined by the Act of 1799, c. 8,§ 2, to be a playing ‘at any match or matches at cards, dice, bil- liards, or any other game of hazard or address, for money or other valuable thing.’ By the same section, to ‘ encourage or promote’ is the same offence; and so is betting upon such hazards by subsequent acts. . . . Was this a case of unlawful gaming? We think it very clear that it was. It was a risk of a bottle of wine upon a hazard, whether he knocked down the number of pins designated or not. It was not a bet with any particular individual, but with the whole company. So, the game was to go around from one to another; each was to treat if he failed to come up to the requisition of the assessors as they were called. It would certainly be gaming for two or more persons to determine, by the chance of a game at ten- pins, who should pay the boy for setting up the pins, or who should treat, as much as if the same amount was staked up and won and lost upon the game. ll these contrivances are regarded and intended as evasions of the law, and cannot be tolerated.” } § 859. Unlawful Game. — The phrase “ unlawful game” would seem to be used in distinction from “lawful game,” and to imply that there are games which are lawful. Still on looking ! Walker v. The State, 2 Swan, Tenn. 287, 289, 290, 291, opinion by Caruthers, J. In Massachusetts it was said: “ All gaming is unlawful by the law of this Commonwealth ; and it is gaming to play any game of hazard, for money or other article of value. A game of hazard, to determine who shall pay for the beer or other liquor 534 to be drank, is strictly playing for money ; it is to determine which party shall pay a sum of money for the other.” Commonwealth v. Taylor, 14 Gray, 26, 29, Shaw, C. J. s. p. Com- monwealth v. Gourdier, 14 Gray, 390; The State v. Maurer, 7 Iowa, 406. And see post, § 860 and note. CHAP. XXXVIII. | GAMING — THE LAW. § 860 into the books we find that it is as little defined in the law as is the single word gaming. Attempts have been made to re- strict its effect in a statute to such games as had been declared in previous enactments to be unlawful. But although this is a consideration which properly enters into the question, and is in many cases the test to determine the result, yet it is by no means always so. Thus, the tenth section of the Kentucky Act of 1833, against owners using their houses for gaming purposes, employs the words “shall permit or suffer games at faro, or any other unlawful game or games whatever, at which money or any other thing is won or lost;’’ and the court refused to limit the meaning of the expression in the way sug- gested, but held, that the criterion to determine whether any particular game is within the prohibition is the one furnished by the words “won or lost;” and so an unlawful game is any game at which betting is done.?. And in Massachusetts, under a statute differently worded, cock-fighting was held to be an unlawful game, principally because of its barbarous nature, making it unlawful at the common law.? § 860. Gaming, continued. — And even the word gaming, without the prefix unlawful, seems usually to imply something of an unlawful nature: as, betting on the sport; being, indeed ordinarily an ingredient in its signification; or a game of an evil or immoral tendency. And so,in England, where a tavern license contained the provision that the party licensed “ do “not knowingly suffer any unlawful games, or any gaming whatsoever,” in the premises, the court held the provision not to be infringed by allowing dominos to be played there. Said Lord Campbell, C. J. “ Parties may play at a game which is not in itself unlawful, without gaming.” And he added: “If money is staked, it is gaming, and a publican may be lawfully 1 Commonwealth v. Goding, 3 Met. 180. game within the Stat. 83 Hen. 8, c. 9, and fined him 40s.a day. Keb. 510. 2 Vicaro v. Commonwealth, 5 Dana, 504. And see Ervine v. Common- wealth, 5 Dana, 216. 3 Commonwealth v. Tilton, 3 Met. 232. In the Law Dictionary of Jacob, tit. Gaming, we read: “a person was convicted of keeping a cockpit; and the court resolved it to be an unlawful But if the guests in an inn or tavern call for a pair of dice, or tables, and for their recreation play with them ; or, if any neighbors play at bowls for their recreation, or the like; these are not within the statute ; if the house be not kept for gaming, nor the gaming be for lucre or gain. Dalt. c. 46.” 585 OFFENCES MORE PURELY STATUTORY. § 862 [BOOK V. convicted for that; but this conviction does not state that such was the case.”1 And under an English statute which pro- vided, “that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void,” the judges held that a colorable contract for the sale and purchase of railway shares, where, according to the under- standing of both parties, the shares sold are not to be delivered, but merely the “‘ differences” are to be paid, according to the rise and fall of the market, is within the provision.? In Ten- nessee, the doctrine appears to have been laid down, that there can be no gaming without a wager;? but this proposition, pretty clearly, would not be everywhere received in a universal sense. In other words, it is true generally, not always.* § 861. Continued. — On the whole, we must close this topic where we began it, by saying, that the law has not yet drawn about this word lines enabling us absolutely to go further than lay down the proposition, that it means something more than a mere innocent sport; but how much, or what more, must be determined by every court, on consideration of the entire legis- lation of the State concerning the subject, and of such other matters as the principles of a sound legal interpretation de- mand. As to the nature of the winning or losing, something more will appear further on. § 862. Game of Chance — Of Hazard — Horse-racing — Dog- race — “Pari Mutuel.”—— The words “game of chance,” or 1 Reg. v. Ashton, 16 Eng. L. & Eq. 346, 1 Ellis & B. 286. 2 Grizewood v. Blane, 11 C. B. 526, 20 Eng. L. & Eq. 290. 3 Dobkins v. The State, 2 Humph. 424. See ante, § 857, 858. + And see ante, § 857; The State v. Fearson, 2 Md. 810. 5 The reader may derive some light by consulting the following cases, in addition to those already referred to: Cameron v. The State, 15 Ala. 383; Swallow v. The State, 20 Ala. 30; The State v. Records, 4 Harring. Del. 554; Commonwealth v. Shelton, 8 Grat. 592; The State v. Smitherman, 1 Ire. 14; Howlett v. The State, 5 Yerg. 144; Shropshire v. Glascock, 4 Misso. 586; Boynton v. Curle, 4 Misso. 599; The 5386 State v. Fidler, 7 Humph. 502; Fiddler v. The State, 7 Humph. 508 ; Common- wealth v. Terry, 2 Va. Cas. 77; Com- monwealth v. Stowell, 9 Met. 572; Smith v. The State, 5 Humph. 163; Commonwealth v. Garland, 5 Rand. 652; Wade v. Deming, 9 Ind. 35; Har- baugh v. People, 40 Ill. 294; The State v. Fulton, 19 Misso. 680; The State v. Smith, 19 Misso. 688; The State v. Haydon, 31 Misso. 85; The State v. Ebert, 40 Misso. 186; Hitchins v. Peo- ple, 39 N. Y. 454; The State v. Coos- ter, 10 Iowa, 453; McDaniel v. Com- monwealth, 6 Bush, 826; Common- wealth v. Taylor, 14 Gray, 26; Com- monwealth v. Gourdier, 14 Gray, 390; The State v. Hall, 8 Vroom, 158. CHAP. XXXVIII. | GAMING — THE LAW. § 862 “game of hazard,” are employed in some of the statutes. They are used undoubtedly as distinguished in meaning from such words as “game of skill.” Therefore, in Iowa, horse- racing is held not to bea game of chance.!_ But is horse-racing simply, without something added to it,evena game? It has been held in Missouri, in the words of the learned judge, to be a “great perversion of language to call a horse-race a gambling device.” And according to an Arkansas decision a horse-race is not a game either of “ hazard or skill;”’ the necessary result of which doctrine appears to be, that it is not a game. The case was, that a statute made it punishable “if any person shall be guilty of betting any money or any valuable thing on any game of hazard or skill;” and the court adjudged that a ‘bet upon a horse-race is not within the statute.? So, in Ten- nessee, horse-racing along a public road is held not to be “oaming.’* In England, a dog-race appears not to be re- garded as a “game of chance;” that is, a statute’ having declared to be a vagrant “‘every person,” in certain places, “ playing or betting, &c. with any table or instrument of gam- ing or any coin, &., at any game or pretended game of chance,” one who, within, a prohibited place, deposited a half-sovereign as a wager on a dog-race was adjudged not to be within the statutory terms. Whether, in this respect, a horse-race is to be regarded the same as a dog-race, the court, in a subsequent case, left undecided ; but, the defendants being the proprietors of an’ instrument which they called a “ part mutuel,” at which persons betting on a horse-race deposited their money, and the disposition of the money, to be indicated by the instrument, depended partly on the result of the race, and partly upon the numbers depositing money in this way and the horse on which-such depositors bet, they were held to have violated the statute. ‘It was urged upon us in the argument,” said Cock- burn, O. J. “that the betting here being on the event of a 1 Harless v. United States, 1 Morris, to run the race. Goldsmith v. The 169. State, 1 Head, 154. 2 The State v. Hayden, 31 Misso. 35. * Harrison v. The State, 4 Cold. 195. 3 The State v. Rorie, 23 Ark. 726. See post, § 872, 873. Under the Tennessee act of 1833, there § 81 & 32 Vict. c. 52, § 8. may be a “horse-race”” though thereis © Hirst v. Molesbury, Law Rep. 6 Q. no wager, and no previous agreement B. 180. 35 o38T § 864 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. horse-race, it could not be considered as wagering on a game of chance, a horse-race not properly coming within such a definition. It is unnecessary to determine whether, if this in- strument had been used simply for registration of bets on the event of a horse-race, the use of it would have been within the statute. Whether a horse-race be in itself a game of chance or not, we can entertain no doubt that, if some addi- tional element of chance be introduced, the wagering on a horse-race may be converted into a game of chance.” ! § 863. Continued — Tenpins — Shuffleboard — Rondo. — Of the meaning of the phrase now under consideration, Ruffin, C. J. sitting in the North Carolina court, observed: ‘ The phrase ‘game of chance’ is not one long known in the law, and having therein a settled signification, but was introduced into our statute-book by the act of 1835. As it had no techni- cal meaning as a legal expression, it must have been used by the legislature in the sense in which persons conversant in games, or the world at large, give to it in classing the different kinds of games... . Though our knowledge of such subjects is very limited, yet we believe, that, in the popular mind, the universal acceptation of ‘a game of chance’ is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill, or adroitness have honestly no office at all, or are thwarted by chance.” Thereupon it was held that the game of tenpins is not a game of chance.2 On the other hand, where the question was left to the jury, the game of ‘shuffleboard ” 3 and the game of “ rondo” # were sev- erally determined, the former in North Carolina, the latter in Missouri, to be games of this sort. § 864. Faro Bank — “Same or like Kind” — Hap-hazard — Blind-hazard — Skin-cap — Games of Chance. — A statute of Virginia provides, that “‘every keeper or exhibitor of any of the tables commonly called A B O, or E O tables, or faro bank, or any other gaming-table of the same or like kind, under any denomination whatsoever, or whether the same be played with cards or dice, or in any other manner whatsoever, shall,” &c. 1 Tollett v. Thomas, Law Rep. 6 Q. 3 The State v. Bishop, 8 Ire. 266. B. 514, 520, 621. 4 Glascock v. The State, 10 Misso. 2 The State v. Gupton, 8 Ire. 271. 508. 588 4 CHAP. XXXVIII. ] GAMING — THE LAW. § 866 And the court has held, that, under the clause “of the same or like kind,” a gaming-table called “ hap-hazard,” otherwise “ blind-hazard,” otherwise “ skin-cap,” is included. The judge observed: “The court is not advised that there are or can exist but two kinds or classes of games of chance. The first is, where the chances are equal, all other things being equal. The second is, where, all other things being equal, the chances are nevertheless unequal, that is, in favor of one side. The standard games enumerated, so far as they are understood by this court, are of the second class; and in all three of them the chances are in favor of the exhibitor of the game or table. Now the playing charged in the information is at a game which, by the evidence, is proved to be a game wherein the chances are unequal, and in favor of the exhibitor of the table. It must, therefore, belong to the same class, and be of the like kind of gaming to which the enumerated games belong. The advantages or chances in favor of the player or exhibitor of the table are not the same in each case, but in each case the chances are in his favor; and this is the dis- tinctive character which marks them as games of the same or like kind.” + § 865. Continued — Thimble — Thimbles and Balls. — In South Carolina, the statute against gaming “at any faro bank, or at any other table or bank of the same or the like kind, under any denomination whatsoever,” is held to include the game called “thimble,” or ‘thimbles and balls.” And the obser- vation was let fall, that, “if the prohibited games be confined to those alone in which the stake is won or lost by chance, the result would follow that the gambler who relied on the practical legerdemain of a juggler, whilst he professed that the stake depended on fortune, will escape punishment by playing falsely.” 2 § 866. Continuea — Roulette, &c. — Where there is a Fund. — A statute in Kentucky provided, that “whoever shall set up, exhibit, or keep, for himself or another, &c., any faro 1 Daniel, J.in Commonwealth v. Wy- 184, to the point, that mere colorable att, 6 Rand. 694, 702. changes in a game, after the enactment 2 The State v. Red, 7 Rich. 8. And of a legislative prohibition, do not pre- see Crow v. The State, 6 Texas, 334. vent the prohibition from attaching: See McGowan v. The State, 9 Yerg. 589 4 § 868 OFFENCES MORE PURELY STATUTORY. [BOOK v. bank, gaming table, machine, or contrivance used in betting, or other game of chance, whereby money or other thing is or may be won or lost, shall be fined,’ &c: And the court, by Stites, J. giving a construction to this statute, employed the following language: “It is obvious, we think, from the lan- guage of the section, and the severe punishment denounced against any violation thereof, that the object of the legislature was to suppress that species of gambling carried on. by banking games, such as faro, roulette, and other games, where there is a fund of money offered and ready to be staked on all bets others may choose to make against the banker, on the game which he shall exhibit to entice bets. This is the character of gaming-table, machine, and contrivance mentioned and intended to be embraced in the section in question; and those who are guilty of keeping or setting up such tables, machines, ‘ or contrivances, are those intended to be rendered infamous, and disqualified from voting and holding office. ‘To convict under this section it should appear, that the table, machine, or contrivance was such as is ordinarily used for gambling for money or property.” 4 § 867. Continued — Gambling Device — Cards. — A Missouri statute is as follows: ‘ Every person who shall set up or keep any table or gambling device, commonly called A B C, faro bank, E O, roulette, equality, or any kind of gambling-table or gambling device, adapted, devised, and designed for the purpose of playing any game of chance for money or property,” &c. And it is held, that cards are a gambling device within the meaning of this provision.” § 868. Parties changing Name of Game — “ Device.” — And it has been held, that parties cannot evade a statute by calling the game which it prohibits by some other name.® On this point, Lipscomb, J. in the Texas court, employed the following language: ‘‘There was a time when so much regard was paid to the name of a game, that, when a game was prohibited, those professors of the science of gambling had only to change the name of the game to avoid the penalty, and the history of 1 Ritte v. Commonwealth, 18 B. 2? The State v. Herryford, 19 Misso. Monr. 35, 39, 40. 877. 8 The State v. Maurer, 7 Iowa, 406. 540 ! CHAP. XXXVIII.] GAMING — THE LAW. § 869 jurisprudence will show the following absurdities: When the game of roulette was prohibited, those astute, scientific gentle- men changed the name to rouge et noir, from that to roulette poulette, and then to A B C, and to E O, and the last to O E. But such shallow devices can no longer be made available. Common sense has triumphed over such absurdities. And by the introduction of the word ‘ device’ into our statute, courts will inquire, not into the name, but the game, to determine whether it is a prohibited game.” } § 869. Continued — Device for Cards — Ramps — Dominos. — In Alabama it is made penal “if any person plays, &c., with cards, or dice, or with any device or substitute for the same,” under circumstances which the statute further points out.? And it is held that a game of “ramps” falls within the pro- hibition. Said Goldthwaite, J. in the case in-which this point was adjudged: ‘The record shows that every ingredient in the offence charged was clearly established, except the fact as to whether the game was played with a substitute or device for cards. ... The game, although played with dominos, could as well be played with cards, — the dominos are shuffled, a trump is made, and the players must follow suit if they can, and if not are allowed to trump, — tricks are taken and points made. Here, then, we have a game which can be played with cards, and is played on the same principles which govern some games in cards, and in which the same cant phrases and terms are made use of. We cannot say with positive certainty, upon this evidence, that the dominos were used by the appellant as 1 Smith v. The State, 17 Texas, 191, 192. The statute, on which this opin- ion was pronounced, is not given in the report. In Alabama, a conviction can- not be had under an indictment for gaming, on proof that the defendant played a game of euchre with domi- nos, if the jury are satisfied that euchre with dominos is an older game than euchre with cards, and that both cards and dominos are still in common use in playing euchre; unless they are also satisfied, that, in the particular game played, dominos were used as a substitute for cards, though the fact of their being such substitute was not known to the players at the time. Har- ris v. The State, 838 Ala. 873. Ifa statute prohibits “pool,” it is imma- terial that it is played on a tenpin alley instead of on a billiard-table. The State v. Kelly, 24 Texas, 182. And see Cohen v. The State, 17 Texas, 142; Smith v. The State, 17 Texas, 191. 2 Windham v. The State, 26 Ala. 69, 70. 541 § 872 OFFENCES MORE PURELY STATUTORY. [BOOK v. a device or substitute for cards, but we are very clear that the evidence we have stated tends to establish that fact.” 1 § 870. Wager and Bet. — By some of the statutes, the very essence of the offence consists in a wager or bet. The two words “ wager ”’ and “ bet” are distinguishable from each other in meaning; thus, in an Indiana case, Perkins, J. observed, that wager “‘ means the contract by which a bet is made; and it is applied, also, to the thing or amount bet. We have found no law or authority that makes it mean the subject on which a bet is laid.”” Consequently, where a statute made punishable “every person who shall, by playing or betting at or upon any game or wager, or upon the result of any election, either lose or win any article of value,” it was held not to be violated where one lost five dollars by “betting with one S. C., upon an affidavit made by P. N. against J. C., for an assault and battery with intent to kill.” ? § 871. Continued. — Still, in other respects, the words wager and bet seem substantially of one meaning. They imply a risk, not merely on one side, but on both sides; though they do not require the risk to be even.2 And in Alabama it is laid down, that the wager is complete when the offer to bet is accepted. The placing of money or its representative on the gaming-table is such an offer; and, if rio objection is made by the owner of the table, the offer must be deemed to be accepted, and the offence against the statute complete, though the game should never be played out, and the bet be neither lost nor won.* § 872. Continued — Horse-racing, continued — Hlections. — “ Gaming” and “ betting” are, like wager and bet, not synony- mous terms, yet they are closely allied in meaning, though not so closely as the other. Under the Virginia statute, which pro- vides a punishment for every person “ who, at, &c., shall play at any game whatever, except bowls, backgammon, draughts, or any licensed game; or bet on the hands or sides of others who do play;” the betting of money on a horse-race ® is held 1 Bryan v. The State, 26 Ala. 65. 4 The State v. Welch, 7 Port. 463. 2 Smoot v. The State, 18 Ind. 18. 5 See ante, § 862. 3 Quarles v. The State, 5 Humph. 661; post, § 987. 042 CHAP. XXXVIII. ] GAMING — THE LAW. § 874 not to be prohibited.! But in Indiana the contrary is held ;? so under the statute of Maine also, which however is not in the same words. In Tennessee, the laying of a bet on an election is held not to be gaming.* § 878. Horse-racing, continued — Statute silent as to Penalty.— In some of the States horse-racing is regarded as an amuse- ment so innocent that wagers upon the result are collectible in the courts of law. But in other States, the contrary view is taken; and there are, moreover, in many States, statutes intended to suppress or control both racing and wagers. A race with mares, or with mules, is a “ horse-race,” within a prohibiting statute on this subject.’ If there is a statute for- bidding horse-racing on a public road, and the statute pro- vides no punishment, the act is indictable, therefore, as a misdemeanor at the common law.8 § 874. Thing staked or bet — “Money.” — Some of the stat- utes make it, in some or all of the circumstances, one of the ingredients of the offence that “money or other valuable thing” be played for or bet. And we saw in the earlier part of this volume,’ that, as a general doctrine, the word “ money ” means only that which is a legal tender. It does not, for example, include bank-notes, United States treasury warrants, and the like. Consequently the betting of any thing other than coin is not ordinarily a betting of money,” while it may be within other words of the statute. But it has been held, as in harmony with this doctrine, that the betting of checks 1 Commonwealth v. Shelton, 8 Grat. 592. See also The State v. Moseley, 14 Ala. 890; Baley v. The State, 1 Humph. 486. 2 Wade v. Deming, 9 Ind. 35. 3 Ellis v. Beale, 18 Maine, 337. See also Bledsoe v. Thompson, 6 Rich. 44. 4 The State v. Smith, 1 Meigs, 99. 5 Barret v. Hampton, 2 Brev. 226; Kirkland v. Randon, 8 Texas, 10; Mc- Elroy v. Carmichael, 6 Texas, 454; Dunman ». Strother, 1 Texas, 89. See McElroy v. Chancellor, 8 Texas, 270; Johnson v. Lansley, 12 C. B. 468, 22 Eng. L. & Eq. 468. 6 The State v. Posey, 1 Humph. 884; Gibbons v. Gouverneur, 1 Denio, 170; Bledsoe v. Thompson, 6 Rich. 44; Van Valkenburgh v. Torrey, 7 Cow. 252; Ellis v. Beale, 18 Maine, 837; Lewis v. Littlefield, 15 Maine, 233; Huffv. The State, 2 Swan, Tenn. 279; Myers v. The State, 3 Sneed, 98 ; Watson v. The State, 3 Ind.123. And see ante, § 848. 7 Goldsmith v. The State, 1 Head, 154. 8 Redman v. The State, 38 Ala. 428. See ante, § 188; Crim. Law, 5th ed. I. § 287. , 9 Ante, § 346. 0 Horton v. The State, 8 Eng. 62; Johnston v. The State, Mart. & Yerg. 129. 548 § 875 OFFENCES MORE PURELY STATUTORY. [BOOK v. or counters of a faro bank, which the parties agree are the representatives of money between themselves, is a betting of money.1. And the same has been held of playing at cards, with the understanding that the loser shall pay the liquor bill for the company; the thing bet being deemed money, rather than liquor.2. “A game of hazard,” observed Shaw, C. J. “to determine who shall pay for the beer or other liquor to be drank, is strictly playing for money; it is to determine which party shall pay a sum of money for the other.’ ? § 875. Continued — “Valuable Thing.” — In accordance with this doctrine, a“ thing” may be “ valuable,” if value can practi- cally be obtained for it, though intrinsically and legally it is of no worth. Therefore, in Illinois, a statute having made it penal to play for money or other “ valuable thing,’’ a case was held to be within the statutory term, where the playing was for a 1 Ashlock v. Commonwealth, 7 B. Monr. 44; Walton v. The State, 14 Texas, 381. And see ante, § 346; The State v. Welch, 7 Port. 463. 2 Bachellor v. The State, 10 Texas, 258, 262. See The State v. Leighton, 3 Fost. N. H. 167 ; People v. Sergeant, 8 Cow. 189. And see ante, § 858, note. 3 Commonwealth v. Taylor, 14 Gray, 26, 29. And see Commonwealth v. Gourdier, 14 Gray, 890; McDaniel v. Commonwealth, 6 Bush, 326; The State v. Cooster, 10 Iowa, 453. Tak- ing a chance in a raffle regularly li- censed and paid for is not gaming within the Alabama Code, § 3243. Hawkins v. The State, 33 Ala. 433. Accordingly, it has been held in Mis- sissippi not to be gaming to play on a licensed billiard-table, the loser to pay for the use of the table ;, for that is in accordance with the rule of the game, and the winner makes no profit by it, which is of the essence of gaming. And Fisher, J. observed: ‘‘ To consti- tute gaming, one or the other of the parties must expect to profit by the game.” Blewett v. The State, 384 Missis. 606, 614. On the other hand, in Ohio, where there was no such spe- cial circumstance as the license, one O44 who keeps a billiard saloon was held to violate the statute ‘for the preven- tion of gaming,” if he allows persons to play on condition that the fee for the use of the table be paid by the loser. Ward v. The State, 17 Ohio State, 82. In New Jersey, a tenpin alley, kept for hire by the game, where the practice is for the loser of the game to pay for the use of the alley, is not on this account a common gaming nuisance. The State v. Hall, 3 Vroom, 158. In New York, one who keeps a shop for the sale of beer, cigars, &c., and allows his cus- tomers to play games for such articles, he furnishing them at the end of the games and charging the loser therefor, is guilty of violating the statute against gambling, although such gambling takes place only occasionally. Hitch- ins v. People, 89 N. Y.454. In Illinois, simply keeping billiard-tables for the amusement and exercise of persons desiring to use them for that purpose, although it may be the custom for the parties to play for the purpose of de- termining who are to pay for the use of the tables, is not “keeping a com- mon gaming-house ” within the mean- ing of § 129 of the Criminal Code. Harbaugh v. People, 40 Ill. 294. CHAP. XXXVIII.] GAMING — THE LAW. § 817 twenty-five cent check, being one of many issued by a private person, redeemable in sums of one dollar; the issuing of them having been without legal authority, and they being perhaps not collectible by a suit at law. Said Beckwith, J.: “ The articles or things played for may be intrinsically valueless ; but, if they are understood to represent value, and are such that the winner can in fact, without any violation of the law, obtain value for them, we think that they are within the letter and spirit of the statute. Checks or counters are intrinsically valueless. There is no legal obligation to pay value for them. But, if they are understood by the parties to represent value, and the winner can, in fact, obtain value for them, we think gaming for them is in effect gambling for things of value.”’? § 876. Setting up Gambling Devices — Permitting Gaming. — References have already been given to various authorities under this head.2 A statute in Missouri having made it an offence if any one shall “set up or keep” any gambling device designed, &c., for “playing any game of chance for money or other property, and,” continues the statute, “shall induce, entice, or permit any person to bet or play at or upon any such gaming-table,” &c., it was held that the offence of enticing might be committed though no money was bet or won.? Under a statute like this, punishing the defendant for setting up a gambling device “in a house to him belonging, or by him occupied, or of which he has at the time the possession or con- trol,” it is a sufficient defence that he had sublet the premises to a third person, who had the exclusive right and possession.* § 877. Admitting Minors to Games — Mistake of Age. — A statute in Massachusetts makes punishable “the keeper of a billiard room or table, or bowling alley, who admits a minor thereto without the written consent of his parent or guar- dian ;”> and, in one case, it appearing that the minor was almost twenty-one years old when admitted, that he did busi- 1 Gibbons v. People, 33 Ill. 442, 446. see Robbinson v. The State, 24 Texas, 2 Ante, §.852, 854. 152. See, as to the Arkansas statutes 3 The State v. Fulton, 19 Misso. and their interpretation, The State v. 680; The State v. Smith, 19 Misso. Stillwell, 20 Ark. 96; Stith v. The 683. See ante, § 867; post, § 899, note. State, 13 Ark.680. As to Indiana, see * The State v. Ebert, 40 Misso. 186; The State v. Hope, 15 Ind. 474. Scott v. The State, 29 Ga. 268. And 4 Mass. Gen: Stats. c. 88, § 71. 545 § 878 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. ness independently of his parents, that he appeared to be fully grown; and, on being asked by the defendant before his ad- _ mission whether or not he was a minor, replied that he was not, — this evidence was held to be immaterial, and it was excluded. “It did not,” said Bigelow, C. J. “tend to prove or disprove any essential fact. It did not show, or have any tendency to show, either that the alleged minors were of age, or that the defendant did not actually admit them to the billiard room kept by him. Nor was it material to show that the defendant did not know or have reason to believe that the alleged minors were under age. The prohibition of the statute is absolute. The defendant admitted them to the room at his peril, and is liable to the penalty whether he knew them to be minors or not. The offence is of that class where knowledge or guilty intent is not an essential ingredient in its commis- sion, and need not be proved.”! This decision belongs to a class already discussed in this volume, wherein the Massachu- setts court has made a wide departure from more just doctrines held in England and elsewhere in our country. According to the better view, it would not be necessary to allege or prove that the defendant knew the individual admitted to be under age; but, if the case was one in which the admitting of a per- son of full age would be no dereliction of moral, social, or legal duty, and the defendant, acting with due care and caution, was nvsled as to the fact, and honestly believed the person admitted to be of full age, this, on being affirmatively shown by him, would be a good defence.? § 878. Place of the Gaming. — Under some of our statutes, the place in which the gaming is carried on becomes an element of importance. In the earlier parts of this volume we saw what are the meanings of some of the words employed to designate the place; as, “public place,’ ? “ public house,” 4 1 Commonwealth v. Emmons, 98 Mass. 6. It was also held to be irrele- vant and immaterial to prove, in such a case, that the defendant had previ- ously forbidden the minors to enter, or that he was not present when they were permitted to be there, if they were actually present in the room, and 546 were suffered to remain, either by the defendant or by his servants or agents, who had the charge of the room. 2 Ante, § 3851-359, 682, 664, 665. 8 Ante, § 298; Purcell v. Common- wealth, 14 Grat. 679; Commonwealth v. Sylvester, 13 Allen, 247. 4 Ante, § 299. CHAP. XXXVII.] GAMING — THE LAW. § 879 “‘ outhouse ;”! to which may be added “outhouse where people resort,” ? “highway,” ® “the premises,’ * “ public gambling- house,’’> and the like. These we need not here explain. A statute of Alabama provides a punishment for “every person who keeps a billiard-table in connection with a house where spirituous liquors are retailed, as an appendage thereto ;” and the construction is, that the room for gaming need not be under the same roof with the other; but, if the two constitute one establishment and are contiguous, the case is within the prohibition.6 There are various other statutes to prevent gaming in particular places, in distinction from gaming gen- erally ; but they have not led to such expositions of doctrine as to render advisable a further consideration of this particular topic.” § 879. Common Gambler.2 — In some of the States, it is an offence by itself to be a common gambler. There are some analogies® from which we may infer, that at least three in- stances of gaming must be shown, to constitute the offence; and there is reason to believe that this may be deemed, on consideration, to be the true view. But in a Kentucky case, the court held that evidence of one instance of playing an unlawful game is sufficient, when taken in connection with circumstances, like the display of gaming implements. And the judge observed: “ While many acts of gaming may be palliated, so as to show that the general conduct and practices 1 Ante, § 291; Smith v. The State, 387 Ala. 472. 2 Swallow v. The State, 20 Ala. 30; The State v. Norton, 19 Texas, 102, 205; Wheelock v. The State, 15 Texas, 260; Cain v. The State, 30 Ala. 534. 3 Mills v. The State, 20 Ala. 86. It was held in this case, that “highway,” as the word is used in the statute, means a public road, in distinction from a private or neighborhood road. 4 The State v. Black, 9 Ire. 878. And see ante, § 221. 5 Lockhart v. The State,-10 Texas, 275; Rice v. The State, 10 Texas, 545 ; And see Buck v. The State, 1 Ohio State, 61. 6 Smith v. The State, 22 Ala. 54. And see The State v. Smitherman, 1 Ire. 14. 7 See the following cases: Common- wealth v. Price, 8 Leigh, 757; Mount v. The State, 7 Sm. & M. 277; Buck v. The State, 1 Ohio State, 61; Stith v. The State, 8 Eng. 680; Blanton v. The State, 5 Blackf. 560; Calvert v. Commonwealth, 5 B. Monr. 264; Ba- ker v. The State, 2 Har. & J.5; The State v. Records, 4 Harring. Del. 554 ; The State v. Fearson, 2 Md. 310; The State v. Mathis, 8 Pike, 84; Roberts v. Commonwealth, 11 B. Monr. 3. 8 And see, as to gaming-houses, Crim. Law, 5th ed. I. § 1185 et seq. ® Crim. Law, 5th ed. I. § 1137; I. § 64. 547 [BOOK v. § 881 OFFENCES MORE PURELY STATUTORY. of an individual are not such as to constitute him a common gambler ; on the other hand, a single act may be attended with such circumstances as to justify a conviction.” In the same case, evidence that the defendant “was and is by repu- tation a common gambler,” was held to be inadmissible against him.? § 880. Felony or Misdemeanor. — In some of our States, gaming is, not felony, but misdemeanor ;? and probably it is so in all of them. § 881. Persons assisting at the Game — Accomplices. — Under the Kentucky statute of 1823, which provides, that no one shall “set up or keep’ any gaming-table, &c., “or shall keep any bank, and shall induce or permit any person or persons to bet any money or other thing against the said bank or game,” the court has held, that one need not bet or play him- self, to come within the inhibition; also that, if one deals the cards at the table or bank, he commits the offence, though he has no personal interest in the profits of the game.? So if one makes a bet, by procuring another to lay the wager for his profit;* or bets, while another furnishes the money;® he cominits the same offence as if he personally staked his own money.® But in Alabama, “ under,” as observed by one of the learned judges, “the act of Feb. 17, 1854, as amended by the act of Feb. 8, 1858, it is the betting at tenpins, and not merely playing the game, that constitutes the offence.” Therefore it is held, that a person who joins in a game of tenpins at the request of others who are betting upon it, without betting himself, is not an “ accomplice” within the meaning of the pro- vision of the Code, which forbids a conviction upon the uncor- roborated testimony of an accomplice. ‘* As the witness,” said 311; English v. Young, 10 B. Monr. 1 Commonwealth v. Hopkins, 2 Da- “na, 418, opinion by Underwood, J. And see The State v. Markham, 15 La. An. 498. : 2 People v. Shear, 7 Cal. 189. 3 Commonwealth v. Burns, 4 J. J. Mar. 177. 4 Williams v. The State, 12 Sm. & M. 58. But see, on this general doc- trine, O’Blennis v. The State, 12 Misso. 048 141. 5 Iseley v. The State, 8 Blackf. 403. And see, on this point and the last, Commonwealth v. Drew, 3 Cush. 279; Hinkle v. Commonwealth, 4 Dana, 518 ; The State v. Purdon, 3 Misso. 114; Ward v. The State, 22 Ala. 16. ® For other points, see Elliott v. The State, 26 Ala. 78; Johnson v. The State, 4 Sneed, 614. CHAP. XXXIX.] GAMING — THE PROCEDURE. § 883 R. W. Walker, J. “did not bet, and was not concerned in the bets made by others who took part in the game, he could not have been indicted; and, therefore, was not an accom- plice.” } “ CHAPTER XXXIX. GAMING — THE PROCEDURE. 882, 883. Introduction. 884-888. Procedure under the English Law. 889-892. American Statutes and Forms of Indictment. 898-917. Discussions of the American Procedure. 918-926. Special Views as to Betting on Games. 927-980. As to Horse-racing and the like. § 882. General View. — If, in discussing the law of the offence in the last chapter, we found it necessary, from the diversity of the statutes, to present fragmentary views, and mere points, at many places where principles would have been more satis- factory both to writer and reader; so, in this chapter, we shall encounter the same necessity in treating of the procedure. And here, as there, if the reader would derive the greatest benefit from the chapter, he should first examine the statutes of his own State, and then compare their provisions with these elucidations as he proceeds. He will thus be able to gain definite ideas, and render this general discussion particular and practical. § 883. How the Chapter divided. — The object of a division, in a case like this, being the mere practical one of helping the reader to find things, we shall pursue the following order: I. Something of the Procedure under the English Law; II. Illus- trations of American Statutes, with Forms of the Indictment on them; III. Discussions of Doctrines, and Points, relating to the American Procedure; IV. Special Views as to Betting on Games; V. As to Horse-racing and the like. 1 Bass v. The State, 87 Ala. 469. 549 § 885 OFFENCES MORE PURELY STATUTORY. [BOOK v. IL Something of the Procedure under the English Law. § 884. English Statutes — 9 Anne — 8 & 9 Vict. &c.— In the last chapter, a general view was presented of the earlier English statutory law on this subject.! Stat. 9 Anne, c. 14, appears to have remained in force in England until 1845, when it was repealed by the 15th section of Stat. 8 & 9 Vict. c. 109, en- titled “An Act to amend the Law concerning Games and Wagers.”2 This statute of Anne, enacted in 1710, is, in its 5th section, as follows: ‘If any person or persons whatsoever, &c., do or shall, by any fraud or shift, cosenage, circumvention, deceit, or unlawful device, or ill practice whatsoever, in play- ing at or with cards, dice, or any the games aforesaid [that is, cards, dice, tables, or other games whatever], or in or by bearing a share or part in the stakes, wagers, or adventures, or in or by betting on the sides or hands of such as do or shall play as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others, any sum or sums of money, or other valuable thing or things whatsoever; or shall, at any one time or sitting, win of any one or more person or persons whatsoever above the sum or value of ten pounds; that then every person or persons so winning by such ill practices as aforesaid, or winning at any one time or sitting above the said sum or value of ten pounds, and being convicted of any of the said offences, upon an indictment or information to be exhib- ited against him or them for that purpose, shall forfeit five times the value of the sum or sums of money, or other thing, so won as aforesaid; and, in case of such ill practice as afore- said, shall be deemed infamous, and suffer such corporal pun- ishment as in cases of wilful perjury ; and such penalty to be recovered by such person or persons as shall sue for the same by such action as aforesaid.” § 885. Form of Indictment for winning Money at Cards. — Upon this statute, Archbold gives us the following form of an indictment for winning money at cards, &c., by fraud : — “That J. S., late of, &c., on, &c., at the parish aforesaid, in the county afore- said, by fraud, shift, cosenage, circumvention, deceit, unlawful device, and ill 1 Ante, § 849 et seq. this statute of 8 & 9 Vict. c. 109; 17& ? For the subsequent legislation, see 18 Vict. c. 88; 81 & 82 Vict. c. 52. 590 CHAP. XXXIX.] GAMING — THE PROCEDURE. § 888 practice, in playing at and with cards, to wit, at a certain game of cards called Rouge et noir, with one J. N., unlawfully did win, obtain, and acquire to himself a large sum of money, to wit, the sum of sixty pounds, of the moneys of the said J. N. [or certain valuable things, to wit, one —— of the value of —— and one —— of the value of ——, of the goods and chattels of the said J. N., or being the property of the said J. N.], to the great damage of the said J. N., to the evil example of all others in the like case offending, against the form of the statute in such case made and provided, and against the peace of our lady the queen, her crown, and dignity.” 1 § 886. Evidence on the above. — As to the evidence under this form of the indictment, Archbold says:? ‘To maintain this indictment, it is necessary, not only to prove that J. 8. won of J. N. the money, &c., laid in the indictment, or some part of it,? but also to prove that it was won by ‘ fraud, shift, cosenage, circumvention, deceit, unlawful device, or ill prac- tice.’ + A variance between the indictment and evidence, as to the game played (if stated), would be fatal.” But, we may add, a smaller sum won, than is laid in the indictment, may well be proved. If, however, the allegation is of winning bills of exchange, the evidence must support this descriptive matter as laid.é § 887. Indictment for winning more than Ten Pounds at One Sitting. — Archbold has the following form, drawn also on the the foregoing statute: — “ Commencement as in the last precedent: in the county aforesaid, by playing at and with cards, to wit, at a certain game at cards called Rouge et noir, with one J. N., unlawfully did win of the said J. N., at one time and sitting, above the sum and value of ten pounds, that is to say, the sum of sixty pounds, of the moneys of the said J. N., to the great damage of the said J. N., &c., &., as in the last precedent.” ® § 888. Evidence on the above. — Under this form of the in- dictment, there may be a conviction for winning a less sum than ten pounds.’ Moreover, Archbold says concerning the evidence: ‘* All the prosecutor has to prove is, that J. S. won of J. N., at one sitting, a sum exceeding ten pounds, at the game specified in the indictment. Where two persons played 1 Archb. Crim. Pl. & Ev. 10th Lond. 5 Rex v. Darley, supra. ed. 657. 6 Archb. Crim. Pl. & Ev. 10th Lond. 2 Tb. 657, 658. ed. 658. 3 See Rex v. Darley, 1 Stark. 359. 7 Rex v. Darley, 1 Stark. 359. * See Rex v. Rogier, 2D. & R. 481, 1B. &C. 272. : dol § 890 OFFENCES MORE PURELY STATUTORY. [BOOK v. at cards from Monday evening to Tuesday evening, without intermission, except an hour or two at dinner, &c., it was holden to be one sitting, within the meaning of the above statutes.” 1 Il. Illustrations of American Statutes, with Forms of the In- dictment on them. § 889. Playing for a “ Valuable Thing.” — A statute in Illinois “makes it a penal offence for any person to play for money or other valuable thing at any game with cards, dice, checks, or at billiards.” And the indictment, in a case already men- tioned,? where the “ valuable thing” was a check practically but not legally redeemable, was in the following form : — “That A, &., on, &e., at, &e., unlawfully did then and there play at a game at billiards for checks and promissory notes, payable and redeemable in currency by Cyrus A. Bradshaw, articles and things of value, to wit, of the value of one dollar, contrary,” &c.? § 890. Permitting Gambling Device on one’s Premises. — A statute in Missouri makes punishable “every person who shall permit any gaming-table, bank, or dévice prohibited by the sixteenth section, to be set up or used for the purpose of gaming in any house, building, shed, booth, shelter, lot, or other premises to him belonging or by him occupied, or of which he hath at the time possession or control.” And the following was held to be a good indictment on this provision, against the objection that it did not aver the actual using of the device by persons engaged in playing for money or other property : — “That A, &c., on, &c., with force and arms, at, &c., unlawfully did permit a certain gambling device called a pack of cards, being a gambling device adapted, used, and designed for the purpose of playing games of chance for money or property, &c., against the peace,” &c.4 1 Bones v. Booth, 2 W. Bl. 1226. 2 Ante, § 876. 3 Gibbons v. People, 88 Ill. 442. See post, § 900. 4 The State v. Scaggs, 88 Misso. 92. Where the provision was: ‘“ Every person who shall set up or keep any table or gambling device, commonly ealled A. B. C., faro bank, E. O., rou- 552 lette, equality, or any kind of gambling- table or gambling device, adapted, de- vised, and designed for the purpose of playing any game of chance for money or property, and shall induce, entice, or permit any person to bet or play at or upon any such gaming-table or gam- bling device, or at or upon any game played at or by means of such table or CHAP. XXXIX.] GAMING — THE PROCEDURE. § 891 § 891. Permitting Gaming. — By a statute in Iowa, “If any person keep a house, shop, or place resorted to for the purpose of gambling, or permit any person in any house, &c., under his control or care to play at cards, dice, &c., for money or other thing, such offender shall be fined,’ &c. And, on the latter clause of this statute, the following form of the indictment was held to be adequate : — “That A, &., on, &., at, &c., being then and there the keeper of a house resorted to for the purpose of gambling, knowingly, wilfully, and unlawfully did permit and suffer evil disposed persons, whose names are to the jurors unknown, then and there to play at cards for money, whiskey, and other property, to the manifest corruption of good morals, contrary to the provisions of the Code,” &c.1 It is perceived, that, to bring a defendant within the latter clause of this statute, the house or other place need not be one “resorted to for the purpose of gambling.” Yet under the form of indictment as above drawn, the house is alleged to be of this sort; and probably this allegation could not be rejected as surplusage, but must be proved. This form of the indictment, therefore, however good in law it may be, is prac- tically objectionable. The following is suggested as a substi- tute : — That A, &., on, &., at, &c., unlawfully did permit B and C to play at cards for money and other valuable things, at a house there situate, and then and there under the control of him the said A, contrary, &c. It is perceived, that such objections as might be made to this form could be brought equally against the other, which was held to be sufficient. gambling device, or on the side or against the keeper thereof, shall,” &c., —the following was held to be suffi- cient : — “That A, &c., on, &c., and on divers other days and times, between that day and the day of the finding of this indictment, at, &c., unlawfully did set up and keep a cer- tain table and gambling device, commonly called a faro bank, the same being then and on said other days and times there a gambling device, adapted, devised, and de- signed for the purpose of playing a game ot chance fur money and property; and did then and on said other days and times there induce, entice, and permit certain persons, [whose names are] to the jurors 36 aforesaid unknown, to bet and play at and upon a game played at and by means of such gambling device, on the side and against the keeper thereof, against,” &c. There was nothing said in the case about the method in which the time was laid. The State v. Fulton, 19 Misso. 680. And see The State v. Smith, 19 Misso. 683. It is, at least, practically better in a case like this to charge the offence to have been com- mitted on a particular day, and no more. Ante, § 722, 751 and note. 1 The State v. Middleton, 11 Iowa, 246, 503 § 893 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 892. Permitting Gambling Table to be exhibited. — A statute in Alabama is, or was formerly, as follows: “If any person shall hereafter be guilty of keeping or exhibiting any gaming- table called A B OC, or E O, or roulette, or rowley powley, or rouge et noir, or thimbles, sometimes called three ticket lottery, or chuckerluck, or faro bank,” &. And then by another section, referring to this, “if any owner or occupant of any house, outhouse, or other building, booth, or tent, shall knowingly permit or suffer any of the tables or banks partic- ularly or generally described as aforesaid to be carried on or exhibited in his house, outhouse, or building, booth, or tent, and be thereof convicted, he shall be fined in a sum not exceed- ing two thousand dollars: Provided always, that, if any owner or occupant of any house, outhouse, or other building, booth, or tent, shall give information to any judge or justice of the peace of the proper county, against any person keeping, ex- hibiting, or concerned or interested in said table or bank, within six days after the same comes to his knowledge, he or they, so informing, shall not be liable to the penalties’ of this section.” And the following form of the indictment was held to be good; the objections urged being, that the names of the persons setting up the device should have been alleged, that the device should have been stated to be intended for gaming, and that the proviso should have been negatived : — “That A, &e., on, &¢., at, &c., being the occupant of a certain house at the race track near the city of Montgomery, in said county, did then and there unlawfully and knowingly permit and suffer a certain gaming table, called a faro bank, to be exhibited and carried on in said house, by him the said A so occupied as aforesaid, contrary,” &c1 IIL. Discussions of Doctrines, and Points, relating to the Ameri- can Procedure. § 893. Proviso — Two Statutes. — We saw, in the last section, that a proviso in the form there given need not be negatived.? But a case of a different sort arose in Kentucky. There a statute provided, that, “if any person shall set up, or cause 1 Clark v. The State, 19 Ala. 552. that this one must conform to the See post, § 894, 895. Though there principles of the common law. are statutes in Alabama regulating the 2 And see ante, § 605, 606 ; Romp v. form of the indictment, it was conceded The State, 8 Greene, Iowa, 276. 504 ' CHAP, XXXIX.] GAMING — THE PROCEDURE. § 894 to be set up, or permit to‘be played upon or keep any billiard table, he shall,” &c. Afterward it was enacted, “ that nothing in said chapter shall be construed as applying to any billiard tables kept by any citizens of this Commonwealth in their houses, for the amusement of themselves or their families, and not kept or used for hire or profit, directly or indirectly.” And it was held, that, under these two provisions construed together, it becomes necessary to negative the matter contained in the second one. ‘We do not,” said Hardin, J. “ regard the alteration effected by the amendatory act as in the nature of a proviso or exception — as contained in a distinct clause of the act defining the offence — not necessary to be negatived in the indictment. But we think the amendment operates to qualify the context of the statute defining the offence.” ! § 894. Alleging Names of Third Persons. — In principle, and on authority, the question whether or not the name of a third person should be alleged in an indictment depends, in some measure, upon the nature of the thing charged against the defendant. And it is believed to be the better doctrine in principle, and the doctrine which most prevails in matter of authority, that, when the gaming appears by the indictment or in the proofs to have been carried on with a third person, the name of such third person should be alleged if known; or, if not known, the allegation should be, that the name is to the jurors unknown.” It was, for instance, so laid down in Indiana, the court observing: “ We conceive that the third person’s name is required in such cases, not because he is injured, but because his designation is a material part of the offence.” 8 When, therefore, the indictment charged the defendant with having unlawfully won, &c., of several persons whom it men- tioned by name, “and others,” it was held to be insufficient. It should have stated who these “others”? were, or have set down an excuse for the omission. 1 Holt v. Commonwealth, 2 Bush, 33, 35. 2 See Crim. Proced. 2d ed. I. § 545- 552, 566-584. 3 Butler v. The State, 5 Blackf. 280. 4 The State v. Irvin, 5 Blackf. 348. See, also, as sustaining the doctrine of In Illinois, however, it the text, The State v. Maxwell, 5 Blackf. 230; Groner v. The State, 6 Fla. 39; Barkman v. The State, 13° Ark. 703; Jester v. The State, 14 Ark. 552; Buck v. The State, 1 Ohio State, 61. In Georgia it was held, that an indictment which does not state with 505 § 896 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. was held by the majority of the court, that, in an indictment for playing at a game of cards, it is not necessary to state with whom the defendant played. The true view would seem to be, that the name should be mentioned by way of identifying the particular offence, and making the charge specific, instead of leaving it general.2 There are many analogies in the law, both in the civil department and in the criminal, in obedience to which the name should be given, except when some special matter appears to justify the omission. § 895. Continued. — At the same time, the nature of the particular offence may be such that there is no need to state the names of third persons.? Thus, as we have already seen,s4t has been held to be unnecessary, under the Alabama statute against permitting gaming-tables to be exhibited on one’s premises, to allege the name of the person by whom such a table was exhibited.6 This case lies near the border line dividing what is permissible from what is not, and not all courts hold even a question like this in the same way. § 896. Name of Game. — When the indictment gives the name of the person with whom the game was played, together with locality and date, there seems to be a sufficient identi- fication of the transaction, provided such further words are whom the defendant gamed, or wkether with a white person or a negro, was bad. Said Benning, J.: ‘ There is a statute which prohibits playing and betting at cards with negroes, as well as a statute which prohibits playing and betting at cards with white persons; and the punishment under the former statute may be much more severe than it can be under the latter.” Davis v. The State, 22 Ga. 101,102. See, also, Moffat v. The State, 6 Eng. 169. 1 Green v. People, 21 Il. 125. And see, as more or less to the like effect, Coggins v. The State, 7 Port. 263; Romp v. The State, 3 Green, Iowa, 276, 2 Ante, § 373, 602. 3 See ante, § 889, 890, 892. * Ante, § 892. 5 Clark v. The State, 19 Ala. 552. In Indiana, an indictment charged, that M., on, &c., at, &c., and continuously 006 from that day until the day of the find- ing of this bill of indictment, had and possessed a house, a room, a shed, and “a tenement, situate in said county, and that the said M. there, during all the time aforesaid, did keep and suffer his said house, room, shed, and tene- ment, to be used and occupied for gam- ing, contrary, &c. And this was held to,be good; while, to sustain it, no more need be proved than that the defendant kept any one of the places set forth, during the time and for the purpose alleged. The gambling need not be proved by direct evidence; it may be inferred from circumstances. McAlpin v. The State, 8 Ind. 567. See also Bowe v. The State, 25 Ind. 415; Hamilton v. The State, 25 Ind. 426; Commonwealth v. Branham, 3 Bush, 1; Commonwealth v. Fraize, 5 Bush, 825 ; The State v. Lewis, 12 Wis. 434; Frisbie v. The State, 1 Oregon, 264. CHAP. XXXIX.] GAMING — THE PROCEDURE. § 897 added as bring the case within all the terms of the statute. Thus, if the indictment specifies, that it was at a “ certain game of cards,” “in the county of Leon, at a certain gaming- table,” naming the person with whom the game was played, but not particularizing the kind of game of cards, it will be sufficient, in a case where all the terms of the statute are thereby covered. § 897. Name of Gaming Device. — A statute in Texas made it punishable “if any person shall bet at any gaming-table, or bank, such as are in the six preceding articles mentioned ;” and, faro having been mentioned in those articles, an indict- ment was held to be good which alleged, that the defendant “did bet at a gaming bank commonly called a faro bank.” The statute, which the court was bound to know judicially, having specified “‘faro”’ as a game, it would take judicial cog- nizance that a faro bank is kept for the purpose of gaming? But where, in Kentucky, a statute prohibited certain games, by name, then prohibited generally, ‘‘ tables, machines, and 1 Groner v. The State, 6 Fla. 39. To the like effect see The State v. Max- well, 5 Blackf. 230; The State v. Ross, 7 Blackf. 322; Johnston v. The State, 7 Sm. & M. 58; Dean v. The State, Mart. & Yerg. 127; The State v. Grace, 21 Ark. 227. According to an Indiana case, the name of the game need not be mentioned; but there should be some description of it, as that it was with cards, dice, &c. Webster v. The State, 8 Blackf. 400. An indictment for unlawfully playing at cards is sup- ported by proof of betting at a game of faro. Gibboney v. Commonwealth, 14 Grat. 582. It was held in North Cayo- lina, that an indictment for playing at cards with a slave, under the statute of 1830, need not specify the kind of game played. The statute was as follows: “Tt shall not be lawful for any white person, free negro, or mulatto, to play at any game of cards, dice, ninepins, or any game of chance or hazard, whether for money, liquor, or any kind of property, or not, with any slave or slaves ; and any white person so offend- ing shall be guilty of a misdemeanor,” &c. And the following indictment was held to be good: ‘The jurors for the State upon their oaths present, that Moses Ritchie and Alexander Hill, both late of said county, and both white men, on the first day of March, in the year of our Lord one thousand eight hundred and thirty-four, with force and arms, in said county, unlawfully did play at a game of cards with two slaves, to wit, John, the property of one Peter Clingman, and Juan; contrary to the statute in such case made and provided, and against the peace and dignity of the State.’ The State v. Ritchie, 2 Dev. & Bat. 29. In Virginia, an in- dictment charged the defendant with unlawful playing with cards, to wit, at the game of “all fours,” of “loo,” and of “whist.” And it was held, that, to convict the defendant, he must be shown to have played at some one of the games specified in the indictment. Windsor v. Commonwealth, 4 Leigh, 680. 2 The State v. Burton, 25 Texas, ‘ 420; s. p. Commonwealth v. Monarch, 6 Bush, 801; The State v. Lewis, 12 Wis. 484. 507 § 900 OFFENCES MORE PURELY STATUTORY. [BOoK v. contrivances ordinarily used in betting ;” it was held, that an indictment for keeping a keno table, not averring that a keno table is “a contrivance ordinarily used in betting,’ was bad on demurrer. The game of keno not being specifically named in the statute, the court cannot take judicial notice of its character.! § 898. The Money or other Thing of Value played for. — If by the terms of the statute, the gaming, to be indictable, must be for money, or for some other thing of value, the indictment must cover in allegation this part of the statute as well as the rest. The question is, how minute the allegation must be. And the doctrine already stated seems to be the general one, namely, that no particular sum need be mentioned.? But in Indiana it was held, that the amount lost or won must be set down in the indictment; because, in this State, under the statute law, this amount determines the fine and the jurisdic tion of the tribunal.2 And under this condition of the statute law every court would so hold.* § 899. Money, continued — The Sum. — Though, according to the general rule, as just said, an indictment need not men- tion the sum, yet it may if the pleader chooses. And proof of a different sum will sustain the allegation.® § 900. Valuable Thing, continued. — In these cases, it must be observed, the indictment does state that ‘ money” was played for, where such is the statutory word. But suppose the term in the statute is less definite, namely, ‘“ valuable thing ;” in this case, the indictment will not be sufficient if it simply employs the same term; it must go further, and say what the particular valuable thing was.® 1 Commonwealth v. Monarch, 6 Bush, 298. See The State v. Kelly, 24 Texas, 182. 2 Moffat v. The State, 6 Eng. 169; Commonwealth v. Tiernan, 4 Grat. 545; The State v. Ward, 9 Texas, 370. 3 Long v. The State, 13 Ind. 566. 4 Ante, § 370. 5 Medlock v. The State, 18 Ark. 863; Parsons v. The State, 2 Ind. 499; Commonwealth v. Garland, 3 Met. Ky. 478. 6 Ante, § 889; Anthony v. The 558 State, 4 Humph. 83. In this case, the evidence was that ‘cash notes ” were bet. And Green, J. said: “The pre- sentment alleges, that the parties bet ‘money, bank-notes, change tickets, and other valuable things.’ This evi- dence is plainly inadmissible to support the allegation as to the wager of ‘mon- ey, bank-notes, or change tickets’; for the ‘cash notes’ constitute neither of them. Nor would it be admitted to support the charge, that ‘other valu- able things’ were bet. This charge is CHAP. XXXIX.] GAMING — THE PROCEDURE. § 902 § 901. Money, continued — The Evidence. — And the proof as to the thing played for must correspond with the allegation. Thus, if the defendant is charged with having won five dollars, this charge is not made good by showing that he won a prom- issory note for five dollars; because, in legal contemplation, the charge is of winning money, but a promissory note is not money.! So, if it is alleged in terms that money was bet, the allegation is not sustained when the proof is of the betting of any other property.2, If money was seen lying on the table where the defendant and others were playing at cards, the jury may infer from this evidence that it was bet on the game.3 § 902. Place of Gaming — “Public Place” — “House where People resort,” &. — Many of the statutes, as already observed,* specify some particular place at which the game must be carried on, to be within their terms; as, for instance, at a “ public place,” at a “ house where people resort,” and the like. When an indictment is drawn upon such a statute, it is not sufficient if it simply alleges that the offence was committed within the county; but, in addition, it must specify the particular statu- tory place, in the statutory terms.° Where the words of the statute were, ‘‘outhouse where people resort,” and the specific allegation was, that the game was played “in a certain out- house to which divers people did then and there resort,” it was held to be sufficient.6 The name of the owner of the place at which the gaming is carried on need not be men- tioned ;7 and, if it is mentioned, it is mere surplusage, which need not be proved.’ And if the indictment pursues the words of the statute, it, where the statutory word is a specific one, need not go further and set out a description of the room in which the playing took place.? too vague; for, although these words are used in the statute, so as to make it criminal to gamble for any ‘ valuable thing,’ the ‘valyable thing’ so bet must be set forth and described in the indictment or presentment.” p. 85. 1 Tate v. The State, 5 Blackf. 174; ante, § 346, 874. 2 Hale v. The State, 8 Texas, 171. 3 Rice v. The State, 10 Texas, 545. 4 Ante, § 878. Thus, where the words of the 5 The State v. Langford, 8 Ire. 354; Shihagan v. The State, 9 Texas, 430; Hord v. Commonwealth, 4 Leigh, 674. 6 The State v. Norton, 19 Texas, 102. 7 The State v. Atkyns, 1 Ala. 180. 8 Wilson v. The State, 5 Texas, 21; Prior v. The State, 4 Texas, 383. 9 People v. Saviers, 14 Cal. 29. And see The State v. Atkyns, supra. 509 § 903 "OFFENCES MORE PURELY STATUTORY. [BOOK v. indictment were, “in a certain house for retailing spirituous liquors, then and there situate, did then and there,” &c., they were held to be sufficient. So it is sufficient to charge, that the unlawful gaming was at the house of a person named, being “a house of entertainment,” where these are the words of the statute.” § 903. Continued — General Term — “Public Place.” — We saw, when contemplating the statutory offence of malicious mischief done to animals, that the indictment must employ a term designating the particular species of animal injured. If, for example, a statute makes punishable the malicious killing of “cattle,” it is not sufficient to charge the defendant with having maliciously killed “certain cattle;”? but the alle- gation must be a “hog,” a “gelding,” or whatever else the particular animal may be, and it need not add that the “ hog,” for instance, is “cattle.” Butif the statute uses the specific word, then the same word is enough in the indictment2 A like doctrine prevails in respect of the offence now under consideration. Thus, while the statutory word is sufficient in the indictment, as stated in the last section, where it is specific, yet, where the statute was, “if any person shall play at any game with cards.at any house, &c., tavern, inn, or any other public house, or in any street, highway, or other public place, or in any outhouse where people resort, he shall,” &c., it was held to be insufficient simply to allege that the place of playing was a‘ public house.” “The charge,” said Lindsay, J. “is too vague and indefinite, and does not sufficiently put the defendant upon notice to enable him to prepare for his de- fence. This is a principle of administrative justice which should not be departed from. A warning should always be given before the blow is stricken. It may readily be imagined that a gentleman may have played cards at a number of private places which come not within the denunciation of the statute; and yet, when simply indicted for playing cards at a ‘ public place,’ he could not know from the charge which particular place he had to defend himself against, by showing that it 1 Sublett v. The State, 9 Texas, 53. 2 Linkous v. Commonwealth, 9 And see Rodgers v. The State, 26 Ala. Leigh, 608. 76. 3 Ante, § 438, 440-448. rn 560 CHAP. XXXIX. | GAMING — THE PROCEDURE. § 905 was not a ‘public place.’ He might fortify himself against one by his proofs, and still the State might array its testimony to show the offence was committed at. another.” ! § 904. Continued. — The reader will observe, that the mere words “public house” or “ public place” are more vague than “house of entertainment,” “storehouse where people resort,” and the like, which have been adjudged sufficient. In Alabama, even where the words of the statute were “at a public place,” and the indictment simply used the statutory expression, without any thing added by way of particular description, it was held to be adequate. But, in this State, a particular statutory provision made the indictment good, and Colman, J. said: “ Without the aid of the statute it is probable the averment would be insufficient.”? Where, in Texas, the gaming was alleged to have occurred “near Mc- Fadden’s Grocery, at,a public place, at Black Jack Springs, in Fayette County,” the description of the “ public place” of the statute was held to be sufficiently definite and minute? But, though the more definite description is given, the statu- tory words must perhaps be employed also. Thus, in Virginia, a presentment for “unlawfully playing cards at the grocery of D. & C.,” is defective in substance, by reason of not alleg- ing the grocery to be a “ public place,” or a“ place of public resort.”’ 4 § 905. Continued. — Where the words of the statute were, “if any person shall play at any tavern, inn, storehouse for retailing spirituous liquors,” &c., an indictment was held to be ill which alleged, that the defendant, on a day mentioned, “in the county aforesaid, did play at cards in a storehouse where spirituous liquors are retailed.” It did not appear, as it ought, from this allegation, that the storehouse was a place where spirituous liquors were retailed at the time when the playing occurred. But where, in Texas, the indictment was 1 The State v. Jurgins, 81 Texas, See, also, Burnett v. The State, 30 Ala. 588,589; The State v. Fuller, 31 19. Texas, 559. And see Commonwealth 4 The State v. Lopez, 18 Texas, 33. v. Perrigo, 3 Met. Ky. 5; Bosshard v. 4 Roberts v. Commonwealth, 10 The State, 25 Texas, Supp. 207. Leigh, 686. And see, as to this ques- 2 Roquemore v. The State, 19 Ala. tion, ante, § 897, 903. 528; Flake uv. The State, 19 Ala. 551. 5 The State v. Colman, 3 Ala. 14. 561 § 908 OFFENCES MORE PURELY STATUTORY. [BooK Vv. in the following form, it was held to be sufficient in this respect: “That Peter Royal, late of, &c., in a certain house for retailing spirituous liquors, in the town of Huntsville, and county of Walker, known as Harvey Randolph’s grocery, on, &c., did play at a certain game with cards, upon which money was then and there bet, contrary,” &c.+ § 906. Continued. — The statute quoted in the last section is, more at large, as follows: “If any person shall play at any tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquors are retailed or given away, or any public house or highway, or any other public place, or any outhouse where people resort, with cards or dice,” &¢. And when an indictment, drawn upon this stat- ute, alleged that the playing was “at a public place,” proof of playing in a public highway was held not to support the allegation. The indictment, to meet such a state of proofs, should use the statutory word “highway.”? Perhaps this would not be so held in all the States. The general question has been discussed in other parts of this volume.® § 907. Continued — Law or Fact. — According to well- established principles of our jurisprudence, the facts in these cases are for the jury and the law is for the court; if, there- fore, all the facts concerning a place should be agreed, it would be a question of law whether or not the place is a public one Within the statute. Still, as ordinarily the facts are not agreed, it becomes a question for the jury whether, under suitable instructions from the court as to the law, the place proved is public or not. Some Texas cases allow certainly so much to the jury, and perhaps more.* § 908. Following Statutory Terms. — The general principles ® 1 Royal v. The State, 9 Texas, 449. And see Coggins v. The State, 7 Port. 263; Reeves v. The State, 9 Texas, 447; Wortham v. Commonwealth, 5 Rand, 669. 2 Bush v. The State, 18 Ala. 415. 3 Ante, § 247, 248, 289, 441. + Thus, whether a jail-house is a pub- lic house or not, as alleged in the indict- ment, is a question of fact, not of law, and it was error to quash the indict- 562 ment, instead of submitting the ques- tion to the jury, with instructions as to the statutory meaning of the term. The State v. Alvey, 26 Texas, 155. Wheth- er a room attached to and constituting a part of a house kept for the purpose of retailing spirituous liquors is, in con- templation of law, one of the prohibited places, is a question for the jury. Cher- ry v. The State, 80 Texas, 439. CHAP. XXXIX.] GAMING — THE PROCEDURE. § 909 relating to this subject have already been discussed.! Where the word of the statute was “ gaming,’ and the indictment used the word “ gambling,” it was held not to be ill.2 Where the statute made it a misdemeanor to exhibit “ any faro-bank,” &e.,.an indictment was sustained which charged the defendant with exhibiting “a gambling-table commonly called faro.”’® Where the statutory words were, “playing at a game with cards,” and the words of the indicément were, “played at cards,” these were held to be sufficient. But this decision was based upon a provision which authorized a form of indict- ment different from the common-law form. A considerate pleader will not avail himself of any license given him under these decisions. It is so easy, when he draws an indictment, to lay the statute before him, and follow the statutory words, that there is no need, in these cases, to leave it for the court to decide how wide a departure from right there can be with- out being wrong. § 909. Alleging Matter beyond Statutory Words. — This gen- eral question is discussed in the work on Criminal Procedure § and somewhat in the present volume.’ Generally, in these cases, it is sufficient simply to follow the statute.8 In Virginia, there was a statute in the following words: ‘“ A free person, who shall keep or exhibit a gaming-table, commonly called A BO, or E O table, or faro-bank, or a table of the like kind, under any denomination, whether the game or table be played with cards, dice, or otherwise; or who shall be a partner, or concerned in interest, in keeping or exhibiting such table or bank; shall,’ &c. And the court observed: “ Where the offence charged is the exhibition of any of the gaming-tables enumerated, nothing more need be averred, for the statute ‘l Crim. Proced. 2d ed. I. § 608-622; ante, § 378-883, 386, 415-417, 505, 506, 557, 693. 2 The State v. Nelson, 19 Misso. 393. 3 Brown v..The State, 5 Eng. 607. 4 Holland v. The State, 3 Port. 292. An indictment charged, that the defend- ant “did play at a game with cards upon which money was then and there bet a certain public house,” &c. And it was held, that the court could not supply any word between “ bet” and “a certain public house,” therefore the indictment was bad. The State v. Huston, 12 Texas, 245. 5 Ante, § 386. ® Crim. Proced. 2d ed. I. § 628-680. 7 Ante, § 381, 886, 387, 406, 413. 8 People v. Beatty, 14 Cal, 566; Spratt v. The State, 8 Misso. 247: The State v. Ward, 9 Texas, 370; Crain v. The State, 14 Texas, 634; Reeves v. The State, 9 Texas, 447. 563 § 910 OFFENCES MORE PURELY STATUTORY. [BOOK v. makes exhibiting of any of the gaming-tables named a penal offence; and therefore the offence is sufficiently described by the name set forth in the statute, and no further description is necessary; being one of the enumerated games, the exhibi- tion of it is unlawful. Where the offence charged is for’ keep- ing and exhibiting a game not enumerated, there must be some averment showing it to be one of the unequal games belong- ing to the same class with the enumerated games.” Again: “The charge that the game is unlawful does not cure the de- fect. The offence must be so charged as to appear to be un- lawful; otherwise the allegation that an act was unlawful would dispense with all averments showing it was unlawful. As was held in Roberts’ Case, and Bishop’s Case,! the words ‘unlawful’ or ‘contrary to law’ do not serve to enlarge or extend the force and effect of the terms employed to describe the act, so as to make the act unlawful when it does not appear to be so by the description itself.” ? § 910. Variance. — There are several cases in which the question of variance, between the allegation and the proofs, was raised and decided. Thus, an indictment alleged, that the defendant, by playing at cards, &c., won from A, B, and C, a certain article, &. The evidence was, that the winning was by the defendant and another, as partners, from A and C, as partners. And the variance was held to be fatal. And generally, where an indictment for gaming charges that the defendant won or lost with several persons whom it names, proof of winning or losing with part of those persons is not sufficient. Likewise the allegation that A alone lost at a game of cards is not supported by proof that A and others lost jointly. In one case it was charged, in one of the counts, that the defendant and four other persons did “ bet together and against each other” at a game of cards; and in the other count, that the defendant and the other persons “did bet together,” &c. The proof was, that the four other persons 1 Roberts v. Commonwealth, 10 3 Wilcox v. The State, 7 Blackf. Leigh, 686 ; Bishop v. Commonwealth, 456. 13 Grat. 785. 4 Iseley v. The State, 8 Blackf. 403. 2 Huff v. Commonwealth, 14 Grat. 5 Jackson v. The State, 4 Ind. 560. 648, 650,641. See, also, Bryan v. The State, 26 Ala. 65. 564 CHAP. XXXIX. ] GAMING — THE PROCEDURE. § 912 mentioned in the indictment played the game of cards, that the defendant stood by and bet with one of them, that three of the players bet together, and that the fourth player did not bet at all. And it was held, that the evidence was not sufficient to sustain a verdict of guilty against the defendant; for, though the charge in the indictment was made with unnecessary com- plication, it must be proved as there set down.! § 911. Continued. — Where a presentment for gaming set out the offence as committed at the booth of Peter Spinner, and it appeared in evidence that the criminal act was done at the booth of one Clark, and Spinner had no right, interest, or agency in this booth; the variance was held to be fatal.? § 912. Joinder of Defendants. — This subject, as a general one relating to criminal pleading, and specifically as respects gaming, was considered in the work on Criminal Procedure.® It was held, in Alabama, that two or more persons may be indicted jointly under the statute against gaming, and a part may be convicted and the others acquitted: It is not necessary for the defendants to be charged with committing the acts separaliter ; because this form of the charge “is proper only where a number of persons are included in the same indict- ment for keeping different disorderly houses.” 4 So, in Vir- ginia, several offences may be jointly charged against different persons in the same indictment, namely, against one for exhibit- ing, another for playing at, and a third for suffering faro to be played in his house.’ If the indictment is against two persons, and it is joint in its form, then, if it appears in evidence that one of the defendants played on a particular occasion with certain third persons, and the other defendant played on a particular other occasion with certain other third persons, the defendants never having participated in one joint act of guilt, there cannot be a conviction of the two. 1 Hany v. The State, 4 Eng. 193. And see Jester v. The State, 14 Ark. 552. 2 Commonwealth v. Butts, 2 Va. Cas. 18. 3 Crim. Proced. 2d ed. I. § 475, and accompanying sections. 4 Covy v. The State, 4 Port. 186. > Commonwealth v. McGuire, 1 Va. Cas. 119. 6 Elliott v. The State, 26 Ala. 78. According to a Texas case, an indict- ment against three persons for card playing, which does not allege that they played with each other, or clearly show that they were indicted for separate 565 § 914 OFFENCES MORE PURELY STATUTORY. [BOOK V. § 913. Peculiar Statutory Provisions affecting Indictment and Procedure generally.— When we are examining the various questions which concern the procedure for gaming, we should bear in mind that, in many of our States, there are statutory provisions modifying the common-law rules as respects this particular offence, and rendering it difficult to follow the lights which our common-law jurisprudence has given us. Thus, in Tennessee, it was provided by the act of 1824, c. 5, as follows: “In every case which may arise under any of the laws of this State, made for the prevention, discouraging, and suppressing of gaming, the court shall interpret the said laws as remedial, and not as penal statutes, and no presentment or indictment shall be quashed for want of form; and, in all such cases, it shall be sufficient to charge the general name of the game at which the defendant or defendants may have played, without setting forth and describing with or against whom they may have bet or played.” And the following indictment, drawn more immediately upon a statute which is not given in the report, was held to be good: “ That A, late of, &., on, &c., at, &c., was guilty of unlawful gaming, by then and there wagering and betting money on a certain unlawful game and match at cards, contrary to the form of the statute.” } § 914. Continued. —In an earlier case than the one just, mentioned, the following was held to be sufficient: That the defendant, on, &c., at, &c., “ with force and arms, did unlaw- fully encourage and promote a certain unlawful game and, match at vards for money; and then and there unlawfully did play for and bet money at the said game and match at cards, contrary,” &c.2 And Turley, J. in delivering the opinion which sustained the indictment given in the last section, said, that, according to this case, “a bill of indictment for gaming need not specify the particular game of cards which was played, such as whist, loo, euchre, brag, poker, &c.; but it is good if it describe it as an unlawful game and match of cards, and it is not necessary to charge what money, or what amount, was offences, is, perhaps, defective, and, on 1 The State v. McBride, 8 Humph. proper exception, ought to be quashed. 66. Parker v. The State, 26 Texas, 204. 2 Dean v. The State, Mart. & Yerg. 127. 066 CHAP. XXXIX.] GAMING — THE PROCEDURE. § 916 bet upon the game.” Then he added: “ The statute provides, that the person with whom the defendant bet or played need not be set forth or described. . . . There remains only one other apparent defect in this bill [of indictment] to be remedied, and that is, that it is not averred that the game was executed. In the case of Dobkins v. The State, it is said by Judge Reese, who delivered the opinion of the court: ‘This court, acting in pursuance of the remedial principles prescribed by the act of 1824, c. 5, § 5, for the suppression of gaming, has held, that the words, did gamble, and did game, contain and express, ex vt termini, the conjoint facts, that a bet or wager was laid, and that the act to which it related was executed.’ . . . This, then, removes the objection to this bill of indictment, that it is not averred that the unlawful game at cards, upon which the betting is charged, was executed or played; for the bill does charge, that the defendant did unlawfully game by wager- ing and betting; and by intendment of law the game was played.” 2 § 915. Continued. — In consequence of legislation like this, there have grown up in many, and it seems in most, of our States, anomalous judicial doctrines, whose true source does not always appear in the reports where they are recorded. The reader must take this matter into the account in consider- ing and estimating the various discussions which appear throughout the present chapter. At the same time, it has been the endeavor of the author to distinguish what is sound in general doctrine from what rests on special provision ; but, in executing this endeavor, it is quite possible he may have erred at some points. § 916. Statutes of Limitations as to Gaming. — In many of the States, the provisions of the statute are such that the criminal proceeding for gaming must follow close upon the offence committed, or not at all® Relating to this matter, some points have arisen. Thus, in South Carolina, a prose- cution, though barred as to the fine, is not barred as to the 1 Dobkins v. The State, 2 Humph. 3 As to statutes of limitations in 424. criminal cases in general, see ante, 2 The State v. McBride, 8 Humph. § 257 et seq. 66, 67, 68. 567 § 917 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. imprisonment, if not commenced within six months. In this condition of the law, an indictment charged the offence as committed within six months, and the jury found the follow- ing verdict: ‘* We find the defendant guilty on the first count (to wit, for gaming), and we further find, that the said unlaw- ful playing took place more than six months before the com- mencement of this prosecution.” Thereupon it was held, that ‘judgment might be rendered against the defendant on this indictment and finding! If a conviction for the gaming as committed within the six months is sought by the prosecuting officer, he must present such affirmative evidence as to satisfy the jury upon this question of time; and the burden of proof does not devolve on the prisoner to show that more than the six months has elapsed.2_ In a case in Arkansas, where the offence of dealing faro was indictable only within a year. from the time of its commission, and the indictment was found at the March term, 1839; and the evidence was, that the defendant, some time within a year previous to January, 1839, sat at a table commonly called a faro-table, dealing or drawing cards from a box, and using pieces of bone for carrying on the game; that no money was used, nor did the witness know whether he was playing for money or not; a conviction, on this evidence, it was held, should not be disturbed. As to the time of the commission of the offence, Dickinson, J. said: “ The whole of the evidence was before the jury, and was such as to satisfy their minds that it was within the time prescribed by the statute. Such being the fact, we do not think the verdict, for that reason, ought to be disturbed.” 8 § 917. Other points. — The books present some other points * 1 The State v. Dent, 1 Rich. 469. 2 The State v. Waters, 1 Strob. 59. 3 Stevens v. The State, 3 Pike, 66, 70. * To authorize aconviction under an in playing euchre, or were in fact so used in that particular game in which the defendant participated. A witness for the State cannot be asked, on cross- indictment for gaming, on proof that the defendant played a game of euchre with dominos, it must be referred to the jury to decide: 1. Whether that game, when played with dominos, is substan- tially the same as when played with cards; and, 2. Whether dominos had become, at the time of the defendant’s playing, a device or substitute for cards 568 examination, “ whether or not dominos were a device or substitute for cards in the game at which the defendant played.” Harris v. The State, 31 Ala. 862. An indictment for gaming was drawn in two counts; the first for mon- ey won, and the second for money lost, on a bet made at a game of cards played by the defendant and others. But it CHAP. XXXIX.] GAMING — THE PROCEDURE. § 918 of perhaps inferior interest. The reader will see them in the note, but a continuation of this discussion in the text seems not to be desirable. In matter of practice it has been lield, that, if there is a recognizance or bond for the defendant’s appearance at court, in which he undertakes to answer there to a charge of “ gaming” simply, this is not a valid obligation ; because “ gaming is not of itself alone an indictable offence.” } And the same is true of a recognizance to answer to a charge of “‘ playing at a game of cards.” ? But it has been held, that a recognizance to appear and answer to an indictment for keep- ing a gaming-table is good.? IV. Special Views as to betting on Games. § 918. General View. — Under the last sub-title, various points were considered relating to betting on games. did not show, whether the bet was made with the persons playing, or with some third person ; therefore it was held to be bad for uncertainty. The State v. Stallings, 3 Ind. 581. A presentment charging, that the defendant “did un- lawfully gamble by playing at a game of cards, and then and there unlawfully did bet and wager on the sides and hands of those that then and there did play, contrary to the form of the stat- ute,” &c., is not objectionable for du- plicity. Commonwealth v. Tiernan, 4 Grat. 545. But an indictment under the South Carolina act of 1816, if it charges the defendant with gaming, and keeping a public place or house used asa place tor gaming, is double and therefore ill; for it sets out two distinct offences. The State v. Howe, 1 Rich. 260. It is not necessary in an indictment under the Arkansas act of January, 1852, for playing cards on Sunday, to allege that the game was played for amusement, or that the de- fendant betted on the game. Stockden v. The State, 18 Ark. 186. It is not material of what part of the charge the defendant is acquitted, if the part of which he is found guilty constitutes a specific indictable offence. Thus, on the trial of an indictment under the Indiana statute of 1816, charging the 37 Indeed, defendant, in the same count, with playing at cards ina tavern and bet- ting, the jury found him guilty of the playing but not of the betting; and this was held by the court to be suffi- cient. Durham v. The State, 1 Blackf. 88. Where a statute against gaming left the amount of the fine to the dis- cretion of the jury, it was held, that the court could not lawfully, without the prisoner’s consent, dispense with the jury, and itself determine the fine. Er- vine v. Commonwealth, 5 Dana, 216. Evidence is not admissible to show, that the act of gaming described in the in- dictment is not the same act of which proof was given before the grand jury. Crain v. The State, 14 Texas, 634. The law properly requires, that gaming im- plements shall be destroyed after con- viction ; this is a punishment, not an unlawful deprivation of property. By implication, the right of the police to hold the property until the trial is also given. Willis v. Warren, 1 Hilton, 590. 1 Commonwealth v. West, 1 Dana, 165; The State v. Cotton, 6 Texas, 425. | 2 Cotton v. The State, 7 Texas, 547. And see McDonough v. The State, 1y Texas, 298; Bailes v. The State, 20 Texas, 418. 3 Whitfield v. The State, 4 Pike, 171. 569 § 920 OFFENCES MORE PURELY STATUTORY. [BOOK v. the offences of gaming and of betting on games are hardly distinguishable either on principle or on the language of the statutes ; yet the division serves here the purpose of con- venience. § 919. Arkansas Statute and Form of Indictment. — In Arkan- sas, the first section of the statute makes it a misdemeanor for any person to “set up, keep, or exhibit any gaming-table or gambling device, commonly called A B OC, E O, roulette, rouge et noir, or any faro-bank,” &. And by the third section itis an offence for any person to bet ‘on any of the games prohibited by the first section.” Thereupon the following form of indictment, drawn upon the third section, was held to be good : — “That A, &., on, &., at, &e., did bet ten checks of the representative value of five dollars, upon a certain gambling device commonly called » faro-bank, contrary to the form of the statute,” &c. Said English, C. J.: “This language implies, we think, with sufficient certainty, that the faro-bank was in motion, and that the betting was upon the game produced by it.” ? § 920. Thing bet. — In Tennessee it has been held, that an indictment which charges the defendant with having bet “goods, wares, and merchandise, being valuable things,” is not sufficiently certain as to the things bet. Reese, J. ob- served: ‘It has been justly said here, on behalf of the State, that this court and other courts in modern times, in cases of misdemeanor, have considerably relaxed the rigid adherence to exact and extreme technical accuracy and precision, in the -1 Warren v. The State, 18 Ark. 195, 198. And see Drew v. The State, 5 Eng. 82; Graham v. The State, 1 Pike, 171. Counts for exhibiting a faro bank, and for betting on the game, may be properly joined in the same indictment. It is not necessary to allege causa lueri. The State v. Holland, 22 Ark. 242. In this case the following two counts were held to be good : — First count. “ That A, &c., on, &c., at, &c., then and there being, did then and there unlawfully exhibit a certain unlawful gambling device commonly called a faro bank, contrary,” &c. 570 Second count. ‘That, &c., did then and there unlawfully bet twenty-five cents in money on a certain unlawful game played with cards, commonly called taro, which was then and there played, con- trary,’ &c. In Texas, an indictment charging that the accused ‘‘did bet at and upon a gaming-table,” without describing the gaming-table as kept for the purpose of gaming, or specifying faro, monte, rondo, or any other game named in the statute, is insufficient. Booth v. The State, 26 Texas, 208. CHAP. XXXIX.] GAMING — THE PROCEDURE. § 922 charge and in the proof, which marked the earlier administra- tion of the criminal laws. Buta just and reasonable certainty, in the charge and in the proof, has not been and ought not to be abolished. The object of an indictment or declaration is to notify the defendant of the substantial charge or claim against him; and this object is not obtained unless the allegations point out the specific nature of the charge or- claim in terms of reasonable certainty.””!_ The reader has observed, that the form which was approved in Arkansas, as quoted in the last section, is, in this part. of the allegation, more precise and definite.? § 921. Continued. — In Texas, it comes from the construc- tion of a statute, that an indictment for betting at faro need not charge what was bet, neither need this be proved at the trial. The statute is: “It shall be sufficient for the in- dictment to charge, that the person or persons betting upon, or concerned in betting upon, such gaming-table or bank, did bet or was or were concerned in betting upon such gaming- table or bank.” So, likewise, the allegation that the de- fendant “did bet at a certain gaming-bank, then and there exhibited and kept, called monte,” is held to be sufficient in this State.4 Also the averment that the defendant bet money “at a certain gambling device, called rondeau,” is sufficient.® § 922. Describing Game. — Then, to return to Arkansas, if the indictment is for betting on any of the games named in the first section of the gaming act, in its description of the game it need only use the language of the act. But, where the charge is for betting at a “ gaming-table, or gambling device, or bank of the like or similar kind, or of any other description, although not named,” the indictment should aver, in addition to the name, that it was a gaming-table or bank similar to one of the games named in the act; or else, that it 1 The State v. Kilgore, 6 Humph. 5 The State v. Mann, 13 Texas, 61. 44, 45. See Bagley v. The State, 1 See, also, Estes v. The State, 10 Texas, Humph. 486. 300; The State v. Prewitt, 10 Texas, 2 Consult ante, § 903. . 310; Ramey v. The State, 14 Texas, 3 Harrison v. The State, 15 Texas, 409; Cohen v. The State, 17 Texas, 239. 142, 4 McKissick v. The State, 2 Texas, 3856. oT1 § 926 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. was a device “ adopted, devised, and designed for the purpose of playing a game of chance, and at which money or property may be won or lost.” Therefore the averment, that the. defendant betted “upon and against a certain gambling device, commonly called the blind tiger,” was held to be insufficient.) § 923. Person bet with. — It has also been held, in Arkansas, not to be necessary to allege that the defendant bet with any particular individual.2 Yet, where the indictment is drawn upon the eighth section of the gaming act,— “if any person shall be guilty of betting any money, &c., he shall, on convic- tion,” &c., — the name of the person who played the game must be alleged, if known, and proved as thus laid. ‘lhis comes from the necessity of identifying the particular transac- tion.? But the rule was in 1855 changed by statute, so that it became unnecessary to set out the name of the players.‘ § 924. Place of Playing — Of Betting. — In Missouri, the indictment for betting at a prohibited game need not allege, that the playing was in the county where the prosecution is carried on. It must aver that the betting was there, but it is not material to the constitution of the offence, that the game should be played in the same county.° § 925. Nature of Game, &c. — If the betting is ata faro-bank, the particular nature of the game need not be set out, or the name of the person with whom the bet was made. Said Pet- tibone, J.: “The general rules of pleading in civil and crim- inal cases are the same. In a civil case, every thing which is necessary to constitute a right of action must be laid in the declaration, with time and place. So, in a criminal case, every thing which is of the essence or substance of the offence must be charged in the indictment.” And, tested by this general rule, the indictment drawn as thus mentioned was deemed to be good. § 926. Good Indictment in Missouri — In Missouri, also, 1 The State v. Grider, 18 Ark. 297. 3 Parrott v. The State, 5 Eng. 574; See ante, § 919, note. Barkman v. The State, 18 Ark. 703. 2 Drew v. The State, 5 Eng. 82. 4 Orr v. The State, 18 Ark. 540. See post, § 924. 5 The State v. Kyle, 10 Misso. 389. 6 The State v. Ames, 1 Misso. 524. 572 CHAP. XXXIX.] GAMING — THE PROCEDURE. § 929 under the act concerning crimes -and their punishments, an indictment charging that one F. “did unlawfully bet a sum of money, to wit, fifty cents, at and upon a game of chance, played with and by means of half-dollars and cracks in the floor of a house, which said half-dollars and cracks were then and there a gambling device, adapted, &c., for the purpose of playing games of chance for money and property,” is held to be good.} V. As to Horse-racing and the like. § 927. Indiana — Necessary Averment — Form of Indictment. — A statute in Indiana makes indictable “any person who shall knowingly suffer his horse, mare, or gelding to be run in what is commonly called a horse-race, along a public highway in this State.”?2 And it is held, that an indictment upon this statute need not set out the ¢ermini of the highway.? Bicknell furnishes the following form of the indictment : — “That A. B. on, &e., at said county, unlawfully and knowingly suffered his horse to be then and there run in,a certain race, commonly called a horse-race, in and along a certain public highway then and there situate, leading from New Albany to. Mooresville, in said county, contrary,” &c.4 § 928. Proof of Highway. — In matter of proof, evidence that the road, upon which the racing was done, is a road leading from one town to another in the county, is sufficient prima facie evidence to sustain the averment in the indictment that it was upon a public highway.® § 929. Betting on Horse-race.— In Tennessee, an indictment alleging that the defendant “‘ unlawfully did bet twenty dollars upon a horse-race, and . . . that said horse-race was not run upon a track or path kept for the purpose of horse-racing,” was held to be insufficient; because, to constitute the offence, the race must be run, and it does not appear from this allega- tion that any race was run.® 1 The State v. Flack, 24 Misso. 4 Bicknell Crim. Pr. 430. 378. 5 Watson v. The State, 3 Ind. 128. 2 Watson v. The State, 3 Ind. 123. 6 Dobkins v. The State, 2 Humph. 3 The State v. Armstrong, 3 Ind. 424. Yet, in an earlier case, an indict- 139 ; The State v. Burgett, 1 Ind. 479; ment in nearly the same terms was The State v. Brown, 1 Ind. 5382. And held to be adequate. The State v. see Myers v. The State, 1 Ind. 2851. Posey, 1 Humph. 384. 573 § 933 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. § 930. Betting on Shooting-match. — In this State, also, the presentment for betting on a shooting-match must, in order to show the act to be unlawful within the provisions of the stat- utes, charge that the shooting was within two hundred yards of a public road of the first or second class.! CHAPTER XL. BETTING ON ELECTIONS. 931, 982. Introduction. 933-937. Law of the Offence. 988-949. The Procedure. § 931. General View. — So many evils grow out of wagers laid on the results of elections, that statutes have been made in most of the States to correct them. These wagers are a species of gaming, therefore this subject might have been properly enough treated of in connection with the general one of gaming, in the last two chapters. Its elucidation, however, in a separate chapter will be more convenient for the reader. § 932. How divided. — We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 933. Civil Jurisprudence — Recovering Bet — Policy of Law. — Aside from any statutory provision, betting on an election is contrary to the policy of the law, and, as a general doctrine, where there is no statute governing the matter, the stake can- not be recovered in an action at law, even in a suit against the stakeholder Moreover there are, in some of the States, stat- utes intended to enforce this doctrine.? 1 The State v. Bess, 5 Cold. 55. £6 Barb. 390; Johnston v. Russell, 37 2 Ballv. Gilbert, 12 Met. 897; Worth- Cal. 670. ington v. Black, 13 Ind. 344; Murdock 8 Hickman v. Littlepage, 2 Dana, v. Kilbourn, 6 Wis. 468. But see Mor- 844; Morgan v. Pettit, 3 Scam. 529; gan v. Pettit, 3 Scam. 529. And see Commonwealth v. Moore, 2 Dana, 402. ante, § 848, 872, 873; Pulver v. Burke, And see Conner v. Ragland, 15 B. Monr. 634. 574 CHAP. XL. ] BETTING ON ELECTIONS. § 935 § 934. Criminal — Statutes — Kentucky — Alabama — Indiana. — The statutes of the various States are not quite uniform in their terms; but, in substance, they are so nearly so as to render a general exposition of them helpful. Thus, the stat- ute of Kentucky provides for the punishment of any person who “ shall wager or bet any sum of money, or other thing, upon the election of any of the officers’? mentioned in a previous section, “within six months next before the elec- tion:”1 And the language of the Alabama enactment is simi- lar ; namely, ‘‘ Every person who shall hereafter make any bet or wager of money or other thing of value, upon any election in this State,” &c.2 The Indiana enactment is as follows: ‘Any person who shall bet or wager any money or other valuable property on the result of any election in this or any other State, shall, upon conviction thereof, forfeit and pay to the State of Indiana, for the benefit of the common-school fund, any sum not less than the amount so bet or wagered, nor more than twice said amount.” $ § 935. Result over — Presidential Election— Another State. — The foregoing Alabama provision has been held not to be applicable to a case of betting after the result is overt But in Mississippi it is held, that betting upon the uncertain result of an election, whether before or after the time when the votes are in fact cast, is within the statute.5 These statutes are not construed to interfere with betting on elections out of the State; or to extend to unauthorized elections within the State ;® and even, in Illinois, the act was held not to apply to a wager on the vote of Kentucky for President of the United States.7 Yet here again the Mississippi court held the statute to be violated by a betting, in this State, upon the result of an election held in another State.8 And where the wager was upon the entire result of the presidential election, the Tennes- 1 Commonwealth v. Kirk, 4 B. Monr. 5 Miller v. The State, 33 Missis. 356. 1. 6 Huckerson v. Benson, 8 Misso. 8. 2 Givens v. Rogers, 11 Ala. 543. 7 Morgan v. Pettit, 8 Scam. 529. For the Ohio law, see Veach v. Elliott, But a bet on the vote of Illinois, in a 1 Ohio State, 139. presidential election, is within the stat- 3 Bicknell Crim. Pr. 425, referring ute. McClurken v. Detrich, 33 Ill. to Laws, 1857, p. 85; 2G. & H. 465, 349. note f. 8 Miller v. The State, 83 Missis. 4 The State v. Mahan, 2 Ala. 340. 356. 575 § 937 OFFENCES MORE PURELY STATUTORY. [BOOK V. see court held it to be within the enactment, which had the words “‘ any election or elections in this State.” “The presi- dential election,” said Reese, J. “is an election in this State, within the words of the statute; and the fact that the result depends, not upon the exclusive action of this State, but upon the joint action of many States, does not take the case out of the words of the statute. The offence is also within the meaning and object of the statute, which was to preserve the freedom and purity of elections, and exclude from them the operation of motives not founded on, but adverse to, the public good.” 1 § 936. “Game” — Betting on Game. — A statute in Indiana provided, that ‘‘ every person who shall, by playing or betting at or upon any game or wager, either lose or win any article of value, shall be fined not exceeding fifty dollars ;” and it was held, that an election bet comes within the provision.” Still it was held, that an election is not a “ game,” within the statute which permits the loser to recover back the money “if any person by betting on any game, or betting on the hands or sides of such as play at any game, shall lose,” &e. And the observation was made, that “(a wager isnot a game, @ game.is not a wager.” 3 § 937. What is a Betting. — We have seen,‘ that a bet implies risk® in both parties; and so, where one sold another goods at a fair valuation, to be paid for when a particular candidate should be elected, the transaction was held not to be a wager. In such a case, the purchaser could in no event sustain a loss.§ But where the price agreed upon for the goods is above their value, the buyer may suffer loss; namely, the difference between their agreed and actual worth; and the transaction is a wager.’ And there are other cases which hold generally, that a promise to pay for goods, or a note made payable, if a 1 Quarles v. The State, 5 Humph. 5 The contingency is determined 561; ante, § 205. And see Williams v. when the vote is cast, though the offi- The State, 12 Sm. & M. 58. See cial count and returns have not been further on the matter of this section, made. MHizer v. The State, 12 Ind. Commonwealth v. Kennedy, 15 B. 3880. Monr. 581. & Quarles v. The State, 5 Humph. 2 Hizer v. The State, 12 Ind. 330. 561. 3 Woodcock v. McQueen, 11 Ind. 14. 7 Givens v. Rogers, 11 Ala. 548 ; Par- 4 Ante, § 871. sons v. The State, 2 Ind. 499. 576 CHAP. XL. ] BETTING ON ELECTIONS. § 939 particular candidate for office is elected, cannot be the founda- tion of an action at law, being a wager contract.! A bet thata particular candidate will receive a number of votes mentioned,” or will beat another candidate? and a bet upon the general result of the election,t are equally within the statutes. And if the parties agree that the one who fails in his estimate shall make the other a present of a coat, the case is in law a bet, equally as if it was such in words.® Il. The Procedure. § 938. Winning or losing by Bet— Form of Indictment. — The Indiana statute against winning or losing by a bet has already been given. Upon this statute, the following form of the indictment was adjudged good : — “That A, &., on, &c.,at, &c., unlawfully did win and take from one B, one hat, of the value of three dollars, by then and there unlawfully betting and wagering with the said B for the said hat, upon [a certain wager, to wit,7] the result of a certain election had and held on the, &c., in the State of Indiana, for the election of Governor of the State, contrary,” &c.8 § 939. Betting — Porm, &c.— A statute of Mississippi made punishable every person who “ shall wager or bet, or who shall promote or encourage the wagering or betting of any money or other valuable thing upon any cock-fight, or duel, or upon the result of any election of any kind soever.” And the follow- ing form of the indictment, in a case in which judgment was arrested for the illegal constitution of the grand jury, appears to have been deemed good : — “That A, &., on, &e., at, &c., bet a fifty-dollar bank-note against a horse, with one B, upon the result of a certain election, to be held on, &c., in the State of Kentucky, for presidential electors,” &c.9 1 Craig v. Andrews, 7 Iowa, 17; 7 These words are clearly super- Sipe v. Finarty, 6 Iowa, 394; Nudd v. fluous; and Bicknell, who adopts this Burnett, 14 Ind. 25. form in other respects, omits them. 2 Commonwealth v. Kirk,4 B.Monr. Bicknell Crim. Pr. 427. I; 8 Hizer v. The State, 12 Ind. 330. 3 Commonwealth v. Pash, 9 Dana, 9 Miller v. The State, 33 Missis. 856. 81. * And see Williams v. The State, 12 Sm. 4 The State v. Cross, 2 Humph. & M. 58; ante, § 935. In 2 Morris 301. State Cases, 1809, the form, in sub- 5 Cain v. The State, 18 Sm. & M. stance, given in the next section of the 456. text, as approved in Pennsylvania, is 6 Ante, § 936. inserted for use in Mississippi. OTT § 942 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 940. Continued. — In Pennsylvania, the following form has been held to be sufficient : — “That A, &c., on, &., at, &c., did lay a wager and bet of fifty dollars, with a certain Jacob Clark,! that a certain Joseph Ritner would be elected Governor of the Commonwealth of Pennsylvania, at an election to be held in said Common- wealth, under the constitution and laws of said Commonwealth, on, &c.; the said Joseph Ritner then and there being a candidate nominated for public office, to wit, for the office of Governor of said Commonwealth ; contrary to the act of Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.” 2 § 941. Particulars as to the Form of the Indictment : — The Election. — Of the form given in the last section, Ser- geant, J. observed: “ The objection is, that the indictment does not aver that there was an election for Governor about to be held in October, 1838; but it avers that the defendant made a bet dependent on an election for Governor, to be held in Octo- ber, 1838. We think the fair implication is, not only that such bet was made, but that the election was to be held at that time; and that the Commonwealth would be bound in this charge to prove both these facts.”.8 It is believed that the reader may derive some help on this subject from con- sulting the forms, and observations on them, to be found under the title “ Election Frauds and Obstructions.” 4 § 942. Expanding Allegation beyond Statutory Words — Can- didate — Kentucky. — The language of the Kentucky statute is as follows: “If any person or persons shall wager or bet any sum of money, or any thing of value, upon any election under the constitution and laws of this Commonwealth, or under the Constitution and laws of the United States, he or they so offending shall,” &. And, upon the construction of this provision, and the allegations necessary in the indictment, Marshall, C. J. observed: ‘It is not a penal offence, under any statute, to bet that a certain individual will not be elected to a certain office at a certain election, unless he is a candidate for that office, or is voted for to fill it, or is intended or expected | Thave here abridged this form by 3 Sherban v. Commonwealth, 8 omitting a few clearly unimportant Watts, 212, 213. words. 4 Ante, § 828 et seq. 2 Sherban v. Commonwealth, 8 Watts, 212. 578 CHAP. XL.] BETTING ON ELECTIONS. § 944 to be voted for, or is expected to be a candidate for it. It is not a statutory offence to bet that a man will not be a candi- date for a particular office ; and, unless he be a candidate, or be voted for or proposed, it may not be an offence to bet either that he will or that he will not be elected.” Therefore it was held, that the indictment must be expanded beyond the words of the statute,’ to include the matter thus indicated; or, to express the point differently, an indictment is not sufficient if it simply sets out a bet, that, at an approaching election, which it specifies, a particular person who is named will or will not be elected. The allegation must go further and state, that this person was a candidate, or was voted for, or was in some man- ner proposed for the office at the election.2 And this doctrine, upon the theory of which the first two of the foregoing approved precedents are not drawn, is, at least, assumed, if not adjudged, in some of the other States. : § 943. Continued. — To the writer it seems, that this is a strictness of construction and practice which the true policy of the law does not demand. If, before the political parties had held any preliminary meetings, one person should bet with another that a particular individual named would not be elected to an office mentioned, the evil which was meant to be prevented by the statute would be done; and the offence, thus committed, ought not to be deemed in matter of law to be taken away, should the former person, stimulated by his interest in the bet, spread so many falsehoods about the individ- ual on whose failure he had pledged his money, as to preclude his even being talked of afterward for a candidate. Such a case, coming, therefore, within the policy of the law, as well as within its words, would not require expansion in the allegation beyond the statutory terms. § 944. Naming Person with whom Wager is made.— It is not sufficient, according to what is probably the current of deci- sion, for the indictment merely to allege that the defendant bet so and so; but it must mention the name of the person, if known, with whom the bet was made, or state the name to be 1 Crim. Proced. 2d ed. I. § 623-630; 2 Commonwealth v. Shouse, 16 B.. ante, § 378-881, 386, 387, 406, 447. Monr. 325. 579 § 945 OFFENCES MORE PURELY STATUTORY. [BOOK V. unknown.! But, in Missouri, an indictment in the following form was held to be good, though the form is not one which should be exactly copied in practice: “That A, &c., and B, &c., on, &e., at, &c., with force and arms did then and there unlawfully bet and wager a sum of money, to wit, one hundred dollars, on the result of an election which was held on the first Monday in August, in the year, &c., between one John 8. Phelps and Waldo P. Johnson, who were then running as candidates to represent the sixth congressional district in the State of Missouri, in the Congress of the United States of America; said election being then and there authorized by the Constitution of the United States of America, and by the laws of the State of Missouri; contrary,” &c. Said Ryland, J.: “This indictment is substantially good. The sum here bet is mentioned; the defendants, though not charged expressly with betting with each other, yet must be so understood to have bet; there is no averment that they bet with any other person or persons, and the plain import of the charge is, as alleged in this indictment, that they bet with each other. The venue to the authority by which the election was held is not necessary, is useless; and it cannot have the effect of rendering the indictment uncertain or repugnant because two different times have previously been stated in the indictment.” * § 945. Sum or Value.—In one of the foregoing forms, it is alleged that the defendant “bet a fifty-dollar bank-note against a horse,’ and the value of the bank-note is only thus inferentially mentioned, while that of the horse is in no way given. In the other forms, the value of the thing is set down. Is the allegation of value necessary? In an indictment on one of the before mentioned Indiana statutes,* it is; because it is an element in the punishment to be 1 Lewellen v. The State, 18 Texas, bet or played.” The State v. Trotter, 538 ; The State v. Little, 6 Blackf. 267. 5 Yerg. 184. See The State v. Smith, In Tennessee this averment is held not Meigs, 99; post, § 1087. to be necessary; a statute there pro- 7? The State v. Smith, 24 Misso. 356, viding, that ‘it shall be sufficient to 357. charge the general name of the game, 3 Ante, § 939. without setting forth and describing 4 Ante, § 934. with or against whom they may have 580 CHAP. XL. | BETTING ON ELECTIONS. § 947 inflicted.1 Moreover, value may in some circumstances be a necessary part of the description of the thing bet; and there, on this ground, it must be set out. But, on principle, it is not important to be alleged in other cases.” § 946. Summary of Requisites. — The indictment, therefore, to be good, must state when the election was to be held.® But it need not add, that the law required it to be held on the day thus named. The indictment must also mention what was to be the purpose of the election; that is, whether for President of the United States, for Governor of the State, and the like. Where, in Tennessee, this branch of the allegation was, that ‘there was an election held in the State of Tennes- see, for President and Vice-President of the United States of America,” it was adjudged to be sufficient; though, in exact- ness of language, the election was for electors of President and Vice-President. Said Caruthers, J.: “It is true that the election, in form, is for electors under the Constitution ; but it is, in substance, for President and Vice-President.” ® Yet, in Mississippi, where the indictment charged a betting on a State election for presidential electors, and the proof was of a bet that the State would vote for a particular presidential can- didate, there was adjudged to be a fatal variance. It was observed, that the election mentioned in the indictment, and the one mentioned in the proof, are two distinct elections, held at different times and places.’ § 947. The Evidence : — Result of Election — Parol.—It was decided in Mississippi, that, on the trial of an indictment for betting upon the result of a presidential election, the result of the election may be proved by parol. For, among other reasons, said Thacher, J.: “Such a matter of great public interest is universally known throughout the land, and can, therefore, be proved or disproved with absolute certainty by parol proof.”’® Probably, 1 Ante, § 370, 371, 427, 444, 457. 6 Porter v. The State, 5 Sneed, 358, 2 And see post, § 949. 359. 3 Lewellen v. The State, 18 Texas, 7 Gamble v. The State, 35 Missis. 538. 222. 4 The State v. Banfield, 22 Misso. 8 Williams v. The State, 12 Sm. & 461. M. 58, 63. And see, as to Indiana, 5 Bellair v. The State, 6 Blackf. 104. Hizer v. The State, 12 Ind. 330. 581 § 951 OFFENCES MORE PURELY STATUTORY. [BOOK V. in most of the States, it is immaterial, to the constitution of the offence itself, what the result is ; therefore there is no need for it to be either alleged or proved in any way. § 948. As to the Time of the Bet,— In Mississippi likewise, if the indictment charges a betting on an election, and it appears from the dates to have been made before the election was held, this will be supported by proof that the bet was made after the election took place, yet. before the result was known.! § 949. Sum or Value.— We have seen when this must be alleged, and when it need not be.2 If the statute does not make it material to the constitution of the offence whether a larger or a smaller sum is bet, a variance between the allegation and the proof, as to the sum, is immaterial.? CHAPTER XLI. LOTTERIES, 950. Introduction. 951-960. Law of the Offence. 961-966. The Procedure. § 950. How the Chapter divided. — We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 951. General View. — Lotteries are, as we shall see, a species of gaming. They were formerly permitted by the law, and even encouraged under special circumstances when they were established to promote some ulterior object of a useful kind. But a more enlightened public sentiment has at length prevailed, or prevailed in part; and it is now seen, that they are an evil both by the wholesale and retail, while the other sorts of gaming are merely evils by the retail. They are now 1 Miller v. The State, 83 Missis. 356. 3 Commonwealth v. McAtee, 8 Dana, 2 Ante, § 945, 28. 582 CHAP. XLI.] LOTTERIES. § 952 utterly done away with in most of our States, as far as legis- lation can accomplish this object; while, in a few of them, they are occasionally tolerated under restrictions, when estab- lished to promote what is assumed to be some good object. § 952. What is a Lottery — Meaning of the Term. — The term lottery is said to have no technical signification in the law; but, to ascertain its meaning, we are to consult the common usage of the language.! But this comes merely from the fact that the word is recent in penal legislation; and, in respect of every word, there has been some period in the law in which it had no technical legal signification, but, for its meaning, the courts were to look to common usage. Still it is also true of the word “ lottery,” as of any other, that, as fast as it is con- strued by the courts, so fast and so far it acquires a technical meaning. Many judicial constructions have been given of this word; and, though it is not yet possible to frame a definition which is both precise and certainly accurate at all points, there are materials existing out of which an attempt, with a result approximating accuracy, can be made. A lottery, therefore, may be defined to be a scheme by which, on one’s paying money, or some other thing of value, he obtains the contin- gent right to have something of greater value, if an appeal to chance, by lot or otherwise under the direction of the man- agers of the scheme, should decide in his favor. This defini- tion is an attempted, though possibly not a real, improvement upon an earlier one by the author, as follows: a game wherein a person, paying money or other thing of value, becomes en- titled to money or to some other valuable thing, on contingen- cies to be determined by “lot”’ cast by the managers of the game. It implies some division of property by chance.? These 1 Dunn v. People, 40 Ill. 465; United rious definitions of the word lottery States v. Olney, 1 Abb. U. 8.275; and other cases cited to this section. 2 Swain cv. Bussell, 10 Ind. 488. In New York and Illinois, it has been laid down in substance, that a lottery is a scheme for the distribution of prizes by chance. Rolfe v. Delmar, 7 Rob. N. Y. 80; Dunn »v. People, 40 Ill. 465. In United States v. Olney, 1 Abb. U. S. 275, in an opinion by Deady, J. va- are collected, as follows :— Worcester’s Dictionary.— “A distri- bution of prizes and blanks by chance ; a game of hazard, in which small sums are ventured for the chance of obtain- ing a larger value either in money or other articles.” Webster’s Dictionary. —‘‘ A disposi- tion of prizes by lot or chance.” Bouvier’s Law Dictionary. — “ A 583 § 954 OFFENCES MORE PURELY STATUTORY. [BOOK V. definitions, though differing slightly, and though neither is to be certainly relied on as the result of adjudication at every point, are in effect and in the main sustained by judicial de- cision.1 Let us proceed to look at a few points. § 953. Prize greater than Money paid. — According to one of the foregoing two forms of the definition, there would seem to be no need that the person purchasing the chance should, by the scheme, be under any circumstances entitled to draw out more than he puts in; while, according to the other form, this is an essential element. Perhaps it will never be decided which of these two views of the law is correct; because, if in no contingency could one draw out more than he invests, no one would practically patronize a lottery. All lotteries, there- fore, provide for this chance. Referring, then, to the common usage of the language, it would seem that this element is essential in a lottery scheme. § 954. By whom Lot to be cast. — From the foregoing two definitions, it would seem to result, that, unless the lot is in some way to be cast or ascertained by the managers of the scheme, it is not a lottery. Yet, according to definitions quoted in a note to the same section, this would not seem to scheme for the distribution of prizes by chance.” Rees Cyclopedia. —‘“ A kind of game of hazard, wherein several lots of mer- chandise are deposited in prizes for the benefit of the fortunate.” American Cyclopedia. —‘‘ A sort of gaming contract, by which, for a valu- able consideration, one may by favor of the lot obtain a prize of a value supe- rior to the amount or value of that which he risks.” Smith’s Wealth of Nations. — “ That the chance of gain is naturally over- valued, we may learn from the univer- sal success of lotteries.” And the learned judge goes on to say : “All these authorities agree, that, where there is a distribution of prizes —something valuable—by chance or lot, this constitutes a lottery. But the definitions from Worcester and the American Cyclopedia are the most complete. From each of these it ex- 584 pressly appears that a valuable consid- eration must be given for the chance to draw the prize.” p. 278, 279. Again: “Tt persons already owning family plate, pictures, or other property, not susceptible of division, or even equal division, chose to distribute by an ap- peal to lot what has thus come to them before they had any scheme of so dis- tributing it, they are not within the definition of a lottery, nor liable to this special tax. ‘They have not given a valuable consideration for the chance of obtaining something of much greater value —a prize.” p. 281. 1 Almshouse v. Art Union, 8 Seld. 228; People v. Art Union, 3 Seld. 240, 13 Barb. 577 ; People v. Payne, 3 Denio, 88; The State v. Pinchback, 2 Mill, 128; Wooden v. Shotwell, 8 Zab. 465; Commonwealth v. Chubb, 5 Rand. 715 ; and the other cases cited to this section. See Commonwealth v. Gar- land, 6 Rand. 652. CHAP. XLI.] LOTTERIES. § 956 be an essential element. The question does not appear to be decided in the law; but, if the course of reasoning adopted in the last section is sound, it would seem to point to the result indicated by the two definitions in the text. In those schemes which were called lotteries before the statutes were enacted, the managers of the lottery performed a function more or less analogous to casting the lot. Still, if, to evade a stat- ute against lotteries, the managers should devise some other way of playing this part of the game, doubtless their scheme would be held to be a lottery. § 955. Some Adjudged Points. — It has been considered un- necessary to a lottery, that there should be any blanks ;! but there must be some property disposed of by lot.2 The Ameri- can Art Union is held to be a lottery. So is what is called a “ gift sale’ of books,* and so is a‘ prize concert.” > This is one species of gaming.® ’ § 956. Continued. — It is thus seen, that, for a particular gambling device to be a lottery, it need not pass under that name; indeed those devices which, since the existence of statutes making the establishment of lotteries penal, most frequently claim the attention of the courts as being lotteries, are, by those who get them up, called by some other name. Thus, the sale of envelopes containing, besides printed songs and recipes, a card, descriptive of some article which the pur- chaser of the envelope may, at his option, buy for a sum of money named, is a violation of the law against the sale of lot- tery tickets.’ And a scheme for the disposal of town lots, by 1 Wooden v. Shotwell, 8 Zab. 465. aiding or abetting in the transaction 2 People v. Payne, 3 Denio, 88. 3 Almshouse v. Art Union, and other cases, supra. 4 The State v. Carke, 33 N. H. 329. 5 Commonwealth v. Thacher, 97 Mass. 583. 6 Thus, in Tennessee, the court laid down the doctrine, that a “ gift enter- prise,” in which a tradesman sets his wares at market value; and, by way of inducement to purchase, gives each purchaser a ticket whereby he is en- titled to win, if he may, certain arti- cles, the result to be determined by chance; is gaming, and all persons 38 are liable to indictment therefor. Such a scheme is, in the language of Caruth- ers, J. “that species of gaming called a lottery.” And he added: “ A lottery is a game of hazard, in which small sums are ventured for the chance of obtaining greater. ... . Gaming is an agreement between two or more, to risk money on a contest or chance of any kind, where one must be Joser and the other gainer. Some games depend al- together upon skill, others upon chance, and others are of amixed nature.” Bell v. The State, 5 Sneed, 507, 509. 7 Dunn v. People, 40 Ill. 465. Law- 585 § 956 OFFENCES MORE PURELY STATUTORY. [BOOK V. the terms of which a number of lots are sold, and others are reserved to be distributed by lot among the purchasers of the first portion, so that the chance of obtaining one of the reserved or prize lots forms a part of the inducement on which each purchaser pays the price agreed for the lot sold to him, has been held to be a “lottery”? within the operation of a law of Congress imposing a tax on lotteries, for purposes of revenue.! Where a gift exhibition was conducted as follows, it was adjudged to bealottery. Each person at the door of the show got a ticket with a number upon it. At the close of the exhi- bition, one of the proprietors called at will any number, and the person holding the corresponding ticket presented himself, when, if the exhibitor liked his appearance, or thought he would advertise the show well for him, he presented him with one of the articles advertised as gifts. It was also one of the terms of the project that, at the option of the proprietors, the distribution of presents should be dispensed with. Counsel urged, on behalf of the defendants, that their keeping the disposal of the things so completely under their control, and disposing of them finally only as gifts, prevented the scheme from being a lottery. But the court held otherwise. “This ingredient of chance,” said Beasley, C. J. “is obviously the evil principle against which all prohibitory laws are aimed.” Here all was chance; as, whether a man’s number would be called, whether the exhibitor would fancy his appearance, and rence, J. in delivering the opinion of the court, said: “It is true, as urged by counsel, that each envelope con- tained, besides the card, a number of songs and recipes, and t at the card or ticket, representing an article of mer- chandise to be bought for one dollar, confers simply a right to buy which the holder can exercise or not at his option, and, if he buys, he does so with his eyes open, and with the opportunity of knowing the value of what he pur- chases. This is true; but the element of chance lies, not in what the holder of the envelope may knowingly do with his card and dollar after he has purchased his envelope, but in the pur- 586 chase of the envelope itself, which, it is represented to him by the advertise- ment, may contain a card or ticket that will give him the right to buy for one dollar an article worth hundreds of dollars, or may contain a card that will only give him the right to buy some- thing so valueless as not to be worth buying at any price.” p. 468. 1 United States v. Olney, 1 Abb. U. S. 275. “It matters not,” said Deady, J. “even if the purchaser was to re- ceive the full value of his money in any event. Asa matter of fact, the money was paid for the chance of the prize also, and would not have been paid without this inducement.” p. 280. CHAP. XLI.] LOTTERIES. § 957 whether he would be in the mood to make any distribution of prizes.t § 957. Whether Constitutional — Tax without Conviction for Crime — Seizure of Materials for Lottery. — The question of the constitutionality of statutes restrictive of lotteries has been agitated in various forms, yet not so as to develop many gen- eral principles.2 An act passed in Virginia, Feb. 25, 1834, regulating and substantially abolishing lotteries, was held to be constitutional. In Missouri there are decisions both for and against the power to prohibit lotteries, under the circum- stances therein mentioned. In South Carolina, an enactment provided, “That a tax of ten thousand dollars be, and the same is, hereby imposed upon every person or persons who shall after the passing of this act open or keep open any office for the sale of any lottery tickets, or who shall sell within this State any lottery tickets, in any other lotteries than those which are authorized by the laws of this State. And it shall be the duty of the tax collectors in the district where such lottery offices are opened, in default of the person or persons keeping such offices to return the same and pay the tax imposed by this law, to issue execution as in other cases of defaulters.” But the court held, that this tax could not constitutionally be collected, until the liability of the party was determined by the verdict of a jury.6 The Massachusetts statute,® author- izing magistrates to issue warrants for the seizure of lottery tickets, or materials for a lottery, unlawfully had in possession, is constitutional.’ 1 The State v. Shorts, 8 Vroom, 398, 401. An English case holds it to be a lottery where the programme of an entertainment states, that, at its con- clusion, the proprietor will “ distribute amongst his audience a shower of gold and silver treasures ona scale utterly without parallel, besides a shower of smaller presents, all of which will be impartially divided amongst the audi- ence, and given away,” under the fol- lowing circumstances. The public were admitted on purchasing tickets, which were not numbered. The seats of the audience were numbered. At the close of the entertainment the proprietor called out a number on a seat, and deliv- ered one of the articles to the person oc- cupying that seat; and in the same way distributed all the other articles among the audience. Morris v. Blackman, 2 Hurl. & Colt. 912. 2 See ante, § 856. 3 Phalen v. Commonwealth, 1 Rob. Va. 718. 4 The State v. Sterling, 8 Misso. 697 ; The State v. Hawthorne, 9 Misso. 385, 5 The State v. Allen, 2 McCord, 55. 6 R.S. c. 142. 7 Commonwealth v. Dana, 2 Met. 829. And see post, § 959, note. 587 § 959 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. § 958. Advertising — Having Tickets for Sale, &e. — There are statutes against advertising lotteries,! and against having for sale or selling lottery tickets,? and the like;® but a mere reference to the adjudications under them will answer instead of an extended examination. § 959. Lotteries in other States. — We have also seen,‘ that, where a statute prohibits the sale of lottery tickets in “any lottery not authorized by law,’ * the prohibition extends to all lotteries not authorized in the particular locality; it being no defence to the party selling, that the lottery is authorized by the laws of some other State or country. 1 Ante, § 207; Commonwealth v. Clapp, 5 Pick. 41; Commonwealth v. Hooper, 5 Pick. 42; People v. Charles, 3 Denio, 212,610; The State v. Sykes, 28 Conn. 225; Charles v. People, 1 Comst. 180. In Connecticut, a statute makes it a criminal offence to publish, within this State, any written or printed proposals to sell or procure lottery-tick- ets (see post, § 959.) The defendant published the following as an advertise- ment in a newspaper issued by him: “Maryland State Lottery, R. F. & Co. Managers. Caution notice. Persons living at a distance should be cautious of whom they order lottery-tickets. The country is flooded with bogus lot- teries. The Kentucky State Lottery, under our management, is the only lottery in the United States which is legally decided by the Maryland draw- ings. Purchase in the Maryland State lotteries ; then you are sure of being right. In ordering in them you are sure of fair drawings. If you order from any licensed vendor in Baltimore, do not receive any but managers’ tick- ets and managers’ printed certificates of packages. The latter have our lithographed signature. R. F. & Co., Managers of Maryland State Lotter- ies.” An information charging the defendant with a violation of the stat- ute by the above publication, set out the publication, but did not aid it by any averments of its meaning; and, on demurrer, it was held, that, giving to its language only its natural and ordi- 588 Upon the same nary import, it was not a proposal to sell or procure lottery-tickets within the statute. Said Sandford, J.: ‘ The statute is a penal one; and, in order to subject the accused to its penalties, he must be shown to have offended against both its spirit and its letter.” The State v. Sykes, supra, p. 228. 2 Ante, § 205 ; The State v. Scribner, 2 Gill & J. 246; Commonwealth v. Chubb, 5 Rand. 715; Commonwealth v. Dana, 2 Met. 829; People v. Payne, 8 Denio, 88 ; Phalen v. Commonwealth, 1 Rob. Va. 718; People v. Warner, 4 Barb. 314; People v. Sturdevant, 23 Wend. 418; Salomon v. The State, 27 Ala. 26. The statutes of Pennsylva- nia, for the suppression of lotteries, do not forbid a citizen of Pennsylvania to purchase a lottery-ticket in Maryland, where lotteries are authorized by law; and one for whom an agent has pur- chased a ticket in Maryland, in pur- suance of an agreement made in Pennsylvania, may maintain an action in Pennsylvania against such agent for the money drawn upon such ticket. MeNight v. Biesecker, 1 Harris, Pa. 828. 3 Freleigh v. The State, 8 Misso. 606; Commonwealth v. Chubb, 5 Rand. 715; The State v. Pinchback, 2 Mill, 128; The State v. Mace, 6 Md. 837; Commonwealth v. Lottery Tick- ets, 5 Cush. 869; Morton v. Fletcher, 2A. KK. Mar. 187, * Ante, § 205. CHAP. XLI.] LOTTERIES. § 962 principle, it has been held to be a misdemeanor, in New York, under the Revised Statutes, to publish there-an account of a lottery to be drawn in another State or territory, though such lottery be allowed by the law of the place where it is to be drawn! And the Connecticut statute making it a criminal offence to publish, within the State, any written or printed proposals to sell or procure lottery tickets, is construed to refer to the tickets of foreign as well as domestic lotteries ; and to those of lotteries legally established, as well as to those which are not; and'to tickets of such lotteries offered for sale in other States, as well as within the State of Connecticut, — the statute forbidding the publishing, within the State, of pro- posals to sell or procure any lottery tickets whatever. More- over, the statute is constitutional? § 960. Disposal of Property —- Municipal Corporation. — A charter granted to a municipal corporation must be construed in harmony with the other laws. Thus, if it authorizes the corporation to dispose of property “in any manner they deem best,” it does not operate to enable them to do it by means of a lottery, if lotteries are prohibited by the general law.® II. The Procedure. § 961. Indictment — General View. — The statutes for the suppression of lotteries are in various forms of provision, ren- dering necessary a great variety in the forms of the indictment. Indeed, into every case many considerations relating to the form of the indictment enter, and these are so diverse that . from the form in one case we can hardly derive even hints as to the form in a case of a different nature. At the same time, the indictment is not often difficult for one to draw who is familiar with the general rules of criminal pleading. § 962. Indiana Statute ahd Form. — A statute in Indiana is as follows: “If any person shall sell a lottery ticket or tickets, or share in any lottery scheme or gift enterprise, or act as agent 1 Charles v. People, 1 Comst. 180. arise out of it. Rolfe v. Delmar, 7 2 The State v. Sykes, 28 Conn. 225. Rob. N. Y. 80. See also Common- And see ante, § 958, note. An em- wealth v. Harris, 13 Allen, 534. ployment to sell tickets in a foreign 3 The State v. Krebs, 64 N. C. 604. lottery is illegal, and no action can 089 § 964 OFFENCES MORE PURELY STATUTORY. [BOOK V. for any lottery scheme or gift enterprise, or aid or abet any person or persons to engage in the same, or shall transmit money by mail or express, or otherwise transmit the same, to any lottery scheme or gift enterprise for the division of prop- erty to be determined by chance, or shall make or draw any lottery scheme or gift enterprise for a division of property not authorized by law, such person, on conviction, shall,” &c. And the following is a form of the indictment for selling lottery tickets, &c. : — “That A. B., on, &., at, &c., unlawfully sold to C. D. for a certain sum of money, to wit, for the sum of one dollar then and there paid by the said C. D. to the said A. B., one share and tieket in a certain gift enterprise and lottery scheme for the division of personal property and money by chance and lot in manner following [here describe particularly all the property to be divided and the plan of distribution], which said gift enterprise and lottery scheme was commonly called [here give the name], and which said ticket and share was of the following tenor, to wit [here give an exact copy of the ticket, &.], con- trary,” &c.! i This form will be suggestive ; but the reader should not place too much reliance on it, in considering indictments drawn on dif- fering statutes in other States, and under other circumstances. § 963. Having Tickets in Possession with Intent — Within the State.— If the indictment is for having in possession lottery tickets, with the intent to sell or offer for sale the tickets con- trary to the provisions of a statute, the allegation need not go beyond the statutory words and charge that the selling or offering was intended to be within the State? §$ 964. Setting on Foot Lottery — Name — Description. — Where the indictment is for setting on foot a lottery, contrary to the provisions of the statute, it is not necessary, according to a New York case, to set out the tickets sold, or the names of the purchasers, if these are unknown to the grand jury, and alleged to be so in the indictment. But it was further held, that, in the absence of such‘an allegation, the count should contain a particular description of the lottery. The 1 Bicknell Crim. Pr. 481, 482; refer- v. People, 40 Ill. 465. And see post, ring, for the statute, to Laws, 1859, p. 128; 2 G. & H. 468, § 32. See, in connection with this, Commonwealth v. Thacher, 97 Mass. 583; Common- wealth v. Harris, 18 Allen, 584; The State v. Shorts, 3 Vroom, 398; Dunn 590 § 965. 2 Commonwealth v. Dana, 2 Met. 829. For a like point, see Common wealth v. Clapp, 5 Pick. 41. And see, as to following the statute, The State v. Kennon, 21 Misso. 262. CHAP. XLI.] LOTTERIES. § 966 mere averment that the name of the lottery is unknown to the grand jury is not adequate in excuse.? § 965. Selling Lottery Ticket —-How describe, &c. — In New Hampshire an indictment averred, that the defendant sold to a person named “a part of a ticket, to wit, one quarter part of a ticket in a certain lottery not authorized by the legislature of the State,” without any description of the ticket, or of the lottery to which it belonged. And it was held, that, as there was no lottery authorized by the legislature, the indictment was sufficient. ‘The rule is,” said the court, ‘that the charge must contain such a description of the crime that the respon- dent may know for what crime he is to answer, that the jury may appear to be warranted in their conclusion of guilty or not guilty upon the premises delivered to them, and that the court may see such a definite crime that they may apply the punish- ment which the law prescribes.” ? But this is a rule applicable to all sorts of indictments, and it has no special reference to the class now under consideration. § 966. General Views — (Points, in the Note). — Let us, therefore, instead of burdening the text with these mere points, place them in a note.? People v. Taylor, 3 Denio, 91, 99. A statute in Massachusetts made pun- ishable “ every person who shall set up or promote any lottery, not authorized by law, for money, or shall dispose of any property of value, real or personal, by way of lottery; and every person who shall, in any house, shop, or build- ing, owned or occupied by him or under his control, knowingly permit the set- ting up, managing, or drawing of any such lottery.” And an indictment which charged that the defendant, in a house occupied by him, “did unlaw- fully and knowingly permit, in the dwelling-house and building then and there actually used and occupied by him, the setting up of a lottery in which certain articles of personal property and of value were disposed of by the way of a lottery,” was held to be sufficient ; though it did not allege, that the lot- tery so permitted to be set up was a lottery not authorized by law, for Aud, in practice, the reader should money, and did not state the name of the lottery, or describe the articles disposed of, or mention their value, or the names of their owners, or of the persons who received them as prizes. Commonwealth v. Horton, 2 Gray, 69. 2 The State v. Follet, 6 N. H. 53. See ante, § 962. 3 In Indiana, an information for sell- ing tickets for a lottery to be drawn in March, is not sustained by proof of the sale of tickets for a luttery to be drawn in April. To support the in- formation, the tickets sold must be produced, if possible. Whitney v. The State, 10 Ind. 404. In Pennsylvania, the indictment for selling lottery tickets not authorized by statute should set out the name of the lottery, and the number of tickets. Commonwealth v. Gillespie, 7 S. & R. 469. The sale of lottery tickets being totally prohibited in New York, it is not necessary to aver that the lottery, for selling a ticket 591 § 968 OFFENCES MORE PURELY STATUTORY. [Book v. trust more to his general knowledge of the rules of ¢riminal pleading and of evidence, than to what he finds adjudged in particular cases on statutes unlike his own. CHAPTER XLII. DRUNKENNESS.! 967. Introduction. 968-973. Law of the Offence. 974-981. The Procedure. § 967. How the Chapter divided. — We shall consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 968. At Common Law — General Doctrine — Private Drunk- enness — Public and Notorious. — We saw, in another connec- tion,? that mere intoxication is law. But a person drunk in of public nuisance; and so the in which a party is indicted, was not expressly authorized by law. People v. Sturdevant, 23 Wend. 418. An in- dictment for publishing an account of an illegal lottery, which set forth in hee verba the lottery scheme, and showed that the prizes consisted of sums of money, was held to be good, although it was not otherwise averred that the lottery was set on foot for the purpose of disposing of money, land, &e. Charles v. People, 1 Comst. 180. And see People v. Warner, 4 Barb. 314; Commonwealth v. Hooper, 5 Pick. 42. In Georgia, a violation of the lottery law of Dec. 23, 1853, cannot be punished by indictment. Swan v. The State, 29 Ga. 616. In Massachu- setts, an indictment is sufficient if it describes the subject of the offence as “a lottery for money,” without setting forth the number or amount of the 592 not indictable at the common public may be deemed a sort legal doctrine seems to be, that several prizes into which the scheme is divided. A count charging that the defendants did ‘‘set up and promote” the lottery, is not bad for duplicity ; and it will be good against those who were simply participants in the scheme. Commonwealth v. Harris, 13 Allen, 534. Moreover, in this State, lottery tickets, which, on a warrant illegally issued, have been seized under the provisions of the statute, and brought into court or before a magistrate to be used as evidence, are not liable to be burnt or destroyed by force of the statutory direction. Commonwealth v. Lottery Tickets, 5 Cush. 369. 1 For the doctrines concerning the liability of persons for crimes commit- ted when intoxicated, see Crim. Law, 5th ed. I. § 3897 et seq. 2 Crim. Law, 5th ed. I. § 399. CHAP. XLII. ] DRUNKENNESS. § 970 one going about as a common drunkard commits thereby an indictable common-law offence, —a doctrine, however, not firmly established.1. The Tennessee court even held, that a single act of drunkenness, public and notorious, comes within the principle;? while the North Caroliua court decided, that, in the case of a mere single act, there must also be some annoyance to the public? § 969. Juryman Drunk — Justice of Peace — Other Officer. — Also it has been held, that a grand juror is indictable at the common law for getting drunk when on duty, thereby “ dis- qualifying himself for the discharge of the office of a juror.” The same proposition doubtless applies to other officers, on the general ground of a misbehavior in respect of their office.6 And in Virginia it was adjudged, that drunkenness, by a jus- tice of the peace, while in the discharge of his official functions, is a misbehavior which will furnish cause for amercing him and removing him from office.® § 970. Statutes — “Common Drunkard” — “Habitual Drunk- ard.” — In some of the States there are statutes against being a ‘common drunkard” or “habitual drunkard.” What is such a drunkard is a question which cannot, said a Pennsyl- vania judge, be determined by “any fixed rule.” He added: * Occasional acts of drunkenness do not make an habitual drunkard.”* And it has been laid down, that an habitual drunkard is one who is in the habit of getting drunk, or is commonly or frequently so, but not necessarily always or universally drunk. Perhaps the doctrine which governs the 1 The State v. Waller, 3 Murph. 229 ; and the cases cited in the notes next following. ; 2 Smith ue 396. Buta statute of this State after- ward provided, that no one “shall be subject to presentment or indictment for single acts of intoxication or drunk- enness, unless he shall, whilst so intox- icated, commit some other indictable offence.” And this statute is held to protect the person in the single in- stance, though his drunkenness is pub- lic and notorious. Hutchison v. The State, 5 Humph. 142. The State, 1 Humph.~” 3 The State v. Deberry, 5 Ire. 871; s. p. The State v. Waller, 8 Murph. 229. 4 Pennsylvania v. Keffer, Addison, 290. 5 See Crim. Law, 5th ed. I. § 459 et seq. 6 Commonwealth v. Alexander, 4 Hen. & M. 522, 1 Va. Cas. 156; Com- monwealth v. Mann, 1 Va. Cas. 808. 7 Ludwick v. Commonwealth, 6 Har- ris, Pa. 172. 8 The State v. Pratt, 84 Vt. 828. 598 § 972 OFFENCES MORE PURELY STATUTORY. {BOOK V. offence of barratry may be in some measure applicable here; namely, that barratry is a quarrel, not in one or two cases only, but in many, and the proofs must show at least three instances of offending! Still, in Massachusetts, where a statute makes it punishable to be a “common drunkard,” an allegation that the defendant was drunk, by the voluntary use of intoxicating liquor, ‘on divers days and times, not less than three times, within six months last past,” whereby (the allegation pro- ceeded) he became a “common drunkard,” was held to be insufficient; because the facts thus stated are not in law an adequate foundation for the conclusion. Three times a man might be drunk within six months without being a common drunkard. And Thomas, J. delivering the opinion of the court, added: ‘“ The exact degree of intemperance which con- stitutes a drunkard, it may not be easy to define. But speak- ing in general terms, and with the accuracy of which the matter is susceptible, he is a drunkard whose habit is to get drunk, ‘whose ebriety has become habitual.’ To convict a man of the offence of being a common drunkard, it is, at the least, necessary to show that he is an habitual drunkard. Indeed the terms ‘ drunkard’ and ‘habitual drunkard’ mean the same thing.” 2 § 971. “Common Drunkard,” continued — Public or not. — It is not necessary, to constitute a common drunkard under the statute, that the inebriated person should disturb the pub- lic:® neither, for a person to be guilty of “the crime of drunkenness,” need his inebriation be public, but it is suffi- cient if the party is intoxicated in another person’s room in the house in which he resides.* Still there are in some of our States statutes against public intoxication.5 § 972. Continued. — Moreover, the term “ common drunkard” implies a drunkenness from the use of intoxicating liquor; an 1 Crim. Law, 5th ed. IT. § 65. the offence, nor does it distinguish be- 2 Commonwealth v. Whitney, 5 tween the different effects of drunken- Gray, 85, 86. ness.” 3 Commonwealth v. Conley, 1 Allen, * Commonwealth v. Miller, 8 Gray, 6,7. Said Chapman, J. in this case: 484. “The statute does not make a disturb- 5 Hill v. People, 20 N. Y. 368; ante, ance of the peace a constituent part of § 968. oot CHAP. XLII. ] DRUNKENNESS. § 976 inebriety, or something like it, produced by chloroform! or opium ? does not come within the meaning of the term. § 973. Drunk in Street. — In New Hampshire it has been held, under a statute providing a punishment for any person found drunk in any street, alley, or other public place, that those only are within its provisions who are found drunk, in one of these enumerated localities, within the compact part of a city or village; and that a person, so found, on a common highway in the country, does not violate the statute.® Il. The Procedure. § 974. Common-law Nuisance of Public Drunkenness : — Tennessee Form of Indictment. — The common-law offence of becoming a nuisance by acts of drunkenness * may sometimes be made the subject of an indictment; though generally the indictment will be drawn upon a statute. The following is a common-law form, which was adjudged to be good in Tennessee: — “ That R. T. on, &c., at, &c., and on divers other days before that time, was openly and notoriously drunk, to the disturbance of the public peace, to the great injury of the public morals of the good citizens of the State, and to the evil example, &c., and against the peace and dignity of the State.” 5 § 975. Continued. — In a later Tennessee case, the court held, that a presentment which charged the defendant. with being, on a day named, unlawfully, openly, publicly, and noto- riously drunk, was insufficient. Said Green, J.: “The diffi- culty of so describing a single act of drunkenness as to put the party upon his defence, and satisfy him of the facts that are to be proved against him, is such, that, notwithstanding we hold a single act of public and notorious drunkenness to be indictable, we think it always safest to charge the offence as in The State v. Tipton,” being the case from which the above form is taken.® § 976. Further of Common-law Forms. — It is not quite cer- tain that the indictment thus given would be held, in all the 1 Commonwealth v. Whitney, 11 4 Ante, § 968. Cush. 477. 5 Tipton v. The State, 2 Yerg. 542. 2 1 Bishop Mar. & Div. § 813. | 6 Smith v. The State, 1 Humph. 3 The State v. Stevens, 836 N. H. 59. 396. 595 § 978 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. States, to be sufficient at the common law. Practically, how- ever, the question will not often arise; for, in most of the States, there are statutes covering this general ground, and the indictment will generally be drawn upon them. § 977. Under Statutes : — Massachusetts Statute and Form. — A statute in Massachu- setts made it an offence to be a ‘common drunkard.” And a complaint before a justice of the peace, for this offence, drawn in the following form, was held to be sufficient : — “That A, &., on, &e., at F, &c., was and is a common drunkard, having been on divers days and times within six months now last past, at said F, drunk and intoxicated, by the voluntary and excessive use of spirituous and intoxicating liquors ; against the peace of the Commonwealth, and the form of the statute in such case made and provided.” ! § 978. Continued — Adequate Form. — The form given in the last section has been employed in subsequent Massachu- setts cases. But it is believed that the latter part of the alle- gation is mere surplusage, — at least, that it is not required, —and that the following brief form is practically better, and is equally good in law: — That A, &c., on, &., at, &c., was a common drunkard, against the peace of the Commonwealth, and contrary to the form of the statute in such case made and provided.? The words “ common drunkard” cover the terms of the statute in full. 1 Commonwealth v. Boon, 2 Gray, 74, Merrick, J. observing: “It is un- doubtedly indispensable that nuisances should be alleged, in complaints and indictments, to be to the great damage and common nuisance of all the citi- zens of the Commonwealth. 1 Chit. Crim. Law, 245, 246; Commonwealth v. Smith, 6 Cush. 80. Such an allega- tion, however, was unnecessary in the complaint against the defendant, be- cause the accusation set forth in it was not of that character. It is alleged, not only that on divers days and times she had been drunk and intoxicated by the voluntary and excessive use of spiritu- ous and intoxicating liquors, but that on a day certain she was a common drunkard. The being a common drunk- 596 And they are like “ common scold,” ‘ common ard is expressly made an offence by the statute. And the words by which the offence is created and defined are fully descriptive of it. They are therefore technical ; and, because they are so, a party may well be charged in the gen- eral words of the statute.” p. 75. In another case, a complaint was held to be inadequate which alleged, that the defendant, ‘on divers days and times, not less than three times, within six months last past, was drunk by the vol- untary use of intoxicating liquor, and so, on the day of making this complaint, is a common drunkard.” Common- wealth v. Whitney, 5 Gray, 85. 2 See Commonwealth v. Whitney, 5 Gray, 85; Commonwealth v. Foley, 99 Mass. 499. CHAP. XLII. ] DRUNKENNESS. § 980 barrator,” 1“ assault,” 2 and some others which, at the common law, are held to be sufficient in allegation without descending to the particulars, because of the complicated nature of the act, and of the impossibility of finding terms to bring the charge fully and exactly within the constructive meaning of the law. § 979. Whether Offence to be alleged as continuing. — Some- thing has already been said on this subject in these pages, in discussions of other offences of a continuing nature.2 Where, in a Massachusetts case, the form of the complaint was, that, on a day named, the defendant ‘ was and is” a common drunk- ard, “having been at divers days and times since” that day “drunk and intoxicated by the voluntary and excessive use of intoxicating liquors,” it was held that drunkenness only on a single day was charged. Plainly this was correct; for only a single day was stated with the requisite certainty. But it was further held, that, on this form of the allegation, the evi- dence of drunkenness should have been confined to a single day.» The adjudication, upon the latter point, is plainly enough in accord with a peculiar doctrine of the Massachu- setts court relating to this class of questions,® but it cannot be sustained on general principles as held by courts elsewhere. As this offence is in its nature continuing from day to day, a particular act, so to speak, of being a common drunkard, may in law be constituted out of a series of minor acts, which minor acts may be committed on different days. There being no impossibility of law that all may really occur on one day, the allegation of a single day is sufficient; and, time not being of the essence of the offence, one of the minor and constituent acts may be proved as of one day and another as of another day, and soon. This is the general, the sound, and the just doctrine ;” though, as already intimated, there are in Massa- chusetts peculiarities of adjudication not according with it. § 980. Conform to Statute — “Violation of Decency” — 1 Crim. Proced. 2d ed. I. § 494, 531; > Commonwealth v. Foley, 99 Mass. II. § 99, 100, 199, 200. 499. 2 Ante, § 511-514. 6 Crim. Proced. 2d ed. I. § 408. 3 Ante, § 703, 722, and particularly 7 Jb. I. § 398, 897 and note, 400-404 ; 751 and note. ante, § 751, note.- 4 Crim. Proced. 2d ed. I. § 388. 597 § 982 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. “ Pound.” — It was held in Rhode Island, that, where a statute makes ‘the being intoxicated under such circumstances as to amount to a violation of decency” a punishable offence, a complaint is sufficient which charges the defendant with having been indecently drunk, contrary to the provisions of the stat- ute.! Still the complaint must conform reasonably to the words of the statute. Thus, in Connecticut, the statute having provided, that, “if any person shall be fodnd intoxicated,” &c. ; a complaint was adjudged inadequate which alleged, that, on a specified day, the defendant “was drunk and intoxicated, whereby he was disabled and deprived of his reason;” not saying he was “found” drunk.? § 981. Second Offence — Former Conviction. — In Massachu- setts, an allegation of a former conviction of drunkenness, introduced as a part of a complaint under the statute making a second drunkenness more highly punishable than the first, whereih it was set out that the defendant, at a time and before a court named, “was duly and legally convicted of the crime of drunkenness committed at’ a specified time and place, &c., was held to be sufficient; and a copy of the record of the former conviction could be introduced as evidence.? CHAPTER XLII. SELLING INTOXICATING LIQUOR — THE LAW. 982, 983. Introduction. 984-988. History of this Legislation. 989-998. Constitutionality of it. 999-1006. The License. 1007-1011. Meanings of some Statutory Words. 1012-1032. Expositions of Main Provisions. § 982. General View — Course of the Discussion. — The stat- utory offence of selling intoxicating liquors unauthorized by law is not new in the countries in which the jurisprudence 1 Alexander v. Card, 3 R. I. 145. 3 Commonwealth v. Miller, 8 Gray, 2 The State v, Bromley, 25 Conn. 6. 484. 598 CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 985 of the common law prevails; but, of late years, it has assumed in our States, some new forms, and put on enlarged propor- tions. In this chapter and the next, we shall consider the general question of the unlawful sale, with the manner of pro- ceeding against the offender; then, in the chapter immediately following, the offence of keeping the liquor with the intent unlawfully to sell it, together with the procedure, including the proceeding against the liquor itself for its forfeiture ; afterward, in still another chapter, we shall bring under re- view the statutory and judicial doctrines relating to liquor nuisances. § 983. How the Chapter divided. — In the present chapter, we shall consider, I. The History of this Legislation; II. Its Constitutionality ; III. The License; IV. Meanings of some Statutory Words; V. Expositions of the Main Provisions. I. The History of this Legislation. § 984. How at the Common Law — Inn — Ale-house — Dis- orderly House. — At the common law, no indictment lies for keeping an inn or an ale-house, unless disorderly conduct is allowed there, even though it is a common tippling-house.! The common-law doctrine concerning disorderly houses, in- cluding houses wherein liquor is sold, was stated in the work on the Criminal Law. The simple sale, therefore, of intox- icating liquor, whether in large quantities or small, is not a common-law offence. § 985. Under Statutes —- Old English — American. — But many statutes, more or less prohibitory of the sale of intox- icating drinks, have been passed, beginning at a very early period of English legislation, and extending down to the time of the settlement of this country, thence to the present day, from which the American legislation has been chiefly drawn. Indeed, by these English enactments, even by the old ones, 1 Crim. Law, 5th ed. I. § 505; 1 N. Y. 150; Rex v. Faulkner, 1 Saund. Hawk. P. C. Curw. ed. p. 714,§ 1 et 249, 2 Keb. 506, pl. 79; Commonwealth seq.; Rex v. Marriot, 4 Mod. 144; Rex v. McDonough, 18 Allen, 581. v. Ivyes, 2 Show. 468; Stephens v. 2 Crim. Law, 5th ed. 1. § 1106 et seq., Watson, 1 Salk. 45; Rex v. Randall, 3 11138. Salk. 27; Overseers v. Warner, 3 Hill, 599 § 987 OFFENCES MORE PURELY STATUTORY. [BOOK v. nearly every form of provision which has been employed in this country was anticipated. § 986. General Scope of Statutes. — Under other sub-titles will be brought to view the principal provisions out of which judicial discussion has grown. But we may here observe, that the following objects have been sought to be obtained by legislation; namely, the prevention of sales of intoxicating liquor, except in quantities mentioned in the statutes, so large as to preclude its purchase for the purpose of mere tippling. Aud, under this head, specific sales have been made penal; while, at the same time, the being a common seller has been made penal also. Another object, sometimes aimed at, is to punish the purchaser of the liquor in these small quantities ; but most of the enactments restrain only the sale, not extend- ing to the purchase.? Another object has been to prevent all sales in any quantities, by persons not specially authorized. And whether the selling has been entirely prohibited to un- authorized venders, or has been so restricted as to exclude the vending of small quantities by them, there has been, in all provisions of law on the subject, a reserve of the right to vend generally, or for particular purposes, in persons either licensed to sell on their own account, or appointed to make sales on the account of some town or other like corporation. § 987. Difficult of Enforcement. — Whoever takes the trouble to read the old English statutes on this subject learns, from recitations of facts therein made, that the enforcement of this class of laws was always difficult. And all who understand the doings of offenders and of courts at the present time know, that the same fact exists now. The question of the constitu- tionality of. the enactments has been put forward, in this country, as an obstruction in their way; the question of their expediency has also been urged against them; and the question of their intrinsic rightfulness has entered largely into the controversy. ‘ And,” observed Tarbell, J. in the Missis- sippi court, after quoting these observations of the author, ‘ ! For the leading enactments of the c.5; 7 Jac.1,c.10; 21 Jac.1,c.7; 1 early times, see Stats. 12 Edw. 2,c.6; Car. 1,¢.4; 3 Car. 1,c. 3. 11 Hen. 7, « 2; 5&6 Edw. 6, ¢. 25; 2 Crim. Law, 5th ed. I. § 658 and 1 Jac. 1,c.9; 4 Jac. 1,¢e.4; 4 Jac. 1, note. 600 CHAP. XLII. | LIQUOR SELLING — THE LAW. § 988 “he might have truthfully added, that there is no law which is as resolutely resisted by the utmost ingenuity of the human mind and by the ablest talent, as the statutes regulating the traffic in intoxicating liquor.”1 The consequence of all this has been, that, at some points, though not as a general fact, the courts sitting under pressure have departed from the true line of adjudication indicated by established principle. The departure has not been in every instance, or even perhaps most frequently, in favor of the defendant; for, when judges are unduly pressed, being themselves anxious to do their ex- act duty, it but accords with all observations of human nature, that, at times, they should resist the pressure by an uprightness which leans the other way. § 988. Maine Law. — One of the most noted and most ably resisted forms of the statutory inhibition is familiarly known as “The Maine Law.” The history of this Maine law is the fol- lowing: In the summer of 1847, some gentlemen residing in Massachusetts drafted a petition to the legislature of the latter State, one of the prayers of which was, in the words of the petition, that the legislature should “ abolish all licenses and licensing whatever, of the traffic in intoxicating liquors; pro- hibit entirely the sale thereof in all cases where a license is now required to authorize the same; and render it imperative upon the courts to punish, by imprisonment, all who sell after a second conviction ;” and another prayer was, for the legis- lature “to require the courts, on reasonable complaint, to issue @ warrant against any and all persons suspected of sell- ing intoxicating liquors contrary to law; commanding the officer to proceed against the place suspected, and seize all intoxicating liquors, and all casks, demijohns, and other vessels in which the same may be contained, and all articles used in the traffic, found upon the premises, and hold the same to be confiscated and destroyed in case of a conviction.” This petition, having been numerously signed by persons approving of the proposed measure, was presented to the legislature at its session in the winter of 1848. It was referred, in the House of Representatives, to a special committee having 1 Riley v. The State, 43 Missis. 397, 420, 2 Morris State Cas. 1632, 1654. 39 601 § 988 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. charge of this general subject; and the committee reported a bill agreeing, substantially, with the prayer of the petition. It provided, among other things, for the appointment of agents in the several towns and cities to sell “alcohol, pure, mixed, and combined, to be used in the arts and for medicinal and sacramental purposes ;” and forbade, under penalties, all other sales, and made penal also the keeping of the liquor with the intent to sell it contrary to law. It likewise made penal the letting or using of buildings for the unlawful sale of the liquor. And it directed that all liquor kept for sale contrary to the provisions of law should be forfeited, on proceedings had against the offender. The destruction feature, mentioned in the petition as an addition to the forfeiture, was not introduced.! But the measure, though warmly supported, and passing the lower House, failed to become a law. Afterward, in 1851, the legislature of Maine adopted it, with the destruction clause; incumbered, however, by some peculiarities relating to the procedure, intended to avoid those delays to which all real justice is necessarily subject. Some other States, includ- ing Massachusetts herself at a later period, followed in the path thus marked out. Therefore the popular notion, that this form of legislation is a new invention, and the idea, that in its late development it originated with a citizen of Maine, are both erroneous. Differences of opinion will for a long time exist, whether the general prohibition is wise or not; but, assuming it to be wise, the forbidding of the keeping of the liquor with the intent to sell it, and the forfeiture of the liquor thus ille- 1 [have before me the “ Report” of ered in the Massachusetts Legislature, the committee, with the bill, which was entitled “ An Act regulating the Sale of Alcohol, and prohibiting Intox- icating Drink,” constituting House Document No. 62. The report is dated March 4, 1848. There was also a supplemental report by the commit- tee, proposing some slight amendments to the bill. This also was printed. There are likewise before me two pamphlets, the one entitled ‘‘ Speech of Francis W. Emmons, of Sturbridge, on regulating the Sale of Alcohol, and prohibiting Intoxicating Drink, deliv- 602 April 15, 1848 ; ” and the other entitled “ Concluding Remarks of, &c. [as be- fore] delivered in the Massachusetts Legislature, April 18, 1848.” Mr. Em- mons was chairman of the committee ; and, as such, reported the bill. I am thus particular, simply to set right a question of history. Whatever credit or disgrace attends the devising of this peculiar form of legislation belongs, so far as it attaches to any person in mod- ern times, not to any inhabitant of Maine, but of Massachusetts. CHAP. XLIII.] LIQUOR SELLING — THE LAW. § 990 gally kept, are legislative methods of reaching the end greatly in advance of what in modern times had been attempted before. The misfortune attending this particular instance consisted in some ill-judged points connected with the judicial procedure, as the measure was adopted in Maine under the manipulation of persons by whom it was not originated. Il. The Constitutionality of this Legislation. § 989. General View. — The question of the constitutionality of the statutes to be discussed in this chapter has been more frequently agitated than any other constitutional question presented to our tribunals. It arises under the constitutions both of the several States and of the United States. On gen- eral principles, and aside from the particular terms of a pro- vision which it may be claimed this legislation violates, or the particular nature of the provision itself, the question is a plain one, and the doctrine on which this sort of legislation proceeds has already been stated in the present volume.’ It is, that every man is bound so to employ both his physical volitions and his property as not to injure others. And in the nature of things it is one of the functions of legislation, without which legislative authority cannot exist, to determine what acts, whether of the person or the property, do injure or tend to the injury of others, and to forbid them under penal sanctions, such as imprisonment, fine, or forfeiture. And whether the legislation is wise, or intrinsically just, or not, it is within the powers inherent in legislative authority, therefore it cannot be resisted. § 990. United States Constitution. — There is not much pretence that this sort of legislation, by the States, violates the Constitution of the United States, except as to the powers of the general government to regulate commerce, and the power of national taxation. And it has been rather conceded by the courts than held, that, if Congress imposes a duty on the importation of foreign liquors, it is not competent for a State to interfere with the liquors in the original packages, and in the hands of the original importers. But the States, 1 Ante, § 558-556, 564, 565. 603 § 990 OFFENCES MORE PURELY STATUTORY. [BOOK v. it is decided, are not, within this doctrine, in any way deprived of the power to regulate the manufacture of liquors, or the sale of liquors of domestic manufacture, or of imported liquors in the hands of second holders, or after the original packages are broken. But, as to the former doctrine, on principle, while, beyond doubt, any obstruction by the legislature of a State to the passing of dutiable goods from a port of entry within the State to another part of the Union would be a vio- ! As to the question under the Con- stitution of the United States, see Thurlow v. Massachusetts, 5 How. U. S. 504; Fletcher v. Rhode Island, 5 How. U. 8. 504; Peirce v. New Hamp- shire, 5 How. U. S. 504; Ingersoll v. Skinner, 1 Denio, 540; Commonwealth v. Blackington, 24 Pick. 852; City: Council v. Ahrens, 4 Strob. 241; Com- monwealth v. Kimball, 24 Pick. 359; Smith v. People, 1 Parker, 583; Peo- ple v. Quant, 2 Parker, 410; Wynham- mer v. People, 20 Barb. 567 ; Bradford v. Stevens, 10 Gray, 379. Ina recent Maine case, Davis, J. stated the matter as follows : “‘ Upon this point, the line of division between the power of the Federal Government and that of the State has been settled. Under the power granted by the Constitution to regulate Commerce with other nations, Congress may authorize a person to import intoxicating liquors, and to sell the same in the original packages. But here the power of Congress ceases, and the jurisdiction of the State begins. Brown v. Maryland, 12 Wheat. 262. No one but the importer himself has the right to sell, except as allowed by the laws of the State; and he can sell only in the original packages. The power of the State is plenary to regulate or prohibit all sales, except such as are thus made by the importer himself. Those who purchase from him have no such right to sell. The License Cases, 5 How. U. S. 504.” The State v. Robinson, 49 Maine, 285, 287; The State v. Shapleigh, 27 Misso. 344. Cooley says: “The majority of the court [in the License Cases] expressed the opinion — which, however, was obiter in those cases — that the intro- 604 duction of imported liquors into a State, and their sale in the original packages as imported, could not be forbidden, because to do so would be to forbid what Congress, in its regulation of commerce, and in the levy of imposts, had permitted ; but it was conceded by all, that, when the original package was broken up for use or for retail by the importer, and also when the com- modity had passed from his hands into the hands of a purchaser, it ceased to be an import, or a part of foreign com- merce, and thereby became subject to the laws of the State, and might be taxed for State purposes, and the sale regulated by the State like any other property. It was also decided in these cases, that the power of Congress to regulate commerce between the States did not exclude regulations by the States, except so far as they might come in conflict with those established by Congress; and that, consequently, as Congress had not undertaken to regulate commerce in liquors between the States, a law of New Hampshire could not be held void which punished the sale, in that State, of gin purchased in Boston, and sold in New Hampshire, notwithstanding the sale was in the cask in which it was imported, but by one not licensed by the selectmen.” Cooley Const. Lim. 2d ed. 582. As to the latter point, the Alabama court held, that a State tax of fifty cents per gallon on liquors introduced into the State from other States is void only as to liquors imported from for- eign countries, in the hands of the importers and in the original packages. Hinson v. Lott, 40 Ala. 128. CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 992 lation of the national Constitution, there seems no reason why the doctrine should go further. A duty imposed on the im- portation of an article is rather an impediment to its importa- tion as an article of commerce than a license to bring it into the country and vend it, in its nature, in its purpose, and in its actual effect. § 991. Continued. — After the enactment, by Congress, of an internal revenue law, taxing particular kinds of business, it was urged upon the courts, that, because the national govern- ment has taxed the business of selling intoxicating liquor in the States, requiring those who are engaged in it to pay a license for it into the national treasury, therefore the States have no constitutional power to regulate or prohibit the busi- ness of selling, and the national license is a protection to the seller as against State laws. But the acts of Congress ex- pressly reserve to the States their former rights relating to this subject, consequently this objection has been overruled ; leaving the question still open as to what would be the effect of the national legislation if it did not contain this exception in favor of State power.1. But here again, on principle, and, in accord with some judicial intimations, a tax is not a license ; and a power in Congress to tax a business in which the citizens of a State employ themselves under the protection of State laws, is not a power to authorize such citizens to defy State law, and carry on the business after it is prohibited. § 992. Under State Constitutions. — Various State statutes restricting the sale of intoxicating liquors have been pro- nounced unconstitutional, either by reason of provisions as to the procedure deemed to be in violation of constitutional rights, 1 McGuire v. Commonwealth, 3 Wal. 887; License Tax Cases, 5 Wal. 462; Thorniley, 6 Allen, 445; Common- wealth v. Casey, 12 Allen, 214. Pervear v. Commonwealth, 5 Wal. 475; Commonwealth v. Holbrook, 10 Allen, 200; Commonwealth v. Keenan, 11 Allen, 262; The State v. Carney, 20 Iowa, 82; The State v. Stultz, 20 Towa, 488; The State v. Baughman, 20 Iowa, 497; Commonwealth v. O’Donnell, 8 Allen, 548; The State v. McCleary, 17 Iowa, 44; Block v. Jack- sonville, 86 Ill. 301; Commonwealth v. 2 Fisher v. McGirr, 1 Gray, 1; Peo- ple uv. Toynbee, 2 Parker, 329, 2 Par- ker, 490, 8 Kernan, 378; People v. Wynehamer, 2 Parker, 377, 2 Parker, 421, 3 Kernan, 378; Greene v. James, 2 Curt. C. C. 187; The State v. Snow, 3 R. I. 64; Hibbard v. People, 4 Mich. 125. See People v. Fisher, 2 Parker, 402; In re Powers, 25 Vt. 261; Lin- coln v. Smith, 27 Vt. 328; The State 605 § 998 OFFENCES MORE PURELY STATUTORY. [BOOK ¥. or as having been ineffectually enacted,! or for some other like reason ;/ but, with respect to the main matter, it is abundantly and uniformly held that such enactments do not violate our State constitutions.as ordinarily drawn? § 998. Confiscation of the Liquor.— The question of the right to confiscate the liquor kept for purposes of unlawful sale, seems not to have been always properly apprehended : but the authorities are clearly in favor of the right.’ Some misapprehension of true distinctions has, perhaps, obscured v. Prescott, 27 Vt. 194; The State wv. Robinson, 19 Texas, 478. 1 Parker v. Commonwealth, 6 Barr, 607. In the following cases the stat- ute was sustained against objections of this sort: Parkinson v. The State, 14 Md. 184; The State v. Thompson, 2 Kansas, 482. See ante, § 36. 2 Lodano v. The State, 25 Ala. 64; Bancroft v. Dumas, 21 Vt. 456 ; Pierce v. The State, 13 N. H. 536, 571; The State v. Smith, 22 Vt. 74; The State v. Moore, 14 N. H. 451; Lunt’s Case, 6 Greenl. 412; Austin v. The State, 10 Misso. 591; Dorman v. The State, 84 Ala. 216; Commonwealth v. Kend- all, 12 Cush. 414; Commonwealth v. Burding, 12 Cush. 506; Our House »v. The State, 4 Greene, Iowa, 172; Zum- hoff v. The State, 4 Greene, Iowa, 526 ; Mason v. Lancaster, 4 Bush, 406; Fal- mouth v. Watson, 5 Bush, 660; Napier v. Hodges, 31 Texas, 287; The State v. Leary, 20 Misso. 498; The State v. Gurney, 87 Maine, 156 ; Jones v. Peo- ple, 14 Ill. 196; The State v. Clark, 8 Fost. N. H. 176; Heisembrittle v. City Council, 2 McMullan, 233; People v. Hawley, 3 Mich. 380; Brown v. The State, 12 Wheat. 419; Bode v. The State, 7 Gill, 326; Smith v. Adrian, 1 Mich. 495; The State v. Muse, 4 Dev. & Bat. 819; Miller v. The State, 3 Ohio State, 475; City Council v. Ah- rens, 4 Strob. 241; Commonwealth v. Kimball, 24 Pick. 359; Fisher v. Mc- Girr, 1 Gray, 1; Smith v. People, 1 Parker, 583; People v. Quant, 2 Par- ker, 410; Langley v. Ergensinger, 3 Mich. 314; People v. Hawley, 8 Mich. 330; The State v. Snow, 3 R. I. 64; 606 The State v. Peckham, 3 R. I. 289; Commonwealth v. Clapp, 5 Gray, 97; . Commonwealth v. Hitchings, 5 Gray, 482; Commonwealth v. Pomeroy, 5 Gray, 486, note; Keller v. The State, 11 Md. 525; People v. Gallagher, 4 Mich. 244; The State v. Brennan’s Liquors, 25 Conn. 278; The State v. Wheeler, 25 Conn. 290; Perdue v. El- lis, 18 Ga. 586; Bepley v. The State, 4 Ind. 264; Germania v. The State, 7 Md. 1; Gutzweller v. People, 14 Ill. 142, And see, for illustrative points, Washington v. The State, 8 Eng. 752; Mabry v. Tarver, 1 Humph. 94; Peo- ple v. Jenkins, 1 Hill, N. ¥. 469; Peo- ple v. Roe, 1 Hill, N. ¥. 470; The State v. Bock, 9 Texas, 369. But see People v. Toynbee, and People v. Wyne- hamer, infra. In Indiana there have been many decisions on this subject, to some extent contradictory of one an- other, as see Beebe v. The State, 6 Ind. 501; O’Daily v. The State, 9 Ind. 494; Crossinger v. The State, 9 Ind. 557; The State v. Adamson, 14 Ind. 296 ; Thomasson v. The State, 15 Ind. 449; Holmes v. Welch, 12 Ind. 555; Coulson v. Cass, 12 Ind. 558; Mesh- meier v. The State, 11 Ind. 482; Cas- sel v. Scott, 17 Ind. 514; Lauer v. The State, 22 Ind. 461; Reams v. The State, 28 Ind. 111. 3 Fisher v. MeGirr, 1 Gray, 1; The State v. Snow, 3 R. I. 64. But see People v. Toynbee, 2 Parker, 329, 2 Parker, 490, 1 Kernan, 378; People v. Wynehamer, 2 Parker, 377, 2 Parker, 421,38 Kernan, 378; Miller v. The State, 8 Ohio State, 475. CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 995 a little the decisions in some New York cases! One can hardly see how this right could ever be doubted in any State in which fines may be imposed ; because the forfeiture is only a fine, being levied upon a specific article, instead of the estate at large of the offender. And the earliest of the old English enactments on this exact subject provides for this forfeiture ;? consequently the levying of the penalty on the specific article is one of the modes of fine known in that fountain of laws from which our jurisprudence is drawn. § 994. Continued — Destruction of them. — In some States, the experiment has been tried of directing, that the forfeited liquor be destroyed. And although such destruction violates a cardinal principle of political and social economy, which for- bids the needless waste of any thing capable of being turned to a useful account, still, as individuals are permitted to do what they will with their own, no reason appears why States cannot exercise the same liberty. This doctrine, indeed, is sufficiently established. The forfeiture vests the property in the State; then the State destroys it. § 995. Summary of the Doctrine.— The doctrine governing this whole subject may be summed up thus: The State, in the enactment of its laws, must exercise its judgment concerning what acts tend to corrupt the public morals, impoverish the ' People v. Toynbee, and People v. Wynehamer, supra. 2 Stat. 12 Edw. 2, c. 6, a.pv. 1818, is as follows: ‘Also, to the common profit of the people, it is agreed, that no officer in city or in borough, that by reason of his office ought to keep as- sizes of wines and victuals, so long as he is attendant to that office, shall not merchandise for wines nor victuals, neither in gross nor by retail. And, if any do, and be thereof convict, the merchandise whereof he is convict shall be forfeit to the king, and the third part thereof shall be delivered to the party that sued the offender, as the king’s gift.” And then follows a direction concerning the court before which proceedings shall be had. ® See Fisher v. McGirr, 1 Gray, 1. The State v. Brennan’s Liquors, 25 Conn. 278. 4 The common law has also prece- dents for this procedure. Thus, Pulton, speaking of the forfeiture in cases of felony, says: “ The felon’s houses and lands shall be seized into the king’s hands, where they shall remain by the space of a year and day, and then the houses shall be thrown down to the ground, the trees shall be pulled up by the roots, the meadows shall be ploughed up, and all things which the felon did build or plant shall be cast down, digged up, and supplanted ; which punishment was ordained in despite of offenders, and to show to others, how much the law doth detest murderers, committers of burglary, robbery, and other felo- nies, and as much as may be to terrify and discourage others to attempt or practise the like.” Pulton de Pace, ed. of 1615, 220 d. 607 § 995 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. community, disturb the public repose, injure the other public interests, or even impair the comfort of individual members, over whom its protecting watch and care are required. And the power to judge of this question is necessarily reposed alone in the legislature, from whose decision no appeal can be taken, directly or indirectly, to any other department of the govern- ment. When, therefore, the legislature, with this exclusive authority, has exercised its right of judging concerning this legislative question, by the enactment of prohibitions like those discussed in this chapter, all other departments of the govern- ment are bound by the decision, which no court has a jurisdic- tion to review. And the question of the wisdom ‘of the enactment is decided definitively by the enactment itself. An express constitutional inhibition of this kind of legislation would, of course, bind the legislature; but. such inhibition is not to be gathered from those expressions of individual rights which are usually found in our State constitutions. That is, the power, being in its nature legislative, can be ex- cepted out of a general grant of such power, found in express words, or in their equivalent of implization, in all our State constitutions, in no way but by express words, or necessary implication. The idea, sometimes carried into this discussion, that the legislature cannot control the use of property, while it can control the movements of its owner, needs no refutation ; because clearly the thing owned is not superior to its intelli- gent master.! 1In Jones v. People, 14 Ill. 196, Trumbull, J. summed up the, matter as follows: “ We shall not go into an elaborate argument to prove, that the legislature possesses the authority to regulate its own internal traffic accord- ing to its own judgment, and upon its own views of the interests and well- being of its citizens. The power of the several States to regulate or even prohibit the retail of spirituous liquors within their limits, is expressly sanc- tioned by the Supreme Court of the United States, in the License Cases, 5 Howard, 504, and there is nothing in the Constitution of Illinois to prevent the exercise of this power. By virtue 608 of its police power, every State must have the ‘right to enact such laws as may be necessary for the restraint and punishment of crime, and for the pres- ervation of the public peace, health, and morals of its citizens.’ It is upon this principle that the sale of lottery tickets, and of cards, and other instru- ments for gaming, is prohibited ; and who ever questioned the constitution- ality or validity of such laws? A gov- ernment that did not possess the power to protect itself against such and simi- lar evils, would scarcely be worth pre- serving.” In the Missouri court, Nap- ton, J. observed: “The State legisla- tures have the power, unless there be CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 997 § 996. Prohibiting Distillation of Grain. — And within the principle on which rest the statutes restricting the sale of intoxicating liquors, it has been held, in Alabama, that a pro- hibition of the distillation of grain, except on license from the governor, does not conflict with the constitutional guaranty that no person “shall be deprived of life, liberty, or property ‘but by due course of law.” ‘In every well ordered state,” said R. W. Walker, J. “ property is held subject to the tacit condition, that it shall not be so used as to injure the equal rights of others, or the interests of the community.” 1 § 997. Under Municipal By-laws — Local Statutes. — The general power of municipal corporations to enact by-laws was considered in the early part of this volume.? Under authority expressly conferred by the legislature, by-laws are sometimes enacted restricting the sale of intoxicating liquor; and in the absence of special reasons, they are held to be constitutional.? But the by-law, to be good, must follow the legislative authority. Thus, if a statute gives to a town the power to prohibit tip- pling houses or dram-shops, a by-law which forbids the sale of intoxicating drinks in any quantities, and for all purposes except medicinal and mechanical, is void for not pursuing the power. Moreover, as the jurisdiction of a municipal corpora . tion does not extend beyond its own local bounds, a by-law is ill which forbids the sale of beer within three miles of the corporate limits. But these provisions are so diverse, that instead of discussing them further, we shall do best simply to refer to some of the adjudications.5 Sometimes a statute something in their own constitutions to prohibit it, of entirely abolishing, or placing under restrictions, any trade or profession which they may think expe- dient. Can there be any doubt, that the legislature of Missouri might de- clare the practice of the law or medi- cine an unlawful calling, if they thought fit so to do; or that the professors of these sciences should have certain qualifications of age, length of resi- dence, moral character, &c., which in their wisdom might seem proper?” Austin v. The State, 10 Misso. 591, 593. 1 Ingram v. The State, 89 Ala. 247, 249. 2 Ante, § 18-26. 3 Falmouth v. Watson, 5 Bush, 660; Mason v. Lancaster, 4 Bush, 406; Cuthbert v. Conly, 82 Ga. 211; Bloom- ington v. Strehle, 47 Ill. 72. 4 Strauss v. Pontiac, 40 Ill. 801. 5 Camp v. The State, 27 Ala. 58; Byers v. Olney, 16 Ill. 85; Goddard v. Jacksonville, 15 Ill. 588; The State v. Clark, 8 Fost. N. H. 176; Heisembrit- tle v. City Council, 2 McMullan, 283 ; The State v. Columbia, 6 Rich. 404; Aberdeen v. Saunderson, 8 Sm. & M. 663; Bogart v. New Albany, 1 Smith, Ind. 38; Clintonville v. Keeting, 4 Denio, 841; City Council v. Ahrens, 4 609 § 999 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. of the State regulates the matter in the particular municipal locality. § 998. Michigan. — The Constitution of Michigan provides, that “the legislature shall not pass any act authorizing the grant of license for the sale of ardent spirits, or other intox- icating liquors.” And, in considering a recent statute, the court observed: “ The legislature were prohibited from enact- ing any law which should authorize the traffic by the ‘ grant of a license’ (which is a permission or authority to do that thing); but it cannot be doubted that it was competent to regulate and even prohibit it by law. This law [the one under consideration] does not authorize any municipal author- ities to grant a license for such traffic. It assumes the traffic is hazardous to the morals and to the best interests of society, and therefore only grants immunities from fines which are denounced against offenders, upon the condition of providing adequate security for compensation to those who may suffer from an unbridled and iniquitous exercise of the right.” ? III. The License. § 999. General Doctrine — Corruptly refusing — Appeal. — None of the statutes absolutely prohibit the sale under all cir- cumstances and for all purposes. But the circumstances and purposes permissible differ greatly in the different States, and in the same State at different times. As a doctrine pretty general in this country, the license may be granted or with- held by the licensing power at its discretion.? There is a Strob. 241 ; Morris v. Rome, 10 Ga. 582; Commonwealth, 8 B. Monr. 379; Hill The State v. Hogan, 10 Fost. N. H. 268; Markle v. Akron, 14 Ohio, 586 ; Louisville v. Kean, 18 B. Monr. 9; The State v. Neeper, 3 Greene, Iowa, 337 ; Harris v. Livingston, 28 Ala. 577; St. Paul v. Troyer, 3 Minn. 291; Chastain v, Calhoun, 29 Ga. 333; Gardner v. The State, 20 Ill. 480; Pekin v. Smel- zel, 21 Ill. 464; Megowan v. Common- wealth, 2 Met. Ky. 3; Mayor v. Hus- sey, 21 Ga. 80; Brooklyn v. Toynbee, 31 Barb. 282; Thompson v. Mt. Ver- non, 11 Ohio State, 688. 1 Indianapolis v. Fairchild, 1 Ind. 815, Smith, Ind. 122; Chevalier v. 610 v. Commissioners, 22 Ga. 203; Am- brose v. The State, 6 Ind. 351; McRae v. Wessell, 6 Ire. 158 ; McCuen v. The State, 19 Ark. 680 ; Levy v. The State, 6 Ind. 281. See also Crim. Law, 5th ed. I. § 1068. 2 Langley v. Ergensinger, 8 Mich. 314, opinion by Wing, J. 3°Ex parte Yeager, 11 Grat. 655; Leigh v. Westervelt, 2 Duer, 618; Reg. v. Bristol, 28 Eng. L. & Eq. 291, 24 Law J.n.s. M. C. 43,1 Jur. n. s. 873; People v. Morton, 7 Barb. 477; Attor- ney-General v. Justices, 5 Ire. 315; Reg. v. Harris, 2 Ld. Raym. 1802; CHAP. XLII. | LIQUOR SELLING — THE LAW. § 1000 State or two wherein, by reason of the peculiar language of the statute, the officer must act whenever the grounds of action are furnished to him.! Also there are States in which an appeal may be taken from the decision of the licensing power.2 But generally there is no appeal, though, by force of the common law applicable under all circumstances, minis- terial officers corruptly refusing or granting licenses may be indicted therefor,’ as in other cases of corruption.* § 1000. What is a License — When deemed to be granted. — The license must be in due legal form ;® and a certificate that one is licensed, is not a license;® neither is a parol license sufficient, where the statute requires it to be in writing.” But on points like these the statutes of the particular State should be consulted. Thus, by construction of the Indiana enact- ments, when the order for issuing the license has been made, and the license fee has been paid, and the person licensed has filed his bond, he is thereby protected as to subsequent sales, though the formal issuing of the instrument of license has been neglected. And undoubtedly, if the power which gives the license omits to make up a proper record, or omits all record, of its proceeding, the omission, reprehensible though it is, does not impair the license.® Rex v. Austin, 8 Mod. 309; Louisville v. Kean, 18 B. Monr. 9; Raleigh v. Kane, 2 Jones, N. C. 288; The State v. Holt County Court, 39 Misso. 521. 1 The State v. The Justices, 15 Ga. 408 ; Dougherty v. Commonwealth, 14 B. Monr. 289. See People v. Perry, 13 Barb. 206; Sights v. Yarnalls, 12 Grat. 292; Reg. v. Sylvester, 2B. & S. 322. 2 Ex parte Dunn, 14 Ind. 122 ; Dra- pert v. The State, 14 Ind. 123. 3 People v. Norton, 7 Barb. 477; Rex v. Holland, 1 T. R. 692. And see Attorney-General v. Justices, 5 Ire. 315. 4 Crim. Law, 5th ed. I. § 459 et seq. ; II. § 971 et seq. 5 See The State v. Shaw, 32 Maine, 570; Pope v. The State, 2 Swan, Tenn. 611. ®§ Commonwealth v. Spring, 19 Pick. 896. 7 Lawrence v. Gracy, 11 Johns. 179; The State v. Moore, 14 N. H. 451. 8 Houser v. The State, 18 Ind. 106. So in Arkansas, although, when a per- son is granted a license, and has paid for it, it is not proper to begin retailing before the clerk has issued the license, a jury is justified in finding the agent of such person not guilty of a criminal violation of the statute by so selling. The State v. White, 23 Ark. 275. In Texas, a license will take effect from’ the time when the applicant produces to the clerk of the county court the county treasurer’s receipt for the tax imposed by law in such case, and not from the time when the county court acted upon the application. Brown v. The State, 27 Texas, 335. 9 Foster v. Dow, 29 Maine, 442 611 § 1002 [BOOK Vv. OFFENCES MORE PURELY STATUTORY. § 1001. Relating back — Subsequent Legislation — Unduly. granted — Informally. — A license cannot relate back, so as to legalize an illegal sale already made.! This doctrine comes from the fact, that the licensing power does not possess also the power of pardon. A person who has a license is bound by any subsequent legislation on the subject; to which, there- fore, he must conform.? If a license is unduly granted, — that is, granted contrary to law, — it does not protect the holder.2 If, however, it is merely informally granted, the result is otherwise.* § 1002. Unduly issued, continued — (Other Points, in Note). — Under a statute of Maine, which authorized the establish- ment, by towns, of agencies for the sale of intoxicating liquor, and which provided further, “that no agent shall have any interest in such liquor, or in the profits of the sales thereof,” the court held such an agent, appointed with the understand- ing that he should own the liquor and have the profits for his compensation, to be unprotected by this license in respect of his sales ; because the transaction was contrary to the statute, and because there can, in the whose duty it is to do business points may be seen in the cases 1 The State v. Hughes, 24 Misso. 147 ; Edwards v. The State, 22 Ark. 253. In a South Carolina case the doctrine was laid down, that a license to retail spirituous liquors, from a day past, is a release of penalties incurred subsequently to the date of the license ; the court observing: “ The city coun- cil must be regarded as having waived or released their right of action for the penalty, as it was competent for them to do.” Charleston v. Corleis, 2 Bai- ley, 186. In a later South Carolina case it was held, that a license by the city council of Charleston, after suit commenced for a penalty, is no release of the penalty (City Ord. 224), although it takes effect from a day before, and covers the offence. But there was a special provision in the ordinance mak- ing this so. And Whitner, J. observed : “ We think the cause presented is pre- cisely as though this part of the ordi- 612 nature of things, be no agent on his own account.> Other cited below.® nance had been incorporated in the license.” Charleston v. Schmidt, 11 Rich. 348, 346. 2 The State v. Fairfield, 87 Maine, 517; Hirn v. The State, 1 Ohio State, 15; The State v. Holmes, 88 N. H. 226. See Foster v. Dow, 29 Maine, 442; Han- nibal v. Guyott, 18 Misso. 515; The State v. Andrews, 26 Misso. 171; The State v. Andrews, 28 Misso. 14, 19. 3 The State v. Moore, 1 Jones, N. C. 276; House v. The State, 41 Missis. ‘737; Thompson v. Harvey, 4 Hurl. & N. 254. Ark. 688. 4 Commonwealth v. Graves, 18 B. Monr. 38; Goff v. Fowler, 3 Pick. 300. But see Crutz v. The State, 4 Ind. 3865. And see Nathan v. Bloomington, 46 Il. 347. 5 The State v. Putnam, 88 Maine, 296. 6 Sights v. Yarnells, 12 Grat 292; And see Ex parte Cox, 19 CHAP. XLII. ] LIQUOR ‘SELLING — THE LAW. § 1004 § 1003. Effect of License — As to Places and Persons, &c. — The individual licensed can sell only in the place, to the persons, in the quantities, within the time, and according to the manner pointed out in the license and in the law under which it is given.1 If he does otherwise, the license affords him no protection.2 And it usually authorizes merely the selling in one place.? § 1004. Continued — Assignment — Sales by Clerk or Agent — Partner.— The sale may be made by the licensee either personally or by his agent,‘ and it is even held that the licensee may carry on the business by agent; but the license cannot be assigned, so as to give to the assignee any authority under it. Therefore, according to the better doctrine, if the licensee takes in a partner, this partner cannot sell under the license; because the effect of the partnership is to authorize the several partners to exercise an independent discretion concerning the business, a partner differing herein from a mere agent or servant or clerk. The license, in its very nature, is a special trust to the particular person, reposed in him on account of Aulanier v. Governor, 1 Texas, 653; Hannibal v. Guyott, 18 Misso. 515; The State v. Estabrook, 6 Ala. 653; Commonwealth v. Luck, 2 B. Monr. 296; Woods v. Pratt, 5 Blackf. 377; The State v. Wynne, 1 Hawks, 451; The State v. Kennedy, 1 Ala. 81; Commonwealth v. Voorhies, 12 B. Monr. 361; Parsley v. Hutchins, 2 Jones, N. C. 159; Redpath v. Notting- ham, 5 Blackf. 267 ; McGowen v. Deyo, 8 Barb. 340; Orvis v. Thompson, 1 Johns. 500; Furman v. Knapp, 19 Johns. 248; Floyd v. Commissioners, 14 Ga. 354; Commonwealth v. Kamp, 14 B. Monr. 385; The State v. Ger- hardt, 3 Jones, N. C. 178; The State v. Cloud, 6 Ala. 628. 1 Adams v. Hackett, 7 Fost. N. H. 289; Commonwealth v. Markoe, 17 Pick. 465 ; Benson v. Moore, 15 Wend. 260; The State v. Fredericks, 16 Misso. 382; Lambert v. The State, 8 Misso. 492; Disbrow v. Saunders, 1 Denio, 149; Page v. The State, 11 Ala. 849; Commonwealth v. Hall, 8 Grat. 588; The State v. Prettyman, 3 Har- ring. Del. 570; The State v. Wood- ward, 34 Maine, 298; The State v. Ambs, 20 Misso. 214 ; Independence v. Noland, 21 Misso. 394; Curd v. Com- monwealth, 14 B. Monr. 386. See Ma- bry v. Bullock, 7 Dana, 337. 2 The State v. Perkins, 6 Fost. N. H. 9; Commonwealth v. Thayer, 8 Met. 523; Commonwealth v. Jordan, 18 Pick. 228; The State v. Keen, 34 Maine, 500; The State v. Putnam, 38 Maine, 296; The State v. Parks, 29 Vt. 70. And see Reg. v. Knapp, 2 Ellis & B. 447, 22 Eng. L. & Eq. 157. 3 The State v. Walker, 16 Maine, 241; The State v. Prettyman, 8 Har- ring. Del. 570. 4 See post, § 1024. 5 Thompson v. The State, 37 Ala. 151; The State v. McNeely, Winston, No. 1, 284. 6 Alger v. Weston, 14 Johns. 231; Lewis v. United States, 1 Morris, 199; Commonwealth v. Bryan, 9 Dana, 310; Godfrey v. The State, 5 Blackf. 151. 613 OFFENCES MORE PURELY STATUTORY. § 1005 [BOOK V. some real or supposed individual fitness.1_ There are, however, some Kentucky cases which seem to go far toward the doctrine, that one partner may sell under a license to another ;? there is also a case in which the further opinion appears to have been entertained, that any licensed man may protect any other man selling under his license, if the first has a general super- intendence of the business, conducted in the licensed place, though the second purchases and sells the liquor on his own account., But, even here, the business must be controlled by the licensee himself. A license to two men as partners will authorize one of them to sell after the other has retired from the business.® § 1005. Conviction not a License — Forfeiture of License. — Tf one sells without a license, a conviction for such unlawful selling will not authorize a further selling without license.§ Under some of the statutes, a licensed person, by committing an offence against the terms of his license, forfeits it, on con- viction, as one of the penalties. In like manner, he may forfeit his bond.7 In some States, the court has power to suspend a license; and in Kentucky it was held, that such a suspension, without summoning the party to appear and show cause against it, is void.® 1 Long v. The State, 27 Ala. 32, in which case the court, by Rice, J. ob- served: “We concede that a license may be granted to a partnership, upon a compliance with the law by its mem- bers. No greater amount would have to be paid for such license than for a license to a single individual. Yet, before it could lawfully be granted, it would be necessary that each member of the firm should produce the prescribed recommendation, and take and sub- scribe the prescribed affidavit. We also concede, that, when a license has been granted to an individual, he may exercise the privilege it confers by his clerk or agent ; for the acts of his clerk or agent are, in law, his acts, and noth- ing more. The clerk or agent is en- tirely under the control and superin- tendence of the principal. But one partner is not the mere clerk, or mere agent, of his copartner, nor entirely 614 under his control or superintendence. Each partner has rights and powers, and is subject to responsibilities, which do not attach nor appertain to a mere clerk or agent.” p. 36. 2 Barns v. Commonwealth, 2 Dana, 388 ; Gray v. Commonwealth, 9 Dana, 800. See Maine v. Davis, 23 Maine, 403; Commonwealth v. Hall, 8 Grat. 588. 3 Duncan v. Commonwealth, 2 B. Monr. 281. * Commonwealth v. Branamon, 8 B. Monr. 874. 5 The State v. Gerhardt, 3 Jones, N. C. 178, ® The State v. McBride, 4 McCord, 382. 7 Lightner v. Casey, Pa. 341. 8 Plummer ». Bush, 26. Commonwealth, 7 Commonwealth, 1 CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 1008 § 1006. License being refusea. — If the licensing power re- fuses a license to a particular person,! or refuses to license any person,” still no man is authorized on this account to sell, whether the refusal is right or wrong? In like manner, if there is no officer to receive applications for license, this cir- cumstance does not justify sales by unlicensed individuals.* IV. Meanings of some Statutory Words. § 1007. General View — “Intoxicating Liquor” — “ Spiritu- ous.” — It is not best to expand greatly the discussion under this sub-title, and only general hints, or a bare citation of authorities, can be given as to some of the words. Liquor, to be “ intoxicating,” need not be spirituous. Thus, ale is not “ spirituous liquor ;” > but strong beer and ale have been held to be “ intoxicating.” ® Of course, gin is intoxicating, though it is also “ spirituous.” * Some of the New York judges con- sidered the word “beer” alone to imply, that it be intoxi- cating.6 In some of the States, the meaning of this class of words is defined by statutes.2 According to an Indiana de- cision, the court does not judicially know that wine is not intoxicating, therefore it will not question the power of the legislature to declare it to be so.1° § 1008. “Strong Liquor.” — The New York court has divided on the meaning of these words. Thus, a statute of this State having made punishable any person who “shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without,’ &c., the majority of the court 1 City Council v. Hollenback, 8 Gray, 514. In Commonwealth v. Her- Strob. 855; Indianapolis v. Fairchild, 1 Ind. 315; The State v. Downer, 21 Wis. 274. 2 The State vy. Jamison, 23 Misso. 830; Commonwealth v. Blackington, 24 Pick. 852; Garner v. The State, 8 Blackf. 568; New York v. Mason, 4 E. D. Smith, 142. 3 Commonwealth v. Blackington, 24 Pick. 352. # Lord v. Jones, 24 Maine, 439. 5 Walker v. Prescott, 44 N. H. 511. 6 People v. Hawley, 3 Mich. 330; Markle v. Akron, 14 Ohio, 586, 591. 7 Commonwealth v. Peckham, 2 rick, 6 Cush. 465, Shaw, C.J. observed: “The word ‘intoxicating’ includes a larger class of cases than ‘spirituous.’ They bear the relation to each other of genus and species ; all spirituous liquors are intoxicating; but all intoxicating liquors are not spirituous.” 8 People v. Wheelock, 3 Parker, 9. 9 The State v. Lemp, 16 Misso. 389; The State v. Wittmar, 12 Misso. 407; Commonwealth v. Giles, 1 Gray, 466 ; Commonwealth v. Timothy, 8 Gray, 480. 10 Jackson v. The State, 19 Ind. 312. 615 § 1011 OFFENCES MORE PURELY STATUTORY. [BOOK V. held, that strong beer is “strong liquor” within the inhibi- tion. Said Welles, J.: ‘It seems to me that but one safe and sensible line of distinction can be drawn between the different kinds of liquor containing alcohol, in order to determine upon which of them the statute was intended to operate; and that is, between those which are capable of causing intoxication, and those containing so small a percentage of alcohol that the human stomach cannot contain sufficient of the liquor to produce that effect; as is said to be the case with respect to spruce beer, ginger beer, lager beer, and some others.” 1 And in other cases a like division on this question appears; though it is agreed that small beer is not strong liquor.” § 1009. “Spirituous Liquor.” — These words do not include wine and other fermented liquor; for they imply that the beverage is composed in part or fully of alcohol, extracted by distillation. A statute of Delaware prohibits the sale, with- out license, of “any wine, rum, brandy, gin, whiskey, or any spirituous liquor, by any measure less than a quart, or any punch or other mixed liquor by any measure whatever,” and the majority of the court held, that peppermint cordial, made of whiskey sweetened and scented, comes properly under the words spirituous liquor. And liquor obtained by running the beer through the still once is ‘spirituous liquor.” ® § 1010. “Liquor.” — A statute in North Carolina provided, that “no keeper of an inn, tavern, or ordinary, or retailer of liquors by the small measure, shall sell to any person on a credit liquors to a greater amount than ten dollars,” &c.; and it was held that champagne wine is included under the word “ liquors.” & § 1011. Other Words. — We have in these statutes various other words, which have been passed upon by the courts; but they do not require specific elucidation here. Some of them 1 Tompkins County v. Taylor, 21 4 The State v. Bennet, 8 Harring. N. Y. 178, 178. Del. 565. See post, § 1020 note. See, 2 Nevin v. Ladue, 3 Denio, 43; s.c. as to an analogous question, Smith v. 8 Denio, 487; People v. Crilley, 20 The State, 19 Conn. 498. Barb. 246. 5 The State v. Summey, Winston, 3 Caswell v. The State, 2 Humph. No. 2, 108. 402; The State v. Moore, 5 Blackf. 6 Kizer v. Randleman, 5 Jones, N.C. 118. See Smith v. The State, 19 Conn. 428. 493. 616 CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 1018 are explained in the earlier part of this volume. They are “ distiller,” 1 “ manufacturer,’ ? ‘“‘ merchant,” > “ plantation,” 4 “ refreshment saloon,” ® “ premises,” ® “ furnishing,” ™ “ publie house,’ ® “ dwelling-house,”® “ store,” ‘ shop.” Statutes formerly existed against selling to ‘“ slaves” ™ and “ negroes,” ? and do now against selling to “‘ minors and servants,” ® and “common drunkards ;” 4 but these do not claim any special exposition. Some other words will be explained under our next sub-title; and, of still others, explanations may be found in other parts of this volume by consulting the Index. V. Expositions of the Main Provisions. § 1012. General View — Scope of the Discussion. — The words of the statutes, and even the scope of their provisions, are so diverse, that all which can be done to advantage under this sub-title will be to bring under review some leading doc- trines and leading provisions, and close with a citation of various cases adjudged in the different States. § 1013. The “Sale” — A sale is not constituted by a mere agreement to sell: © there must be a delivery of the liquor.!* But the payment need not be actually made; for a sale on credit is within the prohibition of selling, though the law would not enforce the payment.” And if the particular drink is adul- 1 Ante, § 278. 2 Commonwealth v. Bralley, 3 Gray, 456. 3 Commonwealth v. McGeorge, 9 B. Monr. 3; Cole v. Commonwealth, 8 Dana, 31. 4 Ante, § 800; Sanderlin v. The State, 2 Humph. 3815. 5 The State v. Hogan, 10 Fost. N. H. 268. 6 Ante, § 291, note; Downman »v. The State, 14 Ala. 242; Swan v. The State, 11 Ala. 594. 7 The State v. Freeman, 27 Vt. 520. 8 Brown v. The State, 27 Ala. 47. And see ante, § 297-299. 9 Ante, § 277 et seq.; Common- wealth v. Estabrook, 10 Pick. 293. 10 Ante, § 294, 295; Barth v. The State, 18 Conn. 482. 1l Bond v. The State, 13 Sm. & M. 40 265; Commonwealth v. Hatton, 15 B. Monr. 5387; The State v. Bradshaw, 2 Swan, Tenn. 627 ; Powell v. The State, 27 Ala. 51; Boltze v. The State, 24 Ala. 89; Johnson v. Commonwealth, 12 Grat. 714; The State v. McNair, 1 Jones, N. C. 180. 22 The State v. Sonnerkalb, 2 Nott & McCord, 280. 13 The State v. Fairfield, 37 Maine, 517. 14 Barnes v. The State, 19 Conn. 898; Miller v. The State, 3 Ohio State, 475; Smith v. The State, 19 Conn. 493. And see Maxwell v. The State, 27 Ala. 660. 15 Banchor v. Warren, 33 N. H. 183. 16 Pulse v. The State, 5 Humph. 108. 7 Emerson v. Noble, 32 Maine, 380; Commonwealth v. Burns, 8 Gray, 482. A delivery and receipt of intoxicating 617 § 1013 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. . terated, or mixed with other ingredients, known or unknown, and sold under another name, still the act is a sale of the drink.!_ The courts will not suffer a defendant to escape the charge of selling, by resorting to any artifice, where, in fact, a sale is made.? And if the vender receives money from the purchaser, apparently for some other article, and actually delivers the other article, parting with his property therein, yet delivers also the forbidden liquor, he sells the liquor.? So where the selling of less than a quart of liquor at a time was forbidden; and the purchaser contracted for a quart, but had it delivered in pints at two different times, the transaction was held to comprise two sales of a pint each.* But in this case, the quart attempted to be sold in the first instance was not then separated from the vender’s unsold liquor, neither was it delivered to the purchaser: if these things had been done, and if, also, the jury had not found any intention to violate the statute, the case would have shown simply a sale of a quart. But it seems to have been considered, that, even then, if the transaction was but colorable, and the intent was differ- ent from what appeared, the sale would be indictable under liquors, as payment for a service per- formed, is a sale, within the meaning of the statutes prohibiting the unlawful sale of such liquors. Mason v. Lothrop, 7 Gray, 354. And see Commonwealth v. Rumrill, 1 Gray, 388. 1 Commonwealth v. Bathrick, 6 Cush. 247; The State v. Stanton, 37 Conn. 421, 428. See Russell v. Sloan, 33 Vt. 656. 2 « The court said, the law prohibited the sale of any kind of spirituous liquor by the small; or of any mixed liquor whatever. The law pointed at the fact, and did not regard the mode or manner of sale. No device of striped pig, or other contrivance which ingenuity has resorted to in order to circumvent the law, will avail, if the main fact be proved; if, in fact, the transaction amount to a purchase and sale of liquor. In Kent county an ingenious, but worthless woman, set up a stall to give away liquor, and sell cigars at a~ price which would compensate for the liquor ; in that case it was left to the 618 jury to say, whether it was in the con- templation of the parties by the pur- chase of cigars to pay for the liquor ; and the jury convicted the defendant of a violation of this law.” The State v. Redden, 5 Harring. Del. 505. 3 Commonwealth v. Thayer, 8 Met. 525. And see New Gloucester v. Bridg- ham, 28 Maine, 60. It is a question of fact for the jury, whether the giving away of liquor by a grocer, with a view to increase his custom for groceries, is a mere device to evade the liquor law, and within § 9. Kober v. The State, 10 Ohio State, 444. Handing the liquor to a person who asks for it, is not the only method by which a sale may be made. Kimball v. People, 20 Ill. 348. And see The State v. Hopkins, 4 Jones, N. C. 805; The State v. Wright, 4 Jones, N. C. 308. \ 4 Murphy v. The State, 1 Ind. 866, Smith, Ind. 261; The State v. Kirk- ham, 1 Ire. 884; s. ep. Thomas v. The State, 87 Missis. 353. CHAP. XLII. | LIQUOR SELLING — THE LAW. § 1014 the prohibition of the statute. The giving away of liquor is not a selling of it.2 Neither is it a sale for a physician to administer liquor to a patient as a medicine.® § 1014. Continuea — Barter. — Among the various devices which may be resorted to by persons seeking to evade these statutes, is that of bartering away, instead of selling, the in- toxicating liquor. A sale, in point of strict law, is not con- stituted by a mere barter exchange of one thing for another, where there is no money value set upon either of the articles. Thus, in Alabama, a statute having provided that, if any person, ‘‘ being a negro-trader, broker, or agent for the sale of slaves, sedis, offers, or exposes for sale, any slave, without first obtaining a license therefor, he is guilty of a misde- meanor,” &c., the court, in a civil suit growing out of a trans- action of the general kind pointed to by the statute, held, that a negro-trader did not violate the statute if he, without license, simply gave another person one hundred dollars in money and two negroes in exchange for two negroes received from this person, there being no money value set upon any of the negroes. If the negroes which were paid in conjunction with the one hundred dollars, or the negroes received, had been estimated at a money value, the transaction would have been deemed to be within the statute. How far this doctrine is applicable in these liquor cases may be a question ; because, assuming the doctrine to be correct, as applied by the Alabama court to the exchange of the slaves, it is yet apparent that in practice there must be, expressed or understood, a price for which in reality the glass of liquor is parted with. Andasa point of fact, a jury of sensible men could scarcely be persuaded that a man who was dealing out liquor to customers, to be drank by them, meant to fake, in each instance, a particular barter-trade, distinguishable from each other instance, and without any reference to any previously considered price for the liquor. And in Massachusetts it has been adjudged, that, if a distiller exchanges intoxicating liquor for grain from which 1 The State v. Kirkham, supra; The 2 Allen v. The State, 14 Texas, 633. State v. Bell, 2 Jones, N. C. 387. And 3 Schaffner v. The State, 8 Ohio see The State v. Simmons, 46 N. C. State, 642. And see pos’, § 1019. 622. 4 Gunter v. Leckey, 80 Ala. 591. 619 § 1016 OFFENCES MORE PURELY STATUTORY. [BOOK ¥. to distil such liquor, he sells the liquor. For, said the learned judge, “‘if there can be any doubt on the question whether an exchange can be deemed a sale at common law, it is quite clear that no such doubt can exist under the provisions of law upon which the indictment in the present case is founded. By Stat. 1855, c. 215, § 15, it is enacted, that, if any person ‘shall, directly or indirectly, on any pretence or by any device, sell, or in consideration of the purchase of any other property give to any person any spirituous or intoxicating liquor,’ he shall be subject to the penalties in that section provided. The intention of the legislature by this provision was manifestly to cover every case of the transfer of intoxicating liquors for value, in whatever form the consideration for such transfer might be given or paid.” } § 1015. Continued — Mortgage. — A mortgage is a sale, though upon condition. Therefore it has been held in Maine, that the mortgage of an apothecary’s stock, consisting in part of intoxicating liquors, is a sale of the liquors within the pro- hibitory laws; and, as such, is invalid.? § 1016. “Deal in the Selling” — “Retail” — “Offer to Sell” — “ Business.” — Where the words of the statute were “ shall deal in the selling, &c., in quantities of one pint or more, and less than twenty gallons,” the court held a single sale to be within the prohibition. So the word “ retail’? requires but one act of selling. But a butcher, who sells spirits in a single in- stance, is not engaged in the “ business or employment” of retailing liquor.’ A sale is not necessarily an offer to sell.® 1 Commonwealth v. Clark, 14 Gray, 867, 372, opinion by Bigelow, J. 2 Hay v. Parker, 55 Maine, 355. 3 The State v. Paddock, 24 Vt. 812; The State v. Glasgow, Dudley, S. C. 40; The State v. Bugbee, 22 Vt. 32; The State v. Chandler, 15 Vt. 425; ante, § 210. In Markle «. Akron, 14 Ohio, 586, the court were of opinion, that the word “ retail’ does not neces- sarily imply a consideration given ; but query whether this view can be main- tained. 4 The State v. Cassety, 1 Rich. 90; The State v. Mooty, 3 Hill, S. C. 187. As to what is wholesaling, and what 620 retailing, see Grosuth v. Butterfield, 2 Wis. 237 ; Harris v. Livingston, 28 Ala. 577. § Moore v. The State, 16 Ala, 411. * «Tt [the offer to sell] is not to be inferred from the mere fact of a sale, because the seller may have merely accepted an offer of a third person to purchase an article which he had no previous thought of selling, or wish to sell; and it is absurd to talk of an acceptance as an offer. They are as essentially distinct as a question and an answer.” Williams v. Tappan, 3 Fost. N. H. 885, 394. CHAP. XLI.] «LIQUOR SELLING — THE LAW. § 1018 § 1017. “Presume to be Seller.” — Where the words of the statute were, “No person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time,” — the court held the offence to be committed by a single act of unauthorized selling. But under this enactment, a sale of twenty-eight gallons in all, of different kinds of liquor, where the quantity of each kind is less than twenty-eight gallons, is held not to be prohibited. “Tf? said Shaw, C. J. “it is purchased at one time by one contract, it is as much one sale, when composed of several different kinds of spirits, as if an equal quantity of one spe- cies had been taken. It is equally in its character a wholesale dealing with a customer, who buys to sell again.” ? § 1018. “Common Seller..— The English statute of 5 & 6 Edw. 6, c. 25, § 4, provided, among other things, for the pun- ishment of those who should without license “use commonly selling of” the forbidden drinks; and later enactments em- ployed the same words. In this country, some of the statutes make a distinct offence of being a “common seller,” without license. And, to establish the offence of being a common seller, three specific acts of sale must be shown, perhaps in connection with other evidence. The sales need not be to three distinct persons ;‘ if all are to one, the effect is the same.5 They may be all in one day ® or evening ;7 or on dif- ferent days.6 These three sales do not themselves constitute 1 Commonwealth v. Dean, 21 Pick. 834; R. S. c. 47, § 3. 2 Browne v. Hilton, 23 Pick. 319. 3 Comnionwealth v. Tubbs, 1 Cush. 2; Commonwealth v. Odin, 23 Pick. 275; The State v. Day, 37 Maine, 244. By a more recent statute in Massachu- setts, three acts of sale are declared sufficient to constitute the offence of being a common seller. Common- wealth v. Kirk, 7 Gray, 496 ; Common- wealth v. Barker, 14 Gray, 412; Com- monwealth v. Hogan, 97 Mass. 120. See Commonwealth v. Mahony, 14 Gray, 46; Commonwealth v. Boyden, 14 Gray, 101. Evidence of three trans- actions with delivery, sales, and pur- chase distinct from one another, al- though at a single visit of the pur- chasers, and in pursuance of a precon- certed plan to obtain evidence against the liquor-seller, is competent proof of three sales. Commonwealth v. Graves, 97 Mass. 114.*: As to Maine, see The State v. O’Conner, 49 Maine, 594. 4 Commonwealth v. Tubbs, supra. 5 Commonwealth v. Odin, 23 Pick. 275, 278. 6 Commonwealth v. Perley, 2 Cush. 559. : 7 Commonwealth v. Rumrill, 1 Gray; 388. 8 The State v. Day, 37 Maine, 244. 621 § 1019 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. the offence, of which they are rather the evidence ;? but, though other evidence may be introduced, this cannot be dis- pensed with. “No statute, and no rule of common law,” said a learned judge, “has precisely determined what shall constitute a person a common seller.” ® In matter of evi- dence additional to the proof of the three specific sales, the defendant may be shown to have a place fitted up for selling, and to be on the premises ready to sell; while still other sur- rounding facts of the like import are admissible.* § 1019. Necessary Medicinal Use.— There are some stat- utes which, in one form of words or another, except from their penalties sales by particular persons, as by druggists, when made for medicinal use Now, undoubtedly, if there is, in a particular State, a statute of this sort, or if in any way there is a specific provision made for the sale of the forbidden liquor as a medicine, no exception of the thing which the statutory law has thus expressly excepted, can be engrafted upon a pro- hibitory clause by construction, so as to allow a sale for medi- cinal use by a person not expressly authorized to sell for such use. But,if there is no such exceptive provision, then, in reason, since all things bend to considerations of human life and human health, even to the extent which authorizes one to take the life of another to save his own, the legislature must be presumed not to have intended to overturn this primary law of life and health, but to have left the necessity of saving life and of curing the sick to operate as an implied exception to the general terms of the statute. Or, we may presume, that the law-makers had in mind the distinction between medicine and drink; and, when they forbade the sale of a particular kind of “ drink” or “liquor,” they did not intend to prohibit the sale of medicine necessary to save life and restore the sick to health, even thotigh the medicine should happen to be com- posed of the same ingredients as the drink. Now, though the Georgia court has very properly held that whiskey is not a 1 The State v. Maher, 35 Maine, 4+ Commonwealth v. Tubbs, supra. 225; The State v. Coombs, 32 Maine, 5 Haynie v. The State, 32 Missis. 400; 529. See post, § 1027. Henwood v. The State, 41 Missis. 579; 2 Commonwealth v. Tubbs, 1 Cush.2. The State v. Mitchell, 28 Misso. 562 ; ® Shaw, C. J. in Commonwealth v. The State v. Wells, 28 Misso. 565. Odlin, 23 Pick. 275, 278. 622 CHAP. XLIII.] LIQUOR SELLING — THE LAW. § 1020 “drug,” 1 most people, and, among them, those whose views lead them to promote temperance laws, deem it to be, under some circumstances, a medicine. Indeed, it is because intoxi- cating liquor is regarded as a medicine or a mechanical agent, and not a drink, that laws restraining the sale of the “ drink ” are enacted. § 1020. Continued. — Coming now more directly to the ques- tion as one of judicial authority, we saw, in the earlier part of this volume,? that statutes of a criminal nature are to be so construed as not to subject to punishment any person who does not violate their spirit as well as their letter. And on this ground it is by some courts held, that, if one in good faith sells without license liquor to be used merely for a necessary medi- cinal purpose, he does not violate the statute, though his act is contrary to its letter. Other courts maintain the contrary doctrine. In Missouri, it has been laid down, in the words of Gamble, J. that, “if a physician upon his professional judg- ment that a sick person needs brandy, administers it to him as a medicine, in good faith, and charges ‘or it, he is not to be punished ; because such liquor, properly used, is a valuable medicine. But if he sells it to a man who is well, or sells it to aman who is not well, without exercising his professional judgment, and determining that it is necessary for the sick person, he is indictable.” ® The question is one of difficulty, especially when it presents itself under a mixed aspect of necessity and common business; but, on the whole, the true method seems to be to look at the spirit of the restraining provision, and, where a sale is under circumstances which remove it out of the mischief meant to be remedied by the enactment, to hold it not to be punishable. The doctrine has been laid down, that, if liquor is purchased for medicinal use, unknown to the seller, still, as it was not sold for such use, 1 Gault v. The State, 84 Ga. 533. 24 Pick. 366; The State v. Chandler, 2 Ante, § 231, 232. 15 Vt. 425; Gault v. The State, 34 Ga. 3 Ante, § 238; Donnell v. The State, 633. See People v. Safford, 5 Denio, 2 Ind. 658; The State v. Adamson, 14 112. Ind. 236 ; Thomasson v. The State, 15 5 The State v. Larrimore, 19 Misso. Ind. 449. 391. See also Commonwealth v. Kim- 4 Ante, § 238; The State v. Brown, ball, 24 Pick. 366, 369; The State v. 31 Maine, 522; Commonwealth v. Sloan, Hall, 39 Maine, 107; Struble v. Nod- 4 Cush. 52; Commonwealth v. Kimball, wift, 11 Ind. 64; ante, § 1013. 623 § 1021 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. the sale is indictable.! And this distinction seems highly just. If the buyer merely said he wanted the liquor for a medicine, while he did not in fact, and the seller did not believe he did, this is no justification even under a statute expressly permit- ting the sale for medicinal use.? Probably, if, where the prohibition is general, the liquor forms an ingredient in a medicine, which is sold in good faith? as such, all the courts will hold the sale not to be within the prohibition ; but the tribunal in Maine decided, that, if a physician sells the liquor and then the other medicinal ingredicnt, and the two are com- pounded by the purchaser in the presence of the seller, the sale of the liquor is nevertheless within the prohibition of the statute.t § 1021. Selling to Minors, and the Like — Mistake of Fact — The Intent. — If, according to just doctrine, as held by some courts,® and as it would be held by most ona careful considera- tion of the question, a statute forbids the sale to minors, and the seller, using due care, is deceived, and really believes that the person to whom he sells is of age, while the fact is other- wise, he does not commit the offence. For example, in Indi- ana ‘“ the statute,” as the court observed, “ prohibits the sale of liquor toa minor, and authorizes the sale to adults.” Un- der this it is held, that, primd facie, the knowledge of the seller ‘Leppert v. The State, 7 Ind. 300. 2 McGuire v. The State, 37 Missis. 369. But if, in such a case, the sale is in good faith, though some of the liquor is actu- ally used for drink, the person selling is not punishable. The State v. Mitchell, 28 Misso. 562. brandy made into laudanum or other medicines, it is not a violation of the law prohibiting the sale of spirituous liquor. It will never be difficult to distinguish.” Opinion by Layton, J. According to a Vermont case, the stat- ute does not apply to medicinal prepa- 3 See ante, § 1013. 4 The State v. Hall, 89 Maine, 107. And see The State v. Chandler, 15 Vt. 425. In The State v. Bennet, 3 Har- ring. Del. 565, see ante, § 1009, the eourt observed: ‘It has been urged, that this construction will prohibit the sale of medicines, the basis of which is spirituous liquors, such as Godfrey’s cordial, elixir, paregoric, &c. Not so. The question will always be, whether it i3 a sale of medicine, or of liquor. If an apothecary sell brandy, as such, it would be a violation of the law; if 624 rations in which alcohol is used in quantities capable of producing intox- ication, such as bitters, tinctures, &c., which are in good faith made and sold for medicinal purposes. But, if intox- icating liquor is sold intended to be used as a beverage, though disguised to have the taste, flavor, or appearance of medicine, the act of selling is within the statutory prohibition. Russell v. Sloan, 33 Vt. 656. 5 Farbach v. The State, 24 Ind. 77; Rineman v. The State, 24 Ind. 80, 85 ; Brown v. The State, 24 Ind. 113. CHAP. XLIII.] LIQUOR SELLING — THE LAW. § 1021 must be presumed to accord with the fact; yet he may show in his justification, that, the person being unknown to him, he looked like or represented himself to be an adult, or that the person’s family or the community treated him as of age. Of course, to make such a defence available, the defendant must have acted in good faith, and with due care and caution. And where this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is done is such as would be proper and just were the fact what it is thus hon- ‘estly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of fact is as universal an excuse for what would otherwise be a criminal act as insanity? And itis a universal rule in the interpretation of criminal statutes, that, where an expression is general in terms, it must be taken with such limitations and exceptions as the principles of the unwritten law have estab- lished ; to justify a different interpretation, the statute must be specific, and name the particular thing in respect of which there is to be a departure from this fundamental rule.? Thus, a statute forbidding or making penal a thing in general terms, does not justify the punishing of an insane person who com- mits the act, or a child under seven years old, or a sane person of mature years who does the forbidden thing under a compul- sion which he cannot resist; or, as we have just seen, who does it from a pure mind under a mistake of facts which he cannot overcome. These are exceptions engrafted upon the statute by the common law; and, if the courts did not reeog- nize this effect of the common law to modify the general terms, courts and statutes would alike be abated — and they ought to be—as public nuisances, by the uprising of the popular instinct.* 1 The State v. Kalb, 14 Ind. 408. 360, 362, 364, 596, 681, 632, 664, 665, 2 Crim. Law, 5th ed. I. § 301 et 730, 805, 806, 820-825. seq. 3 4 See the places referred to in the 3 Ante, § 7, 73, 82, 88, 119,128, 131- preceding note for discussions of the 144, 155, 156, 165, 196, 197, 231, 8351- whole subject. 625 § 1022 OFFENCES MORE PURELY STATUTORY. [BOOK v. § 1022. Continued. — We have already traced the course of an extraordinary, exceptional departure from this doctrine by the Massachusetts court.!_ It began by an adjudication that a woman, acting under an honest mistake of facts, committed a statutory felony, when, if the facts had been what she believed them to be, her act would have been in every way legal and proper. Afterward, a man was held to be guilty of a felony under the like circumstances. From felony to misdemeanor the slide was easy; and so the like doctrine was applied to misdemeanors. It would be more just to send to prison, or impoverish by a fine, a person admitted to be insane ; because an insane person could not so keenly feel the wrong, or be so indignant at the injustice inflicted, or do so much damage to the state if his instincts should impel him to appeal to the moral sentiment of mankind. And to deal thus with an insane person would be no wider a departure from the established principles of the criminal law, than it is to deal thus with a sane man or woman whose honest act is prompted by a mistake of facts of a sort not to be guarded against. Indeed, the vio- lence done to the law is precisely the same in the one instance asin the other. But, as the author had occasion to observe in another connection, not only are commercial courts, sitting in our large cities, with little or no real acquaintance with the criminal law, liable to misjudge in criminal cases, but their decisions are the most apt of all to be followed without exam- ination by judges sitting in those parts of the country where criminal law is studied and known, who, if they were not misled, would see for themselves the true path. Accordingly in Wisconsin, where the criminal law appears to be generally well administered, the court, following the Massachusetts decisions and citing no other, has held, that, in the circum- stances mentioned in the last section, the sale to a minor, who has the appearance of being of age and represents himself to be so, is equally an offence as though the seller were under no mistake of the facts.? 1 Ante, § 356-358. 6 Bush, 400, appears also to be of the % Crim. Proced. 2d ed. II. § 604. like sort, but it is too briefly reported 3 The State v. Hartfiel, 24 Wis. 60. to enable one to say with certainty. The case of Ulrich v. Commonwealth, And see, as perhaps having some bear- 626 CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 1024 § 1023. Intent, continued. — Where there is no mistake of fact, it is sufficient, in condemnation of a defendant, that he intended to do the specific thing which the law forbids; it being no excuse for him that he deemed it to be right.t § 1024. agent — Principal — Sales by Agent. —It is not necessary, in order to constitute the offence of selling liquor contrary to these statutes, that the person making the sale should own the liquor, or should have from the owner author- ity to sell it.? ing on this question, on the one side or the other, Stanley v. The State, 26 Ala. 26; Smith v. The State, 24 Texas, 547; Dickins v. The State, 30 Ga. 888; Miller v. The State, 5 Ohio State, 275 ; Emery v. Kempton, 2 Gray, 257 ; Commonwealth v. Goodman, 97 Mass. 117. In the above case of The State v. Hartfiel, the learned chief justice ob- served: “ The authorities cited [that is, the Massachusetts cases] are to the effect that, where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without cul- pability, ignorance of the fact, or state of things contemplated by the statute, will not excuse its violation. ... The act in question is a police regulation, and we have no doubt that the legislature intended to inflict the penalty, irre- spective of the knowledge or motives of the person who has violated its pro- visions. Indeed, if this were not so, it is plain that the statute might be violated times without number, with no possibility of convicting offenders, and so it would become a dead letter on the statute book, and the evil aimed at by the legislature remain almost wholly untouched. To guard against such results, the legislature has, in effect, provided, that the saloon keeper, or other vendor of intoxicating liquors or drinks, must know the facts — must know that the person to whom he sells is a qualified drinker, within the meaning of the statute; and, ‘if not, he acts at his peril in disobeying the requirements of the law.” p. 61, 62. Now we have seen (ante, § 356-358), Yet, on the other hand, if a person not owning that the Massachusetts doctrine, which the Wisconsin court thus understood itself as copying, has nothing in par- ticular to do with police regulations, but it extends to felonies. Doubtless it would not be held to extend to all felonies ; for error is seldom or never consistent with itself. But the term- ing of a statute, by the court, a “ po- lice regulation,” cannot change its nature. The objection that the statute could not be enforced if interpreted in accordance with the fundamental prin- ciples of our jurisprudence is plainly without foundation. England, for ex- ample, is a country in which the laws are made effective; yet this Massachu- setts and Wisconsin doctrine was never heard of there. But in every commu- nity, and especially in our States, laws are best enforced when by a just inter- pretation they are made to commend themselves to the public conscience, so that the public approval will go step by step with the ministers of the law. And no blows are ever dealt against law and its obedience so deadly as those which fall from the judicial hand, when, by interpretation, men are con- demned, whether to fine, imprisonment, or death, in cases where it is admitted their acts were well meant, and were lawful according to the facts as under- stood by them. 1 The State v. Presnell, 12 Ire. 103. See also The State v. Cassety, 1 Rich. 90; Gilbert v. Hendricks, 2 Brev. 161. 2 The State v. Wadsworth, 30 Conn. 55; Commonwealth v. Williams, 4 Al- len, 587; The State v. Finan, 10 lowa, 19. 627 § 1024 OFFENCES MORE PURELY STATUTORY. [BOOK v. it has the authority to sell it, in other words, if he acts as clerk or servant to the owner, — this fact does not excuse him, but he is equally guilty as though he proceeded on his own motion and for his own profit; because no man can authorize another to violate the law.1_ Moreover, it being a doctrine of the law, that whatever a man does through an agent or servant or clerk, whether (in a case which is not felony) he is himself absent or present, may be understood in law as done by him- self; therefore, where a sale is authorized by the owner and is made by an agent, the principal is indictable in the same manner as if his own hand performed the act.2_ In this way he may be holden criminally in the place where the act of sale or other act in violation of the law is performed, though his personal presence is even in another State or country. The agent, as just observed, is also responsible personally, the same as if he violated the law on his own account, or for his own profit. And a wife may be guilty by selling as the agent of her husband, in his absence.6 In like manner, the un- authorized sale, by one partner, of liquor belonging to the firm, may, at the election of the power which prosecutes, be under some circumstances deemed a sale by all the individual partners. In all these cases, if the person sought to be charged really did not give authority, in any way, direct or indirect, or participate in the profits of the transaction, or suffer his will to concur therein, the principles discussed in the last four sections, and in “1 The State v. Matthis, 1 Hill, S. C. 87; The State v. Wiggin, 20 N. H. 449; Winter v. The State, 30 Ala. 22. 2 Crim. Law, 5th ed. I. § 564, 628-633, 678, 677; Commonwealth v. Park, 1 Gray, 553; Thompson v. The State, 5 Humph. 188; Commonwealth v. Major, 6 Dana, 293 ; Commonwealth v. Nichols, 10 Met. 259 ; Schmidt v. The State, 14 Misso. 137; The State v. Brown, 3L Maine, 520; The State v. Stewart, 81 Maine, 615; The State v. Dow, 21 Vt. 484; The State v. Cas- well, 2 Humph. 899. 3 Crim. Law, 5th ed. I. § 110- 116. 628 the work on the Criminal Law, 4 Crim. Law, 5th ed. I. § 355, 657, 658 ; Schmidt v. The State, 14 Misso. 137 ; Hays v. The State, 13 Misso. 246 ; The State v. Bryant, 14 Misso. 840; The State v. Bugbee, 22 Vt. 82 ; Com- monwealth v. Hadley, 11 Met. 66 ; Rob- erts v. O’Conner, 83 Maine, 496; The State v. Caswell, 2 Humph. 399; The State v. Dow, 21 Vt. 484; French v. People, 8 Parker, 114. 5 The State v. Haines, 35 N. H. 207 ; Geening v. The State, 1 McCord, 573. 6 Smith v. Adrian, 1 Mich. 495; The State v. Neal, 7 Fost. N. H. 181; Whit- ton v. The State, 37 Missis. 879. CHAP. XLII. | LIQUOR SELLING — THE LAW. § 1026 show, that he cannot be holden.! On the other hand, where the principal is protected by a license, it protects also the agent.” § 1025. Husband and Wife. — While, as just observed, a wife may be guilty where she sells as the agent of her husband, there are, on the other hand, circumstances in which the guilt will be the husband’s alone; as, where she sells in his presence, and by his command, according to principles discussed else- where.? If he is absent, and the sale is without his consent, expressed or implied, she alone is criminally liable ;4 but if, he being absent, she sells by his direction, both are responsible, and, if the prosecuting power pleases, the two may be indicted jointly. The recent statutes, which in most of our States have been enacted, securing to married women more ample rights of property than they had at the common law, do not affect the criminal responsibilities of the parties in these cases of liquor selling.6 Therefore, if a married woman owns the liquors and the business independently of her husband, and he makes the sales,’ or she makes them in his presence and by his direction,® he is indictable. § 1026. The Punishment. — The general question of the pun- ishment in such cases, and the particular question whether the penalty for a joint sale should be imposed on the defend- ants severally or jointly, were sufficiently discussed in the work on the Criminal Law.? 1 Crim. Law, 5th ed. I. § 218-221, 628-634; Barnes v. The State, 19 Conn. 398; Commonwealth v. Nichols, 10 Met. 259; The State v. Borgman, 2 Nott & McCord, 84, note; The State v. Bohles, 1 Rice, 145, 147; Lauer v. The State, 14 Ind. 131. 2 Pickens v. The State, 20 Ind. 116. 3 Crim. Law, 5th ed. I. § 356 et seq. 4 Pennybaker v. The State, 2 Blackf. 484; Commonwealth v. Murphy, 2 Gray, 510; The State v. Collins, 1 McCord, 855. 5 Commonwealth v. Hamor, 8 Grat. 698 ; Commonwealth v. Tryon, 99 Mass. 442. 6 Commonwealth v. Gannon, 97 Mass. There are some points, con- 547; Commonwealth v. Welch, 97 Mass. 598. . 7 Commissioners of Excise v. Dough- erty, 55 Barb. 382. 8 Mulvey v. The State, 48 Ala. 316. 5 Crim. Law, 5th ed. I. § 940, 958. And see Lincolnton v. McCarter, Bus- bee, 429; Black v. McGilvery, 88 Maine, 287; Tuttle v. Commonwealth, 2 Gray, 505; Estes v. The State, 2 Humph. 496 ; Ingersoll v. Skinner, 1 Denio, 540; Washburn v. McInroy, 7 Johns. 1384; People v. Brown, 16 Wend. 561; Barth v. The State, 18 Conn. 482; Com- monwealth v. Harris, 7 Grat. 600; Tra- cy v. Perry, 5 N. H. 504; Harris v. Commonwealth, 28 Pick. 280. 629 § 1027 OFFENCES MORE PURELY STATUTORY. [BOOK V. cerning the punishment, of a nature local to particular States, and so not requiring an explanation at large.t § 1027. Divisions of the Act — Election —- Former Prosecu- tion. — The questions suggested by these words were all dis- cussed somewhat in the work on the Criminal Law. The party offending may be held for any crime which can be carved out of his conduct, at the election of the prosecutor.2 But whether he can then be proceeded against under another clause of the statute also, may under some circumstances he a question of difficulty. We saw, in that work,? that, if one is convicted of being a common seller, the three acts of sale relied on cannot afterward, according to some views, be sev- erally prosecuted as distinct sales, under a clause providing a penalty for each sale, while, according to other views, they may be; and they may be if there is an acquittal instead of a conviction.4 So, in Rhode Island, it has been held, that to keep liquor for sale, and to sell it, are two separate offences ; and a jeopardy for one of them is not a bar to a conviction for the other.6 And one may be found guilty of the common nuisance of keeping a disorderly house, by selling liquor without a license, and convicted likewise of the several offences of making the specific sales,° or of being a common seller.’ Where specific acts of selling are indictable, the conviction for one sale does not bar the prosecution for an- other, made prior to the one to which the conviction relates. And, where a sale is made by a clerk, a conviction of the principal is no defence to a subsequent prosecution against the clerk for the same sale.® The courts, indeed, have gone 1 Taunton v. Sproat, 2 Gray, 428; Crosby v. Snow, 16 Maine, 121; Miller v. The State, 3 Ohio State, 475; John- son v. People, Breese, 276; Mertz’s Case, 8 Watts & S. 874. 2 Crim. Law, 5th ed. I. § 791; Mil- ler v. The State, 3 Ohio State, 475. And see Henry v. Commonwealth, 9 B. Monr. 361; Frasier v. The State, 6 Misso. 195. 3 Crim. Law, 5th ed. I. § 1054, 1065. 4 The State v. Coombs, 32 Maine, 529; The State v. Maher, 35 Maine, 225; The State v. Johnson, 3 R. I. 94. 630 See Wilson v. Commonwealth, 12 B. Monr. 2; People v. Safford, 5 Denio, 112. 5 The State v. Head, 8 R. I. 135, 6 The State v. Williams, 1 Vroom, 102. 7 The State v. Inness, 58 Maine, 586. 8 The State v. Ainsworth, 11 Vt. 91; The State v. Cassety, 1 Rich. 90. For other points, see People v. Stevens, 18 Wend. 341; Miller v. The State, 3 Ohio Sta‘e, 475. 9 The State v. Finan, 10 Iowa, 19. CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 1030 a great way to sustain successive prosecutions in these cases for the same act; and, while a part of the decisions under this head are unquestionably right in principle, others are plainly wrong. § 1028. Felony or Misdemeanor. — There are probably no statutes which have undertaken to elevate this offence to a higher degree than misdemeanor. § 1029. Abetting the Offence.— But we saw, in the work on the Criminal Law, that some of the usual consequences of misdemeanor are held not to attach to some offences known by this name, by reason of their peculiar nature or smallness of magnitude. And, among these offences, is this one of liquor selling. Thus, it is held by most courts, that the person who entices the seller by buying is not therefore jointly indictable with him.? But it is deemed not best to enter into the discussion here. § 1030. Civil Consequences. — There are some civil conse- quences growing out of the criminal inhibitions discussed in this chapter, and as incident to them. It is not best to ex- amine these civil consequences minutely here. But since no court will extend its relief to a plaintiff who himself violated the law in the same transaction on which he founds his com- plaint against the defendant, it follows, that one who sells on credit intoxicating liquor contrary to a statute can maintain no suit for the recovery of the price of it. And the same rule applies to services rendered about the business of unlawful selling. Even if a promissory note has been given, this note cannot be collected at law.2 This rule does not prevent the enforcement of any other distinct and unconnected contract between the parties, though made at the same time.* Buta Dumas, 21 Vt. 456; Chase v., Burk- holder, 6 Harris, Pa. 48; Adams »v. Hackett, 7 Fost. N. H. 289; Lewis ve. Welch, 14 N. H. 294. And see Maybry ! The Vermont court has expressly held this offence to be misdemeanor. The State v. Comings, 28 Vt. 508. 2 Crim. Law, 5th ed. I. § 657, 658, 761; Commonwealth v. Willard, 22 Pick. 476 ; Hill v. Spear, 50 N. H. 254 ; Commonwealth v. Williams, 4+ Allen, 587. 3 Briggs v. Campbell, 25 Vt. 704; Vannoy v. Patton, 5 B. Monr. 248; Smith v. Joyce, 12 Barb. 21; Turck v. Richmond, 13 Barb. 583; Bancroft v. v. Bullock, 7 Dana, 887 ; New Glouces- ter v. Bridgham, 28 Maine, 60; Foster ve. Thurston, 11 Cush. 822; Solomon v. Dreschler, 4 Minn. 278; Timson v. Moulton, 8 Cush. 269. 4 Chase v. Burkholder, 6 Harris, Pa. 48. And see Buck v. Albee, 27 Vt. 190. 631 [BOOK v. § 1032 OFFENCES MORE PURELY STATUTORY. man who sold all his stock of goods at once to another was held not entitled to maintain an action against the other for any of the money to be paid, where a part of the articles sold consisted of intoxicating liquor.1 Some nice questions arise where a part of the transaction is in a State in which it is lawful, and a part in a State in which it is unlawful; but a simple reference to some of the authorities will be sufficient on this head.? One who has sold spirituous liquors in violation of a statute cannot recover in replevin against a sheriff, and attaching creditors of the vendee, on the ground that, the sale being void, he is entitled to the possession.? If a sale has been made contrary to a statute, the subsequent repeal of the statute will not so operate retrospectively as to enable the vendor to recover the price.* § 1031. Continuea.— In some of the States, the statute, in words, prohibits any recovery for the price of the liquor. Under this prohibition various questions have arisen, the discussion of which does not come within the purpose of the present volume; so the reader is merely referred to a few of the adjudications. Some of the adjudications, as cited in the note, are illustrative merely, having proceeded on those enactments which do not contain this express clause.® § 1032. Points of Local Nature — Authorities cited. — There 1 Ladd v. Dillingham, 34 Maine, 316. 3 Marienthal v. Shafer, 6 Iowa, 223. Where the sale of liquors is unlawful, no recovery can be had for them, or for the casks in which they were con- tained, and which were purchased only for the purpose of facilitating the illegal transaction,‘or for the freight or cartage of the liquors from the shop of the vendor to the place of business of the vendee, in furtherance and completion of the sale; there being, in the facts of the case, but w single contract be- tween the parties. Bliss v. Brainard, 41 N. H. 256. 2 Hill v. Spear, 50 N. H. 258; Con- verse v. Foster, 32 Vt. 828; Carter v. Clark, 28 Conn. 512; Buckman v. Mus- sey, 31 Vt. 547; Harrison v. Nichols, 81 Vt. 709; Gaylord v. Soragen, 82 Vt. 110; Finch v. Mansfield, 97 Mass. 89. 682 * Hathaway v. Moran, 44 Maine, 67. 5 Carlton v. Bailey, 7 Fost. N. H. 230; Breck v. Adams, 3 Gray, 569; Sullivan v. Park, 33 Maine, 488 ; Towle v. Blake, 88 Maine, 528; Cochrane »v. Clough, 88 Maine, 25; Emerson v. No- ble, 832 Maine, 880; Webber v. Wil- liams, 86 Maine, 512; Territt v. Bart- lett, 21 Vt. 184; Gassett v. Godfrey, 6 Fost. N. H. 415; Orcutt v. Nelson, 1 Gray, 536 ; Fisher v. McGirr, 1 Gray, 1; Lord uv. Chadbourne, 42 Maine, 429; Gray v. Kimball, 42 Maine, 299; Dear- born v. Hoit, 41 Maine, 120; Dunbar v. Mulry, 8 Gray, 168 ; Barnard v. Field, 46 Maine, 526 ; Foxcroft v. Crooker, 40 Maine, 308; Charlton v. Donnell, 100 Mass. 229; Aiken v. Blaisdell, 41 Vt. 655. CHAP. XLII. ] LIQUOR SELLING — THE LAW. § 1032 are some other points under these enactments; but they are chiefly so local to particular States that the only practical method is to refer to some decisions in which they are dis- cussed, and thus leave the subject.! 1 Alabama. Smith v. The State, 22 Ala. 54; Lodano v. The State, 25 Ala. 64; Holt v. School Commissioners, 29 Ala. 451. Arkansas. Ramsey v. The State, 6 Eng. 365. Illinois. Sullivan v. People, 15 Il. 238; Bennett v. People, 16 Ill. 160; Zarresseller v. People, 17 Ill. 101. Indiana. The State v. Turner, 5 Blackf. 253; Cable v. The State, 8 Blackf. 581; Place v. The State, 8 Blackf. 319; Sloan v. The State, 8 Blackf. 8361; Cheezem v. The State, 2 Ind. 149; King v. The State, 2 Ind. 528; Thompson v. Bassett, 5 Ind. 586 ; Hanning v. The State, 6 Ind. 482; Brosee v. The State, 5 Ind. 75; How- ard v. The State, 5 Ind. 188; Rust v. The State, 4 Ind. 528; Cassett v. The State, 9 Ind. 87; The State v. O’Con- ner, 4 Ind. 299; Rosenbaum v. The State, 4 Ind. 599; Leyner v. The State, 8 Ind. 490. lJowa. Rogers v. Alexander, 2 Greene, Towa, 443. Kentucky. Lawson v. Commonwealth, 14 B. Monr. 225. Maryland. Brown v. The State, 12. Wheat. 419; Bode v. The State, 7 Gill, 826. Massachusetts. Commonwealth v. Od- lin, 23 Pick. 275; Harris v. Common- wealth, 23 Pick. 280; Commonwealth v. Herrick, 6 Cush. 465; Common- wealth v. Bralley, 8 Gray, 456. Maine. Foster v. Haines, 13 Maine, 307; The State v. Davis, 23 Maine, 403; The State v. Gurney, 33 Maine, 41 527; Parsons v. Bridgham, 34 Maine, 240; The State v. Tibbetts, 836 Maine, 553; Black v. McGilvery, 38 Maine, 287. Maryland. Keller v. The State, 11 Md. 525. Michigan. People v. Hart, 1 Mich. 467; Smith v. Adrian, 1 Mich. 495. Mississippi. Brittain v. Bethany, 31 Missis. 831. Missouri. Bledsoe v. The State, 10 Misso. 388. New Hampshire. The State v. Per- kins, 6 Fost. N. H. 9. New York Wright v. Smith, 18 Barb. 414; Andrews v. Harrington, 19 Barb. 843; Wynehamer v. People, 2 Parker, 877, 20 Barb. 567; People v. Quant, 2 Parker, 410; Van Zant v. People, 2 Parker, 168; People v. Page, 8 Parker, 600. North Carolina. The State v. Plunk- ett, 1 Ire. 115; Lincolnton v. McCarter, Busbee, 429; The State v. Hix, 3 Dev. 116. Ohio. Hirn v. The State, 1 Ohio State, 15; Miller v. The State, 3 Ohio State, 475. South Carolina. The State v. Mooty, 3 Hill, S. C. 187; The State v. Evans, 8 Hill, S. C. 190; The State v. Cham- blyss, Cheves, 220; Commissioners v. Dennis, Cheves, 229. Tennessee. Dyer v. The State, Meigs, 237 ; Campbell v. The State, 3 Humph. 9; The State v. Eskridge, 1 Swan, Tenn. 413. Virginia. Clemmons v. wealth, 6 Rand. 681. Common- 633 § 1035 OFFENCES MORE PURELY STATUTORY. [BooK Vv. CHAPTER XLIV. ; SELLING INTOXICATING LIQUOR — THE PROCEDURE. § 1033. General View — Scope of the Discussion. — Having considered somewhat minutely the law of the offence in the last chapter, we shall do best, in treating of the procedure in the present, simply to present a few forms of the indictment, and a statement of some of the adjudged points. The statutes affecting the procedure are so various, and so much entangled with things of a local nature, that it will hardly compensate us to extend greatly, in the present connection, these general elucidations. § 1034. Form of Indictment for Selling, &c. — If a statute makes it punishable for an unlicensed person to sell a quan- tity, less than so much, of a particular kind of intoxicating liquor, the indictment may be drawn as follows : — That A, late of, &., on, &., at, &c., not being then and there a person licensed to sell intoxicating liquor, did sell to one B a certain quantity less than [so much], to wit, one gill, of a certain kind of intoxicating liquor, to wit, whiskey ; against the peace of the said State, and contrary to the form of the statute in such case made and provided.! § 1035. Common Seller — Statute and Form.— A statute in Massachusetts provided, that “‘ no person shall be allowed to be a manufacturer of any spirituous or intoxicating liquors for sale, or a common seller thereof, without being duly ap- pointed or authorized as aforesaid, on pain of forfeiting, on the first conviction, &. And three several sales of spirit- uous or intoxicating liquors, either to different persons or to ! See also Commonwealth v. Eaton, 9 Pick. 165; Commonwealth v. Hart, 11 Cush. 130; Miller v. The State, 3 Ohio State, 475; Kern v. The State, 7 Ohio State, 411; Kliffield v. The State, 4 How. Missis. 304; The State v. Maicus, 20 Ark. 201; Common- wealth v. Odlin, 28 Pick. 275; The State v. Williamson, 19 Misso. 384; 6384 Commonwealth v. Wilcox, 1 Cush. 503; The State v. Lane, 38 Maine, 536; Commonwealth v. White, 18 B. Monr. 492; Commonwealth v. Macu- boy, 3 Dana, 70; McCuen v. The State, 19 Ark. 630; Burch v. Republic, 1 Texas, 608;* The State v. Cox, 29 Misso. 4.5. CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1036 the same person, shall be sufficient to constitute a violation of this section ; and delivery in or from any store, shop, warehouse, steamboat, or other vessel, or any vehicle of any kind, or any building or place other than a dwelling-house, shall be deemed prima facie evidence of a sale; and a delivery in or froma dwelling-house, with payment or promise of payment, either express or implied, on, before, or after such delivery, shall be held to constitute a sale within the meaning of this act, &., &c., provided, that nothing in this act shall be construed to pre- vent the manufacture or sale of cider for other purposes than that of a beverage; or the sale and use of the fruit of the vine for the commemoration of the Lord’s Supper.” + So much of this one section is here given, in order that the reader may practically see what parts of a statute it is not necessary to cover by the allegations of an indictment. Upon this statute, the following form, for being a common seller, has been ad- judged sufficient : — “That A, &e., at, &e., on, &c., and from that day to the day of finding this indictment, was, without being duly authdérized and appointed thereto according to law, a common seller of spirituous and intoxicating liquors, and mixed liquors, part of which were spirituous and intoxicating, contrary,” &c.? It is perceived that this form is a little more extended- than necessary; hence it may be reduced to read as follows: — That A, &c., at, &c., on, &c., and from that day to the day of the finding of this indictment, was a common seller of spirituous and intoxicating liquors, with- out being duly appointed or authorized thereto * according to law, against, &c. § 1036. Views as to the Form of the Indictment : — Must satisfy Constitutional Requirements. — In many of our States, there has not only been legislation of a general sort abolishing, or attempting to abolish, more or less of the com- mon-law rules regulating indictments in general, but in par- ticular regulating indictments for this offence. We have already seen,‘ that such statutes are sometimes found to be 1 Mass. Stat. 1852, c. 822, § 12. 3 For the reason of this change in 2 Commonwealth v. Kendall, 12 the form of the negative averment, see Cush. 414. And see The State v. Cot- post, § 1043; though the other form tle, 15 Maine, 473; The State v. Stin- has been held, in this instance, to be son, 17 Maine, 154; Commonwealth v. adequate. Post, § 1042. Leonard, 8 Met. 529. * Ante, § 870. 6385 § 1036 OFFENCES MORE PURELY STATUTORY. [BooK v. unconstitutional and void; rendering it necessary, notwith- standing the statute, to comply with the rules of the common law. Thus, for a further illustration, in Alabama, an enact- ment forbidding the sale of liquor to minors, pupils, &c. is in the following words: “Any person who keeps fermented, vinous, or spirituous liquors for sale, whether a licensed retailer or not, and who sells, gives, or delivers any such liquors to any minor, apprentice, student, or pupil of any school, academy, or college, or to any person for the use of any minor, apprentice, student, or pupil, knowing the use for which it was intended, without the consent of the parent, guardian, master, or other person having the legal charge of such minor, apprentice, student or pupil, must, on conviction, be,” &c. And the following indictment, which conformed in substance to what a statute had pointed out as sufficient, was still held to be inadequate: “ That, before the finding of this indictment, Luther Byran, a person keeping vinous or spirit- uous liquors for sale, unlawfully sold, gave, or delivered to one John A. Lowe, a minor, vinous or spirituous liquor, without the consent of the parent, guardian, or the person having the control of the said John A. Lowe, contrary,” &c. Peck, C. J. in delivering the opinion of the court, observed: ‘ Where a statute creates a new offence unknown to the common law, and describes the constituents necessary to constitute the offence, an indictment under the statute must conform to the description thus given. That is not done in this case. One of the important and necessary elements of the offence created by the section of the Revised Code referred to is, that the liquor must be sold, given, or delivered to the minor with- out the consent of the parent, guardian, master, or other per- son having the degal charge of such minor. In the indictment, as well as in the form given in the appendix [to the Code], the word master, and also the word legal, in reference to the person having the charge of the minor, are omitted. This makes the offence described in the indictment and in the form essentially different from the offence described in the statute. These omissions are not defects of form merely, but of sub- stance. If the word ‘ master’ may be omitted, for the same reason the words parent and guardian may be omitted also; 636 CHAP. XLIV.| LIQUOR SELLING — THE PROCEDURE. § 1037 and the omission of the word ‘legal,’ in the connection in which it is used, and for the purpose for which it is used in the statute, destroys the character of the charge required to be had of the minor by the person whose consent may justify the accused in selling, giving, or delivering vinous or spirit- uous liquor to him. To hold that these, or other words used in the statute as descriptive of the offence, may be omitted in the indictment because they are not in the form given in the appendix, will be to set up the form above the statute. This should not be done. Therefore an indictment that strictly pursues the form will be insufficient, if the form is defective in matter of substance. This opinion is not in conflict with any of the cases heretofore decided by this court, in which it is held, that an indictment in the form given in the appendix of the Code is sufficient; because, in none of these cases, does the form used omit any statement or word required to make out any material ingredient in the descrip- tion of the offence charged.” ! § 1037. Name of Person to whom Sale is made. — According to decisions in some of our States, it is not necessary for the indictment to mention the name of the person to whom the liquor is sold ;2 while, on the other hand, if the case is that of a single sale, this averment is, in other States, held to be essential when the name is known, or when it is not known, the fact of its being unknown to the jurors should be stated.® The decisions on the one side and the other of this question are not far from equal in number; and, on both sides, they 1 Byran v. The State, 45 Ala. 86, 87, 88. 2 The State v. Spain, 29 Misso. 415 ; The State v. Munger, 15 Vt. 290; Hul- stead v. Commonwealth, 5 Leigh, 724; The State v. Parnell, 16 Ark. 506; People v. Adams, 17 Wend. 475; Can- nady v. People, 17 Ill. 158 ; McCuen v. The State, 19 Ark. 680; Green v. Peo- ple, 21 Ill. 125; The State v. Ladd, 15 Misso. 430, overruling Neales v. The State, 10 Misso. 489; The State v. Muse, 4 Dev. & Bat. 319; The State v. Blelby, 21 Wis. 204; The State v. Gummer, 22 Wis. 441; The State »v. Spain, 29 Misso. 415; Commonwealth v. Dove, 2 Va. Cas. 26. 8 Capritz vu. The State, 1 Md. 569; The State v. Faucett, 4 Dev. & Bat. 107; Dorman v. The State, 34 Ala. 216; The State v. Walker, 3 Harring. Del. 547; The State v. Jackson,. 4 Blackf. 49. And see Commonwealth v. Cook, 18 B. Monr. 149; The State v. Carter, 7 Humph. 158 ; Commonwealth v. Smith, 1 Grat. 553; The State v. Stinson, 17 Maine, 154; Commonwealth v. Blood, 4 Gray, 31; The State v. Nutwell, 1 Gill, 54. 687 § 1037 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. seem to be supported by a considerable weight of reasoning. In Iowa, the statute provided, that, “if any person by himself, his clerk, servant, or agent, shall, for himself, or any person else, directly or indirectly, on any pretence, or by any device, sell, or, in consideration of the purchase of any other property, give, to any other person, any intoxicating liquors, he shall be deemed guilty of a misdemeanor,” &. And it was deemed that the form of words here employed was such as to require the alle- gation of the name of the purchaser. ‘If,’ said Miller, J. “any one of the material facts going to make up the offence be left out of the information, it fails to charge an offence, and no judgment can be rendered thereon upon a verdict of guilty. That the sale was made to some ‘ other person’ is as material as that the thing sold was intoxicating liquor.” 1 Under stat- utes otherwise drawn, the ground on which the name is re- quired, if at all, is because it is a method of identifying the offence, and of giving the defendant the necessary means of meeting the charge made against him.2_ Therefore it was with great force laid down in South Carolina, that an indictment charging the defendant with unlawfully selling ‘“ spirituous liquors, that is to say, in quantities less than three gallons, he then and there not having any license,” &c., without specifica- tion of any person to whom the sale was made, or of any other identifying circumstance, is bad.2 Undoubtedly, however, there are cases in which the identification may be made suffi- ciently clear to satisfy the demands of legal principle without the name.4 Where the charge is that of being a common 1 The State v. Allen, 82 Iowa, 491, rial to constitute it. The question is 493. simply one of pleading, whether cer- 2 Ante, § 373. 3 The State v. Steedman, 8 Rich. 312. And see The State v. Cox, 29 Misso. 475. 4 Perhaps the leading case on the side that it is not necessary to allege the name of the person to whom the sale was made, is People v. Adams, 17 Wend. 475. In this case, Nelson, C. J. observed: “ The offence upon the stat- ute consists in the act of selling the spirituous liquors without the license ; and therefore the designation of the persons to whom sold is no way mate- 638 tainty to a common intent requires the names of the persons to be given to whom the liquor was sold. The prece- dents appear to be all the other way. Our statutes on this subject appear to correspond, substantially, with the Eng- lish acts of Parliament, and were un- doubtedly taken from them, forbidding the sale of ‘distilled spirituous liquors, or strong water,’ as will be seen from a collection of them in 2 Burn Just. 185 and onward. 4 Wentworth, 504, con- tains the form of an information upon these statutes, for selling without li- CHAP. XLIV. LIQUOR SELLING — THE PROCEDURE. § 1037 seller,! the names of persons to whom specific sales are made need not be set out ;? for, in these cases, not even the particu- lar instances need be specified.’ cense, in which the mere act of retailing the liquor without a license is averred ; the persons to whom it was sold are not mentioned, or in any way referred to. The same remark is applicable to an information and complaint before the justices for selling ale without license. 1 Burn Just. 23, 25. There is a prece- dent in 2 Chit. Crim. Law, 484, for selling ale and beer on Sundays, in which the sale is charged as made to divers idle and ill-disposed persons, whose names to the jurors aforesaid are yet unknown. Here, though the persons are mentioned as unknown, yet, from the manner in which it is stated, it is, T think, to be inferred that the names were not deemed material, as in the precedents where they are so worded, it is indicated by the form. In 4 Went- worth, 525, a precedent is given for selling hard soap, in a shape different from that required by the statute of 24 Geo. 3, c. 48, § 14, in which the names of the persons. are not mentioned, or in any way referred to. The case is strictly analogous to the one under consideration, so far as respects the question involved. The precedents are clearly with the pleader in this ease; and, upon a question the decision of which depends so much upon the opinion of the court as to what amounts to certainty to a common intent, these afford perhaps as safe a guide as can be found.” p. 477. The Mississippi court followed this case, and many other collected authorities on the same side, in an able opinion by Tarbell, J. in Riley v. The State, 43 Missis. 397. It is difficult, perhaps impossible, to 1 Ante, § 1018. 2 Commonwealth v. Hart, 11 Cush. 180; Commonwealth v. Wilcox, 1 Cush. 503; The State v. Cottle, 15 Maine, 473. settle a question like this by an appeal to principle; but, if such an appeal were to be made, the writer would say, that, according to the principles of both law and natural justice, the par- ticular transaction, where, by the stat- ute, the transaction is a specific one, should be pointed to by the indictment. One of the methods of doing this, where the offence consists in a single specific sale, is to name the person to whom the sale was made. That would seem to be a natural method, and a fair one. But there may be others. Thus, it was well laid down in Texas, that an indictment for selling spirituous liquors without license should state at what house or establishment, or to whom, the vending took place, or some other fact tending to identify the trans- action ; otherwise the ob/ec ion is fatal on demurrer. Burch v. Republic, 1 Texas, 608. In this case, Wheeler, J. illustrated the doctrine thus: ‘‘ Where a statute, for instance, makes the ma- licious killing of cattle a felony, it is not enough in an indictment on the statute, to charge the defendant with killing ‘cattle’ generally, but the particular species of cattle must be stated. And where a statute makes it a crime for any person, by any false pretence, to obtain from another any money, &c., with intent to cheat or defraud any person, it is not sufficient to charge the offender with being guilty of ‘false pretences’ generally, but the particular pretences must be set forth, according to the truth of the case, and also, that the money, &c., obtained was the property of the person whom it was 3 Commonwealth v. Pray, 18 Pick. 359 ; Commonwealth v. Odlin, 23 Pick. 275. See, as to a different form of the provision, Commonwealth v. Thurlow, 24 Pick. 374. 639 § 1039 OFFENCES MORE PURELY STATUTORY. [BOOK V. § 1038. Name of Liquor. — If the statute prohibits, by name, the sale of particular kinds of liquor, which it mentions, the better doctrine is, that the indictment must in some form em- ploy the name in describing the liquor. Still, this is not necessary in all the States, and under all forms of the law. And where the statutory words are “intoxicating liquor,” the indictment is good if it uses the same words, without specify- ing the kind of liquor.’ If, then, such a statute in another part provides, that ‘cider,’ for example, shall be deemed intoxicating liquor within the meaning of this act, sales of unfermented cider may be indicted and punished as sales of “ intoxicating liquor.” 4 § 1039. Quantity.— The statutes are so diverse, that there can be and is no one certain rule as to alleging the quantity of the liquor sold. Of course, if, by the statute, the offence is made to consist in selling a less quantity than so much, the indictment must in some way bring the alleged fact within the statutory definition of the offence. In Massachusetts, a statute having fixed the quantity within fifteen gallons, an indictment was held to be good which alleged that the defendant “ did sell spirituous: liquors in a less quantity than fifteen gallons and that delivered and carried away all at one time, to wit, two quarts of spirituous liquor.” ® Yet, where the allegation was intended to defraud ; who that person was ; and from whom the money was so obtained.” p.610. And see Alex- ander v. The State, 29 Texas, 495. It appears to be the doctrine of a Virginia case, that the name of the person to whom the liquor is sold need not be given; but, if it is, the allegation must be proved as laid. Commonwealth v. Taggart, 8 Grat. 697. See, however, Hulstead v. Commonwealth, 5 Leigh, 724, In Arkansas, it is not necessary to allege or prove the kind or quantity of liquor sold, or the name of the per- son to whom the sale was made; but, if the kind or quantity is alleged under a videlicet, the allegation may be re- jected as surplusage. McCuen v. The State, 19 Ark. 630. 1 The State v. Fox, 1 Harrison, 152. 640 2 The State v. Mullinix, 6 Blackf. 554; Fetterer v. The State, 18 Ind. 388 ; Downey v. The State, 20 Ind. §2; The State v. Carpenter, 20 Ind. 219. 3 Commonwealth v. Conant, 6 Gray, 482; Commonwealth v. Ryan, 9 Gray, 137; The State v. Blaisdell, 33 N. H. 388. 4 Commonwealth v. Dean, 14 Gray, 99. 5 Commonwealth v. Pearson, 23 Pick. 280, note. And see The State v. Ar- bogast, 24 Misso. 863; The State v. Paddock, 24 Vt. 812; Redding v. Com- monwealth, 3 B. Monr. 339; Haskill v. Commonwealth, 3 B. Monr. 342. In Tennessee, a presentment that the de- fendant cn, &c., “did unlawfully sell, vend, and retail spirituous liquors, to wit, whiskey, to one M. and divers CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1040 simply, that the defendant sold “ one pint,” this was held to be bad; because, as the court viewed it, the pint might have been a part of a larger quantity, and so this did not amount to an allegation of a sale of less than fifteen gallons. ‘“ We do not,” said Shaw, C. J. “consider that any particular form of words must be adopted; but some words must be used, which do convey to the mind the idea of a sale under fifteen gallons. Were it said, ‘less than fifteen gallons, to wit, one pint,’ or ‘ one pint and no more,’ or words equivalent, it would be sufficient. But simply averring affirmatively, that the de- fendant did sell one pint, without some words negativing a larger quantity, is not bringing the case within the statute.” ! This doctrine was affirmed in Indiana,? but afterward over- ruled in consequence of the differing provisions of the statute.? Where, by the provisions of the statute, it is immaterial what is the quantity sold, the simple allegation that it was so much, without adding that it was less than another quantity named, is adequate. The quantity sold should be mentioned,® and it should be expressed by some term known to the law; thus, in Maine, it is bad to say “ one glass of rum.’”’® So, “ one drink ” will not answer.’ On the other hand, however, in New Hamp- shire the term “‘ two glasses” was held to be good,® and in Towa “one glass.’ 9 § 1040. Price. — In some of the States, it is required even other persons, in quantities less than a quart, the said defendant not having taken out a license,” was held to be good. The State v. Young, 5 Cold. 51. The words “one gill of spirituous liquor, the same being a less quantity than one quart,” have been adjudged sufficient. Zarresseller v. People, 17 Ill. 101. 1 Commonwealth v. Odlin, 23 Pick. 275, 8. Pp. The State v. Shaw, 2 Dev. 198. 2 Struckman v. The State, 21 Ind. 160. 3 Reams v. The State, 23 Ind. 111, 113. In an earlier Indiana case, where the allegation was that the defendant sold a “ pint,” not adding that the pint sold was less than a quart, this was held to be sufficient; Stuart, J. ob- serving: “A pint is a measure as well known as a quart. The one word is quite as definite as the other. Analle- gation that a pint was less than a quart could not be more explicit, and was therefore unnecessary.” Willard v. The State, 4 Ind. 407, 408. * Commonwealth v. Brown, 12 Met. 622. 6 Hubbard v. The State, 11 Ind. 554, 6 The State v. Reed, 35 Maine, 489. 7 Cool v. The State, 16 Ind. 355. 8 The State v. Rust, 35 N. H. 438. 9 Wrocklege v. The State, 1 Iowa, 167; Hintermiester v. The State, 1 Towa, 101. 641 § 1042 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. to state the price;1 but this allegation, it is believed, is not generally deemed to be necessary.” § 1041. Other Things sold with Liquor.— If one sells the forbid- den liquor and something not forbidden together, as one trans- action and for an aggregate sum, the allegation against him may be the same as though the liquor only was sold, no mention being made of the other article. Said Dewey, J.: “ The law does not require, in such cases, a contract of sale to be set out with all the terms, conditions, and stipulations, or the precise . consideration paid for the thing purchased.” 3 § 1042. Negativing Qualifications to sell. — The rules which determine when and how exceptions, provisos, and the like, found in statutes, must be negatived in indictments upon the statutes, were considered in detail in the author’s work on Criminal Procedure,t and something on this subject has appeared in the earlier sections of the present volume.® Frequent illustrations of the rules there stated occur in indictments on liquor laws. We have seen® that these negative averments need not be so much drawn out into detail, or be so specific, as the main or affirmative ones. Yet these, like the affirmative ones, must cover the whole law to which they relate. Thus, in New Jersey, it was held to be insufficient to allege that the defendant did not obtain a “license in the manner directed by the act concerning inns and taverns ;” because, said the learned judge, “ that act does not alone prescribe the mode of obtaining license. It is in part prescribed by the act of 1820.”7 And in Massachusetts, as the law stood at one time, it was not sufficient to allege that the defendant sold “ spirituous liquor in a less quantity than twenty-eight gallons, without being first duly licensed as a retailer of wine and spirits, according to law;” because, said 1 Crim. Proced. 2d ed. I. § 514; Iowa, 19; The State v. Miller, 24 Misso. Neales v. The State, 10 Misso. 498; 582. Segur v. The State, 6 Ind. 451; Hub- 3 Commonwealth v. Thayer, 8 Met. bard v. The State, 11 Ind. 554; The 525. State v. Ladd, 15 Misso. 430. Andsee 4 Crim. Proced. 2d ed. I. § 631-642. Miles v. The State, 5 Ind. 239; Harri- 5 Ante, § 882, 605, 606. son v. Bryant, 5 Ind. 240. ® Ante, § 382. 2 Ante, § 385; Clare v. The State, 7 The State v. Webster, 5 Halst. 5 Iowa, 509; Commonwealth v. Roberts, 293. 1 Cush. 505; The State v. Finan, 10 642 CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1048 Dewey, J. “if the sale were of liquor to be drank on the prem- ises, then it might have been made by the defendant under a license as an innholder, or a common victualler ; and there is no allegation in the complaint, that the defendant was not licensed as such innholder or common victualler.”! But, where the words of the negative averment are broad enough to cover the whole law, they may be brief. Thus, “not being first duly licensed ;” &c.,? “ without then having a grocer’s license, dram-shop keeper’s license, an innkeeper’s license, or any legal authority to sell;”° “not having then and there any authority or appointment according to law to make such sale ;”’ 4 “ without having a license for that purpose, continuing in force; > “ without being duly appointed and authorized therefor;”® “without having any license, appointment, or authority therefor, first duly had and obtained according to law ;”’7 and various other phrases of the like kind,’ have sev- erally been held to be adequate. And if the affirmative alle- gation necessarily involves the required negative, it will be of itself alone sufficient.® § 1043. Continuea’— “Or.” We have seen, in other con- nections, that “‘ or” is a dangerous word to use in an indict- ment; because it may leave the allegation too indefinite or uncertain. Yet there are circumstances in which it is proper, or even necessary.° Thus, as we saw elsewhere, while “ or” is not ordinarily proper in alleging a breach of duty, it is 1 Commonwealth v. Roberts, 1 Cush. 505. See Davis v. The State, 89 Ala. 521; Neales v. The State, 10 Misso. 498; Agee v. The State, 25 Ala. 67; The State v. Haden, 15 Misso. 447; Franklin v. The State, 12 Md. 236; The State v. Blaisdell, 33 N. H. 388; Commonwealth v. Kimball, 7 Met. 304 ; The State v. Clark, 23 Vt. 293; Com- monwealth v. Baker, 10 Cush. 405. * Commonwealth v. Pray, 13 Pick. 859 ; Commonwealth v. Leonard, 8 Met. 529. 3 The State v. Hornbeak, 15 Misso. 478; The State v. Andrews, 28 Misso. 17; The State v. Owen, 15 Misso. 506 ; The State v. Sutton, 25 Misso. 300. 4 Commonwealth v. Conant, 6 Gray, 482. 5 The State v. Wishon, 15 Misso. 503. ®& Commonwealth v. Murphy, 2 Gray, 510; Commonwealth v. Roland, 12 Gray, 182; Commonwealth vc. Lafon- taine, 3 Gray, 479; Commonwealth v. McSherry, 3 Gray, 481, note; Com- monwealth v. Clapp, 5 Gray, 97 ; Com- monwealth v. Keefe, 7 Gray, 332; Com- monwealth v. Boyle, 14 Gray, 3. 7 Commonwealth v. Wilson, 11 Cush. 412; Commonwealth v. Hatcher, 6 Grat. 667. 8 Martin v. The State, 6 Humph. 204. 9 Sword v. The State, 5 Humph. 102. 10 Crim. Proced. 2d ed. I. § 434-446, 484, 585-592 ; II. § 438-440, 647 ; ante, § 795. 648 § 1048 OFFENCES MORE PURELY STATUTORY. = [BOOK V. proper in alleging a duty! This distinction has its most frequent illustration when a statute and an indictment on it are compared; the statute, setting out a duty, has the disjunc- tive “or,” and the indictment, setting out a breach of duty, employs the conjunctive ‘‘and” where “or” was used in the statute.2 But, in exceptional cases, an indictment, like a statute, may set out a duty; and then, like the statute, it employs “or.” For a like reason “or” is, as we saw in examples given in the last section,® proper in these negative averments in the indictment; indeed, the general rule may be said to be, that it is here the proper conjunction, the same as “and” is the proper conjunction in affirmative averments. Suppose, for example, there are three ways in any one of which the authority to sell may be conferred; then, if the indictment charges that the defendant had not this form of the authority, “or” that form, “or” the other form, the negation is as broad as the statute, and it is precise, definite, and certain; while the word “and,” instead of “or,’’ would make the negative averment assume a form differing from the law itself, as though the law required the authority to be in all the three methods combined. And where the negative averment is in this conjunctive form, the entire allegations of the indictment do not show an offence; for, though the defendant, when he made the sale, was destitute of the compound authority thus negatived, he might have had some one of the single forms of authority made sufficient by the statute. Thus, in Kentucky, a statute prohibits a sale to an infant “ without the written consent or request” of the father; and it has been held ill to say “‘ without the written consent and request.” Prob- 1 Crim. Proced. 2d ed. I. § 591. 2 Ib. I. § 436, 484, 586. \ 3 See also The State v. Swadley, 15 Misso. 515; People v. Gilkinson, 4 Parker C. C. 26; The State v. Burns, 20 N. H. 550; The State v. Boice, Cheves, 77. * Commonwealth v. Haderaft, 6 Bush, 91, Hardin, J. observing: “ The act defines the offence to be a sale of liquor to a minor ‘ without the written consent or request’ of the father, moth- er, or guardian of the minor; but the 644 indictment in this case is so framed as to make the offence complete by so selling, if done without ‘the written consent and request’ of the father, mother, or guardian; so that, accord- ing to the indictment, to have exoner- ated the defendant on that ground, he should not only have the written consent but also the written request of the parent or guardian. It is obvious, therefore, that the facts stated in the indictment did not constitute the offence defined by the statute.” p. 93. CHAP. XLIV.]| LIQUOR SELLING — THE PROCEDURE. § 1045 ably, if a pleader should have an invincible repugnance to “or,” he might in most cases devise means to get along with- out it; as in this instance, the “and” might be employed by employing also a circumlocution, thus: “without the written consent and without the written request.” § 1044. Continued — When necessary.— As to when the negative averment is necessary, and when not, there are no doctrines peculiar to the present title, but a reference to some of the authorities may be convenient to the reader.! § 1045. Joinder of Offenders and Offences. — Under this head, there are perhaps no principles which are peculiar to the present title. A reference to some cases is appended in a note? If liquor is sold at one time and place to two distinct persons, two offences are thereby committed. “If one pro- cure the spirits for the purpose of retailing, and hire another to attend to the bar, as his servant, and he retails, both are guilty ;”’ and, in such a case, they may, if the prosecutor pleases, be proceeded against jointly. But where there is no 1 Commonwealth v. Thurlow, 24 Gray, 470; Commonwealth v. Tuttle, Pick. 874; The State v. Watson, 5 Blackf. 155; The State v. Robbins, 9 Ire. 856; The State v. Miller, 7 Ire. 275; The State v. Wade, 34 N. H. 495; The State v. Garney, 37 Maine, 149; The State v. Shaw, 35 N. H. 217; The State v. Crowell, 30 Maine, 115; The State v. Abbott, 11 Fost. N. H. 434; The State v. Fuller, 33 N. H. 259; The State v. Blaisdell, 33 N. H. 388; Sword v. The State, 5 Humph. 102; The State v. Buford, 10 Misso. 703; Commonwealth v. Shaw, 5 Cush. 522; Becker v. The State, 8 Ohio State, 391; The State v. Miller, 24 Conn 522; Bode v. The State, 7 Gill, 326; The State v. Horan, 25 Texas, Supp. 271; Hirn v. The State, 1 Ohio State, 15; Townley v. The State, 3 Harrison, 311 ; Brutton v. The State, 4 Ind. 601 ;- Kin- zer v. The State, 9 Ind. 548 ; Common- wealth v. Edwards, 12 Cush. 187; The State v. Wade, 34 N. H. 495; Common- wealth v. Hill, 5 Grat. 682; The State v. Powers, 25 Conn. 48. 2 Stephens v. The State, 14 Ohio, 886; Commonwealth v. Moorhouse, 1 12 Cush. 505; The State v. Priester, Cheves, 103. 3 Commonwealth v. Dove, 2 Va. Cas. 26; Commonwealth cv. Very, 12 Gray, 124. Perhaps this may not be exactly so under every form of statu- tory provision. Thus, in South Caro- lina it is laid down, that, in an indict- ment for retailing, several acts of selling to different persons may be united in one count. “ Retailing,’ said the court, “ may be complete by one act, or it may consist of a succession of acts. In this indictment, various acts of retail- ing to different persons are grouped together in one count as constituting a single offence. In this, there is no duplicity or misjoinder, but rather a favor to the defendant in enumerating, as aggravations or characteristic repeti- tions of the principal act, other acts, each of which might have been alleged as a separate offence.” The State v. Ander- son, 3 Rich. 172. And see Osgood v. Peo- ple, 89 N. Y. 449; Peer’s Case, 5 Grat. 674; The State v. Barron, 37 Vt. 57. 4 The State v. Caswell, 2 Humph. 645 § 1047 OFFENCES MORE PURELY STATUTORY. [BooK v. act which can in law be deemed joint, the indictment should not be so.! If two are charged with a joint sale, one only may be convicted.2, When a man has committed several offences by several distinct sales, he may be charged with them in as many separate counts; and, on his conviction, a consolidated judgment will be rendered against him, for the accumulated penalty. And the Illinois court further held, that, in such a case, the State’s attorney is entitled to his conviction fee on each count, the same as though there had been separate indictments.? § 1046. Views of the Evidence : — How much prove. — In these cases, as in all others, it is sufficient to prove so much of the charge in the indictment as constitutes an offence. Therefore, if, for example, the in- dictment is for being a common seller, and it appears that the defendant had a license during a part of the period em- braced in the allegation, this does not constitute an answer to the whole charge. And, on. the other hand, all the par- ticulars of what is necessary to constitute an offence must be established. Thus, the mere testimony of a witness that he had called for intoxicating liquor at a public-house kept by the defendant, and that a waiter, by the defendant’s order, delivered it to him; that the witness had never paid the defendant or the waiter; that he offered to pay, but the de- fendant declined to take any thing; does not go far enough to show a transaction which in law constitutes a sale. Such evidence, standing alone, should not even be submitted to the jury.® § 1047. Quantity, &c. — Name of Purchaser — Variance, — It is not necessary to prove a sale of the precise quantity which the indictment alleges; but if, as to quantity, the 899. And see Commonwealth v. Ma- 8 Borschenious v. People, 41 Ill. 236. jor, 6 Dana, 298. The indictment 4 Murphy v. The State, 28 Missis. against a principal for a sale made by 687. the agent, may charge it as made by 5 Commonwealth v. Putman, 4 Gray, the principal. Commonwealth v. Park, 16. 1 Gray, 5538. 6 Commonwealth v. Packard, 5 Gray, 1 Farrell v. The State, 3 Ind. 573. 101. See Seibert v. The State, 40 Ala. % The State v. Simmons, 46 N. C. 60, 622 ; Commonwealth v. Griffin, 8 Cush. 528. 646 CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1048 indictment is within the provisions of the law as already described,! and the proof comes within those provisions, that is enough, even. though the one should not fit the other in measure.” In those States in which it is necessary to allege the name of the purchaser, the proof must conform to the allegation on this point, or the variance will be fatal.2 Proof _of a sale of the liquor mixed with sugar and water will sus- tain a charge of selling the liquor.* § 1048. General Evidence. — There is no one kind or form of evidence required in these cases. While, as in other cases, the testimony of unimpeachable witnesses who saw the whole transaction is most satisfactory, the evidence may come in any other form competent within general rule, and the jury must judge of its sufficiency. Circumstantial evidence is admissi- ble, as in other cases; as, for example, the presence of the liquor’in the defendant’s place of business, the hustling out of bottles of liquor on the entrance of the officers of the law, tumblers on the bar, strong beer in the beer-pump, and the like.6 Evidence that the defendant kept liquor may be one link in the proofs, though insufficient in itself alone. And where it further appears that the defendant kept a bar, with bottles in it, one further link is added to the chain? “If,” said a learned judge in one case, ‘‘a negro be seen going to a house in the night, with a jug, and after staying there only ten minutes returns with liquor in the vessel, we think a jury may very reasonably infer that the liquor was purchased of the owner of the house, and this inference is rendered almost a certainty when it is shown by other evidence that the owner had liquor for sale.” 8 So, declarations of the defendant that he had kept and would keep liquor for sale, may, though not 1 Ante, § 1039. 5 Commonwealth v. Cotter, 97 Mass. 2 The State v. Connell, 88 N. H. 81; 3836; Commonwealth v. Van Stone, 97 Thee State v. Moore, 14 N. H. 451; Mass, 548. Brock v. Commonwealth, 6 Leigh, 6384; 6 Vallance v. Everts, 3 Barb. 553. Schlict v. The State, 31 Ind. 246. T People v. Hulbut, 4 Denio, 133. 3 Commonwealth v. Mehan, 11 Gray, 8 The State v. Long, 7 Jones, N. C. 821; Commonwealth v. Brown, 2 Gray, 24, 27, opinion by Battle, J. To the 858; Commonwealth v. Shearman, 11 like effect, see Huey v. The State, 31 Cush. 546. See ante, § 1087, note. Ala. 349; Pannell v. The State, 29 Ga. 4 Commonwealth v. White, 10 Met. 681. 14. 647 § 1049 OFFENCES MORE PURELY STATUTORY. [BOOK v. pointing to the particular transaction, be submitted to the jury in connection with the other proofs.! Where a witness testified that he and others went to the defendant’s place of business, and, one of their number calling for whiskey, some liquid in a bottle was set out to them by him, aud they drank it, this was held to be proper evidence tending to establish a sale.2. So, where a witness had heard parties call for brandy, and then bottles labelled “‘ brandy ’’ were handed them, from which they poured out what looked like brandy and drank it, this was adjudged to be sufficient evidence that the liquor drank was brandy. Any person is competent to testify to the kind of liquor drank; an expert is not necessary.4 There is no need to confine the testimony to sales actually testified to before the grand jury.® § 1049. Sales by Agent. — Where the sale was by an agent, in the absence of the principal, who is the defendant, it must in some way appear in evidence that the person making the sale was the authorized agent. But the nature and kind of evidence will vary according to the circumstances of the par- ticular case. The mere naked fact that the actual seller was the defendant’s clerk is not enough; because, as observed by Byrd, J. sitting in the Alabama court: ‘A principal is not liable criminally for the unlawful act of his agent or clerk, unless he participated in the act, or consented to it; and this participation or consent cannot be presumed by the court or jury merely from the fact that the seller was the clerk of the accused.” ® But while the strict law is exactly as thus stated, the evidence which proves the agency will generally prove the particular authority. For example, if the jury are satisfied that the defendant did not restrain the selling in premises over which he had control,’ or that the defendant in person had sold at other times,’ or had suffered his clerk to sell at 1 New Gloucester v. Bridgham, 28 Maine, 60; The State v. Bonney, 39 N. H. 206. 2 The State v. Jarrett, 85 Misso. 357. And see Commonwealth v. Boyden, 14 Gray, 101. 3 Baurose v. The State, 1 Iowa, 374. + Commonwealth v. Timothy, 8 Gray, 480. 648 5 Commonwealth v. Phelps, 11 Gray, 73. See Crain v. The State, 14 Texas, 684; ante, § 917, note. ® Seibert v. The State, 40 Ala. 60, 63. 7 Commonwealth v. Major, 6 Dana, 293. And see Scott v. The State, 25 Texas, Supp. 168. 8 The State v. Bonney, 89 N. H. 206. CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1049: other times,! they may infer the needful authority from this ; and even proof that the defendant had forbidden his clerk to sell the liquor, will not exculpate him in respect of a sale made in his absence, if the act of forbidding was not performed in good faith.2 Still, we must distinguish here between the law and the proofs; for, in matter of law, the defendant must have assented to the sale by his clerk, and mere knowledge of it is not enough. And whether or not the jury shall be charged that the principal is to be deemed prima facie liable for sales made in his absence by a person in his employ is a question rather theoretical than practical, on which the author- ities seem not to be uniform.* 1 The State v. Foster, 3 Fost. N. H. 848. In an Alabama case, where one was indicted for selling liquor to a slave, and the proofs showed a sale made by the defendant’s clerk in his absence, it was held to be error to instruct the jury, “that, if the defendant had previously sanctioned the acts of his clerk in selling liquor to slaves under similar orders, and if they believed that the defendant, if he had been present, would have done as his clerk did, they were author- ized to find him guilty.” Now, to this precise instruction in this form there are some objections the force of which would probably be everywhere recog- nized; but some of the observations of the learned judge, who delivered the opinion of the court, are such as would not be concurred in by most other judges. He said: “The principal is pound if he authorized or co-operated in the illegal acts of his clerk ; but we think this must be an express, not an implied, authority. We have no right to conclude, that, because he has sanc- tioned previous violations of the law, he will continue to do so; on the con- trary, as every party is to be presumed innocent until his guilt is made mani- fest, we should presume that he re- pented his former transgression, and therefore did not assent to the subse- qnent violation. At all events, we can- not imply an authority.” Patterson v. The State, 21 Ala. 571. The entire criminal law is administered on the 42 idea of inferring intents from acts. And if aman has a place of business, and permits his agent to do a particular thing in it on one occasion, then, if no indications of repentance appear, it ac- cords with all the rules of evidence as administered both in civil and criminal causes to infer, that, under like circum- stances occurring afterward, the au- thority continued. © 2 Riley v. The State, 43 Missis. 397. 3 Commonwealth v. Putnam, 4 Gray, 16. 4Jn Parker v. The State, 4 Ohio State, 563, it was said to be error so to instruct the jury. In Commonwealth v. Nichols, 10 Met. 259, it was laid down that such is only prima facie evidence. Dewey, J. observed, that the question “is certainly not free from difficulty. As to civil liabilities, a broader and more general principle of responsibility applies, and the master or principal may be held to answer in damages for default and misdoings with which he had no other connection than that which arises from the fact that the in- jury was occasioned by one employed in his service. As a general rule, something beyond this is necessary to charge the master criminally for acts done by the servant. There must be such a direct participation in the act, orsuch assent and concurrence therein, as would involve him morally in the guilt of the action. Hence the cases are comparatively rare, and may be 649 § 1051 [BOOK v. OFFENCES MORE PURELY STATUTORY. § 1050. Statutory Presumption. — We have seen,’ that a Massachusetts statute made the delivery of the liquor under certain circumstances prima facie evidence of a sale. The like provision exists in the statutes of some of the other States. It is held to be constitutional.? § 1051. Defendant's Want of Authority. — We have seen something of the necessity and nature of the averment, that the defendant was not authorized to make the sale® But must this negative averment, when made, be established by affirmative evidence on behalf of the prosecution? If we look at the question as one of principle, we perceive, that, seeing itis a part of the case presented by the prosecuting power against the defendant, it must be established, like every other part, before the defendant can be called upon to meet the charge by his counter proofs. But, in the law of evidence, not every thing which a party must prove is required to be established by the testimony of witnesses. Some things are proved, prima facie, or even conclusively, by a presumption. One of the leading presumptions in our law is, that what is common in general belongs also to the particular; this is a prima facie presumption, and the party who would resist its force must show, that, in the particular instance, the fact is otherwise. Thus, while slavery existed in a part of our States, and most of those persons who had the African features and color were slaves, every negro -considered as exceptions to the general rule, where by legal rules a party is ‘charged criminally for acts of his ser- -vant done without his knowledge and assent. The case of a bookseller, or ‘publisher of a newspaper, is to some extent one creating such liability; to what precise extent is, perhaps, yet an unsettled question.” p. 260. If my own opinion were of any value, I should say that, while this sort of evidence ought always to be received, and with it all the attending circum- ‘stances should be shown, the jury ‘Should be permitted to pass upon it ‘untrammelled by instructions as to its prima facie effect. As a question of _fact, the jury in most instances would 650 was presumed to be a slave, and should infer the authority. As a question of law, the defendant’s consent must have accompanied the act of his agent; but it cannot be decided by the law, whether or not the actual consent of aman’s mind is proved by particular admissible evidence. 1 Ante, § 1035. 2 Commonwealth v. Williams, 6 Gray, 1; Commonwealth v. Rowe, 14 Gray, 47; The State v. Hurley, 54 Maine, 562; Commonwealth v. Wal- lace, 7 Gray, 222; The State v. Day, 37 Maine, 244. : 8 Ante, § 1042, 1043. * Crim. Proced. 2d ed. I. § 1059- 1068. CHAP. XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1052 and one who would take the benefit of an exception in the particular instance must prove it. But in a free State where the fact was not generally so, yet a person might be a slave by reason of his having escaped from his master in a slave State, the presumption was reversed to accord with the general fact. In like manner, as the mass of mankind are sane, each individual man is presumed to be so, in accordance with the general fact; therefore an allegation of sanity is not to be proved otherwise than by the presumption ; and he who would rely on the contrary, as pertaining to the particular instance, must show it in evidence. From this it follows, that, if the law forbids the mass of the community to sell intoxicating liquor, but grants license to some particular individuals to sell it, then, if some one person is indicted for making an unlicensed sale, the presumption that what is common in general belongs likewise to the particular stands as pxima facie proof, and the defendant, if he has a license, must show it. This conclusion of legal reasoning is aided by the further con- sideration, that, since the averment is a mere negative one, and, if it is not true, the defendant has in his own possession the evidence to show the truth, the orderly and convenient administration of justice is promoted, while no harm is done to the individual, by casting the burden on him. ~ § 1052. Continuea. — Looking at this question in the light of authority, we find that it has been decided both ways by differing courts of equal intelligence, while yet the true prin- ciple, as thus stated, seems not to have presented itself to the minds of the judges. In some of the States in which it had been held to be necessary for the prosecuting power to prove the want of a license in the first instance, legislation has in- terfered and reversed the rule. The question relates, not only to the want of a license from the public authorities, but the want also of the consent of parents, guardians, and the like. The reader will find something more upon it, with some of the authorities, in the note. 1 Alabama. — On the trial of anin- cution to prove want of it. Said Rice, dictment for selling spirituous liquor to C.J.: “ Here the defendant, if licensed a minor, under § 8280 of the code, the by the consent of the parent, guardian, burden is on the defendant to prove the or person having charge of the pupil, consent of the parent, not on the prose- has peculiar knowledge of it, and can 651 § 1053 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. § 1053. Conclusion. — It would be easy to extend these dis- cussions considerably further; show it without the least inconvenience ; and the burden of proving the consent is on him, the consent being in the nature of a license to him.” Farrall v. The State, 82 Ala. 557, 559. See post, Mississippi and North Carolina. Georgia. — The clerk of the inferior court is a competent witness to prove that no license had been granted by that court to the accused on trial for retailing liquor. Elkins v. The State, 18 Ga. 435. Illinois. —If, when the defendant was arrested, he stated that the city charged too much for licenses and he could not afford to pay the price, and if he had pleaded guilty toa like charge before the police court, this is sufficient evi- dence that he had no license. Pender- gast v. Peru, 20 Ill. 51. Indiana. — The prosecutor must prove that the defendant had no license. Shearer v. The State, 7 Blackf. 99. Under the liquor law of 1858, no license was required where the retailing was for certain purposes. If, then, on an indictment for unlawful selling, there was some evidence that the selling was within the exceptional purposes, it was for the jury to find whether or not such was the fact. Howard v. The State, 5 Ind. 516. Kentucky. — The defendant must show the license. Haskill v. Common- wealth, 3 B. Monr. 342. Maine. — If the defendant relies on a license, the burden of proof is on him. The State v. Woodward, 34 Maine, 298; The State v. Crowell, 25 Maine, 171. Massachusetts. — Under the common- law rules, it was held in this State to devolve on the prosecutor to prove that the defendant had no license. There were various ways of doing it. Where the license had been granted, it was presumed to have been done on proper evidence. Commonwealth v. Bolkom, 8 Pick. 281. Proof, in any proper form, of an examination of the records of the appointing power, and no license there 652 but it is believed, that, in what appearing, —as, for example, a book of the city clerk containing the names of the persons licensed, Commonwealth v. Tuttle, 12 Cush. 502, or the records of the county commissioners when they were the licensing power, or even their docket entries and minutes before the records were formally made up, Com- monwealth v. Kimball, 7 Met. 304, — was sufficient to establish the prima facie case. Afterward, a statute cast the burden of proof in these cases on the defendant. But though this applied to the particular sales and to the com- mon selling, it was held not to apply to the offence of keeping a building used for the sale. Commonwealth v. Lahy, 8 Gray, 459; Commonwealth v. Kelly, 10 Cush. 69. If it appears that the consideration of a mortgage is a sale of spirituous liquors, the burden of proof is on w party who seeks to avoid the contract to show that the sale was illegal. Trott v. Irish, 1 Allen, 481. See also Commonwealth v. Kee- nan, 11 Allen, 262; Commonwealth v. Putnam, 4 Gray, 16. Michigan. —In an action for the pen- alty, the plaintiff need not prove that the defendant had no license ; for this averment will be taken to be true unless disproved by the defendant. Smith v. Adrian, 1 Mich. 495. Mississippi.— On the trial of an in- dictment for selling liquor to a slave, “without the permission of the owner, master, or overseer,” the prosecution must prove affirmatively that the liquor was sold without such permission. “We know of no exception to the rule,” said Smith, J. “that whatever it is material to aver in an indictment it is necessary to prove.” McGuire v. The State, 183 Sm. & M. 257, 259. Afterward, on an indictment for sell- ing liquor without license, the court held, that it was forthe defendant to show the license if he had one, not for the State to prove the want of it. “‘ The rule is,” said Handy, J. ‘‘ that, when a fact is peculiarly within the knowledge CHAP.;XLIV.] LIQUOR SELLING — THE PROCEDURE. § 1053 has already been said, most of the questions pertaining to this title, not of a local nature, and presenting special difficulties, have been elucidated. of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence, or of acting according to law, will not render it incumbent on the other side to prove the negative.” Easterling v. The State, 35 Missis. 210; Thomas v. The State, 87 Missis. 358. See North ‘Carolina, where it will appear how the apparent discrepancy in these decisions is recon- ciled. Missouri.—It devolves on the de- fendant, if he has a license, to produce it. Schmidt v. The State, 14 Misso. 187. New Hampshire.— The State is not bound to prove that the defendant had no license, or that he was not a public agent for the sale of liquor. The State v. Foster, 3 Fost. N. H. 348; The State v. Shaw, 85 N. H. 217. In the civil action, if the sale of liquors except by persons duly licensed and for particular uses is prohibited, it is incumbent on a plaintiff suing to recover the price of liquors sold, to show affirmatively that he was duly licensed to sell them, and that they were sold for a lawful use. Bliss v. Brainard, 41 N. H. 256. North Carolina. — On an indictment for a sale of liquor without a public license, the prosecutor need not prove the want of a license, but the defend- ant, if he has one, must produce it. The State v. Morrison, 8 Dev. 299. But where, under the former laws, the indictment was for selling liquor to a slave without the master’s written permission (see Mississippi, in this note), it was held to be necessary for the prosecutor to prove the want of permission. Said Battle, J. after stat- ing the general rule that the prosecut- ing power must make out the whole case against the defendant: ‘‘It is true, there is an exception, or rather an apparent exception, to the rule, arising from necessity, or that great difficulty in procuring the proof, which amounts practically to such necessity ; or, in other words, where the prosecutor could not show the negative, and where the defendant could easily show the af- firmative. The case of The State v. Mor- rison, 3 Dey. 299, may be cited as one coming within the exception. There, upon an indictment against a person for retailing spirituous liquor by the small measure, without a license, it was held that the prosecutor need not produce proof of a want of license, but the li- cense must be shown by the defendant in his defence, and that the absence of such proof on his part was evidence that he had no license. The court, in com- menting upon that case in The State v. Woodly, 2 Jones, N. C. 276, said, that it imposed no hardship upon the defendant to require him to produce his license, which was a written docu- ment, and which his interest, as well as his duty, required him to keep as a justification for acts which he might do every day, and many times every day. But the present case is very different ; for itis manifest that the owner, em- ployer, or manager of a slave can as easily be called on the part of the State to prove that he gave [not] per- mission in writing to the slave to pur- chase or receive as a gift spirituous liquors, as for the defendant to call him or any other person to prove the con- trary ; and we think it best to adhere to the general rule until the legislature may think proper to alter it.” The State v. Evans, 5 Jones, N. C. 250, 251, 252. See ante, Alabama, and Jissis- sippt, in this note. Ohio. — On an information under § 1 of the act of May 1, 1854, “to prevent the adulteration of alcoholic liquors,” the prosecution must give some evi- dence upon the negative averment that the liquor sold by the defendant had not been inspected. Cheadle v. The State, 4 Ohio State, 477. South Carolina. — It is for one indict- 653 § 1055 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. CHAPTER XLV. KEEPING INTOXICATING LIQUOR FOR UNLAWFUL SALE. § 1054. General View — How at Common Law. — Under the rules of the common law, the procuring of counterfeit coin with the intent to pass it, is indictable as an attempt; but the having of it with such intent is not, because mere possession is not an act, and there must be a combination of wrongful act and intent to constitute a crime. And if the selling of intoxicating liquor without license were deemed in the law to be as grave an offence as the passing of counterfeit money, the same doctrines would apply to the procuring and the having of it with the intent to sell it in violation of the statute. Yet, it being a mere minor misdemeanor, and of the sort known as malum prohibitum, and not malum in se, the same rules, to the same extent, plainly do not apply to it, and the case of an attempt to sell, especially where the attempt is so far removed from the direct act as the mere procuring, comes within an exceptional principle mentioned in the preceding chapter.® § 1055. How under Statutes. — But it is within the general line of legislation on this subject, and proper and expedient if any legislation on the subject is so, to make the possession of the liquor with the wrongful intent criminal. And of late years, statutes in some of our States have so provided; and, in connection with this provision, have directed that the liquors so kept should be forfeited and confiscated.* It is not pro- posed, in this chapter, to enter into a wide discussion of these ed for selling liquor without a license to prove that he hadalicense. Geuing v. The State, 1 McCord, 578. Wisconsin. —The prosecution must produce some presumptive evidence that the defendant had no license, be- fore he is required to prove the con- trary. Mehan vy. The State, 7 Wis. 670. Fengland. — On an information under 11 & 12 Vict. c. 49, § 1, against a 654 licensed victualler for selling wines, beer, &c., on Sunday, otherwise than for the refreshment of travellers, the burden of proving that the case is not within the exception is on the informer. Taylor v. Humphries, 17 C. B. n. s. 639. 1 Crim. Law, 5th ed. I. § 204. 2 Crim. Law, 5th ed. I. § 759-761. 3 Ante, § 1029. 4 See ante, § 988, 998, 994. CHAP. XLY.] KEEPING LIQUOR FOR SALE. § 1056 statutory provisions, but to mention a few points, principally for the purpose of furnishing reasons for citing some cases which may be helpful to the practitioner. § 1056. Constitutional. — It is scarcely necessary to add, that, where no objectionable details encumber this sort of legislation, it is not obnoxious to the provisions of our con- stitutions ;1 though some statutes have been pronounced un- constitutional by reason of defects in their details. Thus, in Michigan, the search-warrant clause of a former “act to pre- vent the manufacture and sale of spirituous liquors” was declared to be void, because it did not require any notice to be given to the accused, or provide means by which he was to be informed when, or where, or before whom the warrant was to be returned ;? and something like this was held under - former statutes in Rhode Island,? Massachusetts,‘ and some of the other States.5 These cases brought out great opposing talent and energy, they were decided under considerable public excitement; and it would be worthy of consideration, if similar questions should hereafter arise, whether something which was overlooked might not be said in favor of the law.® Without specifically pointing out any one of the decisions as wrong, the author will suggest, that, as explained in earlier pages of this volume, every new statute is a thing added to the mass of preéxisting law, statutory, common, and constitu- tional, and is to be interpreted and enforced as a part of the great body of laws, all of which, at whatever several times established, are to be woven together by construction into one seamless garment of jurisprudence.’ For example, the 1 Jones v. Root, 6 Gray, 485; Mason v. Lothrop, 7 Gray, 354; Lincoln v. Smith, 27 Vt. 8328; The State v. Pres- cott, 27 Vt. 194; Gray v. Kimball, 42 Maine, 299; ante, § 998, 994. 2 Hibbard v. People, 4 Mich. 125, Green, J. observing: “It is said, that the proceedings under the liquor law may be so conducted, consistently with its provisions, as to secure the person whose property is seized all his con- stitutional rights. If this is possible, that is not enough. The law must afford to the accused the means of de- manding and enforcing his constitutional rights, and if it authorizes a course of procedure which could deprive him of them it is void. Itis not to be left to the discretion of prosecutors or magis- trates to adopt a course of procedure which may or may not be in conform- ity with the requirements of the Consti- tution, as they may elect.” p. 180, 181. 3 The State v. Snow, 3 R. I. 64; Greene v. James, 2 Curt. C. C. 187. 4 Fisher v. McGirr, 1 Gray, 1. 5 Ante, § 992, 998. & Ante, § 987. T Ante, § 82, 86-90, 123 et seq. * 655 § 1057 OFFENCES MORE PURELY STATUTORY. [BOOK v. common law requires that no proceedings be taken against one without notice to him; therefore, if a statute authorizing such proceedings is silent on the question of notice, the com- mon law is to be so construed with it as to require notice, the same as though it were provided for in the statute itself.1 And, according to the better doctrine, if a statute authorizing a summary proceeding before a justice of the peace is silent on the question of appeal, but there is a general system of appeals established by law in the State, and the case is one in which by the constitution the defendant is entitled to a trial by jury and this can be secured by an appeal, the con- stitution and the statutes are to be so construed together as to authorize an appeal.? Therefore these liquor laws should not be adjudged unconstitutional on the mere ground of their being silent upon questions of right like these. In a case of mere silence, they and the constitution and the other stat- utes should be construed together, and by such construction the defendant’s constitutional rights should be made available to him. Thus, if a particular right is secured by the consti- tution or by another statute, and this statute is silent on the subject, the defendant can resort to those other provisions, and to repeat the provisions in each individual enactment would be superfluous. Where the direct language of a statute is in denial of a constitutional right, the case is different. § 1057. The Procedure. — Most of the other questions of any importance, relating to this title, are such as concern the procedure. Now the procedure differs somewhat in the differ- ent States, and it is chiefly regulated by statutes. It will be convenient to the reader to be referred to some of the cases, on this topic, in the order of States; but no further discussion of the subject will be here attempted. In the citations given, 1 Bishop First Book, § 24; ante, § 141. 884. And see Boles v. Lynde, 1 Root, 195. 2 Crim. Proced. 2d ed. I. § 894. 3 Connecticut.— Barth v. The State, 18 Conn. 432; The State v. Raymond, 24 Conn. 204; The State v. Mosier, 25 Conn. 40; The State v. Brennan’s Liquors, 25 Conn. 278; Gray v. Davis, 27 Conn. 447; Hine v. Belden, 27 Conn. 656 Iowa. — Santo v. The State, 2 Iowa, 165; Vaughn v. The State, 5 Iowa, 869; The State v. Munzenmaier, 24 Iowa, 87. Maine. — The State v. Robinson, 33 Maine, 564; The State v. Gurney, 33 Maine, 527; Barnett v. The State, 36 CHAP. XLV. ] KEEPING LIQUOR FOR SALE. § 1058 are included some decisions which relate to the law of the offence, in distinction from the procedure. § 1058. Evidence of Intent. — A word as to the proof of the intent to sell may be useful. There is no one method by which this is to be made to appear. If a man has the for- bidden liquor on his premises, and he sells some of it, the jury may well infer that the rest is kept for sale. Of course, therefore, the evidence of the particular sale is admissible. But proof of a sale or of an offer or attempt to sell is not essential; for, said Hastman, J. “the jury might be well satisfied of the fact from the manner in which the liquors were kept in the building, or from the declarations of the defendant in regard to them, or from various circumstances which might be supposed, without its being shown that there had been an offer or attempt to sell”’2 It may be shown against the de- fendant, for further example, that there were in his house jugs which recently contained liquor.2 In Vermont, under the statute of 1852, the fact of finding liquor in a man’s house may be prima facie evidence of his possessing it with the intent to sell.4 Maine, 198; The State v. Leach, 38 Maine, 482; The State v. Moran, 40 Maine, 129; Androscoggin Railroad v. Richards, 41 Maine, 233; Thurston Adams, 41 Maine, 419; The State v. Stevens, 47 Maine, 357; The State v. Bartlett, 47 Maine, 888; The State v. Kaler, 56 Maine, 88. Massachusetts. -- Commonwealth v. Edwards, 12 Cush. 187; Fisher v. Mc- Girr, 1 Gray, 1; Jones v. Root, 6 Gray, 485; Allen v. Staples, 6 Gray, 491; Mason v. Lothrop, 7 Gray, 354; Com- monwealth v. Kimball, 7 Gray, 328; Commonwealth v. Timothy, 8 Gray, . 480; Downing. Porter, 8 Gray, 539 ; Commonwealth v. Purtle, 11 Gray, 78; Commonwealth v. Intoxicating Liquors, 14 Gray, 375 ; Commonwealth v. Intox- icating Liquors, 13 Allen, 52; Common- wealth v. Intoxicating Liquors, 13 Al- len, 561; Commonwealth v. Intoxicat- ing Liquors, 97 Mass. 332; Common- wealth v. Intoxicating Liquors, 97 Mass. 601; Commonwealth v. Chis- s holm, 103 Mass. 218 ; Commonwealth v. Intoxicating Liquors, 103 Mass. 448 ; Commonwealth v. Intoxicating Liquors, 108 Mass. 454; Commonwealth v. Des- mond, 108 Mass. 445. New Hampshire. — The State v. Mc- Glynn, 34.N. H. 422; The State v. Rum, 35 N. H. 222; The State v. Pecker, 47 N. H. 369. Rhode Island. — The State v. Snow, 8 R. I. 64; Fenner v. The State, 3 R. I. 107. South Carolina. — Weikman v. City Council, 2 Speers, 371. Vermont. — Lincoln v. Smith, 27 Vt. 828; Gill v. Parker, 31 Vt. 610. 1 The State v. Munzenmaier, 24 Iowa, 87; The State v. Raymond, 24 Conn. 204. 2 The State v. McGlynn, 34 N. H. 422, 427. 8 Commonwealth v. Timothy, 8 Gray, 480. * Lincoln v. Smith, 27 Vt. 828. 657 § 1060 OFFENCES MORE PURELY STATUTORY. [BOOK V. CHAPTER XLVI. LIQUOR NUISANCE. § 1059. How at Common Law — Statutes. — We have already seen,! that it is not an indictable nuisance at the common law to keep a house in which intoxicating drinks are sold, unless the house becomes disorderly.2 But there are statutes, not entirely agreeing in their terms, by which the selling of liquor to be drank on the premises, the keeping of a tippling-house, the suffering of a building to be used for the unlawful sale of intoxicating drinks, and other similar violations of legal or moral propriety, are made specially punishable, — some of these acts under the name of nuisance. § 1060. Selling Liquor to be drank on the Premises : — General View. — An indirect prohibition of tippling-shops is found in statutes of some of our States forbidding the sale of liquor, in whatever quantities, to be drank on the premises where it is sold. The words of the statutes may differ; but the general doctrine is, that the sale, to be indictable, must be made with the intent that the liquor shall be drank on the premises where sold, but it need not be so drank in fact to render the offence complete. Thus, in Tennessee, it was held not to be necessary for the indictment to allege that the pur- chaser did drink the liquor on the premises. “If,” said the learned judge, the defendant “did not so intend, he would not be guilty, though the purchaser, against the will of the vendor, were to drink the liquor in his house. So, on the other hand, if he intended it to be drank there, he would be guilty, though the purchaser might take it away from the place.”* In Alabama the words are “in any quantity, if the same is drank on or about the premises” (an expression 1 Ante, § 984. 887; Commonwealth v. Moulton, 10 2 Rex v. Fawkner, 2 Keb. 506, pl. 79. Cush. 404. 3 The State v. Slate, 24 Misso. 580; 4 Sanderlin v. The State, 2 Humph. The State v. Shearer, 8 Blackf. 262; 815,319; s ep. Wrocklege v. The State, Moore v. The State, 12 Ohio State, 1 Iowa, 167. 658 CHAP. XLVI. ] LIQUOR NUISANCE. § 1061 which seems to require the actual drinking of the liquor by the purchaser to complete the offence of selling it) ;1 and it was held, that this prohibition embraces places over which the seller has no legal right of control, if so near his actual premises, and so situated, that they are within the mischief meant to be remedied. But where the liquor is taken by the purchaser, in the seller’s quart measure, to a place on the opposite side of the street, out of view of the seller’s premises, some fifty feet away, and is there drank in front of another store, the court cannot say, as a matter of law, that this place is within the prohibition of the statute.” § 1061. The Indictment. — We have seen ® what are the form and essential elements of an indictment simply for retailing the liquor, without the element of the intent that it should be drank, or the actual drinking of it, on the seller’s premises. Doubtless the forms there approved, if enlarged by the element of the intent or the drinking, will be found sufficient under the present head. But, as the peculiar allegation necessary in this offence contains one element of identification not found in the other forms, and as the offence itself approximates the idea of a nuisance, in which mere general allegation is always held to be adequate, it seems to result, and so would seem to -be the authorities, that less of the other matter will sometimes answer in these indictments than is required in those. Should the reader wish to investigate this point, and others relating to the indictment for this offence, he will consult the author- ities here cited in a note. A statute in Virginia having made it indictable ‘if any person sell, by retail, wine, ardent spirits, or a mixture thereof, to be drank in or at the store, or other place of sale,’ &c.; the following was held to be ill by reason of omitting the words “ by retail: ’ that the defendant “ did, 1 See also, as to this, Christian v. Parker, C. C. 26; Commonwealth v. The State, 40 Ala. 876. Head, 11 Grat. 819; Kilbourn v. The 2 Easterling v. The State, 30 Ala.46. State, 9 Conn. 560; The State v. Free- 3 Ante, § 1034-1041. man, 6 Blackf. 248; Commonwealth v. 4 Overshiner v. Commonwealth, 2B. Stowell, 9 Met. 569; Rawson v. The Monr. 344; Commonwealth v. Pearson, State, 19 Conn. 292; Sanderlin v. The 3 Met. 449; The State v. Auberry, 7 State, 2 Humph. 315. Misso. 804; People v. Gilkinson, 4 659 § 1064 OFFENCES MORE PURELY STATUTORY. [BOOK v. without license so to do, sell ardent spirits, to be drank where sold, in a room occupied by him,” &e.1 § 1062. continued — Form.— The Tennessee statute made it an offence to sell the liquor “ ¢f intended to be drank,” &e. ; and the following form was held to be adequate : — “That A, &e., on, &ec., at, &c., did unlawfully sell and retail spirituous liquor to one Edmond White, by the quart, to be drank on the premises, and which was then and there drank on the premises of him the said A, without having obtained a license so to do, contrary,” &e. It was deemed that the words “to be drank on the premises ” were an equivalent for the statutory words at this point.? § 1063. Evidence. — If a man sells liquor to another, who drinks it on the premises of the vendor without objection from him, the presumption is that it was sold to be drank there,’ or that it was drank with the seller’s consent. Again, if the vendor furnished bottles, glasses, sugar, water, &c., to the pur- chaser, this is evidence proper for the consideration of the jury as to the intent that the liquor should be drank where sold. § 1064. Keeping a Tippling-shop : — General View. — The statutory offence of keeping a tippling- shop, like the one discussed in the last four sections, is defined by differing forms of words in the different States. In Ken- tucky, this offence is made by the statute to be almost identi- cal with that. The provision is: “ Any person, unless he shall have a license therefor, who shall sell, in any quantity, wine or spirituous liquors, or the mixture of either, in any house, to be drunk therein, or on or adjacent to the premises where sold, or shall sell the same and it shall be so drunk, shall be deemed guilty of keeping a tippling-house, and fined the sum of sixty dollars.” ® In Maine, it is simply provided that “no person shall keep a drinking-house, or tippling-house, within this State ;”? another section, however, more specifically defining the offence, and stating the acts of which it shall con- 1 Boyle v. Commonwealth, 14 Grat. 4 Casey v. The State, 6 Misso. 646. 674. 5 Sanderlin v. The State, supra. 2 Bilbro v. The State, 7 Humph. 534. § Commonwealth v. Harvey, 16 B. 3 Sanderlin v. The State, 2 Humph. Monr.1; Commonwealth v, Allen, 15 816. B. Monr. 1. 660 CHAP. XLVI. ] LIQUOR NUISANCE. § 1066 sist.1 And the provision in some of the other States is in still other forms. § 1065. What is a Tippling-house. — We thus see, that the term “ tippling-house ” is defined in the statutes both of Ken- tucky and Maine. Where there is no statutory definition of the term, it probably means a tenement in which intoxicating liquors are habitually sold to be drank there. This definition is framed by the author on a consideration of the various principles which govern this sort of subject; though, looking at the cases strictly, we may not have sufficient decisions to enable one to lay down the rule exactly, as to what constitutes a tippling-house.? A common tippling-house is not constituted by a single act of sale.? § 1066. Indictment. — We have seen‘ in what terms the statute of Maine is drawn. Upon this, an indictment in the following form has been adjudged sufficient : — “That A, &c., on, &., at, &c., did keep a drinking-house and tippling-shop, contrary to the form of the statute,” &c. “There is,” said Davis, J. “another section of the same statute, defining the offence, and providing that it shall consist in certain specified acts ; and it is contended, that this descrip- tion should be set out in the indictment.” But this objection was overruled; and it was laid down, that, where the same section of a statute prohibits an offence, and specifies the acts of which it consists, an indictment on the statute must, by express words, bring the case within the full terms of the compound provision. Yet, on the other hand, where the offence is prohibited in general terms in one section of the stat- ute, and in another and distinct section the acts are specified of which the offence consists, the mere general description is sufficient in the indictment. Now, without questioning the correctness of this adjudication of the particular point before 1 The State v. Casey, 45 Maine, 435. 350; Hinton v. Commonwealth, 7 Dana, 2 See Moore v. The State,9 Yerg. 216. 858; Morrison v. Commonwealth, 7 4 Ante, § 1064. Dana, 218; Howard v. The State, 6 5 The State v. Casey, 45 Maine, 435. Ind. 444; Bush v. The Republic, 1 And see Commonwealth v. Turner, 4 Texas, 455 ; Burner v. Commonwealth, B. Monr. 4; Woods v. Commonwealth, 18 Grat. 778. 1B. Monr. 74. 3 Dunnaway v. The State, 9 Yerg. 661 § 1068 OFFENCES MORE PURELY STATUTORY. [BOOK Y. the court, we cannot but notice, that this distinction as to whether a thing is in one section or two sections of the same statute is not sound either in legal reason or on the better authorities ;! and whether or not the allegation on a statute forbidding a thing in general terms must be expanded in consequence of another provision, in the same or a separate section, more particularly defining the forbidden thing, is a question to be solved on a consideration of the particular case.” § 1067. Continued. — Some questions have arisen in these cases as to whether the want of authority must be negatived in the indictment: they will be seen by consulting the note.® The indictment must, to a reasonable degree, follow the terms of the statute. Thus, where, in Arkansas, the statute was, that “no person shall keep any tavern or grocery for the retail of vinous or ardent spirits in quantities less than one quart, unless,” &c.; an allegation was held to be ill which charged, that the defendant kept a grocery, and did _retail, &c., there being no averment that the grocery was kept for the purpose of retailing.6 There are some other points,® but they do not require specific exposition in the text. § 1068. The Nuisance of keeping a Building for Illegal Sales : — General View. — We saw, in another connection,’ that the keeping of a house in which petty offences are commonly per- petrated, by persons gathered for the purpose, is an indictable nuisance at the common law. In affirmance of the principle thus laid down, some statutes on the subject of liquor selling have been enacted. Thus, the General Statutes of Massachu- setts declare, that “all buildings, places, or tenements, resorted to for prostitution, lewdness, or illegal gaming, or used for the illegal keeping or sale of intoxicating liquors, shall be deemed l Ante, § 61, 66. 215; Commonwealth v. Allen, 15 B. 2 Ante, § 511-514. On revising the proof, I see that the court has since applied the doctrine to distinct clauses, observing that the word “section ” was used above through inadvertence. The State v. Collins, 48 Maine, 217. 3 The State v. Brown, 8 Misso. 210; Webster v. Commonwealth, 7 Dana, 662 Monr. 1; Commonwealth v. Harvey, 16 B. Monr. 1; ante, § 1042, 1048. 4 Our v. Commonwealth, 9 Dana, 30. 5 Hensley v. The State, 1 Eng. 252. * The State v. Brown, supra; Shil- ling v. The State, 5 Ind. 443; The State v. Rhodes, 2 Ind. 821. . 1 Crim. Law, 5th ed. I. § 1119-1121. CHAP. XLVI. ] LIQUOR NUISANCE. § 1070 common nuisances.”! And in the next section a punishment is provided for the keeper of the nuisance. § 1069. The Offence as indictable. — This statutory offence is by no means common to our States, and it is not deemed best to enter here on a discussion of it, but simply to cite some of the cases.? § 1070. Private Abatement. — Some questions have arisen as to the right to abate this kind of nuisance, by a mere act in pais, where no judicial proceedings have been taken against it. We saw, in the work on the Criminal Law, that, as a general proposition, while a private person may with his own hand abate a private nuisance, any individual of the public — that is, anybody — may abate a public one.2 Now, we have sgen,! that, by the Massachusetts statute, “buildings” and ‘* places’ “ used for the illegal keeping or sale of intoxicating 1 Mass. Gen. Stats. c. 87, § 6. 2 Jowa. — Our House v. The State, 4 Greene, Iowa, 172; Part of Lot v. The State, 1 Iowa, 507; Bowen v. Hale, 4 Iowa, 480; The State v. Hass, 22 Iowa, 1983; The State v. McGrew, 11 Iowa, 112; The State v. Collins, 11 Towa, 141; The State v. Kreig, 13 Iowa, 462; The State v. Baughman, 20 Iowa, 497; The State v. Munzen- maier, 24 Iowa, 87; The State v. Ver- der, 24 Iowa, 126; The State v. Schil- ling, 14 Iowa, 455; The State v. Free- man, 27 Iowa, 333; The State v. Harris, 27 Iowa, 429. Massachusetts. — Commonwealth v. Kimball, 7 Gray, 328 ; Commonwealth v. Buxton, 10 Gray, 9; Commonwealth v. Skelley, 10 Gray, 464 ; Common- wealth v. Godley, 11 Gray, 454 ; Com- monwealth v. McArty, 11 Gray, 456; Brown v. Perkins, 12 Gray, 89; Com- monwealth v. Logan, 12 Gray, 136; Commonwealth v. Kelly, 12 Gray, 175; Commonwealth v. Farrand, 12 Gray, 177; Commonwealth v. Quinn, 12 Gray, 178; Commonwealth v. Howe, 18 Gray, 26; Commonwealth v. Lang- ley, 14 Gray, 21; Commonwealth v. Shattuck, 14 Gray, 23 ; Commonwealth v. Hill, 14 Gray, 24; Commonwealth v. Foss, 14 Gray, 50; Commonwealth v. Bubser, 14 Gray, 83; Commonwealth v. Shea, 14 Gray, 386; Commonwealth v. Edds, 14 Gray, 406 ; Commonwealth v. Donovan, 16 Gray, 18; Common- wealth v. Higgins, 16 Gray, 19; Com- monwealth v. Welsh, 1 Allen, 1; Com- monwealth v. Gallagher, 1 Allen, 592; Commonwealth v. Carolin, 2 Allen, 169; Commonwealth v. Davenport, 2 Allen, 299; Commonwealth v. Hill, 4 Allen, 589; Commonwealth v. O’Don- nell, 8 Allen, 548; Commonwealth v. Cutler, 9 Allen, 486; Commonwealth v. Greenen, 11 Allen, 241; Common- wealth v. Wright, 12 Allen, 190; Com- monwealth v. McDonough, 13 Allen, 581; Commonwealth v. Hogan, 97 Mass. 122; Commonwealth v. Kennedy, 97 Mass. 224; Commonwealth v. Aus- tin, 97 Mass. 595; Commonwealth v. Carpenter, 100 Mass. 204; Common- wealth v. Smith, 102 Mass. 144; Com- monwealth v. Heffron, 102 Mass. 148 ; Jones v. McLeod, 103 Mass. 58; Pres- cott v. Kyle, 103 Mass. 381. Rhode Island.—The State v. Hop- kins, 5 R. I. 58; The State v. Paul, 5 R. 1.185; The State v. Knott, 5B. I. 293; The State v. Kingston, 5 R. I. 297; The State v. Keeran, 5 R. I. 497. 3 Crim. Law, 5th ed. I. § 828, 1081. 4 Ante, § 1068. 668 [BOOK V. § 1070 OFFENCES MORE PURELY STATUTORY. liquors’ are declared to be “common nuisances.” What is the consequence in respect of abatement? In one instance, in Massachusetts, persons whose relations and friends fre- quented a building of this sort to their injury, broke it open and destroyed a quantity of the forbidden liquor. But it was held that this was an unlawful proceeding, for which they must answer in a civil suit brought by the owner of the liquor.! In like manner, in Rhode Island, under a similar statute, the right to destroy the building by way of abating the nuisance was denied.2 Precisely what right of abatement, or whether any, does exist under a statute framed like this, is a question which it may not be easy to answer, and an answer will not be here attempted. The Iowa statute is in different terms. It provides that the building in which the unlawful manufae- ture, sale, or keeping for sale of intoxicating liquors is carried on, may be abated as a nuisance, and whosoever shall use a building for such purposes shall be deemed guilty of a nui- sance, and may be prosecuted, &c., accordingly. And this statute could not probably be interpreted like the Massachu- 1 Brown v. Perkins, 12 Gray, 89. In this case, the doctrine is laid down, that the right to abate a public nui- sance can be exercised only by those who are personally and specially in- jured by it. If the reader will consult the places in the author’s work on the Criminal Law referred to in a preceding note to this section, he will see that the authorities are not so. And what is said sustaining such a view in the cases cited by the Massachusetts court is mere dictum. Moreover, in principle, if an evil-minded person has laid a dan- gerous obstruction upon a public high- way, but at a place where I have never any occasion to use the way, then, at nightfall, just before I know the way will be thronged by persons moving along it in the dark, I go and remove the obstruction, and so prevent threat- ened injury to life or limb, it would be contrary to all just notions of law, and still more so to all just law, to hold that, in recompense for my good deed, I must answer to the villain in a civil 664 suit. The better and just doctrine, generally held by our courts, is, that every man is in theory of law injured by a public wrong (Crim. Law, 5th ed. I. § 231, 235 et seq.), and, in like man- ner, is injured by a public nuisance of the abatable sort ; therefore, where the right to abate such a nuisance exists, it may be exercised by any person. If, in legal theory, the element of individ- ual interest is important, as probably it is not, still the interest need not be spe- cial to the particular person, but the general interest which is participated in by every member of: the community is sufficient. Iam speaking now of nui- sances which are admitted to be abat- able. Not every thing which is indict- able under the name of nuisance is abatable ; at least, not every such thing is abatable by every means which a person ignorant of law might suggest. 2 The State v. Paul, 5 R. I. 185; The State v. Keeran, 5 R. I. 497. 3 The State v. Freeman, 27 Iowa, 333, 336. CHAP. XLVII. ] HAWKERS AND PEDDLERS. § 1072 setts one! How far a statute may constitutionally provide for the destruction of buildings, liquor, and the like, either on mere proceedings in rem, or without any judicial proceed- ings, is a question which we have had occasion to consider in other connections? CHAPTER XLVII. HAWKERS AND PEDDLERS. 1071. Introduction. 1072-1080. Law of the Offence. 1081-1088. The Procedure. § 1071. General View —How the Chapter divided. — Stat- utes in various States make the hawking and peddling of goods without license an indictable offence. We shall, there- fore, consider, I. The Law of the Offence; II. The Procedure. I. The Law of the Offence. § 1072. How in England. — In Jacob’s Law Dictionary we have the following: “‘ Hawkers. Those deceitful fellows who went from place to place, buying and selling brass, pewter, and other goods and merchandise, which ought to be uttered in op n market, were of old so called; and the appellation seems to grow from their uncertain wandering, like persons that with hawks seek their game where they can find it. They are mentioned Stat. 25 Hen. 8,c. 6, and 33 Hen. 8, c. 4. Hawkers and peddlers, &c.,” he adds, referring to Stat.8 & 9 Will. 3, c. 25, and subsequent statutes, “going from town to town, or house ‘o house, are now to pay a fine and duty to the king.” There are many English statutes, belonging, however, rather to the department of internal police and of revenue than 1 Bowen v. Hale, 4 Iowa, 480; Our ing the entire chapter entitled “ Quasi House v. The State, 4 Greene, Iowa, Crime in Rem;” ante, § 533-585. And 172. see Our House v. The State, supra; 2 Crim. Law, 5th ed. I. § 816-835, be- Bowen v. Hale, supra. 43 665 § 1075 OFFENCES MORE PURELY STATUTORY. [BOOK v. to the pure criminal law, regulating the industry of hawking and peddling. The old English enactments on this subject have given place to later revisions ; the last to which the au- thor’s attention has been directed being 22 & 23 Vict. c. 36; 83 & 34 Vict. c. 72; and 34 & 35 Vict. c. 96.4 § 1073. How in our States.— There are statutes in several of our States against peddling goods except under restrictions. These statutes differ from one another; yet some points con- cerning them, and some expositions of the courts relating to this general subject, may be made helpful to the reader. § 1074. What a Hawker — Peddler.— The two words “hawker” and “ peddler,” as employed in modern statutes, are nearly, if not quite, identical in meaning; and each of them signifies an itinerant vendor of goods. Perhaps the words “by retail” should be added to this definition. When, in 1864, an act of Congress required, as a revenue measure, “ peddlers” to take out a license from the general government, it defined: ‘Any person, except persons ped- dling only newspapers, Bibles, or religious tracts, who sells or offers to sell, at retail, goods, wares, or other commodities, travelling from place to place, in the street, or through differ- ent parts of the country, shall be regarded a peddler under this act.”’ ? § 1075. What constitutes an Infringement of the Statute : — Making Peddling a Business— Single Sales.— A decision in Indiana sheds some light on the question of what is peddling. The court there held, that the statute of 1838, against selling clocks without a license, applied only to persons who make the selling their business. Said the judge: “ These provi- sions, we think, were designed to apply to those persons only who made the vending of clocks a business or occupation, and do not include occasional sales made by other persons, as their interest or convenience might require. It is impossible to believe that the legislature intended that no owner of a clock whatever should be allowed to sell it, without a license pro- cured, at the expense, perhaps, of five times the value of the 1 And see Burn Just. tit. Hawkers 2 Stat. c. 173, § 79, cl. 82,18 U.S. and Peddlers. Stats. at Large, 255. 666 CHAP. XLVI. ] HAWKERS AND PEDDLERS. § 1077 clock.” 1 In a like spirit, the South Carolina court held, that a single shipment of goods, consigned to auctioneers and mer- chants, and regularly sold by them at auction and at private sale for the benefit of the consignor, is not a hawking and peddling within the statute of 18352 § 1076. Itinerancy —- Having other Business — Supplying Or- ders. —In Massachusetts there was at one time the following provision: “ Every hawker, peddler, or petty chapman, or other person, going from town to town, or from place to place, or from dwelling-house to dwelling-house in the same town, either on foot or with one or more horses, or otherwise carry- ing for sale or exposing to sale any goods,” &c. And Shaw, ©. J. observed: “ The leading primary idea of a hawker and peddler is, that of an itinerant or travelling trader, who carries goods about in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business.” There- fore it was held to be a violation of the statute for a person to sell the goods therein prohibited, from house to house, at the request of purchasers; although he was travelling about in the exercise of some other and lawful employment, without any previous intention of exposing such goods for sale. Yet, on the other hand, it was deemed not to be a violation of the statute for an agent to go about delivering, to traders in the country, goods made by his principals in the city, and ordered previously by the country traders ; neither was it a violation to deliver, also, at the same time, and under the same circum- stances, a larger quantity of these goods than the previous orders covered.? §1077. Manner of Travelling — Selling Goods from Canal Boat.— In Pennsylvania, the selling of groceries from a canal boat has been held to be within the statute punishing any unlicensed 1 Alcott v. The State, 8 Blackf. 6, opinion by Dewey, J. 2 The State v. Belcher, 1 McMullan, 40. And see Merriam v. Langdon, 10 Conn. 460; Commonwealth v. Willis, 14S. & R. 898; Colson v. The State, 7 Blackf. 590; Page v. The State, 6 Misso. 205. So in England it has been held, that a single act of selling, to one person only, does not alone constitute the vendor a hawker, peddler, or petty chapman, under the statutes. Rex v. Little, 1 Bur. 609. And see Rex vu. Buckle, 4 East, 346. 3 Commonwealth v. Ober, 12 Cush. 493,495. And see Rex v. McKnight, 10 B. & C. 734. 667 § 1078 OFFENCES MORE PURELY STATUTORY. [BOOK v. person who should “ be found hawking, peddling, or travelling from place to place, to sell or expose for sale,” &c. Said Rog- ers, J.: ‘* Hawkers, peddlers, and petty chapmen are defined to be persons travelling from town to town with goods and merchandise. The manner of travelling, whether on foot or horseback, in wagons, carts, sleighs, or canal boats, does not enter into the definitions.” } § 1078. Travelling Auctioneer — Traveller selling through Res- ident Auctioneer— Sales at Market.—In England, Stat. 50 Geo. 3, c. 41, § 6, employed the words, “‘ every hawker, ped- dler, petty chapman, and every other travelling person and persons going from town to town, or to other men’s houses, and travelling either on foot or with horse, horses, or other- wise, &c., carrying to sell or exposing to sale any goods, wares, or merchandise.” And it was held that an auctioneer, con- veying goods by a public stage-wagon from place to place, and selling them on commission, was within this statute Soa person travelling from town to town, and having packages of books sent after him by public conveyance, and taking rooms at each town, and there selling at retail by auction, is a trad- ing person within this provision. And Abbott, C. J. added: “The argument urged on the part of the defendant, arising out of the extent of his dealings, would go to show, that, where the inconvenience to the resident tradesman is the greatest, no offence would be committed.” ? In such cases as these, the travelling person is not the less within the statute, though he employs a resident auctioneer at the several places where the goods are, by auction, sold. The fifth section of this act excepts from its penalties sales made in “ any public mart, market, or fair legally established.” And if one claims that a sale was made at a public market, he must show that the market was “legally established,” by grant from the crown, it not being sufficient if it was a mere market de ‘ facto 1 Fisher v. Patterson, 1 Harris, Pa. 4 Attorney-General v. Tongue, 12 886, 338. Price, 61. And see Attorney-General 2 Rex v. Turner, 4 B. & Ald. 510. v. Woolhouse, 1 Younge & J. 463, 12 See Allen v. Sparkhall,1 B. & Ald. Price, 65. 100. 5 Benjamin v. Andrews, 5 C. B.n.s. 3 Dean v. King, 4 B. & Ald. 517. 299. In Vermont, a man who had sold 668 CHAP. XLVII. ] HAWKERS AND PEDDLERS. § 1082 § 1079. Other Points : — Exceptions — Goods manufactured in the State, &c.— Under the Pennsylvania act of 1830, one who had tinware, which was manufactured within the State, might peddle it under cer- tain restrictions... There are other points of the like local nature decided under these statutes, but we need only refer to the authorities? § 1080. Constitutional.— In a sort of general way, these State statutes are held not to be any infringement of the Constitu- tion of the United States.3 Still, as in the case of the liquor law,‘ they cannot be made to interfere with imports.® Il. The Procedure.® § 1081. General View.— The chief difficulty connected with the procedure in these cases relates to the form of the indict- ment. Upon this head, the discussions in the following sec- tions will have a use beyond the mere questions themselves. § 1082. Whether Sales to be alleged — Massachusetts — Points as to Indictment.— In Massachusetts, a statute was passed in 1846 (Stat. 1846, c. 244), the first section of which was in the following words: “ From and after the first day of July next, every hawker, peddler, or petty chapman, or other per- son, going from town to town, or from place to place, or from dwelling-house to dwelling-house in the same town, either on foot, or with one or more horses, or otherwise carrying for sale, or exposing to sale, any goods, wares, or merchandise, or goods one year at Montpelier, and given his list and paid his taxes there, transferred his stock of goods and his United States license as merchant to Corinth. Here he hired a store for ten days, and sold goods through a licensed auctioneer. Then he made a like transfer to Chelsea, where he ad- vertised that he should remain only ten days. Before the latter period had expired, and before procuring ‘from the county clerk a license as a peddler, he was indicted; and it was held that he was a peddler within the meaning of the statute. The State v. Hodgdon, 41 Vt. 139. 1 Wolf v. Clark, 2 Watts, 298. 2 Page v. The State, 6 Misso. 205; Hirschfelder v. The State, 18 Ala. 112; Colson v. The State, 7 Blackf. 590; Foster v. Dow, 29 Maine, 442; Mabry v. Bullock, 7 Dana, 3387; Jones v. Berry, 33 N. H. 209. 8 Biddle v. Commonwealth, 13 S. & R. 405; Wynne v. Wright, 1 Dev. & Bat. 19; Beall v. The State, 4 Blackf. 107 ; Commonwealth v. Ober, 12 Cush. 493; contra, The State v. North, 27 Misso. 464. # Ante, § 990. ® People v. Moring, 47 Barb. 642. 6 For forms of proceedings under the English statutes, see Burn Just. tit. Hawkers and Peddlers. 669 § 1084 OFFENCES MORE PURELY STATUTORY. [BOOK V. taking a residence in any town for that purpose, for a less time than one year, except as provided in the second section, or under a license, granted as hereinafter provided, shall forfeit asum not exceeding two hundred dollars for every offence ; and that nothing contained in this section shall be construed to restrain sales at public auction, according to law.” + Upon this statute, an indictment in the following form was held to be insufficient; because it did not allege, that the defendant sold the goods as a hawker, peddler, or petty chapman, or while going about as such: That the defendant, on, &c., at Milford, &c., “ was a hawker, peddler, and petty chapman, and did then and there go from place to place and from dwelling- house to dwelling-house in said town of Milford on foot, expos- ing to sale goods, wares, and merchandise, and did then and there sell certain jewelry, to wit, one gold chain and compass, to one Benjamin B. Congdon.” ? § 1088. Continued — Why — Alleging Sale.— The ground upon which the above decision proceeded, was, as stated by the learned judge, that it was no offence for the defendant to sell the jewelry to Congdon, “ unless he sells it in the capacity or character of hawker, peddler, or petty chapman,” “or while going about as such.” ‘ But, for aught that this indictment avers, the defendant, though he was, at the time and place of the alleged sales, a hawker, &c., may have made those sales without going about selling or exposing jewelry for sale, or acting as a hawker.” In this case, as it not unfrequently happens in the hurry of judicial business, the attention of the judges was not directed to the exact words of the statute, else they inter- preted them differently from what most other tribunals woul have done. The statute says nothing of selling the goods; but the offence is made to consist in the going about “ carry- ing for sale, or exposing to sale ;” and, if a man does this, he is guilty, though he finds no customers. Can it, therefore, be necessary to allege, at all, that any sale was made ? § 1084. Continuea — Specific Acts — Alabama. — In an Ala- bama case, where the report does not give the exact terms of the statute, but it contained the word “ business,” while yet 1 See ante, § 1076. 2 Commonwealth v. Buckheimer, 14 Gray, 29. 670 CHAP. XLVII. | HAWKERS AND PEDDLERS. § 1084 it seems to have been of the like effect with the Massachusetts enactment, the following indictment was held to be good: That the defendant, at, &c., “was engaged in the business of hawking and peddling, and, being so engaged, he then and there pursued the business of hawking and peddling in one wagon,” &c. The objection overruled was, that some par- ticular acts of hawking and peddling should have been alleged. Said Goldthwaite, J.: “It may be, that, if the law had made it a penal offence for any one to hawk or peddle, it might be necessary to allege the particular act of hawking and peddling, and that the charge in general terms, although in the words of the statute, would not be sufficient.” With reference to this intimation, it should be observed, that, if we accept it as sound in law, still it does not necessarily require specific sales to be mentioned, with the names of the persons to whom they were made. The indictment, agreeably to this intimation, might follow the forms given for keeping a disorderly house, where, according to some opinions, acts of disorder must be stated, but not in a minute way, and the names of the fre- quenters of the house need not be averred.!. The learned judge proceeds: ‘“ But such is not the case we are called upon to decide. In the case presented, the gist of the offence is, not the hawking and peddling, but the being engaged in it under such circumstances as show that the defendant followed the pursuit as a business. It is not necessary, therefore, . to set forth the facts which constitute hawking and peddling, any more than it would be required, in an indictment for keeping a pool and bagatelle table without a license, to state what constitutes such a table... . The term ‘ business,’ as employed in the statute, being continuous in its character, not necessarily implying a single act or any number of acts, forms an exception to the general rule, and falls within the principle applicable to barratry and some other offences, that, where the charge is of a complicated nature, consisting of a repetition of acts, or where the offence includes a continuation of acts, it is unnecessary to set them out in the indictment.”? This Ala- 1 Crim. Proced. 2d ed. II. § 278- 46. The Massachusetts decision pre- 276. sents occasion, also, for another inquiry ; Sterne v. The State, 20 Ala. 43, namely, suppose it to be necessary to 671 § 1086 OFFENCES MORE PURELY STATUTORY. [BOOK V. bama doctrine is in exact harmony with the law, as held in Massachusetts, respecting the form of an indictment for being an unlicensed common seller of intoxicating liquors. § 1085. Continued — South Carolina. — In a South Carolina case, an indictment upon a statute not given alleged, that the defendant Andrew Powell, at a time and place mentioned, “ did sell and expose to sale divers goods, wares, and merchandise, the said Andrew Powell then and there being a peddler, and not having obtained a lawful license for that purpose,” &e. And this was held to be inadequate, the learned judge observ- ing: “In all criminal proceedings, the party charged should not be led blindfold to the altar. He should know the crime he is called to answer, and it should be so definitely charged that he may know how to shape his defence.”? But here, the reader will observe, there was no allegation that the defendant pursued the business of peddling, or went about from house to house peddling, or any thing of the sort. If, by the terms of the statute, or by the judicial interpretation of it, the offence consisted in any thing of this kind, there should have been an allegation covering the words, or the meaning which judicial construction had given the enactment, though extending be- yond the words; embracing, in due legal form, this idea. If, on the other hand, the offence was made by the statute to consist of specific acts of sale, then those acts should be set out, with names, dates, and the like. § 1086. Continued — Indiana. — In Indiana, in a case where the statute, as in the cases before mentioned, does not appear in the report, an indictment alleging, as the reporter observes, that the defendant, “not having any license or authority to vend clocks within the county of Wayne, did, in that county, unlawfully sell and vend to a certain person three brass clocks, set out a particular sale, and to say that it was made by the defendant as hawker, &c., —Is not the allegation that the de- fendant, at a time and place named, was a hawker, and was then and there engaged in hawking, and did then and there make a sale which it specifies, equivalent to the averment that he made the sale as hawker? If, at the time he made the sale, he was engaged 672 in hawking, in what other capacity than asa hawker could he have made it? The argument which denies this con- clusion must chop the logic of the in- dictment pretty fine. 1 Commonwealth v. Pray, 18 Pick. 359. 2 The State v. Powell, 10 Rich. 378, 874. CHAP. XLVII. | HAWKERS AND PEDDLERS. § 1088 for the sum of twenty dollars each, whereby the revenue of the county was diminished and defrauded,’ was held to be inadequate. It was considered, that the offence did not consist in making a single sale without license, but in being employed in the business of selling, without having obtained a license therefor. Here there was merely an allegation of a specific sale made by an unlicensed person; and this did not consti- tute an offence within the proper construction of the statutory terms.! § 1087. Form of Indictment. — Following the views thus suggested, if the author were to draw an indictment upon a statute worded like the before-recited Massachusetts one, he would select such of the alternative words in the statute as might best meet the facts of the particular case; and, if the facts rendered the particular selection advisable, the indict- ment would be somewhat as follows: — That A, late of, &c., on, &c., went about from dwelling-house to dwelling- house in the town of M, in the county of W, aforesaid, on foot; peddling and carrying for sale and exposing to sale to the people then and there found in said town, large quantities of goods, wares, and merchandise, to wit, watches, ear- knobs, gold chains, chains in imitation of gold chains, finger-rings, and other jewelry ; and did then and there follow, carry on, and conduct the business of peddler, not having received any license authorizing the same; the wares and goods and merchandise and jewelry which he then and there peddled, not being such as it is lawful to peddle without license; against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. § 1088. Observations on the Form — Negativing License — (Points, in the Note). —If the indictment were to be used in a State where a decision such as the Massachusetts one already mentioned had been rendered, of course, as matter of prudence, it should be made to contain the further allegations therein indicated. And in the above form, there are some averments which would probably not be held, in most of our States, to be absolutely necessary. The indictment must negative that there was a license.*, Some other points appear in a note.® 1 Alcott v. The State, 8 Blackf. 6. linquent person should forfeit and pay. 2 May v. The State, 9 Ala. 167. for each offence fifty dollars ; one-half 3 The Illinois statute of 1835, “‘regu- for the use of the informer, and the lating the mode of granting licenses to other half for the use of the county. clock peddlers,” provided, that the de- And it was held, that an action on the 6738 § 1090 OFFENCES MORE PURELY STATUTORY. [BOOK v. CHAPTER XLVIII. DEALING AS A MERCHANT WITHOUT LICENSE. § 1089. General View — Missouri Statute. — In some of the States, merchants are required to purchase a license, and those who pursue the business without are indictable. The offence of trading as an unlicensed merchant does not differ essentially from unlicensed hawking and peddling, except that the element of itinerancy is, in it, wanting. By a Missouri statute, “‘every person or copartnership of persons who shall deal in the selling of goods, wares, and merchandise, at any store, stand, or place occupied for that purpose, is declared to be a merchant.” Then the statute provides, that “ no person or copartnership of persons shall deal as a merchant without a license first obtained according to law.” § 1090. In what the Offence consists — Form of Indictment. — On this statute it was judicially observed: ‘“ The essence of the offence is the dealing as a merchant without a license. The single act of selling one or more articles would not con- stitute the offence; and, if the sale of a specific article were charged [in the indictment], it would be necessary also to charge that the defendant did deal as a merchant.’ There- fore the following form of the indictment, though not artistic, statute cannot be maintained in the the Tennessee act of 1838, c. 167, a name of the people, but it must be brought in the name of the county or of the informer. Said the judge: “‘ The defendant has forfeited nothing to the people.” Higby v. People, 4 Scam. 165. See, also, Merriam v. Langdon, 10 Conn. 460. In Alabama, the act of 1848 having prescribed a specific and different penalty for each of the several classes of peddlers who may violate its provisions, an indictment un- der it must designate the class to which the accused belongs, otherwise no judg- ment can be rendered upon it. Hirsch- felder v. The State, 18 Ala. 112. Under 674 warrant charging the defendant with “Hawking and peddling without li- cense, as required by law,” is sufficient- ly specific and valid. The State v. Sprinkle, 7 Humph. 36. Upon an in- dictment under the Massachusetts stat- ute of 1820, c. 45, § 1, for peddling goods not of the produce or manufac- ture of the United States, the govern- ment must prove affirmatively that the goods sold were of foreign produce or manufacture. Commonwealth v. Sam- uel, 2 Pick. 103. As to the form of the indictment in Kentucky, see Common- wealth v. Dudley, 3 Met. Ky. 221. DEALING AS A MERCHANT. § 1092 CHAP. XLVIII. ] and not quite conforming to common-law requirements, was deemed to be, under curative legislation of the State, ade- quate : — “That A, &e., on, &., at, &c., did unlawfully sell, at a certain store, stand, and place occupied by him for that purpose, various articles of goods, wares, and merchandise, and drugs and medicines, the names of which are unknown to said grand jurors, without having any license or legal authority whatever to sell the same, contrary,” &¢.1 It is plain, that a skilful and careful pleader would, at least, bring the allegation more completely within the statutory words in such a case; as, for example : — That A, &., on, &e., at, &c., not being licensed to deal as a merchant, did then and there, without license as aforesaid, deal as a merchant, by then and there dealing in the selling of, &c., the,same being goods, wares, and merchan- dise, at a store and place of business then and there occupied by him the said A for that purpose; contrary, &c. § 1091. Person to whom Goods sold. — It appears from the cases cited to the last section, that, in Missouri, it is not neces- sary the indictment aver to whom the goods were sold. But in Maryland this allegation is held to be necessary.? § 1092. Form of Goods changed by Labor. — Under the Mis- souri statute it was held to be immaterial that the defendant had changed the form of the labor upon them.® 1 The State v. Cox, 82 Misso. 566, 568, opinion by Bates, J. To the like effect is The State v. Willis, 37 Misso. 192. In another case, an indictment was held to be good which alleged, that the defendant “‘ did then and there un- lawfully deal as a merchant at acertain store, and did then and there sell divers goods, wares, and merchandise, to wit, one black coat, to L. for the sum of six dollars, without then and there having goods sold, by expending his a merchant’s license or any other legal authority therefor.” The State v. Ja- cobs, 88 Misso. 879. 2 Spielman v. The State, 27 Md. 520. 3 The State v. Whittaker, 38 Misso. 457. For various other points under these statutes, see The State v. Hun- ter, 5 Misso. 360; The State v. Martin, 5 Misso. 861; Tracy v. The State, 8 Misso. 2; Williamson v. The State, 16 Ala. 481. 675 § 1094 OFFENCES MORE PURELY STATUTORY. [BOOK V. CHAPTER XLIX. CRUELTY TO ANIMALS. 1093-1095. Introduction. 1096-1103. Older Statutory Law. 1104-1118. Recent Enactments. § 1098. How at Common Law. — We saw, in another connec- tion,! that cruelty to animals is not, of itself alone, when viewed in combination with no other element of wrong, indictable at the common law. One or two modern writers have laid down, in general terms, the contrary doctrine; namely, that cruelty to animals is, at common law, indictable; but they cite no cases which, on examination, are found to support the asser- tion. At the same time, there are circumstances in which the common law accepts it as an element which, combined with other elements, makes an indictable wrong. Thus, according to some cases adjudged in the District of Columbia, which are probably to be accepted as sound in law, if one cruelly beats a horse in the public streets of a city,? or beats a cow to death in such a place,’ or in a locality of this sort wantonly incites a ferocious dog to bite and tear a cow,* he commits an indict- able public nuisance; the same as, we saw,° a man may make himself a nuisance at the common law by drunkenness in a place like this. At the same time, and while the writer ac- cepts this view as sound in legal doctrine, there is a suspicious dearth of adjudication on the point, rendering it not quite certain that all courts would so hold. § 1094. Continued. — And it may be, as intimated else- where,® that there are other circumstances in which the element of cruelty to an animal will make that indictable at the common law, which otherwise would not be so. Ina 1 Crim. Law, 5th ed. I. § 594-597. 4 United States v. McDuell, 6 Cranch 2 United States v. Logan, 2 Cranch C. C. 391. C. C. 259. 5 Ante, § 968, 974-976. 3 United States v. Jackson,4 Cranch & Crim. Law, 5th ed. I. § 596. C. C. 488. 676 CHAP. XLIX.] CRUELTY TO ANIMALS. § 1097 Vermont case of malicious mischief at the common law,! where the particular injury was inflicted on some animals instead of inanimate things, the cruelty to the animals was adverted to by the court in a way, perhaps, to justify the infer- ence that it was deemed to be one of the elements of the crime.” But the precise nature and bounds of the general doctrine brought to view in these two sections it is not possible, on the few adjudications which the books contain, satisfactorily to state. § 1095. Statutes — How the Chapter divided. — We have, however, statutes regulating this subject; some of them, not very effectual ones, of many years’ standing, and others more effectual of a very recent date. Let us, therefore, consider these statutes, and their interpretation, and the practice upon them, in the following order: I. The Older Statutory Law; II. The Recent Enactments. I. The Older Statutory Law. § 1096. Oldest Statute. — The oldest statute on this subject, in the countries governed by the common law, perhaps the oldest in any country, is said to be an act of the General Court of Massachusetts Colony, in 1641, as follows: “It is ordered by this court, that no man shall exercise any tyranny or cruelty towards any brute creatures, which are usually kept for the use of man.” 8 § 1097. Subsequent American Statutes — English. — Pro- visions more or less like this, accompanied by penalties, were afterward introduced among the statutes of some of our States. In England, the earliest enactment on this general subject, so far as the author is aware, was Stat. 3 Geo. 4, ¢. 71, a. p. 1822, entitled ‘‘ An Act to prevent the Cruel and Improper Treat- ment of Cattle.” It empowered magistrates to inflict a penalty on any person who “shall wantonly and cruelly beat, abuse, or ill treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle ;’’ provided the prosecution was commenced within ten days. And if the complaint should 1 Ante, § 330 et seq. 3 Old Colony Laws, p. 95. 2 The State v. Briggs, 1 Aikens, 226. 677 § 1098 OFFENCES MORE PURELY STATUTORY. [BOOK V. appear to the magistrate on the hearing to be “ frivolous or vexatious,” then the complainant was to be ordered to pay the defendant “any sum of money not exceeding the sum of twenty shillings, as compensation for the trouble and expense to which said party may have been put by such complaint.” Afterward, in 1833, Stat. 3 & 4 Will. 4,c. 19, § 28 and 29, made it penal to set dogs on cattle, or pelt them with stones, or the like, or engage in “fighting or baiting of bears, cock- fighting, baiting or fighting of badgers, or other animals,” “within five miles of Temple Bar.” But in 1835 these provisions were superseded by more ample ones, constitut- ing Stat. 5 & 6 Will. 4, c. 59, in twenty-one sections, enti- tled “An Act to consolidate and amend the several Laws relating to the Cruel and Improper Treatment of Animals, and the Mischiefs arising from the driving of Cattle, and to make other provisions in regard thereto.” Though this stat- ute has also been superseded by a later revision, it seems to have formed a sort of basis for the present enactments, English and American ; from which, indeed, they were in some measure copied. It may be added, that the present English statute is 12 & 18 Vict. c. 92, amended by 17 & 18 Vict. c. 60; the former enacted in 1849, and the latter in 1854. § 1098. Construction and Procedure : — Beating Horse — Massachusetts —-New Hampshire — Form of Indictment. — The Massachusetts General Statutes, enacted before the late laws restraining cruelty to animals, provide as follows: “ Whoever cruelly beats or tortures any horse, ox, or other animal, whether belonging to himself or another, shall be punished,” &c.1 The New Hampshire statute is, or was, like it, except that it is silent on the question of ownership, and the terms expressive of the intent are not exactly the same. It is: “If any person shall wilfully and maliciously kill, maim, beat, or wound any horse, cattle, sheep, or swine, he shall be punished,” &c. But by the construction of this New Hamp- shire statute, the same as by the terms of the Massachusetts one, the offence may be committed by a man on his own ani- mal, as well as on another’s.? On the Massachusetts statute, 1 Mass. Gen. Stats. c. 165, § 41. 2 The State v. Avery, 44 N. H. 392. 678 CHAP. XLIX. ] CRUELTY To ANIMALS. § 1099 the following form of the complaint for cruelly beating a horse has been sustained on motion in arrest of judgment; the specific objection being, that it charged two offences in a single count : — “That Richard Lufkin, &c., on, &c., at, &c., with force and arms unlawfully and cruelly did beat and torture a certain horse, of the property of him the said Edward Bassett [the complainant] and one Knott P. Martin, against,” &c.1 And another form of the indictment, still more brief, as fol- lows, has been held to be adequate : — “That A, &., on, &., at, &c., did cruelly beat a certain horse, against the peace of the Commonwealth, and contrary to the form of the statute,” &c.2 § 1099. Ownership, continued — Texas — Wounding Bull. — Not only is the ownership technically unimportant under these statutes, as just stated, but it is perhaps practically so for every purpose. Thus, in Texas, under a similar enactment, it was held that the ownership need not be alleged in the indictment. The words of the statute were: “If any person shall wilfully and wantonly kill, maim, wound, poison, or cruelly and un- mercifully beat and abuse any dumb animal, such as is enu- merated in the preceding article, he shall be fined,” &. And the following form of the indictment was sustained as ade- quate : — “That Joseph Brocher, late of said county, on, &c., in the county aforesaid, unlawfully did wilfully and wantonly wound a certain bull, contrary,” &¢.3 While this Texas doctrine, with which also the Massachu- setts doctrine accords,‘ is, in the strict view of the law, sound, still, as we saw in a preceding chapter,® every offence should be identified and made specific in the allegation, and to state the name of the owner is one means of identification; there- fore, we may presume, a court might, under some circum- stances and forms of the offence, hold to be good an indictment in which the owner’s name is alleged, where, for want of identification, the allegation would be adjudged inadequate 1 Commonwealth v. Lufkin, 7 Allen, 3 The State v. Brocker, 32 Texas, 579. 611. 2 Commonwealth v. McClellan, 101 4 Ante, § 1098; Commonwealth v. Mass. 34. McClellan, 101 Mass. 34. 5 Ante, § 1037 and note. 679 § 1101 OFFENCES MORE PURELY STATUTORY. [BOooK v. without the name; though doubtless most courts would deem any other form of identification to be as good as this. But whether the name of the owner is alleged or not, it will be error to instruct the jury in such a way as to lead them to believe that there are differences in the law depending on the question of ownership.? § 1100. “Torture” — The Means — “Beat.” — From a Mis- souri case,? where a statute was in terms like those of Mas- sachusetts, New Hampshire, and Texas, it appears that, if “torture” is the cruelty inflicted, it is not sufficient simply to employ the word “torture” in the indictment, but the means by which the suffering is inflicted must be averred ; and they must be such as will enable the court to see that they resulted in “ torture,” as forbidden by the statute.2 We ought probably to assume these several decisions to be sound ; and infer, that the difference in doctrine depends on an ob- vious distinction between the two words “ torture ” and “ beat,” the former being of a compound signification and being an- swered in meaning by a great diversity of acts, and the latter signifying one certain and known thing. It was once ob- jected to an allegation, “that,” observed the learned judge, “the word ‘ beat’ does not of itself describe with sufficient cer- tainty the alleged act; because it may refer to a race, or some other act of contest.” Yet the objection was not sustained.® § 1101. What justify “Beating” a Horse — Discipline and Training. — Under the New Hampshire statute before quoted, the words of which, expressive of the intent, are “ wilfully and maliciously,” ® it has been laid down, that, if one in good faith is training his horse, or administering discipline to the animal, he does not violate the statute however severe or un- reasonable the blows, provided he administers them honestly, and within his own theory of what is right and proper in the case.’ Perhaps this is putting the doctrine a little stronger than the court meant;® but, if not, it seems to the writer that the 1 Commonwealth v. Lufkin, 7 Allen, 5 Commonwealth v. McClellan, 101 579. Mass. 34, 35, opinion by Chapman, C. 2 The State v. Pugh, 15 Misso. 509. J.; Crim. Proced. 2d ed. I. § 356. 3 See, more at large, Crim. Proced. 6 Ante, § 1089. 2d ed. I. § 629. 7 The State v. Avery, 44 N. H. 392. 4 And see ante, § 446-448 ; post, § 1113. 8 The head-note, as to this point, is : 680 CHAP. XLIX. ] CRUELTY TO ANIMALS. § 1102 interpretation, in just these terms, is not sound; because this statute, like all others on the subject, is based on the theory, unknown to the common law, that animals have rights, which, like those of human beings, are to be protected. A horse, under its master’s hand, stands in a relation to the master analogous to that of a child to a parent. The law must fix bounds to the right of discipline by blows, in the one case the same as in the other. And no man can carry out a “ theory” contrary to the law, without being punished for doing it.1 Still the words “ wilfully and maliciously” must have their effect; and the interpretation of the statute, on the present point, should not be the same as if these words were not in it, or words of a milder meaning were employed. The significa- tion of these words was attempted to be given in another con- nection.2_ They do not differ greatly from the phrase “ wilfully and of malice aforethought,”’ employed to distinguish murder from manslaughter,’ though possibly they should not be con- strued as requiring so much intensity of evil in the intent. And a man standing in loco parentis to a child will under some circumstances be held to have “ malice aforethought” when he unreasonably beats the child in the way of discipline ;. while, under other circumstances, he will not, though the beating is unreasonable and illegal, so that if death follows he will be indictable for manslaughter.t The corresponding Massachusetts statute, as we have seen,® employs the single word “cruelly”? in the place of the phrase “ wilfully and maliciously” in the New Hampshire enactment; and Hoar, J. sitting in the Massachusetts court, observed: “ Although the most common case to which the statute would apply is un- doubtedly that in which an animal is cruelly beaten and tor- tured for the gratification of a malignant or vindictive temper, yet other cases may be suggested, where no such express pur- pose could be shown to exist, which would be within the intent ‘(A beating for the purpose of training ° Ib. I. § 427-429. See ante, § 467. or discipline, although unreasonably se- 3% Ante, § 465-468; Crim. Proced. vere, does not constitute an offence un- 2d ed. II. § 542-546. : der this statute, so long as it is in good 4 Crim. Law, 5th ed. II. § 656, 668, faith administered for such purpose.” 684, 685. 1 Crim. Law, 5th ed. I. § 309 and 5 Ante, § 1098. note, 344. 44 681 § 1103 OFFENCES MORE PURELY STATUTORY. [BOOK Vv as well as the letter of the law. Thus, cruel beating or torture for the purpose of training or correcting an intractable animal ; pain inflicted in wanton or reckless disregard of the suffering it occasioned, and so excessive in degree as to be cruel; tor- ture inflicted by mere inattention and criminal indifference to the agony resulting from it, as in the case of an animal con- fined and left to perish from starvation ; we can have no doubt would be punishable under the statute, even if it did not appear that the pain inflicted was the direct and principal object. Severe pain inflicted upon an animal for the mere purpose of causing pain or indulging vindictive passion is cruel. And so it is if inflicted without any justifiable cause, and with reasonable cause to know that it is produced by the wanton or reckless conduct of the person who occasions it.” ? § 1102. Continued — Surgical Operation — Preservation of Human Life.— On another point, the Massachusetts and New Hampshire statutes, now under consideration, should be inter- preted alike, and it appears that they are. For, continued Hoar, J. in the case just cited, “ it certainly is not true, as an abstract proposition, that it is immaterial what may be the motive of a person who inflicts pain upon an animal, in deter- mining the criminality of the act. Pain inflicted for a lawful purpose, and with a justifiable intent, though severe, does not come within the statute meaning of ‘cruel.’ Thus, a surgical operation, occasioning the most intense suffering, may be justi- fiable, and is not criminal. To drive a horse at a rate of speed most distressing to the brute, when the object is to save human life, for example, or to attain any other object of ade- quate importance, may yet be lawful.” 2 And as far as the New Hampshire case goes on these points, it accords with these views.3 § 1103. Conclusion. There are a few further points deriva- ble from the older cases, but they will better appear under our next sub-title. On the whole, it seems remarkable that these earlier statutes, existing at times when cruelties inflicted on 1 Commonwealth v Lufkin,7 Allen, ® The State v. Avery, 44 N. H. 579, 581. 892. 2 Commonwealth v. Lufkin, 7 Allen, 579, 682. 682 CHAP. XLIX. ] CRUELTY TO ANIMALS. § 1105 dumb creatures were perhaps even more common than now, should have been drawn so little into discussion in the courts. Il. The Recent Enactments. § 1104. General Statement — Course of the Discussion.— We have already seen? that the statute at present in force in Eng- land on this subject is 12 & 18 Vict. c. 92, amended by 17 & 18 Vict. c. 60. It has not been so far settled in its meaning by the courts as to render expedient a copying of it, prepara- tory to introducing the decisions. In a sort of general way, this enactment, and the respective late legislative acts in our States, are alike, while in minor particulars they differ from one another. It is proposed, under this sub-title, to introduce so much of the statutory law of our States as will render plain the discussions to follow, and then to undertake a general elu- cidation of these statutes. In the latter endeavor, we shall be obliged to proceed with almost no help from direct judicial authority ; for, so far as the author is aware, not a single case on these late enactments has passed to judgment before the higher courts. § 1105. Miinois Statute. — The Illinois statute is a good representative of the American ones generally. It is as fol- lows : — “Section 1. Whoever shall wilfully overdrive, overload, overwork, torture, torment, deprive of necessary sustenance, cruelly beat, mutilate, or kill, or cause or procure to be so overdriven, overloaded, overworked, tortured, tormented, de- prived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any horse or other animal (the word ‘animal,’ as used in this act, shall be taken to mean any living creature); and whoever, having the charge or custody of any such animal, either as owner or otherwise, shall unnecessarily fail to provide such animal with proper food and drink, shall, for each and every offence, be punished, &c., to be recovered on complaint before any justice of the peace, or by indictment in the county where such offence shall be committed. “Sxcr. 2. Every owner of, or person having the charge or custody of, any horse, ox, or other animal, who shall knowingly and wilfully authorize or per- mit the same to be subjected to or suffer any unnecessary torture or cruelty, shall be punished for every such offence in the manner provided in section one. “Sxct. 8. Every owner, driver, or possessor, or person having charge or custody of an old, maimed, or disabled or diseased horse, mule, or other animal, who shall cruelly work the same when unfit for work, or cruelly abandon the 1 Ante, § 1097. 683 § 1106 OFFENCES MORE PURELY STATUTORY. [BooK v. same, shall be punished for every such offence in the same manner provided in section one. “Sect. 4. Any person who shall carry, or cause to be carried, in or upon any vehicle or otherwise, any animal in an unnecessarily cruel or inhuman manner, shall be punished in the same manner provided in section one. “Srcr. 5. No railroad company in this State, in the carrying and transpor- tation of cattle, sheep, swine, or other animals, shall confine the same in cars for a longer period than twenty-eight consecutive hours, unless delayed by storm or other accidental causes, without unloading for rest, water, and feeding, for a period of at least five consecutive hours. In estimating such confinement, the time the animals have been confined without such rest on connecting roads, from which they are received, shall be computed, it being the intention of this act to prevent their continuous confinement beyond twenty-eight hours, except upon contingencies hereinbefore stated. “Sect. 6. If the owner or person in charge of said animals refuses or neg- lects to pay for the care or feed of animals so rested, the railroad company may charge such expense to the owner or consignee, and retain a lien upon the animals until the same is paid, and no claim of damages for detention shall be recovered by the owner or shipper of any animals for the time they are detained under the provisions of this act. “Sect. 7. Any railroad company, owner, or consignee, or person in charge of said cattle, sheep, swine, or other animals, who shall violate any provision of the fifth or sixth sections of this act, shall, for each and every such violation, be liable for, and forfeit and pay a penalty of one hundred dollars, to be recovered in the name of the people of the State of Illinois, before any justice of the peace of the proper county. [Secrs. 8-10 relate to the enforcement of this act, and the care of impounded cattle. ] “Sercr. 11. If any maimed, sick, infirm, or disabled animal shall be aban- doned to die, by any owner or person having charge of the same, such person shall, for every such offence, be punished in the same manner provided in section one.” 1 § 1106. New York Statute.— The New York statute differs, perhaps, from this Illinois one as much as the late statutes in our States generally on this subject differ from one another. It is, in full, as follows : — “Secr. 1. If any person shall overdrive, overload, torture, torment, deprive of necessary sustenance, or unnecessarily or cruelly beat, or needlessly mutilate or kill, or cause or procure to be overdriven, overloaded, tortured, tormented, or 1 Act of March 31, 1869, as amended upon conviction thereof, be punished in the first section by act of March 8, 1872; 1 Gross, 18, 19, § 27-86; 2 Ib. 8, § 55. This statute contains also two more sections, § 12 being in the exact terms of § 2 of the New York act, but ending thus: “and every person who shall visit such place, so kept or used, or who shall be found therein, shall, 684 for every such offence in the same manner provided in section one.” By § 13, “The provisions of section five of this act, requiring animals to be un- loaded, shall not apply when they are properly fed and watered on the cars in which they are transported.” CHAP. XLIX.] CRUELTY TO ANIMALS. § 1106 deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated or killed, as aforesaid, any living creature, every such offender shall, for every such offence, be guilty of a misdemeanor. ‘““Sxcr. 2. Any person who shall keep or use, or in any way be connected with, or interested in the management of, or shall receive money for the admis- sion of any person to any place kept or used for the purpose of fighting or bait- ing any bull, bear, dog, cock or other creature, and every person who shalj encourage, aid or assist therein, or who shall permit or suffer any place to be so . kept or used, shall, upon conviction thereof, be adjudged guilty of a misde- meanor. “Szcr. 8. Any person who shall impound, or cause to be impounded in any pound, any creature, shall supply to the same, during such confinement, a suffi- cient quantity of good and wholesome food and water, and in default thereof shall, upon conviction, be adjudged guilty of a misdemeanor. “Srot. 4. In case any creature shall be at any time impounded as aforesaid, and shall continue to be without necessary food and water for more than twelve successive hours, it shall be lawful for any person, from time to time, and as often as it shall be necessary, to enter into and upon any pound in which any such creature shall be so confined, and to supply it with necessary food and water so long as it shall remain so confined. Such person shall not be liable to any action for such entry, and the reasonable cost of such food and water may be collected by him of the owner of such creature, and the said creature shall not be exempt from levy and sale upon execution issued upon a judgment therefor. “Sxnor. 5. If any person shall carry, or cause to be carried, in or upon any vehicle or otherwise, any creature, in a cruel or inhuman manner, he shall be guilty of a misdemeanor; and whenever he shall be taken into custody therefor by any officer, such officer may take charge of such vehicle and its contents; and deposit the same in some safe place of custody ; and any necessary expenses which may be incurred for taking charge of and keeping and sustaining the same, shall be a lien thereon, to be paid before the same can lawfully be recovered. Or the said expenses or any part thereof remaining unpaid, may be recovered by the person incurring the same, of the owner of said creature, in any action therefor. “ Szor. 6. Every person who shall hereafter use any dog or dogs for the pur- pose of drawing or helping to draw any cart, carriage, truck, barrow, or other vehicle, in any city or incorporated village, for business purposes, shall be re- quired to take out a license for that purpose, from the mayor or president thereof, respectively, and shall have the number of said license and the residence of the owner distinctly painted thereon; and for each violation of this section shall forfeit and pay a fine of one dollar for the first offence, and a fine of ten dollars for each subsequent offence. “Sxcr. 7. If any maimed, sick, infirm or disabled creature shall be aban- doned to die, by any person, in any public place, such person shall be guilty of a misdemeanor; and it shall be lawful for any magistrate or captain of police in this State to appoint suitable persons to destroy such creature if unfit for fur- ther use. “Sror. 8. Any agent of the American Society for the Prevention of Cruelty to Animals, upon being designated thereto by the sheriff of any county in this 685 § 1108 OFFENCES MORE PURELY STATUTORY. [BOOK v. State, may, within such county, make arrests, and bring before any court or magistrate thereof having jurisdiction, offenders found violating the provisions of this act ; and all fines imposed or collected in any such county, under the pro- visions of this act, shall enure to said society, in aid of the benevolent objects for which it was corporated. “Sxror. 9. This act shall take effect on the first day of May next. And the said American Society for the Prevention of Cruelty to Animals shall cause the same to be published once in each week for three weeks, in four daily papers published in New York city, or in default thereof shall forfeit the right to receive the penalties and fines as provided. “Srcr. 10. Nothing in this act contained shall be construed to prohibit or interfere with any properly conducted scientific experiments or investigations, which experiments shall be performed only under the authority of the faculty of some regularly incorporated medical college or university of the State of New York.” ! § 1107. Form of the Indictment for Overloading. — The first section of each of the foregoing statutes makes it punishable to “overload” the animal; which is:‘a very common offence, especially in the case of horses. This term “ overload” is used in most of the late statutes, but not all. In a case of overloading a railroad car drawn by horses, tried before Recorder Hackett in New York city, the indictment, which appears to have been accepted as good in form, was in the following words : — “That George W. Tinsdale, late of the first ward of the city of New York in the county of New York aforesaid, he then and there being a conductor of a passenger car on the Bleecker Street and Fulton Ferry Railroad of the city of New York, and Arthur Taggart, late of the same place, he then and there being the driver of said passenger car of said railroad, on the second day of January, in the year of our Lord one thousand eight hundred and sixty-eight, at the ward, city, and county aforesaid, with force and arms did unnecessarily overload and procure said passenger car to be overloaded, then and there being attached to said passenger car two living creatures, to wit, two horses; by means whereof on a certain portion of the route of the said railroad the horses so attached to said passenger car were unable to draw said passenger car, but were, by reason of the premises aforesaid, overloaded, overdriven, tortured, and tormented ; against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dig- nity.”2 § 1108. Observations on this Form. — Proposed Change of Form. — Now, turning back to the New York statute on which this form is drawn (§ 1), we see that the words 1 Act of April 12, 1867, 7 Edm. Stats. 2 People v. Tinsdale, 10 Abb. Pr. 86. N. 8. 3874. 686 CHAP. XLIX.] CRUELTY TO ANIMALS. § 1108 meant to be covered by the allegation are, “If any person shall overload, or procure to be overloaded, any living creature, every such offender shall,” &c. In misdemeanors, every person who causes or procures the wrongful thing to be done, or in any way by his will contributes to it, is, whether present or absent, a principal offender, and he is liable in the same manner, and to the same extent, and, if the pleader chooses, may be indicted, usually, in exactly the same form of words, as if the thing done had been executed by his own personal and manual touch.t This New York statute, and most of the other statutes of our States on the same sub- ject, together with the present English enactment, contain the superfluous clause “cause or procure,” &c.; having been penned, it would seem, by persons who supposed they were addressing ignorant hackmen and other like individuals, who, they thought, did not know the law. But, though this is so, there is no good reason why the pleader should plant himself on the superfluous matter, out of a like consideration for the “Jay gents,” as Mr. Justice Powell called them, who constitute the jury ; because, though the jurors may not have known this bit of law when summoned on the panel, they will be informed of it by the court. The author, therefore, would prefer to draw the indictment according to the legal, rather than the mere outward fact, and so would make no mention of causing or procuring.? Again, the form of indictment we are consider- ing states, as consequences of its premises, various superfluous things; or, if we should suppose them not to be superfluous, they ought to be set out differently. Without questioning, therefore, the sufficiency of this indictment as actually drawn, the author would prefer some change in it, principally, not wholly, on the ground of mere taste; and, though it is easier to find fault than to do a faultless thing, he would suggest the following : — That A, late of, &c., horse-car driver, and B, late of, &c., horse-car conductor, on, &e., at, &c., the said A being then and there the driver and the said B being then and there the conductor of a certain horse-car there passing and going, to which said car were attached two horses [the same being living creatures 3], did 1 Crim. Law, 5th ed. I. § 629,681, 2 Crim. Proced. 2d ed. I. § 388, 632, 656, 685, 686; Crim. Proced. 2d ed. 384. I. § 832; IL. § 1-6, 59; ante, § 1024. 3 Some pleaders might choose to in- 687 § 1110 OFFENCES MORE PURELY STATUTORY. [BOOK v. then and there, by admitting into said horse-car too great a weight of passengers and other things for the strength of said horses, and requiring said horses to draw and attempt to draw said car so overladen, wilfully overload said horses, to their great pain, damage, and injury, against the form of the statute, &. § 1109. Course of the Further Discussion. — It is not proposed, in this chapter, to enter minutely into every sort of undecided question which may be suggested by the subject; but simply to direct the attention of the reader to a few particulars, in respect of which some suggestions, and a reference to illustra- tive doctrines of the law, will be specially helpful to him. The order of the discussion is of little consequence, and it will be indicated as we go on. § 1110. “ Overloading.” — The indictment, in the case before Recorder Hackett already mentioned,! seems to be framed upon the theory that to overload is to put upon the vehicle a weight beyond the power of the horses to draw; and, on the trial, evidence was introduced that passengers were obliged to get out of the car and help it along.? But, though this form of the allegation and the evidence might have been judicious in the particular case, plainly the law does not require: the facts to go so far. If so great a weight is put upon the vehicle that the horses cannot draw it, yet they are cruelly compelled to strain at it in a fruitless attempt, this is undoubtedly an overloading ; but it is not a case of such unmitigated cruelty, and so completely within the statute, as where they are com- pelled to draw a load which overtasks their strength, and the vehicle is almost made to stop, but not quite. This is over- loading in its worst form. Yet how extreme the case must be, to come within the statute, is a point which cannot be exactly set down in words; and it must be left to the good sense of the court and jury on the particular facts of each case. The habits and general disposition of the individual horse may be shown by the testimony of any person who is acquainted with them ;* and these, in connection with what appears at the sert these words because they are in 1! Ante, § 1107. the statute. But they are unnecessary. 2 People v. Tinsdale, 10 Abb. Pr. x. And it would not do to say simply s. 874. “two living creatures,” instead of two 3% The State v. Avery, 44 N. H. horses. Ante, § 440; post, § 1112, 392. 1118, 688 CHAP. XLIX.] CRUELTY TO ANIMALS. § 1110 time of the alleged overloading, will in general be found to be a sufficient guide to the decision.? 1 The president of the Massachusetts Society for the prevention of Cruelty to Animals, Mr. George T. Angell, is a competent lawyer, who has given great attention to this class of cases; and, though he may be supposed to write in some measure as an advocate, the fol- lowing from him, in answer to the question, ‘‘ What is overloading and how proved ?” will commend itself to most readers as being, in the main, sound : — . Must an animal be worked until he breaks a blood-vessel or drops dead, before the law takes cognizance? Is the horse to be strained, or worked to the extreme limit of his strength, be- fore such straining or working becomes cruelty [that is, before the act of his master becomes ‘ overloading’]? Can an expert, or any number of experts, say what is the limit of strength or endurance of any horse simply by knowing his weight? It seems to me that these questions can be easily an- swered. Horses, like men, are of dif- ferent ages, constitutions, tempera- ments, formations, and degrees of strength. One horse, just like one man, may be twice as fast, twice as tough, twice as strong, as another of precisely the same weight, and inas- much as horses, like men, are liable to a great variety of sicknesses, and suffer just like men from previous overwork- ing, and from heat, want of proper rest, food, water, shelter, and care, it follows that the same horse, like the same man, may be able to perform without injury more labor on one day than another. “ Can a thousand experts prove that all men of a given weight, or size, are equally competent, on every day of the year, to perform a given labor ? Can their testimony establish how much load a man of given weight should car- ry, and how far he should carry it ona given day, without regard to whether the man is old or young, sick or well, strong or weak, tough or tender, al- ready tired or rested, full fed or starved, or the day hot or cold? And does not precisely the same reasoning apply to the horse, — that what one horse can do on one day has no force in showing what another ought to do on another day, unless you show the weather, the age, strength, toughness, and bodily condi- tion of the two to be precisely similar ? I say, then, that it is just as impossible for any number of experts, knowing only the weight or size of a horse, and nothing of his age, health, strength, toughness, and bodily condition, to es- tablish what is, or is not, overloading him, as it would be, knowing only the size or weight of a man and nothing of his age, health, strength, toughness, or bodily condition, to establish what is or is not an overload for him. “ How, then, are we to determine when a horse is overloaded? Just ex- actly and precisely as we determine when a man is overloaded. First, we are to take his own evidence. If a man stops and says, I am overloaded, I am working too hard, I feel that the task put upon me is too heavy, that is evidence. So when the horse, ordinarily kind and willing to pull, comes with a heavy load to a rise of land, and after one or two efforts stops and says as plainly as he can speak it, I am overloaded, I am working too hard, I feel that the task put upon me is too heavy, that’s evi- dence ; and there is not a court or jury or man, with the heart of man, who will not recognize it as such. Besides, the signs of overwork are just as visible in the horse as the man. No magistrate or juror would have any difficulty in deciding in his own mind whether a case to which his attention might be attracted in our pub- lic streets was or was not a case of cruelty, “Is not, then, the testimony of compe- tent, intelligent, and credible by-standers, who see how the horse looks, and acts, and his bodily condition, health, and capability to perform the labor required, the best evi- dence that can possibly be obtained? Where can you get better? And when disinter- 689 [BooK v. § 1112 OFFENCES MORE PURELY STATUTORY. § 1111. Other like Statutory Words. — These views of the meaning of the word “ overload,” are applicable also to other statutory words of the like sort; such as “ overdrive,” ‘“ over- work,” “deprive of necessary sustenance,” and some others. There is a point, to be indicated by good sense, to which the wrong must be carried to be indictable, but it cannot well be set down in terms. Perhaps the best criterion is, that it must have proceeded so far as to be “cruel.” Yet between this point, and the utmost extreme which might be imagined, a greater or less distance will be found to lie. So “cruelly kill’? means something more than merely to “ kill;” if it did not, every man would be indictable who should kill a pig for his table. But the amount and kind of torture in the killing, necessary to constitute the offence, cannot well be defined in advance, except as the statute has done it by employing the word “ cruel.” § 1112. “ Animal ” — “Living Creature,” &c. — How the Alle- gation. — These statutes are so worded as to leave little room for controversy as to what particular animals or creatures are within their protection. But, when considering the doctrines relating to malicious mischief to animals, we saw, that, as already stated in a note,! it is not sufficient for the indictment to employ this general term and no more, it must be specific; as, for example, if the statutory word is “cattle,” which is much less broad than either “animal” or “living creature,” . ested and intelligent witnesses, who are present and see and hear all that is said and done in a given case, volun- tarily leave their ordinary avocations and come into court to testify that they are fully satisfied that the case isa clear case of cruelty, can such evidence be overbalanced by that of any number of experts who are not present, see nothing that occurs, know nothing of the age, health, strength, or bodily condition of the horse at the time, and who base their calculations simply upon the avoirdupois weight of the animal ? It is perfectly evident, then, I say, that the highest and best evidence which any court or jury can ask, or possibly obtain, in a case of overlouding, overworking, or over- 690 driving, is the evidence of the horse himself, as interpreted by those present when the cruelty is inflicted. “ Cruelty begins very far short of tasking the extreme strength of the animal. God has given to men and animals an excess of strength, to be husbanded carefully and used occasionally. But to task that strength to its full limit unneces- sarily is against nature, breaks down the man, or the animal, before his or its time, and is a cruelty against which men, having speech and reason, may protect themselves, but against which animals, having neither speech nor reason, like men, must look to them for protection.” 1 Ante, § 1108. CHAP. XLIX. | CRUELTY TO ANIMALS. § 1113 this word alone will not do in the indictment, but the pleader must say “ox,” “sheep,” or whatever other word indicates the particular species, and he need not, unless he chooses, add that the animal is “cattle.’1 The application of this doctrine to these statutes restraining cruelty to animals is plain. § 1113. Words to indicate, in the Allegation, the Cruel Act. — We have seen,? that, if.a statute makes it indictable to“ cruelly beat’ a horse, or to “ wilfully and wantonly wound” a bull, a count which ‘states the offence in the naked words of the stat- ute, — as, “did cruelly beat a certain horse,” or “ did wilfully and wantonly wound a certain bull,’ — is, according to deci- sions in Massachusetts and Texas, sufficient. So, if a statute forbids any one to “maliciously kill” (the term “ cruelly kill” is entirely different) the animal of another, it is ade- quate in allegation to say, that the defendant “ did maliciously kill” the animal, without entering into any particulars of the killing.2 On the other hand, according to doctrine which we have assumed to be correct, if the statutory word relied on is “ torture,’ an indictment in this naked form will not- do, but the particulars must be set out.4 In like manner we have assumed, that, where the statutory word is “ overload,” an indictment employing this word, without any specifying of the particulars, will not answer; at least, such was not the form in the New York case already mentioned.’ If we look at this question in the light of principle, and of such decisions in analogous cases as the books furnish, we shall come to the following conclusion. To charge a defendant with crime in general is equivalent to making no allegation whatever against him. He is entitled to have the specific criminal act for which he is to be put on trial — his act — the act special to his case —set out in allegation. If it is not sufficient to say that he is a criminal in general, so also it is not to allege simply that he committed a crime of a particular name or description ; the facts (not the evidence of them) special to the special case must be set out.6 Now, there are some words which, in their 1 Ante, § 440. 4 Ante, § 447, 1100. 2 Ante, § 1098, 1099. 5 Ante, § 1107, 1108. Ante, § 446. 6 Ante, § 373, and many other places, 691 § 1115 OFFENCES MORE PURELY STATUTORY. [BOOK Vv. meaning, and in the nature of the subject to which they are applied, are both full and precise; and, if such a word is employed in the statute, the use of the same word, without expansion, is adequate in the indictment. Such is the word “beat;” the act of beating may be performed with different weapons, but in all circumstances it is substantially one act. The word * wound” possibly admits of a greater variety of in- struments and forms, but substantially it may well enough be taken to be always one thing ; consequently, though there might be some difference of opinion among judges, we may reasona- bly accept the Texas décision! as sound. The word “ torture” conveys a more complex idea, therefore the transaction is not sufficiently individualized, or the charge made sufficiently precise, unless the particulars are specified. And what is true of torture is so also of “overload.” The idea is a complex one, and the act may be performed in a great variety of ways; therefore the particulars pertaining to the individual instance should be mentioned. We have seen,? that, if the statute employs the word “horse” to designate the animal, the same word is, sufficient in the indictment, because it is specific; while, if the term of the statute is “ any living creature,” the same term in the indictment will not do, but the specific word “horse”? must be used. If this view is not admitted, then the indictment may merely charge, that the defendant, at a time and place named, “ did overload a living creature;’’ and he will not know whether he is to answer for having put too heavy a burden on a horse’s back, or too great weight in a vehicle drawn by a donkey, or too many clothes on the baby, or too ponderous a flower on the back of a butterfly. § 1114. Continued. — It is not deemed best to proceed here entirely in advance of decisions, and attempt to forestall the judgment of the courts relating to each one of all the several words employed in these statutes. The true principle, it is believed, is stated above; but doubtless some differences of opinion will occur among judges concerning its application. § 1115. Several Animals — How many Offences — Joinder. — There is one question, however, which is of so much impor- 1 Ante, § 1099. 2 Ante, § 440, 441; 1098, 1107, 1108 and note. 692 CHAP. XLIX.] CRUELTY TO ANIMALS. § 1116 tance as to require a consideration here, though it appears to be hitherto wholly undecided. It is, whether, if in one trans- action cruelty is inflicted on more animals than one, there are constituted as many offences as there are animals, or whether the whole is only one offence, the same as though one animal only was injured. Now, in respect of other crimes generally, it pertains to the obscure and uncertain part of the law of criminal procedure to determine into what specific offences a given criminal transaction is separable The pleader has often a wide election in this matter, but there are limits to it. Yet the most important part of the present inquiry is, into what division of the criminal law we are to look for analogies to guide us in these cases. Plainly, at this point, the two offences of malicious mischief to animals, and of cruelty to animals, are very wide apart. The former is a crime analogous to larceny, and it is purely a wrong done to the owner of the animal ;? and, beyond doubt, the rules in larceny, as concerns the present point of inquiry, govern it. But the latter is a crime against the animal itself ;® and, in reason, it is governed, as to the questions now under consideration, by the rules pre- vailing in assaults, battery, homicide, and the kindred crimes against the persons of individuals. § 1116. Continuea.— If a man by one blow beats two per- sons, he may be indicted in one count for the battery of the two, or for the battery of one only, at the election of the pleader. Yet it has been held that there is but one offence in such a case; and, if an offender is convicted as respects one of these persons, he cannot afterward be prosecuted in respect of the other. And suppose an indictment charges the beating of two persons, yet the proof is only of one, still, according to the bet- ter opinion on a disputed question, there may be a conviction as respects one. Yet this entire doctrine, though sound in prin- ciple as thus stated, is somewhat obscure in the authorities.4 The law on this subject, whatever it is, undoubtedly is appli- cable to the beating of animals. But, if a man by separate 1 See Crim. Law, 5th éd. I. the 3 Ante, § 1101. chapter commencing § 791, 1048-1069 ; * Crim. Proced. 2d ed. Il. § 60; Crim. Proced. 2d ed. I. § 444 et seq. Crim. Law, 5th ed. I. § 1061. 2 Ante, § 480 et seq. 693 § 1118 OFFENCES MORE PURELY STATUTORY. [Boox y. blows beats more animals than one in one continuous trans- action, and no one blow takes effect on more than one animal, there can be no doubt that he commits an offence for each animal offended against; or, in other words, as many offences as there are animals beaten, and he may be convicted on sep- arate counts of one indictment, or on separate indictments. § 1117. Continued. — When we come to such an offence as overloading, if two horses are harnessed to one vehicle which they are required to draw, there appears to be but one criminal act, and not a crime for each horse. Therefore, in the New York case already referred to, a single count very properly embraced the charge of overloading two horses.1_ Probably if the charge had been that the defendants overloaded one of the horses, it would have been good; but, in reason, and in analogy to the better authorities, the defendants could not then be convicted of overloading the other horse, either on a separate count of the same indictment, or on a separate in- dictment. And, in conclusion of the whole matter, the rule furnished by reason and by analogies drawn from the better authorities is the following: If by one volition, or series of volitions where the separate volitions do not terminate each on its separate animal, the defendant injures more animals than one, he commits but one offence, however many the animals may be. But if the injury comes from separate volitions, where each one takes effect only on its particular animal, or from separate series of volitions, where each single volition is of the like sort, he commits as many offences as there are animals injured.? § 1118. Cock-fighting, &«. — Some cases have arisen respect- ing cock-fighting and the like ;? but it is deemed best that the chapter and the volume should here close. 1 Ante, § 1107. 3 Budge v. Parsons, 8 B. & S. 882; 2 Of course, the pleader will bear in Clark v. Hague, 2 Ellis & E. 281, 8 Cox mind the doctrine stated ante, § 244, C. C. 324; Morley v. Greenhalgh, 3 B. 883, which will be found applicable un- & S. 374. der some of these statutes. 694 INDEX TO THE CASES CITED. Tn the following Index, where the plaintiff is the King or Queen (Rex or Regina, abbreviated Reg.), the State, People, Commonwealth, United States, or the like, the name of the defendant is put first; such names as In re Jones, Estate of Jones, &c., are indexed, Jones, In re, Jones, Estate of, &c. Otherwise the cases stand here in their nat- ural and unreversed order. SECTION Abbey, State v. (29 Vt. 60) 606 Abbott, State v. (11 Fost. N. H. 434) 1044 —, State v. (20 Vt. 587) 440, 442 v. Wood (22 Maine, 541) 199 Aberdeen v. Saunderson (8 Sm. & M. 663) 22, 997 Abrahams v. Commonwealth (1 Rob. Va. 675) 111 Abram, State v. (4 Ala. 272) 164 Abrams v. Foshee (3 Iowa, 274) 747 Absence, State v. (4 Port. 397) 142 Academy of Fine Arts v. Phila- delphia (10 Harris, Pa. 496) 193 Acuff, State v. (6 Misso. 54) 215 Adams v. Albany (29 Ga. 56) 24 v. Ashby (2 Bibb, 96) 154, 168 v. Field (21 Vt. 256) 97 v. Hackett (7 Fost. N. H. 289) 1008, 1030 —, People v. (17 Wend. 475) 10387 —, Reg. v. (Car. & M. 299) 166, 167, ' 216, 228 —, Rex v. (1 Russ. Crimes, Grea. ed. 728) 815 v. Turrentine (8 Ire. 147) 242 v. Woods (2 Cranch, 336) 82 Adamson, State v. (14 Ind. 296) 992, : 1020 Adcock, Commonwealth v. (8 Grat. 661) 179 Addington, State v. (2 Bailey, 516) 177 Adell v. State (84 Ind. 5483) 501, 513 Adley v. Reeves (2M. & 8.53) 408 Agee v. State (25 Ala. 67) 1042 Ah Yek, People v. (29 Cal. 575) a SECTION Aiken v. Blaisdell (41 Vt. 655) 1081 Aikin v. Western Railroad (20 N. Y. 370) 104 Ailesbury v. Pattison (1 Doug. 28) 82 Ainsworth v. State (5 How. Missis. 242 505 ——, State v. (11 Vt. 91) 1027 Albertson, State v. (2 Blackf. 251) 854 Albin, State v. (44 Misso. 346) 809 Alcott v. State (8 Blackf. 6) 1075, 1086 Aldridge, Reg. v. (4 Cox C. C. 148) aRa — v. Williams (8 How. U. 8.9) 77 Alexander v. Card (8 R. 1. 145) — 980 —, Commonwealth v. (4 Hen. & M. 522; 1 Va. Cas. 156) 969 v. State (9 Ind. 337) 181 v. State (29 Texas, 495) 1037 —, State v. (14 Rich. 247) 156 —— v. Worthington (5 Ma. 471) 81, 82, 102 Alexandria v. Dearmon (2 Sneed, 104 160 Alger, People v. (1 Parker, 838) 688 v. Weston (14 Johns. 281) 1004 Allaire, State v. (14 Ala. 485) 168, 177, 855 Allday, Reg. v. (8 Car. & P. 186) 132, 239 Allen v. Commonwealth (2 Leigh, 727) 171, ——, Commonwealth v. (15 B. Monr. 1) 1064, 1067 —— v. Farrow (2 Bailey, 584) 177 v. Harford Insurance Co. (2 Ma. 111) 101 —,, People v. (6 Wend. 486) 255 695 ANO SECTION Allen v. Ramsey (1 Met. Ky. res 98 ——, Reg. v. (Law Rep. 1 C. 367 ( e 580, 594 —, Reg. v. (2 Moody, 179; 9 Car. & P. 521) 491 — , Rex v. (7 Car. & P. 664; ig Moody, 494) v. Sparkhall (1 B. & Ald. 100) ° 1078 v. Staples (6 Gray, 491) 1057 v. State (10 Ohio State, 287) 293 — v. State (14 Texas, 633) 1013 ——, State v. (32 Iowa, 491) 1037 ——,, State v. (2 McCord, 55) 34, pe 9 Almshouse v. Art Union (3 Seld. 228) 952, 955 Almy v. Harris (5 Johns. 175) 163, 164, 249 Alston’s Case (1 Swinton, 433) 312 Alston v. Alston (3 Brev. 469) 105 Alvey, State v. (26 Texas, 155) 907 Ambrose v. State (6 Ind. 351) 997 Ambs, State v. (20 Misso. 214) 1003 Ament v. Humphrey (3 Greene, Iowa, 255) 160 Ames, State v. (1 Misso. 524) 925 Amos, Reg. v. (Temp. & M. 422; 2 Den. C, C. 65; 15 Jur. 90; 20 Law J. nx.s.M. C. 103; 1 Eng. L. & Eq. 592) 291 Anderson v. Baker (23 Md. 531) 807 —v. Commonwealth (5 Rand. 627) 625, 628 —, Reg. v. (2 Moody & R. 469) 329, 333 ——, State v. (5 Harring. Del. 493) 348 —, State v. (3 Rich. 172) 1045 ——,, State v. (2 Tenn. 6) 197 Andre v. State (5 Iowa, 389) 639, 648 Andrews v. Harrington (19 Barb. 343) 1032 ——, Rex v. (2 Moody & R. 37) 88 —, State v. be Misso. 171) 1001 —, State v. (28 Misso. 14) 1001 ——, State v. (28 Misso. 17) 1042 v. United States (2 Story, 202) 193 Androscoggin Railroad v. Richards (41 Maine, 233) 1057 Angel v. Commonwealth (2 Va. Cas. 228) 204 5 i Commonwealth (2 Va. Cas. 3 a State v. (2 Nott & McCord, 7 204 Anonymous (Anderson, 115) 812 —— (12 Co. 89) 82 cae Crawf. & Dix. C. C. 152) 345 2 Dyer, 224 b) 2 East P. C. 765) 182 =H (2 Hast P. C. 1073; 1 Tessh, 488, 487 696 INDEX TO THE CASES CITED. ATK SECTION Anonymous (J. Kel. 70) 12 — a . Kel. 79) 585, 586 — (J. Kel. 83) 287 — (J. Kel. 84 286 — (1 Lewin, 8) 291 — (2 Lewin, 22) 177 — (6 Mod. 96) 138 —— (8 Mod. 165) ' 288 —— (1 Russ. Crimes, Grea. ed. 728) 315 — (8 Salk. 189; 2 Ld. Raym. 991 2 ) 50 (1 Wash. C. C. 84) . 177, 188 Anthony v. State (29 Ala. 27) 98 v. State (4 Humph. 83) 900 v. State (18 Sm. & M. 268) 504 ——, State v. (7 Ire. 284) 526 Apollon, The (9 Wheat. 862) 141 Apple v. Apple (1 Head, 348) 96 Arbogast, State v. (24 Misso. 363) 1039 Aris, Rex v. (6 Car. & P. 348) 216 Arledge, State v. (2 Bailey, 401) 142 Arlin, State v. (89 N. H. 179) 185 ‘Armour v. State (3 Humph. 379) 285 Armstrong, Reg. v. (1 Crawf. & Dix. C. C. 110) 182 —, State v. (3 Ind. 139) 927 — State v. (4 Minn. 885) 655, 688 Arnold v. State (29 Ala. 46) 299 —, United States v. (1 Gallis. 348) 29 Arscott, Rex v. (6 Car. & P. 408) ue 3 Art Union, People v. (3 Seld. 240; 18 Barb. 577) 952 Arthur v. Bokenham (11 Mod. aa 82 v. State (22 Ala. 61) 141 Asbury, State v. (26 Texas,82) 259 Ash, Reg. v. (2 Moody & R. 294) 772 Ashley, Appellant (4 Pick. 21) a 3 Ashlock v. Commonwealth (7 B. Monr. 44) 855, 874 Ashton v. Poynter (1 Cromp. M. & R. 738) 160 , Reg. v. (1 Ellis & B. 286; 16 Eng. L. & Eq. 346) 855, 860 Ashworth v. State (9 Texas, 490) 721 Aslett, Rex v. (1 New Rep. 1) 160 —, Rex v. (Russ. & Ry. 67; 2 Leach, 958) 840 Aspden’s Estate (2 Wallace, Jr. 368) 154, nae v. Hammond (3 McLean, ) Athos, Rex v. (8 Mod. 186) 48 Atkins v. Bayles (2 Mod. 267) 182 Atkinson, Reg. v. (Car. & M. 325) oe 3 —, Reg. v. (Car. & M. 525) 271 —, Reg. v. (2 Moody, 215) 343 —, Reg. v. (2 Moody, 278) 271 BAC INDEX TO THE SECTION Atkinson, Rex v. (Russ. & Ry. 104) 315 Atkyns, State v. (1 Ala. 180) 902 Attercliffe cum Darnall, Reg. v. (4 New Sess. Cas. 47; 14 Jur. 174; 19 Law J. n.s.M.C.50) 164 Attoo v. Commonwealth (2 Va. Cas. 382) 177 Attorney-General. v. Broaddus (6 Munf. 116) 728, 734 — v. Brown (1 Wis. 513) 86, 160 v. Brunst (3 Wis. 787) 97 v. Chelsea Waterworks (Fitzg. 195) v. Detroit and Erin Plank Road (2 Mich. 138) 82 v. Justices (5 Ire. 315) 999 v. King (5 Price, 195) 208 v. Lockwood (9 M. & W. 878) 182, 168 — v. Radloff (10 Exch. 84; 28 Law J. n. s. Exch. 240; 18 Jur. 555; 26 Eng. L. & Eq. 418) 195, 250, 251 v. Tongue (12 Price, 51) 1078 ——v. Weymouth (Amb. 20) 44, 46 —— v. White (Comyns, 483) 251 —— v. Woolhouse (1 Younge & J. 463; 12 Price, 65) 1078 Atwood v. De Forest (19 Conn. 319 518) ——,, State v. (11 Wis. 422) 84, 85 Atzroth v. State (10 Fla. 207) 461 Auberry, State v. (7 Misso. 304) 1061 Aulanier v. Governor (1 Texas, 653) Aurora, The (7 Cranch, 382) Aurora and Laughery Turnpike v. Holthouse (7 Ind. 59) 84 Austen, Rex v. (Russ. & Ry. 490) 433 Austin, Commonwealth v. (97 Mass. 595) 1069 v. Murray (16 Pick. 121) 22, a 3 —, Reg. v. (1 Car. & K. 621) 26] —} Rex v. (8 Mod. 309) 999 v. State (10 Misso. 591) 992, 995 Avery v. Pixley (4 Mass. 460) 105 ——, State v. (7 Conn. 266) 667, 668 —— State v. (44. N. H. 392) 1098, 1101, 1102, 1110 Ayer, Commonwealth v. (3 Cush. 150) 159, 168 Ayers v. Knox (7 Mass. 306) 82 Aymette v. State (2 Humph. 154) 798 36 Bachellor v. State (10 Texas, 258) oe Bacon v. Bancroft (1 Story, 341) 99 ——v. Commonwealth (7 Grat. 602) 228 45 CASES CITED. BAN SECTION Bagley v. State (1 Humph. 486) 204, 852, 855, 872, 920 v. Wallace (16S. & R. 245) 142 Bailes v. State (20 Texas, 498) 917 Bailey v. Bryan (3 Jones, N. C. 357) 155, 249 —— v. Fiske (84 Maine, 77) 274 —— v. Philadelphia, &c., Railroad (4 Harring. Del. 389) ——, Rex »v. (Russ. & Ry. 341; 1 Moody, 23) : 287, 312 — v. Rolfe (16 N. H. 247) 104 v. State (384 Maine, 77) 739 ——,, State v. (10 Conn. 144) 291 ——,, State v. (21 Maine, 62) 814, 833 ——, United States v. (9 Pet. 288) 204 Baillie, Reg. v. (8 Cox C. C. 238) 634, 637 Baker v. Baker (18 Cal. 87) ——., Commonwealth v. (10 Cush. 05 1042 — v. Hall (12 Co. 100) 616, 617 v. Milwaukee, The (14 Iowa, 214) 163 ——,, Rex v. (1.Moody, 231) 328, 329 - v. State (80 Ala. 521) 728, 729, 738 v. State (2 Har. & J. 5) 221, 855, 878 v. State (4 Pike, 56) Bakewell, Rex v. (2 Leach, 9438) Baldwin, Commonwealth v. Watts, 54) v. People (1 Scam. 304) ——, State v. (2 Bailey, 541) Baldy, State v. (17 Iowa, 39) Ball v. Gilbert (12 Met. 397) 933 —,, Rex v. (1 Moody, 30) 280, 287 Ballard, United States v. (38 Mc- Lean, 469) 126, 268 Baltimore v. Howard (6 Har. & J. 383) 249 v. State (15 Md. 376) 91, 104 Bamfield, Rex v. (1 Moody, 416) 329 Banbury, Rex v. (1 A. & E. 186) 82 Banchor v. Warren (33 N. H. 183) 1018 Bancroft v. Dumas (21 Vt. 456) 254, 992, 1030 ——., State v. (10 N. H. 105) 276 Banfield, State v. (22 Misso. 461) 946 Bangs, Commonwealth v. (9 Mass. 387) 744, 758 Bank of Hamilton v. Dudley (2 Pet. 492) 34 Bank of Mobile v. Meagher (83 Ala. 622) 97 Bank of Pennsylvania v. Common- wealth (7 Harris, Pa. 144) 77 Bank of Rome v. Rome (18 N. Y. 38) 36 Bank of St. Mary’s v. State (12 Ga. 475) 33, 178 697 144 316 340 142 426 82, 163 688 848, BAS SECTION Bank of S. Car., State v. (12 Rich. 609) Banks, Ex parte (28 Ala. 28) Bannam, Reg. v. (1 Crawf. & Dix C. C. 147) 212 Bansemer v. Mace (18 Ind. 27) 112 Barber Surgeons of London v. Pel- son (2 Lev. 252) 408 Barden v. Crocker (10 Pick. 383) ae 112 Barefield v. State (14 Ala. 603) 225 Barker, Commonwealth v. (14 Gray, 412) 1018 v. Esty (19 Vt. 181) 248 v. State (12 Texas, 273) 101, 855 Barkman »v. State (18 Ark. 703) 894, 928 Barlow, Commonwealth v. (4 Mass. 439) 189, 142, 218 Barnard v. Field (46 Maine, 526) 1031 Barnes v. Mayor of Mobile (19 Ala. 707) 77, 82 —— v, State (19 Conn. 398) 126, 664, 1011, 1024 Barnett v. State (86 Maine, 198) 1087 Barney, Commonwealth v. (10 Cush. 478) 279, 289 —, Commonwealth v. (10 Cush. 480) 286 Barns v. Commonwealth (2 Dana, 388) Barr v. Lewis (6 Texas, 76) 111 ——,, People v. (44 Ill. 198) 154 Barran, Reg. v. (Jebb, 245) 212 Barratt, Reg. v. (9 Car. & P. 887) 617, 624 Barret v. Hampton (2 Brev. 226) 852, 873 Barrett, Commonwealth v. (9 Leigh, 666) 220- Barron, State v. (87 Vt. 57) 1045 Barth v. State (18 Conn. 482) 295, 1011, 1026, 1057 Bartlett v. King (12 Mass. 587) 159, 163 — v. Morris (9 Port. 266) 46, 80, 102 ——,, Reg. v. (Moody & R. 262) 388 ——,, State v. (47 Maine, 388) 1057 ——,, State v. (53 Maine, 446) 670 Barto v. Himrod (4 Seld. 483) 36 Bartol v. Calvert (21 Ala. 42) 105 Bartolett v. Achey (2 Wright, Pa. 278) 200 Barton, Rex v. (1 Moody, 141) 3841, 342 v. State (18 Ohio, oe 428 a United States v. (Gilpin, 9) —— v. Watkins (2 Hill, S.C. 674) 168, 174 Bass v. State (37 Ala. 469) 881 Bastian, Rex v. (1 Sid. 362) 627 698 INDEX TO THE CASES CITED. BEL SECTION Batchelder v. Shapleigh (1 Fairf. 135) 319 Bate, Reg. v. (11 Cox C. C. 686) 775 Bates v. Butler (46 Maine, 887) 386 v. State (81 Ind. 72) 522 , State v. (10 Misso. 166) 852, 855 Bathrick, Commonwealth v. (6 Cush. 247) 1013 Batson, State v. (81 Misso. 848) 883 Battiste, United States v. (2 Sum- ner, 240) 225 Batty, Reg. v. (2 Moody, 257) 271 Baugher v. Nelson (9 Gill, 299) 180 Baughman, State v. (20 lowa, 497) 991, 1069 Baurose v. State (1 Iowa, 374) 1048 Baxter v. People (8 Scam. 368) 145 a Rex v. (Cas. temp. Hardw. 277 Herts Reg. v. (14 Howell St. Tr. 597 ) 622 Beacall, Rex v. (1 Car. & P. 310) 204, 271, 344 Beale, Reg. v. (Law Rep. 1 C. C. 10 480, 4938 Beall v. Harwood (2 Har. & J.167) 70 v. State (4 Blackf. 107) 1080 Beals v. Hale (4 How. U.S. 87) 160 Beamy, Rex v. (Russ. & Ry. 416) 441 Bean, Commonwealth v. (Thacher Crim. Cas. 85) 406 Beaney, Rex v. (Russ. & Ry. 416) 247 Bear, Rex v. (2 Salk. 417) — 185, 189 Bearcamp River Co. v. Woodman (2 Greenl. 404) 249 Beard, Rex v. (Jebb, 9) 833 ——, State v. (1 Ind. 460; 1 Smith, Ind. 276) 5 Beasley, State v. (5 Misso. 91) 248 Beatty, Commonwealth v. (1 Watts, 882 177 ——,, People v. (14 Cal. 566) 856, 909 ——,, State v. (Phillips, 52) 378 Be, United States v. (Hemp. 193 Beaufort, State v. (2 Rich. 496) 22 Beawfage’s Case (10 Co. 99 b) 102 Beck v. Dyson (4 Camp. 198) 548 ——,, People v. (21 Cal. 885) 524 Becker v. Smith (9 Smith, Pa. 469) 423 v. State (8 Ohio State, 391) 1044 sae Rex v. (1 Moody & R. 216, 314 Beckwith v. People (26 Ill. 500) 508 Beebe v. State (6 Ind. 501) 992 Beeler, State v. (1 Brev. 482) 806 Belcher v. State (8 Humph. 68) 725 ——, State v. (1 McMullan, 40) 1075 Belgard, Commonwealth v. (5 Gray, 95) 677 Bell’s Case (Foster, 430) 204 BEV SECTION Bell v. Dole (11 Johns. 178) 194 v. Morrison (1 Pet. 351) 115 v. Norwich (3 Dy. 254 b) 846 —, Reg. v. (2 Moody & R. 294, note) 772 —, Rex v. (1 East P. C. 169; Foster, 430) v. State (5 Sneed, 507) 955 —,, State v. (3 Ire. 506) 204 ——,, State v. (2 Jones, N. C. 337) 1013 Bellair v. State (6 Blackf. 104) 946 Belleville Railroad v. Gregory (15 Til. 20) Bemis v. Becker (1 Kansas, 226) 97 Beneke, State v. (9 Iowa, 208) 1651 Benjamin v. Andrews (5 C. B.N. s. 299) 1078 Bennac v. People (4 Barb. 164) Benner, United States v. (Bald. 284) Bennet v. Bittle (4 Rawle, 339) 277 , Commonwealth v. (2 Va. Cas. 235) 211 , State v. (8 Harring. Del. 65 1009, 1020 v. Talbois (1 Ld. Raym. 49) 164 Bennett v. Boggs (Bald. 60) — 85, 185 v. McWhorter (2 W. Va. 819 664 103 10382 491 280, 281 v. Ward (8 Caines, 259) 114 Benson v. Moore (15 Wend. 260) 1003 441) — v. People (16 Ill. 160) —, Reg. v. (4 Fost. & F. 1105) —, Rex v. (Russ. & Ry. 289) Bent, Reg. v. (1 Den. C. C. 157) 840 Bentley v. State (82 Ala. 596) 299 Bepley v. State (4 Ind. 264) 992 Bergen v. People (17 Ill. 426) 686, 734 Berham, State v. (3 Hill, S.C. 90) 136 Beridon v. Barbin (18 La. An. 458) a Berley v. Rampacher (5 Duer, 183) 85 Berlin, State v. (42 Misso. 572) 688 Bernard v. Vignaud (10 Mart. La. 482) Berriman, Reg. v. (6 Cox C. C. 388) 772 Berry v. People (86 Ill. 423) 23 , Rex v. (1 Moody & R. 463) —— v. State (10 Ga. 511) ——, State v. (4 Halst. 374) 164, 167 , State v. (25 Misso. 355) 85 Bess, State v. (5 Cold. 55) 930 ——,, State v. (20 Misso. 419) 724 Bethell, Reg. v. (6 Mod. 17) 167 Bettis v. Taylor (8 Port. 564) 198 Betton, Commonwealth v. (5 Cush. 427) 310 Bevans, United States v. (8 Wheat. 36) 141 INDEX TO THE CASES CITED. BLE SECTION Bevard v. Hoffman ( 18 Md. 479) 805, 806 Biddle v. Commonwealth (13 8. & R. 405) Bidwell v. Whitaker (1 Mich. 469) 642, 652 Bigelow v. Stearns (19 Johns. 89) 141 Bierce, State v. (27 Conn. 319) v. Willson (1 Pick. 485) 107 Bigg, Rex v. (1 Stra. 18) 3888 Bigley, Rex v.(1 Crawf. & Dix C. C. 202 312 Bilansky, State v. (8 Minn. 246) 126 Bilbro v. State (7 Humph. 534) 1062 Billingslea v. Baldwin (23 Md. 85) 86 Bingham v. Supervisors (8 Minn. 441) 76 Bird, Reg. v. (2 Car. & K. 817) 772, 775 812 405 ——, Reg. v. (9 Car. & P. 44) —, Rex v, (13 East, 367) Birkenhead Docks v. Birkenhead Docks Company (23 Eng. L. & Eq. 389) Birket, Rex v. (4 Car. & P. 216) Birkett, Reg. v. (Russ & Ry. 86) ——, Rex v. (Russ. & Ry. 251) Birt v. Barlow (1 Doug. 170) Bishop’s Case, The (12 Co. 7) Bishop v. Commonwealth (13 Grat. 785) 909 , State v. (8 Ire. 266) 863 ——, State v. (41 Misso. 16) 154, 156 Biswell, Reg. v. (2 Cox C. C.279) 634, 644 Black v. McGilvery (88 Maine, 287) 1026, 1032 —, State v. (9 Ire. 378) 220, 241, 852, 855, 878 Blacket, Reg. v. (7 Mod. 39) 625 Blackington, Commonwealth v. (24 Pick. 852) 990, 1006 Blackman v. State (86 Ala. 295) 684 Blake v. Portsmouth, &c., Rail- road (89 N. H. 435) 112 Blain v. Bailey (25 Ind. 165) 154, 156 Blair v. Ridgely (41 Misso. 63) 807 Blaisdell, State v. (83 N. H. 388) 1038, 1042, 1044 Blanchard v. Sprague (8 Sumner, 9) 160 247 3806 338 609 186 243 Blanding v. Burr (18 Cal. 348) 86 Blanton v. State (5 Blackf. 560) 852, 855, 878 Blatchley v. Moser (15 Wend. 215) 171 Bledsoe v. State (10 Misso. 388) 1082 —— v. Thompson (6 Rich. 44) 872, 873 Blelby, State v. (21 Wis. 204) 1037 Blevings v. People (1 Scam. 172) 126 Blewett v. State (84 Missis. 606) 874 699 BOS SECTION Blick, Rex v. (4 Car. & P. 877) 246 Bliss v. Brainard (41 N. H. 256) se v. Commonwealth (2 Litt. 90) 83, 798 Block v. Jacksonville (36 Ill. 801) 991 Blocker, State v. (14 Ala. 450) 187 Blodgett, Commonwealth v. (12 Met. 56) 205, 236 Blood, Commonwealth v. (4 Gray, 381) 1037 Bloodgood v. Grasey (81 Ala. 575) 115 Bloom v. State (20 Ga. 448) 163 Bloomington v. Strehle (47 Ill. 72) 997 Bloxam v. Elsee (6 B. & C. 169) 80 Blue v. McDuffie (Busbee, 131) 46, 48 Blythe, State v. (8 McCord, 363) 101, 204, 300 Boak v. State (5 Iowa, 430) 639, 648 Boardman, Reg. v. (2 Moody & R. 147; 2 Lewin, 181) 341 Bock, "State v. (9 Texas, 369) 992 Bode v. State (7 Gill, 826) 288, 992, : 1032, 1044 Bogart v. New Albany (1 Smith, Ind, 38) 997 Boggus v. State (34 Ga. 275) 594 Bohles, State v. (1 Rice, 145) 1024 Boice, State v. (Cheves, 77) 1043 Boles v. Lynde (1 Root, 195) 1057 Bolkom, Commonwealth v. (8 Pick. 281) 1052 Boltze v. State (24 Ala. 89) 1011 Bond »v. State (18 Sm. & M. 265) 1011 , State v. (4 Jones, N.C. 9) 31 Bones v. Booth (2 W. Bl. 1226) 888 Bonner v. Welborn (7 Ga. 296) 297 Bonney, State v. (39 N. H. 206) ee 9 Booker v. McRobert (1 Call, 243) 249 Boon, Commonwealth v. (2 Gray, 74 oo State v. (13 Ire. 244) 312 —, State v. (1 Taylor, 246) 41 Boose v. State (10 Ohio State, 575) 621 Booth v. State (4 Conn. 65) 208 —— v. State (26 Texas, 203) 919 Boozer, State v. (5 Strob. 21) 232 Borgman, State v. (2 Nott & Mc- Cord, 34, note) 1024 Borschenious v. People (41 Ill. a" Bosley v. Mattingly (14 B. ike 89 Boe State v. (8 Rich. 276) 189 Bosshard v. State (25 Texas, Supp. 207) 903 Bostick v. State (84 Ala. 266) 79 Boston, Commonwealth v. (97 Mass. 555) 552 v. Cummins (16 Ga. 102) 91, 185 700 INDEX TO THE CASES CITED. BRA SECTION Boston v. Shaw (1 Met. 130) 22 Boston & Maine Railroad, Com- monwealth v. (8 Cush. 25) 103 Bosworth, State v. (12 Vt. 402) 104 Bougher, State v. (8 Blackf. 807) 518 Boulton, Reg. v. (1 Den. C. C. 508; 2 Car. & K. 917; 13 Jur. 1034) 344 Bourland v. Hildreth (26 Cal. 161) 811 Bouser v. State (Smith, Ind. 408) 228 Bowden, Reg. v. (2 Moody, 285; 1 Car. & K. 147) 204, 284 Bowditch v. Balchin (5 Exch. 878), 198 Bowe v. State (25 Ind. 415) 895 Bowen v. Hale (4 Iowa, wy) 1069, 1070 —— v. Lease (5 Hill, N 221) 154, 163 ——, Reg. v. (1 Den. C. C. 22) = 214 ——,, State v. (3 Strob. 573) 163 Bowers v. Sonoma (82 Cal. 66) 112 Bowler, Reg. v. (Car. & M. 559) 882, 836 Bowman, State v. (6 Vt. 594) 819 v. Wood (41 Ill. 208) 107 Box, Rex v. (Russ. & Ry. 300; Ys Taunt. 325) Boyall, Rex v. (2 Bur. 882; nies 549 163, 644 Boyd v. Commonwealth (1 Rob. Va. 691) 111 —— v. State (4 Minn. 821) 503 Boyden, Commonwealth v. (14 Gray, 101) 1018, 1048 Boyett, State v. (10 Ire. 336) 820 Boyington, State v. (56 Maine, 512) 829 Boyle v. Commonwealth (14 Grat. 674) 1061 —, Commonwealth v. (14 Gray, 3 1042 ) Boyles v. Commonwealth (2 8. & R. 40) 771, 779, 780 Boynton, Commonwealth v. (2 Allen, 160) 358 —, Commonwealth v. (2 Mass. ) v. Curle (4 Misso. 599) 246, 852, 855, 861 Bradford, Commonwealth v. (9 Met. 268) 8 — v. Jones (1 Md. 351) 45, 46 —, Reg. v. (2 Crawf. & Dix C.C. 41 2 25 — , State v. (86 Ga. 422) 84 —— v. Stevens (10 Gray, 379) 990 Bradley, People v. (4 Parker C. C. 245 336 v. State (10 Sm. & M. 618) 504 Bradshaw, State v. (2 Swan, Tenn. 627) 1011 Brady, State v. (9 Humph. 74) 221,662 Bralley, Commonwealth v. (3 Gray, 456) 1011, 1032 BRO SECTION Branamon, Commonwealth vw. (8 B. Monr. 874) 10! Branham, Commonwealth v. (8 Bush, 1) 895 Branin, State v. (3 Zab. 484) 18 Brawn, Reg. v. (1 Car. & K. 144) 591, 594 Bray, State v. (13 Ire. 289) 602, 739 Breck v. Adams (8 Gray, 569) 1031 Brecon, Reg. v. (8 New Sess. Cas. 434; 13 Jur. 422; 18 Law J. n. s. M. C. 123) 163 Breed, United States v. (1 Sum- ner, 159) Breeme, Rex v. (1 Leach, 220; 2 East P. C. 1026) 142 Brennan’s Liquors, State v. (25 Conn. 278) 992, 994 —, State v. (27 Conn. 447) 1057 Brennon v. State (25 Ind. 403) 519 Brewster, United States v. (7 Pet. 164) » 204 Brice, Rex v. (Russ. & Ry. 450) ai Briggs v. Campbell (25 Vt. 704) 1030 +—, Commonwealth v. (5 Met. 559) 204 v. Hubbard (19 Vt. 86) 84 — , Reg. v. (Dears. & B. 98; 2 Jur. x. 5. 1195; 26 Law J. nis. M. C. 7; 7 Cox C. C. 175) 596 —, Rex v. (1 Moody, 318; 1 Lewin, 61) 314 —,, State v. (1 Aikens, 226) 1094 ——, United States v. (9 How. U.S. 351) 46, 246 Brigham, People v. (2 Mich. 550) oe 3 8 Bright v. McCullough (27 Ind. 223) 47 Brightside Birelow, Reg. v. (4 New Sess. Cas. 47; 14 Jur. 174; 19 Law J.n.s. M. C. 50) 164 Briley, State v. (8 Port. 472) 216, 316 Brinker v. Brinker (7 Barr, 58) 190 Brinsfield v. Carter (2 Kelly, 143) 103 Bristol, Reg. v. (28 Eng. L. & Eq. 291; 24 Law J.n.s. M. C. 48; 1 Jur. n. s. 3738) 999 Britain v. State (8 Humph. 203) 711 British Prisoners (1 Woodb. & M. 66) 14 Britt, State v. (8 Dev. 122) 204, 309 Brittain v. Bethany (31 Missis. 831) Britton v. Commonwealth (1 Cush. 302) 154, 168 — , Reg. v. (11 Q. B. 929; 10 Jur. 1017 140 Brock v. Commonwealth (6 Leigh, . 1047 634) —, State v. (11 Rich. 447) 163 Brocker, State v. (82 Texas, 611) 1099 INDEX TO THE CASES CITED. BRO SECTION Bromley, State v. (25 Conn. 6) 980 Brooklyn v. Toynbee (81 Barb. 282) 997 Brooks v. Mobile (31 Ala. 227) 82 ——, People v. (1 Denio, 457) 112 ——, Reg. v. (1 Den. C. C. 217; 2 Car. & K. 402; 2 Cox C. C.486) 261 —, State v. (4 Conn. 446) 74, 200, 291, 344 Brosee v. State (5 Ind. 75) 1032 Broughton v. Branch Bank (17 Ala. 828) 177 Brown’s Case (1 Swinton, 482) 765 (1 Vent. 248) 623 Brown, In re (21 Wend. 316) 98 —— v. Buzan (24 Ind. 194) 91 v. Commissioners (9 Harris, Pa. 87) —v. Commonwealth (8 Mass. 59) 204, 214 arses Commonwealth v. (2 oer. —, Commonwealth v. (14 Gray, 748, 759, 761 —, Commonwealth v. (12 Met. 522) 1039 — , Commonwealth v. (3 Rawle, 207) v. Hunn (27 Conn. 332) 208 v. Lester (18 Sm. & M. 392) 256 v. Maryland (12 Wheat. 262) 990 v. Maryland (12 Wheat. 419) 238, 992, 1032 v. Miller (4 J. J. Mar. 474) 160 v. Mobile (23 Ala. 722) 885 ——,, People v. (16 Wend. 561) 140, 1026 —— v. Perkins (12 Gray, 89) 1069, 1070 —,, Reg. v. (2 Car. & K. 504) = 210 7 Reg. v. (Law Rep. 1 C. C. 44) 773 — , Rex v. (2 East P. C. 487; 2 Leach, 1016) 312 —, Rex v. (2 East P. C. 493) 286 ——, Rex v. (2 Hast P. C. 501; 2 Leach, 1018) 279 ——,, Rex v. (2 East P. C. 1007) 167 v. State (27 Ala. 47) 1011 : v. State (5 Eng. 607) 908 v. State (24 Ind. 113) 1021 v. State (27 Texas, 335) 1000 —, State v. (16 Conn. 54) 208, 553 —, State v. (1 Ind. 582) 927 ——, State v. (31 Maine, 520) 1024 —, State v. (31 Maine, 522) 1020 —, State v. (8 Misso. 210) 1067 ——,, State v. (4 Port. 410) 204 ——,, State v. (2 Speers, 129) 163 v. Thorndike (15 Pick. 388) 70, 190 — v. Wilcox (14 Sm. & M. 127) 84 701 BUR SECTION Brown v. Wright (1 Green, N. J. 240) 82 Browne v. Hilton (23 Pick. 319) 1017 Bruce v. Schuyler (4 Gilman, 221) 82, 85, 86, 160, 163 Bruni, Matter of (1 Barb. 187) 142 Brush v. Bogardus (8 Johns. 157) 209 Brutton v. State (4 Ind. 601) 1044 Bryan, Commonwealth v. (9 Dana, 310) 1004 —— v. Dennis (4 Fla. 445) 86 v. State (26 Ala. 65) 855, 869, 909 v. Sunberg (5 Texas, 418) 159 Bryant v. Mead (1 Cal. 441) 848 ——,, State v. (14 Misso. 340) 1024 Bubser, Commonwealth v. (14 Gray, 83) Buchanan, Reg. v. (8 Q. B. 883; 16 Law J. wn. s. Q. B. 227; 10 Jur. 736) 251 Buck v. Albee (27 Vt. 190) 1030 —, Rex »v. (2 Stra. 679) 250 v. Spofford (31 Maine, 84) 159 v. State (1 Ohio State, 61) 855, 878, 894 Buckallew v. Ackerman (3 Halst. 48) 163, 168, 170 Buckheimer, Commonwealth v. (14 Gray, 29) 1082 Buckingham v. Billings (18 Mass. 82) 819 v. Steubenville and Indiana Railroad (10 Ohio State, 25) 154 Buckle, Rex v. (4 East, 346) 1075 Buckman v. Mussey (31 Vt. 547) 1030 ——, State v. (8 N. H. 203) 168, 171 Budd v. State (3 Humph. 483) 271 Budge v. Parsons (3 B. & 8. 882) 1118 Buffalo v. Webster (10 Wend. 99) 20 Buford, State v. (10 Misso. 703) 1044 Bugbee, State v. (22 Vt. 32) 1016, 1024 Bull v. Read (13 Grat. 78) 36 Bullock, Rex v. (1 Taunt. 71) 81 Bump v. Commonwealth (8 Met. 533) 141 Bunkall, Reg. v. (Leigh & C. 371; 9 Cox C. C. 419) 421, 423, 424 Burbank v. Reed (cited 2 Vt. 406) 319 Burch v. Republic (1 Texas, 608) 1034, 1037 Burden »v. Stein (25 Ala. 455) 141 Burdine v. State (25 Ala. 60) 298, 852, 855 Burding, Commonwealth vc. (12 Cush. 506) Burgess v. Boetefeur (8 Scott, N. R. 194) Burgett v. Burgett (1 Ohio, 469) 46 992 , State v. (1 Ind. 479) 927 Burk v. State (27 Ind. 480) 863 Burke v. Bell (86 Maine, 317) 24 ——, People v. (84 Cal. 661) 878 702 INDEX TO THE CASES, CITED. BYR SECTION Burlingham, State v. (15 Maine, 104) Burner v. Commonwealth (13 Grat. 778) 1065 Burnett v. State (30 Ala. hy a 904 Burnham v. Stevens (33 N 247) Burns v. Commonwealth (8 Met. Ky. 18) —, Commonwealth v. (8 Gray, 482) —, Commonwealth v. (4 J. J. Mar. 177) 244, 852, 855, 881 . (20 N. H. 550) 1048 Burnside v. Whitney (21 N. Y. 148) 119, 155 Burrell, Reg. v. (Leigh & C. 3854) 359, 20, 633 Burrowes, Rex v. (1 Moody, 274) 285 Burrows, State v. (11 Ire. 477) 245 Burt v. Burt (2 Swab. & T. 88; 29 Law J.w.s. P.M. & A. 183) 590 Burton, Commonwealth v. (Re- corder’s Decisions, 83) 656 v. Morris (Hob. 182) 617 —, Rex v. (1 Moody, 237) 271 ——,, State v. (25 Texas, 420) 897 v. Wilkinson (18 Vt. 186) 290 Bush v. Republic (1 Texas, 455) 156, 1065 v. State (18 Ala. 415) 65 247, 298, 906 Bushnell v. Beloit (10 Wis. 195) 92 Butler v. Cook (14 Ala. 576) 222 —— v. Palmer (1 Hill, N. Y. 324) 178 ——., People »v. (3 Cow 347) 240 ——,, People v. (16 Johns. 203) 144, 310 ——, Rex »v. (6 Car. & P. 368) 138 v. State (22 Ala. 43) 336 v. State (5 Blackf. 280) 894 ——,, State v. (3 McCord, 383) 48, 142 Butman’s Case (8 Greenl. 118) = 167 Butman, State v. (15 La: An. 166) 380 , State v. (42 N. H. 490) 503 Butterwick, Reg. v. (2 Moody & R. 196) 338 Button, Reg. v. (12 Jur. 1017) 174 Buttram v. State (4 Cold. 171) 725 Butts, Commonwealth v. (2 Va. Cas. 18) 911 Buxendin v. Sharp (2 Salk. 662) 548 Buxton, Commonwealth v. (10 Gray, 9) Buzzard, State v. (4 Ark. 18) 798 Buzzell, Commonwealth v. (16 Pick. 158) 100, 277 Byers v. Olney (16 Ill. 35) 997 Byler v. Asher (47 Ill. 101) 805, 809 Byran v. State (45 Ala. 86) 870, 1036 Byrne v. State (12 Wis. 519) 806, 838 —— v. Stewart (3 Des. 135) 164 CAN INDEX.TO THE SEcrion Byron, State v. (20 Misso. 210) 721 Bythwood v. State (20 Ala. 47) 298 Cable v. State (8 Blackf. 581) 1032 Cadman, Rex v. (1 Moody, 114) 225 Cesar, People v. (1 Parker, 645) 141 , State v. (9 Ire. 391) 320 Cagle, State v. (2 Humph. 414) 712 Cahoon v. State (8 Ohio, 537) 223 Cain v. State (30 Ala. 584) 878 v. State (138 Sm. & M. 456) 55, 937 v. State (20 Texas, 855) 86, 152 Calder v. Bull (3 Dall. 886) 85, 185, 266 v. Deliesseline (Harper, 186) 246 Caldwell v. St. Louis Perpetual Ins Co. (1 La. An. 85) 159, 1638 ne v. (10 Mass. Calkin v. State (1 Greene, Iowa, 68) 81 Calkins v. State (14 Ohio State, 222) 163, 177 Call, Commonwealth v. (21 Pick. 509) 656 ——, Commonwealth v. (21 Pick. 515) 134 Callan, Rex v. (Russ & Ry. 157) 312 Calligan, State v. (17 N. H. 258) 503, 507 Calmer, Reg. v. (9 Cox C. C. 506) 772 Calthrop v. Axtel (8 Mod. 169) 635 Calvert v. Commonwealth (5 B. Monr. 264) 216, 854, 855, 878 Calvin, State v. (R. M. Charl. 151) 168 , State v. (2 Zab. 207) 844, 345 Cambell v. Quinlin (8 Scam. 288) 97 Cambridge, Commonwealth v. (20 Pick. 267) ——. Rex v. (2 Selw. N. P. 11th ed. 1176) Cambridgeshire, Reg. v. (7 A. & E. 480) 55 Camden v. Allen (2 Dutcher, 398) 249 Camden Turnpike v. Fowler (4 Zab. 205) 313 Cameron v. State (15 Ala. 883) 861 Camp v. State (27 Ala. 53) 997 Campau v. Detroit (14 Mich. 276) 34 Campbell v. Campbell (8 Eng. 513) 163 v. Commonwealth (2 Rob. Va. 791) 132, 220 —— v. People (8 Wend. 636) 129 —— v. Rankins (2 Fairf. 103) 804 ——, Rex v. (2 Leach, 564 ; 2 East P. C. 644) 233 v. State (17 Ala. 369) 298 v. State (8 Humph. 9) 1032 v. Thompson (16 Maine, 117) 242 Canady v. George (6 Rich. Eq. a 9 103) Canal Company v. Railroad Com- 160, 163, 190 pany (4 Gill & J. 1) CASES CITED. CAS SECTION Canastota, &c. Road v. Parkill (50 Barb. 601) 87 Cannady v. People (17 Ill. 158) 10387 Canney, State v. (19 N. H. 185) 295 Cantril, United States v. (4 Cranch, 167) 41 Capritz v. State (1 Md. 569) 1037 Carberry v. State (11 Ohio State, 410) 328, 835 Cardell v. Carpenter (42 Vt. 234) 263 Cardar v. State (17 Ind. 307) 3880 Carey v. Giles (9 Ga. 258) 192 Carke, State v. (88 N. H. 829) 955 Carlile, Rex v. (8 B. & Ald. 161) 142, 160, 163 Carlton v. Bailey (7 Fost. N. H. | 280) 1081 v. Felder (6 Rich. Eq.58) 115 Carmichael v. State (12 Ohio State, 553) 592 Carnal, People v. (2 Seld. 463) 84 Carneal v. Banks (10 Wheat. 181) 14 Carney, Rex v. (1 Moody, 351) 335 ——,, State v. (20 Iowa, 82) 991 Carolin, Commonwealth v. (2 Allen, 169) 1069 Carotti v. State (42 Missis. 834) 682 Carpenter, Commonwealth v. (100 Mass. 204 1069 — ». People (8 Barb. 603) 198, 220, 689, 640, 641, 652 , State v. (20 Ind. 219) 1038 Carr, Rex v. (Russ & Ry. 198) 271 , State v. (5 N. H. 367) 204 Carrell, Rex v. (1 Leach, 287; 2 East P C. 506) 280 Carrico v. State (11 Misso. 579) 244 Carrier, State v. (5 Day, 181) 295 Carrol, Commonwealth v. (8 Mass. 490) 221 Carroll, Rex v. (1 Leach, 55; 1 East P. C. 394) 817, 484 ——, Rex v. (1 Moody, 89) 233 Carron, State v. (18 Iowa, 372) 689, 648, 652 Carte, Reg. v. (1 Car. & K. 741) 3828 Carter v. Burt (12 Allen, 424) 163 v. Clark (28 Conn. 512) 1080 v. Hawley (Wright, 74) 163, 168 ——, Reg. v. (1 Car. & K. 178) 295 ——, Reg. v. (1 Car. & K. 741; 1 Den. C. C. 65) 829 ——,, State v. (7 Humph. 158) 1037 Cartwright, Rex v. (2 East P. C. 641) ' 222 —, Rex v. (Russ. & Ry. 106) 1388 , Rex v. (4 T. R. 490) 46 Caruthers, Reg. v. (38 Crawf. & Dix C. C. 391) 182, 318 Carwile v. State (85 Ala. 392) 298 Casbolt, Reg. v. (21 Law Times, N.S. 263) 261 708 CHA SECTION Case v. Case (19 Cal. 598) 609 Casey, Commonwealth v. (12 Allen, 214) 991 — v. Harned (5 Iowa, 1) 160 —— v. State (6 Misso. 646) 1068 ——, State v. (45 Maine, 485) 1064, 1066 Cassados, State v. (1 Nott & Mce- Cord, 91) 836 Cassel v. Scott (17 Ind. 514) 992 —, State v. (2 Har. & G. 407) 167 Cassett v. State (9 Ind. 87) 1032 Cassety, State v. (1 Rich. 90) 1016, 1028, 1027 Cassity v. Storms (1 Bush, 452) 265 Castle’s Case (1 Hale P. C. 558) 286 Castleberry v. Kelley (26 Ga. 606) 657 Caswell v. State (2 Humph. 402) 1009 —, State v. (2 Humph. 399) 1024, 1045 Catlin, Commonwealth v. (1 Mass. 8) 216, 712, 716 Cattell, State v. (2 Hill, S. C. 291) 163 Chalking, Rex v. (Russ. & Ry. 834) 285 Chalkley, Rex v. (Russ & Ry. 258) 440 Chambers, Reg. v. (Law Rep. 1 C. C. 841) 839 v. State (25 Texas, 307) 151 —, State v. (6 Ala. 855) 288, 234 Chamblyss, State v. (Cheves, 220) we 3 Chambre, Commonwealth v. (4 Dall. 143) Chance v. Adams (1 Ld. Raym. 77) 5 Chandler, State v. (2 Strob. 266) 134, 271 ——,, State v. (15 Vt. 425) 1016, 1020 Chapman v. Commonwealth (5 Whart. 427) 289 ——, Commonwealth v. (13 Met. 68) 188 v. Miller (2 Speers, 769) 22 v. State (2 Head, 36) 31 Chapple, Rex v. (Russ. & Ry. 77) 212, 844, 442 Charles v. People (1 Comst. 180) 958, 959, 966 —, People v. (8 Denio, 212) 958 v. State (6 Eng. 389) 211, 487 Charles River Bridge v. Warren Bridge (7 Pick. 344) 88 Charleston v. Corleis (2 Bailey, 186) 1001 — v. Pepper (1 Rich. 364) 22 — v. Schmidt (11 Rich. 343) 1001 Charlestown, Commonwealth v. (1 Pick. 180) 305 Charlton v. Donnell (100 Mass. 229) 103 Charretie, Reg. v. (18 Jur. 450; 18 Law J. n. 8. M. C. 100) 704 225 INDEX TO THE CASES CITED. CLA SECTION Charretie, Reg. v. (18 Q. B. 447) 204 Chase v. Burkholder (6 Harris, Pa. 48) 1 —, Commonwealth v. (6 Cush. 248) 22 v. Hathaway (14 Mass. 222) 141 —— v. Miller (5 Wright, Pa. 403) 811 Chastain v. Calhoun (29 Ga. 383) 997 Chatburn, Rex v. (1 Moody, 4038) we, 7 , 185 Cheadle v. State (4 Ohio State, 477 105: Cheatwood, State v. (2 Hill, 8. C. 459) 141 Cheezem v. State (2 Ind. 149) 41, 163, 1082 Chavers, State v. (5 Jones, N. C. 11 274 Cherry v. State (20 Texas, 489) ——, State v. (63 N. C. 493) Chesapeake and Ohio Canal »v. Baltimore and Ohio Railroad (4 Gill & J. 1) 46 Chesnut v. Shane (16 Ohio, 599) Chevalier v. Commonwealth (8 B. Monr. 879) ——, Commonwealth v. (7 Dane Abr. 184) Childress v. McGehee (Minor, 131) 193 Chirac v. Chirac (2 Wheat. 259) 14 Chisholm, Commonwealth v. (108 Mass. 218) 1057 , Rex v. (Russ. & Ry. 297) 388 Christian v. State (40 Ala. 376) 1060 46) 260 Christianbury, State v. (Busbee, Chu Quong, People v. (15 Cal. 832) 163 907 536 149 997 Chubb, Commonwealth v. (5 Rand. 715 55, 855, 952, 958 Church v. Crocker (3 Mass. 17) 82, 93 Churchill, Commonwealth ov. (2 Met. 118) 74, 186 — v. Crease (5 Bing. 177) 126 v. Merchants Bank (19 Pick. 532) 105 Cincinnati v. Bryson (15 Ohio, 625) 22 v. Buckingham (10 Ohio, 257) 22 —— v. Gwynne (10 Ohio, 192) 22 — v. Rice (15 Ohio, 225) 22, 34, 127 City Council v. Ahrens (4 Strob. 241 22, 990, 992, 997 v. Goldsmith (12 Rich. 470) 296 — v. Hollenback (8 Strob. 355) 1006 Clapp, Commonwealth v. (5 Gray, 97) 34, 992, 1042 ——, Commonwealth v. (5 Pick. 41 244, 958, 9638 Clare v. State (5 Iowa, 509) 387, 1040 Clark’s Case (5 Co. 64a; Sir F. Moore, 411) 403 — (1 Vent. 327) 403 COF SECTION Clark, Commonwealth v. (2 Ashm. 105) 282, 772, 774 —,, Commonwealth v. (14 Gray, 36 1014 v. Ellis (2 Blackf. 8) 34 — v. Hague (2 Ellis & E. 281; 8 Cox C. C. 824) 1118 v. Janesville (10 Wis. 186) 405 v. Le Cren (9 B. & C. 52) 22 v. Newsam (5 Railw. Cas. 69; 1 Exch. 181) 841, 348 ——, People v. (1 Cal. 406) 29 ——,, People »v. (5 Cal. 381) 14 ——, People v. (8 Seld. 385) 84 ~—, Rex v. (Russ. & Ry. 181; 2 Leach, 1036) 836 v. State (19 Ala. 552) 892, 895 ——, State v. (5 Dutcher, 96) 82 ——, State v. (8 Fost. N. H. 176) 992, 997 ——, State v. (7 Jones, N. C. 167) 279 ——, State v. (23 Vt. 293) 1042 ——, State v. (42 Vt. 629) 287 Clarke, Reg. v. (4 Fost. & F. 1040) 778 v. Rochester (24 Barb. 446) 36 —— v. State (12 Ala. 492) 298 v. State (23 Missis. 261) 155, 168, 185 v. Territory (1 Wash. Ter. 82) 378 Clarksville and R. T. P. Co., State v. (2 Sneed, 88) 101, 193, 204, 231 211 285 Cleaveland, State v. (8 R.I.117) 208 Clemmons v. Commonwealth (6 Rand. 681) Clemons, State v. (38 Dev. 472) Click, State v. (2 Ala. 26) 28, 255 Clay, Rex v. (Russ. & Ry. 387) Clayburn, Rex v. (Russ. & Ry. 360 \ Clifford, Commonwealth v. (8 Cush. 215) 518, 522 Clifton’s Case (1 Mod. 34) 252 Clinch, Rex v. (1 Leach, 540; 2 East P. C. 988) 328, 332 —, State v. (8 Iowa, 401) 678, 720 Clinton Bridge (1 Woolworth, 155) 14 Clintonville v. Keeting (4 Denio, 341) 22, 997 Cloud, State v. (6 Ala. 628) 297, 1002 Clough, People v. (17 Wend. 351) 183 Coates, Rex v. (6 Car. & P. 394) 246 Cobb, Commonwealth v. (14 Gray, 57) 685, 686 ——, State v. (1 Dev. & Bat. 115) 396 Cochran v. Taylor (18 Ohio State, 382) 59 Cochrane v. Clough (388 Maine, 25) 1081 — v. State (6 Md. 400) 311 Cockrum ». State (24 Texas, 394) 793 Coffin v. Rich (45 Maine, 507) 98 INDEX TO THE CASES CITED. CON CTION SE Coggins v. State (7 Port. 263) an Cohen v. Barrett (5 Cal. 195) 45, 46 ——, People v. (8 Cal. 42) 422 —— v. State (17 Texas, 142) pee Cohoon, State v. (12 Ire. 178) 814 Colburn v. Swett (1 Met. 282) 250 Colden v. Eldred (15 Johns. 220) ie Cole v. Commonwealth (8 Dana, 81) 204, 1011 —, Rex v. (2 Leach, 1095; 3 Camp. 871) 774 — v. State (9 Texas, 42) 280, ae ——, State v. (2 McCord, 1) 177 Coleman v. Davidson Academy (Cooke, 258) v. Dobbins (8 Ind. 156) 17 v. State (13 Ala. 602) 298 v. State (20 Ala. 51) 298 ——, State v. (3 Ala. 14) 852, 905 ——,, State v. {3 Port. 82) 163 Collicott, Rex v. (Russ. & Ry. 212; 4 Taunt. 300) 306 Collier, United States v. (8 Blatch. 325) 86 Collins v. Carman (5 Md. 503) 82 v. People (39 Ill. 283) 524 —, People v. (3 Mich. 348) 36 v, State (14 Ala. 608) 204, 697 ——, State v. (11 Iowa, 141) 1069 —, State v. (8 Ire. 407) 320 — , State v. (1 McCord, 855) 1025 ——,, State v. (48 Maine, 217) 1066 Colson v: State (7 Blackf. 590) 346, 1075, 1079 Colt v. Eves (12 Conn. 248) 255 Colton, People v. (6 Cal. 84) 87 Columbia, State v. (6 Rich. 404) 997 Columbus v. Arnold (80 Ga. 517) 25 Colwell v. Mary’s Landing, &c., Co. (4 C. E. Green, 245) 90 Comings, State v. (28 Vt. 508) 1028 Commercial Bank v. Chambers (8 Sm. & M. 9) 160 v. Sparrow (2 Denio, 97) 37 Commissioners, Commonwealth v. (6 Pick. 501) 177, 178 v. Dennis (Cheves, 229) 1082 ——, People v. (8 Scam. 153) 82 v. Potts (10 Ind. 286) 154 ——, State v. (Walk. Miss. 868) 188 Commissioners of Excise v. Dougherty (55 Barb. 332) 1025 Commissioners Flockwood Inclos- ure, Rex v. (2 Chit. 251) Conant, Commonwealth v. (6 Gray, 482) 1038, 1042 Cone, Commonwealth v. (2 Mass. ‘ 05 132) 705 112 COR SECTION Renker v. Barker (11 Ohio State, 8 ——, State v. (14 Ind. 396) 852 Conkling, State v. (19 Cal. 501) 159 Conley v. Calhoun (2 W. Va. 416) 126 , Commonwealth v. (1 Allen, 6) 971 Connell, State v. (88 N. H.81) 1047 Conner v. Ragland (15 B. Monr. 684) 855, 983 — v. Southern Express Co. (37 Ga. 397) 154 Conover, State v. (3 Harring. Del. 565) 222 Converse v. Burrows (2 Minn. 229) 120 v. Foster (82 Vt. 828) 1030 v. United States (21 How. U. S. 4638) 75 Conwell v. Hagerstown Canal (2 Ind. 588) Cook v. Commissioners (6 Mc- Lean, 112) ae Commonwealth v. (12 Met. ) ——, Commonwealth v. (13 B. Monr. 149 1037 ——, People v. (14 Barb. 259) 255 , Rex v. (1 Leach, 105; 2 East P. C. 616) 247, 326, 426 v. State (11 Ga. 53) 656, 728 Cooke, Reg. v. (8 Car. & P. 582) 306, 82 641 888 Cookson v. Lee (23 Eng. L. & Eq. 400) 137 Cool v. State (16 Ind. 355) 1039 Cooley, Commonwealth v. (10 Pick. 37) 159, 163 , Reg. v. (2 Moody & R. 475) 291 Coolidge v. Choate (11 Met. 79) 216, 319 ——, United States v. (1 Gallis. 488 188 Coombs, State v. { 82 Maine, 5: 018, 1027 ——,, State v. (55 Maine, 477) 419 , United States v. (12 Pet. 72) 90 v. Williams (4 Mass. ie 9) 1 Cooper v. Curtis (30 Maine, 488) 31 , Reg. v. (2 Car. & K. 586) 842 ——, State v. (5 Blackf. 258) 91 ——, State v. (5 Day, 250) = 41, a 33 ——,, State v. (16 Vt. 551) 220, 668 , State v. (2 Zab. 52) 744, 745 Cooster, State v. (10 Iowa, 453) 861, 874 Copeland, State v. (8 R. 1. 88) 34, 36 Copeman v. Gallant (1 P. Wms. 314) 49 Corbett v. State (24 Ga. 287) 336 Cordell v. State (22 Ind. 1) 168, 181, 474 106 INDEX TO THE ‘ CASES CITED. CRI SECTION Cornforth, Rex v. (2 Stra. 1162) 627, 33 Corning v. Greene (23 Barb. 88) 36 Cornwall v. Hoyt (7 Conn. 420) 131 — , Rex v. (Russ. & Ry. 336) 204, 771, 774 Corry, Rex v. (5 East, 372) 49, 232 Corwin, State v. (4 Misso. 609) 249 Cosan’s Case (1 Russ. Crimes, Grea. ed. 119; 1 Leach, 342) 321 Cotten v. Leon (6 Fla. 610) 91 Cotter, Commonwealth v. (97 Mass. 336) 1048 Cotteral, People v. (18 Johns. 115) ae 9, 31 Cottle, State v. (15 Maine, 473) 1035, 1037 Cotton v. State (7 Texas, 547) 917 ——,, State v. (6 Texas, 425) 917 Coulson v. Cass (12 Ind. 558) 992 Council, State v. (1 Tenn. 805) 487 Courteen’s Case (Hob. 270) 193 Covington v. McNickle (18 B. Monr. 262) 64 Covy v. State (4 Port. 186) 912 Cowan, State v. (7 Ire. 239) 525, 526 Cowell, State v. (4 Ire. 231) 690, 691 Cox, Ex parte (19 Ark. 688) 1001 —, Commonwealth v. (7 Allen, 577) 444, ——, Rex v. (1 Moody, 387; 5 Car. & P. 297) 204 —, Rex v. (Russ. & Ry. 362) 318 ——,, State v. (29 Misso. 475) 1034, 1037 ——,, State v. (82 Misso. 566) 1090 ——, State v. (2 Taylor, 165) a 69 Coxe v. Robbins, 4 Halst. 384) 249 Coxhead, Reg. v. (1 Car. & K. 623) uh 17 Craig v. Andrews (7 Iowa, 17) 848, 937 —, Commonwealth v. (15 B. Monr. 534) 163 Crain v. State (14 Texas, 634) 909, 917, 1048 Craton, State v. (6 Ire. 164) 320 Crawford, Reg. v. (2 Car. & K. 129; 1 Den. C. C. 100) 324 — v. State (Minor, 143) 193 ——, State v. (2 Dev. 425) 204 Craycroft, People v. (2 Cal. 243) 250 Coen v. Wittenoom (4 T. R. 790 48, 82 Cress, State v. (4 Jones, N. C. 421) ‘V7 Creswick v. Rooksby ( 2 Bulst. 47) 243 Crews v. State (3 Cold. 350) 519 Crichton v. People (6 Parker C. C. 363 ; 1 Keyes, 341) 757, 761 Crilley, People v. (20 Barb. 246) 1008 Crittenden v. Wilson (5 Cow. 165) ae cur SECTION Crocker v. Crane (21 Wend. 211) yy 8 Crofton’s Case (1 Vent. 63; 1 Mod. 34) 250, 251 Crofts, Rex v. (7 Mod. 897) 181 Croghan v. State (22 Wis. 444) 643 Cromley, Commonwealth v. (1 Ashm. 179) 154, 159, 163 Crone, Rex v. (Jebb, 47) 345 Crosby v. Snow (16 Maine, 121) 1026 Cross, Rex v. (1 Ld. Raym. 711; 12 Mod. 634) 174 ——, State v. (2 Humph. 301) 852, 937 Crossinger v. State (9 Ind. 557) 992 Croswell v. Crane (7 Barb. 191) 98 Crouse v. State (16 Ark. 566) 699, 711 Crouther’s Case (Cro. Eliz. 654) 188 Crow v. State (6 Texas, 334) 246, 848, 852, 865 Crowell, State v. (25 Maine, 171) 1052 ——, State v. (80 Maine, 115) 1044 Crowther, Rex v. (5 Car. & P. 316) 832 Crozier v. People (1 Parker, 453) 639 —— v. State (2 Sneed, 410) 1380 Crump, Rex v. (1 Car. & P. 658) 429 Crutz v. State (4 Ind. 385) 1001 Culeman, People v. (4 Cal. 46) 97 Cullen, Rex v. (5 Car. & P. 116; 1 Moody, 800) 828, 335 Cullerton v. Mead (22 Cal. 95) 120 Cullum, State v. (2 Speers, 581) 204 Culp v. State (1 Port. 33) 216, 386 Cumming’s Case (Shaw Crim. Cas. 17) 160 Cumming v. Fryer (Dudley, Ga. 182) 192 Cummings v. Commonwealth (2 Va. Cas. 128) 205, 826° Curd v. Commonwealth (14 B. Monr. 386) 1003 Curran, State v. (7 Eng. 821) 142 Currier, State v. (23 Maine, 43) 852 Curry, Reg. v. (2 Moody, 218) — 328, , 888 Curtis v. Gill (84 Conn. 49) 126 v. Hubbard (1 Hill, N. Y. 836 ; 4 Hill, N. Y. 437) 290, 312 v. Martin (8 How. U. 8. 106) 99 v. State (5 Ohio, 324) 297 —, State v. (4 Dev. & Bat. 222) 287 , State v (5 Humph. 601) 220 Cushing v. Worrick (9 Gray, 882) 78 Cutbush, Reg. v. (Law Rep. 2 Q. B. 379) 104 ——, Rex v. (4 Bur. 2204) 22 Cuthbert v. Conley (82 Ga. 211) 997 Cutler, Commonwealth v. (9 Al- len, 486) 1069 —— v. Howard (9 Wis. 309) 112 Cutts v. Hardee (88 Ga. 350) 91 INDEX TO THE CASES CITED. DAV SECTION Daggett v. State (4 Conn. 60) 216, 232 Daily v. May (5 Mass. 313) 319 Dakins v. Seaman (9 M. & W. 777; 6 Jur. 783) 160 Dale v. State (27 Ala. 31) 280, 287 Daley, State v. (29 Conn. 272) 183, ee 1 378 Dameron v. State (8 Misso. 494) 724 Dana, Commonwealth v. (2 Met. 829) 205, 209, 856, 957, 958, 963 Danforth, State v. (8 Conn. 112) a ——,, Statew. (41 Vt. 564) v. Woodward (10 Pick. 423) 319 Daniel Ball, The (10 Wal. 557) 308 Daniel v. Coulsting (7 Man. & G. 122) 277, 289 v. Guy (19 Ark. 121) 274 Daniels, State v. (82 Misso. 558) 427 ——,, State v. (44 N. H. 388) 806, ae Danvers v. Wellington (Hard. 173) 277 Darley, Rex v. (1 Stark. 359) 886, 887 Darlington School, Reg. v. (6 Q. B. 682) 22 Darnford, Rex v. (2 East P. C. 785) 525 Dash v. Van Kleeck (7 Johns. 477) 82 Davenport v. Commonwealth (1 Leigh, 588) 232, 244 —,, Commonwealth v. (2 Allen, 299) 69 Davidson, Rex v. (1 Leach, 242) 344 ——,, State v. (88 Misso. 374) 529 v. Wheeler (Morris, 2388) 175, 177 Davies v. McKeeby (5 Nev. 369) 809 ——,, Reg. v. (14 W. R. 679; 14 Law Times, n. s. 491) 423, 424 ——. Rex »v. (2 East P. C. 499; 2 Leach, 876) 279 Daviess v. Fairbairn (3 How. U. 8. 636) 159, 160 Davis, Commonwealth v. (9 Cush. 283} ——, Commonwealth v. (11 Gray, 48) —— v. Concordia (9 How. U.S. 280) 32 v. Miner (1 How. Missis. 188) 178 v. People (19 Ill. 74) 378 —, People v. (61 Barb. 456) 405 ——, Reg. v. (8 Car. & P. 759) 185 ——, Rex v. (2 East P. C. 593; 1 Leach, 496) —, Rex »v. (1 Russ. Crimes, Grea. ed. 574) —, Rex v. (Russ. & Ry. 322) 280, 281 216 —— v. State (29 Ala. 521) 1042 —— v. State (22 Ga. 101) 894 ——, State v. (2 Bailey, 558) 274 —, State v. (22 La. An. 77) 413 107 DEN SECTION Davis, State v. (23 Maine, 403) 1004, 1032 ——, United States v. (8 McLean, 483 108 —, United States v. (6 Mason, 856 209, 416 ——, United States v. (2 Sumner, 482 804 8 Davison v. Gill (1 East, 64) 256 Dawson’s Case (3 Chit. Crim. Law, 1088) 437 Dawson v. People (25 N. Y. 399) a —, Reg. v. (1 Eng. L. & Eq. 589 ; 2 Den. C. C. 75; Temp. & M. 428) 826, 829, 382 v. State (6 Texas, 847) 180, 185 Day, Reg. v. (9 Car. & P. 722) 491 ——,, State v. (87 Maine, 244) 1018, 1050 Dayton, State v. (8 Zab. 49) 167, 255 Dean, Ex parte (2 Cow. 605) 107 v. Commonwealth (4 Grat. 541) 274 8) Commonwealth v. (14 Gray, 99 —, Commonwealth v. (1 Pick. 145 ——, Commonwealth v. (21 Pick. 384 1017 v. King (4B. & Ald. 517) = 1078 —, People v. (14 Mich. 406) 274 Rex v. (2 Leach, 693; 2 East P. C. 646) 845, 846 —, Rex v. (2 Leach, 693 ; cae P.C. 749) v. State (Mart. & Yerg. 127) 896, 914 Dearborn v. Hoit (41 Maine, 120) 1081 De Armas Case (10 Mart. La. 158) 160, 163, 165 De Beauvoir, Rex v. (7 Car. & P. 17) 138 De Bernie v. State (19 Ala. 23) 168 Deberry, State v. (5 Ire. 371) 968 De Bow ». People (1 Denio, 9) 387 De Cordova. Galveston (4 Texas, ? 70) 178 Dedieu v. People (22 N. Y. 178; 4 Parker C. C. 598) 536 Deeley, Rex v. (1 Moody, 3038; 4 Car. & P. 579) De Graffenried v. Mitchell (8 Me- Cord, 506) 290 Delany v. People (10 Mich. 241) 668, 711, 721, 730 Deming, People v. (1 Hilton, 271) 98 Dempsey, State v. (9 Ire. 384) 274 Den v. Dubois (1 Harrison, 285 82 ——v. Pine (4 Wash. C. C. 691) 154 Denbow »v. State (18 Ohio, 11) 536 Deneny, Reg. v. (Jebb, 255) 216 708 INDEX TO THE CASES CITED. DOE SECTION Denmour, Reg. v. (8 Cox C. C 440) 428 Dennin, State v. (32 Vt. 158) 811 Dennison’s Case (4 Greenl. 541) 126 Dent, State v. (1 Rich. 469) 916 Denton, Reg. v. (14 Eng. L. & Eq. 124 177 De Orma’s Case (10 Mart. La. 158) 82 De Pauw v. New Albany (22 Ind. ine 204 Depew v. Trustees, &c. (5 Ind. 8) 303 Derbyshire, Reg. v. (2 Q. B. 745; 2 Gale & D. 97; 6 Jur. 438) 301 Desban v. Pickett (16 La. An. 850) 154 Desmond, Commonwealth »v. (103 Mass. 445) 1057 Devlin v. Anderson (38 Cal. 92) a ——, People v. (83 N. Y. 269) Dew v. Cunningham (28 Ala. 466) i Dewart v. Purdy (5 Casey, 113) 84 Dewees v. Miller (5 Harring. Del. 347) 848 Dewitt, Reg. v. (2 Car. & K. 905) 210 DeWitt v. San Francisco (2 Cal. 289) 102, 137 De Wolf v. Rabaud (1 Pet. 476) 115 Dick, Rex v. (1 Leach, 68; 2 East P. C. 925) 826 v. State (30 Missis. 631) 274 ——, State v. (2 Murph. 388) 174 Dickenson, Rex v. (1 Saund. Wms. ed. 135, note) 164, 166 Dickerson v. Rogers (4 Humph. 179) 297 Dickey, United States vu. (Morris, 412 249 Dickins v. State (80 Ga. 383) 1022 Dill, State v. (2 Sneed, 414) 193 Dillon v. Dougherty (2 Grant, 99) 85 Dineen, State v. (10 Minn. 407) 320 Dingee, State v. (17 Iowa, 232) ie Directors of the Poor v. Railroad Company (7 Watts & Serg. 236) a Disbrow v. Saunders (1 Denio, 149) 1003 von Rex v. (10 Mod. 335; Bey 26) 166, 250 ——, Rex v. (Russ. & Ry. 53) 244 —, United States v. (4 Cranch C. C. 107) 851 Dobkins v. State (2 Humph. 424) 852, 860, 914, 929 Dobson, Rex v. (1 Lewin, 48) 774. Dodd, Rex v. (9 East, 516) 149 v. State (18 Ind. 56) 163 Dodge v. Essex (3 Met. 380) 250 v. Gridley (10 Ohio, 173) 163 Dodsworth, Reg. v. (8 Car. & P. 218 824 Doe v. Braden (16 How. U. S. 635) 14 DRE SECTION Doe v. Collins (2 T. R. 498) 277 v. Naylor (2 Blackf. 32) 186 ae v. State (1 Swan, Tenn. 129 Doherty, Commonwealth v. (103 Mass. 443) : 796 Dolan v. Thomas (12 Allen, 421) 152 Dominick v. Michael (4 Sandf. 374) 98 Donehey, State v. (8 Iowa, 896) 31, 163 Donnavan, Rex v. (1 Leach, 69; 2 East P. C. 1020) 207, 289 Donnell v. State (2 Ind. 658) a 102 Donovan, Commonwealth v. (16 Gray, 18) 9 v. Vicksburg (29 Missis. 247) 22 Doolubdass v. Ramloll (7 Moore P. C. 239; 15 Jur. 257; 8 Eng. L. & Eq. 39) 85 Doon, State v. (R. M. Charl. 1) 141, 855 Dore v. Gray (2 T. R. 358) 160 Dorman v. State (34 Ala. 216) 992, 1037 Dougherty v. Commonwealth (14 B. Monr. 289) 999 Douglas, Rex v. (7 Car. & P. 644) 775 ——, Rex v. (1 Moody, 462) 231 Douglass v. Commonwealth (2 Rawle, 262) 208 v. Commonwealth (8 Watts, 535) 779, 780 ——, State v. (7 Iowa, 413) 833 Douse, Rex v. (1 Ld. Raym. 672) 249 Dove, Commonwealth v. (2 Va. Cas. 26) 1037, 1045 Dow, Commonwealth v. (10 Met. 382) 22, 34 — v. Norris (4 N. H. 16) 178 ——,, State v. (21 Vt. 484) 186, 1024 Downer, State v. (21 Wis. 274) 1006 Downes, Commonwealth v. (24 Pick. 227) 137 Downey v. State (20 Ind. 82) 1038 Downing v. Porter (8 Gray, 539) 1057 Downman ». State (14 Ala. 242) 204, 291, 1011 Dowsell, Rex v. (6 Car. & P. 898) 145 Doyle v. Commissioners of Balti- more County (12 Gill & J. 484) ar 52 Drake, State v. (1 Vroom, 422) 758 Draper v. Emerson (22 Wis. 147) 97 Drapert v. State (14 Ind. 123) 999 Drennan v. People (10 Mich. 169) 97 Drew v. Commonwealth (1 Whart. 279) | 142, 163 —, Commonwealth v. (38 Cush. : 852, 855, 881 ——, Commonwealth v. (19 Pick. 179) 133 INDEX TO THE CASES CITED. EAT SECTION Drew v. State (5 Eng. 82) 919, 923 Droit d’aubaine (8 Opin. Atty. Gen. 411) 14 Drydon, Ex parte (5 T. R. 417) 82 Duane, Commonwealth v. (1 Binn. 601) 177 ae v. Augusta (Dudley, Ga. 3 Ducher v. State (18 Ohio, 308) ot 813 Duchess of Kingston’s Case (1 Leach, 146) 239 Duck v. Addington (4 T. R. 447) 82 Duclos, State v. (85 Misso. 237) 262 Dudley, Commonwealth v. (3 Met. Ky. 221) 1088 v. Mayhew (3 Comst. 9) 249 Duffus’s Case (Comyns, 440) 216 Dufour, Succession of (10 La. An. 391) 14 Dugan v. Gittings (8 Gill, 188) 154, 159, 163 Dukes v. State (11 Ind. 557) 475 Dull v. People (4 Denio, 91) 227 Dunbar v. Mulry (8 Gray, 168) 1031 Duncan v. Commonwealth (2 B. Monr. 281) 1004 —— v. State (7 Humph. 148) 1382 ——,, State v. (9 Port. 260) 242 Duncombe v. Prindle (12 Iowa, 1) 90 Dunkley, State v. (3 Ire. 116) 180 Dunman v. Strother (1 Texas, 89) 848, 851, 852, 873 Dunn, Ex parte (14 Ind. 122) 999 — v. People (40 Ill. 465) 952, 956, 962 v. People (29 N. Y. 528) 749, 760, 761 Dunnaway v. State (9 Yerg. 850) 1065 Duramus v. Harrison (26 Ala. 326) 98 Durfee, Commonwealth v. (100 Mass. ae 680 Durham »v. State (1 Blackf. 83) 917 Durick, People v. (20 Cal. 94) 162 Duzan, State v. (6 Blackf. 31) 786, 791, 797 Dwelley v. Dwelley (46 Maine, 3717 119, 155 Dyches v. State (24 Texas, 266) 255 Dye, Reg. v. (11 Mod. 174) 250 Dyer, Rex v. (6 Mod. 41) 33 — v. State (Meigs, 237) 28, 10382 Eakin v. Raub (12 8. & R. 830) 84 Eason v. State (6 Eng. 481) Hasterling v. State (80 Ala. 46) v. State (85 Missis. 210) 1052 Eastman v. McAlpin (1 Kelly, 157) 46 Eaton, Commonwealth v. (9 Pick. 165) 1034 — v. Graham (11 Il. 619) 117 709 ELW SECTION Eaton v. United States (5 Cranch, 281) - 17 Ebert, State v. (40 Misso. 186) 852, ane Eccles v. Stephenson (3 Bibb, 517) 163 Edds, Commonwealth v. (14 Gray, 406) 1069 Edgar v. Greer (8 Iowa, 394) 160 Edmonds, Reg. v. (4 Ellis & B. 993; 24 Law J. n. 8. M.C. 124; 1 Jur. x. s. 727; 30 Eng. L. & Eq. 879) 22 Edmund, State v. (4 Dev. 340) 246 Edrich’s Case (5 Co.118) ° 145 Edward, State v. (5 Mart. La. 474) 177 Edwards, Commonwealth v. (12 Cush. 187) 1044, 1057 —, Commonwealth v. (9 Dana, 447) —, Reg. v. (9 Exch. 82; 23 Law J.N. 8. Exch. 42) 29 — , Rex v. (Russ. & Ry. 283) 601 v. State (22 Ark. 253) 1001 Egginton, Rex v. (2 B. & P. 508; 2 East P. C. 494; 2 Leach, 913) 280 Egypt Street (2 Grant, Pa. 455) 156 Eighty-four Boxes of Sugar, United States v. (7 Pet. 453) 198, 195 Elder v. Bemis (2 Met. 599) 250 Elkins v. State (13 Ga. 435) 1052 Elliott v. Locknane (1 Kansas, 126) 154 —, Rex v. (2 East P. C. 951) 336 —— v. State (26 Ala. 78) 855, 881, 912 v. Swartwout (10 Pet. 1387) 99 Ellis, Ex parte (11 Cal. 222) 93 v. Batts (26 Texas, 703) 126 v. Beale (18 Maine, 387) 848, 852, 855, 872, 873 v. Paige (1 Pick. 48) 159, 161, 163 ——,, Reg. v. (Car. & M. 564) 242, 882 —, Rex v. (5B. & C. 395; 8D. & R. 173) 141, 220 v. State (20 Ga. 438) 689 uv. Whitlock (10 Misso. 781) 192 v. Whittier (87 Maine, 548) 178 Ellison v. Mobile and Ohio Rail- road (86 Missis. 572) 87 , Rex v. (1 Moody, 336) 291 Ellor, Rex v. (1 Leach, 323; 2 East P. C. 938) 329 Elmendorf v. Taylor (10 Wheat. 152) 115 Elmondorff v. Carmichael (3 Litt. 472) 50 Elmsly’s Case (2 Lewin, 126) 246, 314 Elrod v. Gilliland (27 Ga. 467) 152 ——,, State v. (12 Rich. 662) 163 Elsmore v. St. Briavells (8 B. & C. 461; 2 Moody & R. 514) 289, 291 Elwell, Commonwealth v. (2 Met. 190) 656, 657, 663, 670, 671, 675, 738 710 INDEX TO THE CASES CITED. EVA SECTION Elwood v. Bullock (6 Q. B. 883) 22 , State v. (12 Wis. 551) 816 Ely v. Thompson (3 A. K. Mar. 70) 34, 151, 163 Emerson v. Noble (82 Maine, 380) ore : 3 Emery v. Kempton (2 Gray, 257) 1022 Emily, The, and The Caroline (9 Wheat. 381) 200 Emmons, Commonwealth v. (98 Mass. 6) 852, 877 England, Reg. v. (1 Car. & K. 633) 289 Engleman v. State (2 Ind. 91) 106 English v. Young (10 B. Monr. 141) 855, 881 Enkeling v. Van Wamel (26 Texas, 469) 101 Ennis v. Crump (6 Texas, 34) 144 Enoch, People v. (18 Wend. 159) 470, 472 436, 440, 442 Enterprise, The (1 Paine, 32) 193, 194, 200 Enslow, State v. (10 lowa, 115) Erie and N. East Railroad v. Casey (2 Casey, 287) Erskine, Commonwealth v. (8 Grat. 624) 217 Ervine v. Commonwealth (5 Dana, 216) 163, 852, 855, 859 Erwin v. Moore (15 Ga. 861) 81, 154, 159 Eskridge v. State (25 Ala. 30) 89 —, State v. (1 Swan, Tenn. 413) 249, 1032 Estabrook, Commonwealth v. (10 Pick. 293) 284, 291, 1011 , State v. (6 Ala. 653) 1002 are Appeal (4 Smith, Pa. 19 119 Estes v. State (2 Humph. 496) 854, 855, 1026 v. State (10 Texas, 300) 921 Estrella, The (4 Wheat. 298) 163+ Etheridge v. Cromwell (8 Wend. 629 132 Eubanks v. State (5 Misso. 450) 246, 852, 855 Eugle v. Shurts (1 Mich. 150) 1i7 Eustis v. Kidder (26 Maine, 97) 255 oo v. Commonwealth (3 Met. 53) ——, Commonwealth v. (16 Pick. 448) ——, Commonwealth v. (13 8S. & R. 426) 159, 163, 168 ——, Reg. v. (Car. & M. 298) 204 v. State (1 Humph. 394) 216 —— v. State (8 Ohio State, 196) 328 v. State (25 Texas, Supp. 303) 381 —, State v. (7 Gill & J. 290) 167 FEA SECTION Evans, State v. (3 Hill, 8. C. 190) 163, 1082 —,, State v. (5 Jones, N. C. 250) 1052 Evins v. State (46 Ala. 88) 7&6, 791 Ewell v. State (6 Yerg. 364) 735 Ewer, Reg. v. (Holt, 612) 164 Ewing’s Case (5 Grat. 701) ee Eyston v. Studd (Plow. 459) Ezekiel v. Dixon (3 Kelley, 146) 72, 81 Faderman, Reg. v. (4 New Sess. Cas. 161; Temp. & M. 286; 1 Den. C. C. 565) 348 Fahey, Commonwealth v. (5 Cush. 408 22 Fairbanks v. Antrim (2 N. H. 105) 199 Fairfax v. Hunter (7 Cranch, 627) 138 Fairfield, State v. (87 Maine, 517) 1001, 1011 Falmouth v. Watson (5 Bush, 660) 992, 997 Fanning, Reg. v. (17 Irish Com. Law, 289; 10 Cox, C.C.411) 590 Fanshaw v. Morrison (2 Ld. Raym. 1188) 164 Farbach v. State (24 Ind. 77) Farmer v. Commonwealth (8 Leigh, 741) Farmers Turnpike v. Coventry (10 Johns. 389) 64, 249 Farnham, Reg. v. (1 Cox C. C. 349) - 771 Farr v. Brackett (80 Vt. 344) 159 Farrall v. State (82 Ala. 557) 1052 Farrand, Commonwealth v. (12 Gray, 177) 1069 Farrar, State v. (88 Misso. 457) 529 Farrell v. State (3 Ind. 573) 1045 Farrell Foundry v. Dart (26 Conn. 376) Farren, Commonwealth v. (9 Allen, 489) 358 Farrington, People v. (14 Johns. 348) 828, 330 168 , Rex v. (Russ. & Ry. 207) Farrow, Reg. v. (40 Eng. L. & Eq. 550; Dears. & B. 164) T47 Faucett, State v. (4 Dev. & Bat. 107 1 037 Faulkner, Rex v. (1 Saund. 249; 2 Keb. 506, pl. 79) 984, 1059 Fauntleroy, Rex v. (1 Moody, 52; 2 Bing. 418; 1 Car. & P. 421) 340 Favers v. Glass (22 Ala. 621) 101 Faversham, Rex v. (8 T. R. 352) 384 Fawkner, Rex v. (2 Keb. 506, pl. 79) 984, 1059 Fearson, State v. (2 Md. 810) 204, 852, 860, 878 Feazle, Commonwealth v. (8 Grat. 585) 298 INDEX TO THE CASES CITED. FLE SEcTION Fee, State v. (19 Wis. 562) 3878 Felix v. State (18 Ala. 720) 166, 274 Fell v. Knight (8 M. & W. 269) 297 Fellowes v. Clay (4 Q. B. 318) 48, 51 Felt v. Felt (19 Wis. 193) 126 Feltmakers v. Davis (1 B. & P. 98) ei 06 Fenelon’s Petition (7 Barr, 1738) 177 Fenner v. State (3 R. I. 107) 1057 Fetter v. Wilt (10 Wright, Pa. 457) 228 Fetterer v. State (18 Ind. 888) 1088 Fezas, Rex v. (4 Mod. 8) 623 Fiddler v. State (7 Humph. 508) 852, 855, 861 Fidler, Rex v. (4 Car. & P. 449) 214 —,, State v. (7 Humph. 502) 244, 862, 855, 861 Field v. People (2 Scam. 79) 187 ——,, State v. (17 Misso. 529) 36 Fields, State v. (2 Bailey, 554) 46, 82, 200, 260 Finan, State v. (10 Iowa, 19) 1024, 1027, 1040 Finch v. Commonwealth (14 Grat. 643 312 v. Mansfield (97 Mass.89) 10380 —, People v. (5 Johns. 237) 336 Findlay v. Bear (8S. & R. 571) 344 —, State v. (2 Bay, 418; 1 Brev. 107) 48, 149, 204, 237, 628 Finn v. State (5 Ind. 400) 474 Finney v. State (3 Head, 544) 588, 618 Fisher, Commonwealth v. (17 Mass. 46) 199, 330 v. Harnden (1 Paine C. C. 55) 14 — v. Horicon Company (10 Wis. 351) 212 v. McGirr (1 Gray, 1) 83, 384, 992, 993, 994, 1081, 1056, 1057 —. Patterson (1 Harris, Pa. 36 1077 ——,, People v. (2 Parker, 402) 992 ——, United States v. (2 Cranch, 358) 46, 82 Fitts, State v. (44 N. H. 621) 379 Fitzacherly v. Wiltshire (11 Mod. 352; 1 Stra. 462) 34 Fitzgerald v. People (87 N. Y. 418) 470 v. State (12 Ga. 2138) 801 Fitzpatrick, State v. (4 R. I. 269) 887 Flack, State v. (24 Misso. 378) 926 Flagg, State v. (25 Ind. 243) 571 Flaherty v. Thomas (12 Allen, 428) 185 Flake v. State (19 Ala. 551) 298, 904 Flanders, People v. (18 Johns. 164) 205, 826 Flanigin, State v. (5 Ala. 477) 163, 167, 171 Flannagan, Rex v. (Russ. & Ry. 187 279 Fleming, State v. (7 Humph. 152) 33 TAL FRA SECTION Fleming, State v. (19 Misso. 607) 103 ——,, State v. (2 Strob. 464) 242 Fletcher’s Case (1 Leach, 342; 2 Stra. 1166; 2 Kast P.C. 700) 145 v. Peck (6 Cranch, 87) 91 —, Reg. v. (2 Car. & K. 215) ao ——, Rex v. (1 Leach, 23; 2 Stra. 1166) 821 v. Rhode Island (5 How. U. 8. 504) 990 , State v. (5 N. H. 257) 138 —, State v. (1 R. I. 193) Flint River Steamboat Co v. Foster (5 Ga. 194) 11 Floyd v. Commissioners (14 Ga. 354) 1002 ——, Commonwealth v. (11 Gray, 52, note) 557 Foley, Commonwealth v. (99 Mass. 499) 978, 979 Foliamb’s Case (5 Co. 115 b) 37 174, 176, 177 Follet, State v. (6 N. H. 53) 965 Fore, State v. (1 Ire. 378) 663, 707 Forsyth v. Marbury (R. M. Charl. 324) 82 Fort Plain Bridge Co. v. Smith (80 N. Y. 44) 151 Fosdick v. Perrysburg (14 Ohio State, 472) 98 Foss, Commonwealth v. (14 Gray, 50) 1069 Foster’s Case (11 Co. 566) 57, 160, 164 Foster v. Blount (18 Ala. 687) 246 — v. Commonwealth (8 Watts & S. 77) 163, 243 —, Commonwealth v. (1 Mass. 159 v. Dow (29 Maine, 442) 1000, 1001, 1079 v. Haines (13 Maine, 307) 1032 v. Medfield (3 Met. 1) 177 v. Neilson (2 Pet. 258) 14 —, Rex v. (7 Car. & P. 495) 204 ——, Rex v. (Russ. & Ry. 459) 671 — »v. State (38 Ala. 425 261, 262 ——, State v. (3 Fost. N. H. 248) 1049, 1052 ——, State v. (3 McCord. 442) 344, 346 —— v. Thurston (11 Cush. 822) 1030 Fouke v. Fleming (13 Md. 392) 86 Fourteen Hogs, Commonwealth v. (10 S. & R. 398) 132, 223 Fouts v. State (8 Ohio State, 98) 472 Fowler v. Brown (5 Texas, 407) 163 v. State (5 Day, 81) 49, 713 Fox, State v. (1 Harrison, 152) 1088 Foxcroft v. Crooker (40 Maine, 308) Fraize, Commonwealth v. (5 Bush, 825) 712 895 INDEX TO THE CASES CITED. GAG SECTION Frampton, Reg. v. (2 Car. & K. 47) 341 France, State v. (1 Tenn. 434) 429 Franklin v. State (12 Md. 236) 1042 Franklyn, Rex v. (1 Leach, 255) 135, 145 Franks, Rex v. (2 Leach, 644) 244 Fraser, Rex v. (1 Moody, 407) 599 Frasier v. State (6 Misso. 195) 1027 Frazer, Reg. v. (8 Cox C. C. 446) 634 Fredericks, State v. (16 Misso. 382) 1003 Frederickson v. State (23 How. U. S. 445) 13 Free, State v. (2 Hill, S. C. 628) 260 Freeborn v. Smith (2 Wal. 160) 180 Freels, State 7. (2 Humph. 228) 216 Freeman v. People (4 Denio,9) 144 , Rex v. (5 Car. & P. 534) 271 v. State (6 Port. 372) 160 ——, State v. (6 Blackf. 248) 1061 —, State v. (27 Iowa, 333) 1069, 1070 ——, State v. (27 Vt. 520) 1011 ——, United States v. (8 How. U. S. 556) 82 Freleigh v. State (8 Misso. 606) 211, 856, 958 French v. People (3 Parker, 114) 1024 v. Teschemaker (24 Cal. 518) 90 Fretwell, Reg. v. (Leigh & C. 161; 9 Cox C. C. 152) 742, 747, 749 Frierson v. Hewitt (2 Hill, S. C. 490) 222 Frisbie v. State (1 Oregon, 264) 895 Frost v. Commonwealth (9 B. Monr. 362) 670, 686 Froud, Rex v. (3 Moore, 645; 7 Price, 609; 1 Brod. & B. 300; Russ. & Ry. 389) 328 Fry, Rex v. (2 Moody & R. 42) 321 Fryeburg Canal v. Frye (5 Greenl. 38) 249 Fugate v. State (2 Humph. 397) 852 Fuller, Rex v. (1 Leach, 186) . 279 — rv. State (1 Blackf. 63) 163, 164, 167 — , State v. (14 La. An. 667) 160 —; State v. (1 McCord, 178) 348 ——, State v. (883 N.H. 259) 1044 ——,, State v. (31 Texas, 559) 903 Fullerton v. Spring (3 Wis. 667) 181 Fulton, State v. (19 Misso. 680) 854, 861, 876, 890 Fulwood’s Case (1 Hale P. C. 660; Cro. Car. 4&4) 617, 623 Furman v. Applegate (3 Zab. 28) 643 v. Knapp ne Johns. 248) 1002 v. Nichol (8 Coldwell, 432) 154 Gable v. Commonwealth (7 S. & R. 422) Gage v. Shelton (3 Rich. 242) 112 289 GEO SECTION Gahan v. Neville (2 Cal. 81) 848 Gainer, State v. (8 Humph. 89) 168 Gale v. Laurie (5 B. & C. 156) 82 Galena v. Amy (5 Wal. 705) 112 Gallagher, Commonwealth v. (1 Allen, 592) 1069 —, Commonwealth v. (6 Met. 565) 814 — v. Neal (3 Pa. 183) 217 ——,, People v. (4 Mich. 244) 992 Gamble v. State (85 Missis. 222) 946 Gannon, Commonwealth v. (97 Mass. 547) 1025 Gardiner v. Collins (2 Pet. 58) 115 Gardner v. The Collector (6 Wal. 499) 29 —, Commonwealth v. (11 Gray, 38 —— v. State (20 Ill. 480) 997 —— v. State (25 Md. 146) 79 Garland, Commonwealth v. (8 Met. Ky. 478) 899 —, Commonwealth v. (5 Rand. 652) 855, 861, 952 —, Rex v. (2 East P. C. 493; 1 Leach, 144) 284 ——, State v. (7 Ire. 48) 142 Garner v. Johnson (22 Ala. 494) 111 v. State (8 Blackf. 568) 1006 v. State (5 Yerg. 160) 846 Garney, State v. (387 Maine, 149) 1044 Garratt, Rex v. (6 Car. & P. 869) 245 Garrett v. Doe (1 Scam. 335) 82 Garthwaite, State v. (3 Zab. 143) 82 Gartrell, State v. (14 Ind. 280) oe 7 Gasconade, State v. (83 Misso. 102) 110 Gaskin v. Meek (42 N. Y. 186) 405 Gassett v. Godfrey (6 Fost. N. H. 415) 1081 Gaul v. Brown (53 Maine, 496) 177 Gault v. State (34 Ga. sae 1019, 1020 Gay, Commonwealth v. (5 Pick. yee 406 Gaylor v. McHenry (15 Ind. 383) 680 Gaylord v. Soragen (32 Vt. 110) 10380 Gaze, Rex v. (Russ. & Ry. 884) 189 Gearhart v. Dixon (1 Barr, 224) 188 Gee, Commonwealth v. (6 Cush. Sa Geebrick v. State (5 Iowa, 491) 36 Geening v. State (1 McCord, 573) 1024 Genkinger v. Commonwealth (8 Casey, Pa. 99) 177 Gentry v. State (8 Yerg. 451) 308 Genung, People v. (11 Wend. 18) 225 George, Ex parte (T. U. P. Charl. 80 222 —, Reg. v. (11 Cox C. 0.41) 778 v. Skeates (19 Ala. 7388) 159, 160 Georgia Railroad v. Kirkpatrick (35 Ga. 144) 163 INDEX TO THE CASES CITED. 46 GLA SECTION N.C. 1002, 1004 Germania v. State (7 Md. 1) 212, 855, Gerhardt, State v. (3 Jones, 178 992 Gertrude, The (3 Story, 68) 132 Getchell, Commonwealth v. (16 Pick. 452) 90, 180 Geuing v. State (1 McCord, 578) 1052 Gibboney v. Commonwealth (14 Grat. 582) Gibbon’s Case (Foster, 107) Gibbons v. Gouverneur (1 Denio, 170) 848, 852, 873 —— v. People (88 Ill. 442) 852, 875, 889 279 228 896 812 ——, Rex »v. (Russ. & Ry. 442) Gibbs, Commonwealth v. (4 Dall. 253) ——, Reg. v. (Dears. 445; 24 Law J.n.s. M. C. 62; 1 Jur. n. 8. 118; 29 Eng. L. & Eq. 538) Gibert, United States v. (2 Sum- ner, 19) 167, 348 Gibson v. County of Pulaski (2 Pike, 309) v. Jenney (15 Mass. 205) ——, Rex v. (1 East P. C. 418) ——, Rex v. (1 Leach, 357; 2 East P. C. 508) Giddings v. Cox (31 Vt. 607) 159 Gifford v. New Jersey Railroad (2 Stockton, 171) 47 Gilbert v. Hendricks (2 Brev. 161) 1023 ——,, People v. (18 Johns. 227) 142 ——,, Reg. v. (1 Car. & K. 84) 286 Gilchrist, Reg. v. (Car. & M. 224; 2 Moody, 233) 826, 828, 329, 333 Giles, Commonwealth v. (1 Gray, 466 —., tex v. (1 Moody, 166) 271 856 155 1385 285 1007 307 Gilkinson, People v. (4 Parker C. C. 26) 1043, 1061 Gill v. Parker (31 Vt. 610) 1057 ——, People v. (7 Cal. 356) 59 Gillbrass, Rex v. (7 Car. & P. 444) 245, 247 Gillespie, Commonwealth v. (7 S. &R 469) 966 —— v. State (9 Ind. 380) 41, 91 Gilmanton, State v. (14 N. H. 467) 302 Gilmer v. Lime Point (19 Cal. 47) 119 Ginns, State v. (1 Nott & McCord, 583) 285, 286 Girkin, State v. (1 Ire. 121) 204 Givens v. Rogers (11 Ala. 548) 934, 987 Gladney v. Deavors (11 Ga. 79) Glaholm v. Barker (Law Rep. 1 Ch. Ap. 223) 186 Glascock v. State (10 Misso. 508) 863 Seat State v. (Dudley, S. C. 0) 713 1016 GOU ECTION Glass v. Commonwealth (6 Bush. 436) 518, 521 v. State (80 Ala, 529) 98 Glaze, State v. (9 Ala. 288) 204, oe Glover, Rex v. (2 Russ. Crimes, Grea. ed. 146) Gluff, Rex v. (12 Mod. 104) . 250 Goddard v. Boston (20 Pick. 407) 2 v. Jacksonville (15 Ill. 588) 997 Godet, State v. (7 Ire. 210) 247 Godfrey, Rex v. (2 East P. C. 642; 1 Leach, 287) 293 v. State (5 Blackf. 151) 1004 ——, State v. (3 Fairf. 361) 111 Goding, Commonwealth v. (8 Met. 82, 852, 855, 859 Commonwealth v. (11 Gray, 454) 1069 Goff v. Fowler (8 Pick. 300) 1001 Goldsmith’s Case (8 Camp. 76) 745 Goldsmith v. State (1 Head, 154) 852, 855, 862, 873 Goldstein, People v. (82 Cal. 482) 348 ——, Rex v. (7 Moore, 1; 3 Brod. & B. 201; 10 Price, 88; Russ. & Ry. 478) 826 Goldthorpe, Reg. v. (2 Moody, 244; Car. & M. 335) 771 Gooch, Reg. v. (8 Car. & P. 293) 415 —,, State v. (7 Blackf. 468) 693, 700 v. Stephenson (18 Maine, 371) 153, 163, 164, 250 Goode, Reg. v. (6 Cox C. C. 818) 771 Gvodenow v. Buttrick (7 Mass. 140) 159, 163 Gooding, Reg. v. (Car. & M. 297) 601 ——., United States v. (12 Wheat. 460) 100 Goodman, Commonwealth v. (97 Mass. 117) 1022 Goodrich v. People (8 Parker C. C. 622) 550 Goodsell v. Coynton (1 Scam. 555) 28 Goodwin v. Thompson (2 Greene, Iowa, 329) 155, 163 Gordon v. Farquhar (Peck, 155) 2382 — v. Inghram (1 Grant, 152) 85 — v. Kerr (1 Wash. C. C. 822) 138 Gorham v. Luckett (6 B. Monr. 146) 159 Gorman v. Hammond (28 Ga. 85) 163 Goshen Turnpike, People v. (11 Wend. 597) 141 v. Sears (7 Conn. 86 396 Gosselink v. Campbell (4 lowa, 296) 22 Gould, Rex v. (2 East P. C. 644; 1 Leach, 389) 233 Goulding, State v. (44 N. H. 284) 406 Gourdier, Commonwealth v. (14 Gray, 390) 848, 858, 861, 874 714 INDEX TO THE CASES CITED. GRI SECTION Governor v. Howard (1 Murph. 465) 17 Grace v. Donovan (12 Minn. 580) 178 , State v. (21 Ark. 227) 896 Grady, State v. (84 Conn. 118) 127 Graham, Ex parte (18 Rich. 277) 84, 178 —, Rex v. (2 East P. C. 945; 2 Russ. Crimes, Grea. ed. 514) 206, 828 v. State (1 Pike, 171) 919 Grammond v. State (10 Ohio, 510) 346 Granger’s Case (1 East P. C. 413) 135 Grant v. Couster (24 Barb. 232) 36 Grasseley, Reg. v. (2 Dyer, 210) 182 Graves, Commonwealth v. (97 Mass. 114) 1018 —, Commonwealth v. (18 B. Monr. 33) 1001 Gray v. Commonwealth (9 Dana, 800) 1 ——, Commonwealth v. (2 Du- vall, 373) 835, 838 —— v. Davis (25 Conn. 278) 1057 v. Kimball (42 Maine, 299) 1081, 1056 ——,, Reg. v. (Leigh & C. 365) 439 ——,, Rex »v. (7 Car. & P. 164) 189 —,, Rex v. (1 Stra. 481) 312 — v. Soanes (2 Jur. 1040) 48, 49 , State v. (8 Jones, N. C. 170) 494 Green v. Cheek (5 Ind. 105) 80, 82 , Commonwealth v. (17 Mass. 141 515 894, 1037 ) v. People (21 Ill. 125) — v. New York (2 Hilton, 208) 137 ——,, Reg. v. (8 Fost. & F. 274) 359 v. Weller (82 Missis. 650) 101 Greencastle Township v. Black (5 Ind. 557) 92 Greene v. James (2 Curt. C. C. 187) 992, 1056 Greenen, Commonwealth v. (11 Allen, 241) . 1069 Greenhalgh, Reg. v. (Dears. 267; 25 Eng. L. & Eq. 570) 340 Greenhuff’s Case (2 Swinton, 236) 848 Gregory’s Case (6 Co.195) 57, 126 Gregory v. Commonwealth (2 Dana, 417) 63, 171 —, Rex v. (2 Nev. & M. 478; 5 B. & Ad. 555) 211, 252, 553 Grey’s Case (9 Howell St. Tr. 127; Skin. 81) 6238, 625 Grice, Rex v. (7 Car. & P. 119) 821 —, Rex v. (7 Car. & P. 803) 820 Grider, State v. (18 Ark. 297) 922 Griffin, Commonwealth v. (8 Cush. 523) —, People v. (2 Barb. 427) ——, People v. (19 Cal. 578) — ». State (39 Ala. 541) 228 276 177 HAL INDEX TO THE CASES CITED. HAN SECTION SECTION Griffin, State v. (8 Harring. Del. Hale v. State (15 Conn. 242) 151, 163, 560 238 175, 176 ——,, State v. (18 Vt. 198) 211 v. State (8 Texas, 171) 346, 901 Griffith v. Wells (3 Denio, 226) 254 | Haley v. Clark (26 Ala. 439) 33 Grimes, Rex v. (1 Leach, 58; 2 Hall’s Case (Cro. Eliz. 307) 243 East P. C. 647; Foster, 79) 344 | Hall, Ex parte (1 Pick. 261) 101 Grinad v. State (84 Ga. 270) 177 | ——, Commonwealth v. (8 Grat. Griswold v. Atlantic Dock (21 1003, 1004 Barb. 225) 180 v. Hall (2 Strob. Eq. 174) 655 Grizewood v. Blane (20 Eng. L. v. Jacobs (4 Har. & J. 245) 146 & Eq. 290; 11 C. B. 526) 855, 860 | ——, People v. (4 Cal. 399) 274 Groner v. State (6 Fla. 39) 894, 896 | ——, People v. (19 Cal. 425) 458 Groomridge, Rex v. (7 Car. & P. 582) 131 Groome, State v. (10 Iowa, 308) 640 Gross v. Fowler (21 Cal. 392) 101, 105 Grosuth v. Butterfield (2 Wis. 237) 1016 Grush, United States v. (6 Mason, 290) 304 Guard v. Rowan (2 Scam. 499) 82 Gummer, State v. (22 Wis. 441) 1037 Gunter v. Leckey (80 Ala. 591) 193, 1014 Gupton, State v. (8 Ire. 271) 99, 855, 863 Gurney, State v. (88 Maine, 527) 204 1032, 1057 ——,, State v. (87 Maine, 156) 992 Guthrie, Reg. v. (Law Rep. 1C. C. 241 ) 491 Gutzweller v. People (14 Ill. 142) 992 Guy, Rex v. (1 Leach, 241; 2 East P. C. 748) 344 Gwenop, Rex v. (3 T. R. 138) 46 Gwinner v. Lehigh, &c. Railroad (5 Smith, Pa. 126) 163 Hadcraft, Commonwealth »v. (6 Bush, 91) Hadden v. The Collector (5 Wal. 107) 46 Haden, State v. (15 Misso. 447) 1042 Hadley, Commonwealth v. (11 Met. 66) 181, 1024 Haehnlen v. Commonwealth (1 Harris, Pa. 617) 103 Hagan v. State (10 Ohio State, 459) 472 Haggerty v. Wilbur (16 Johns. 287 290 Hanh, Reg. v. (7 Cox C. C. 403) 421 Hailey, State v. (6 Jones, N. C. 42 262 Haines, Rex v. (Russ & Ry. 451) 312 —, State v. (35 N. H. 207) 1024 Halberstadt, United States v. (Gil- pin, 262) 163, 169 Hale v. Burton (Dudley, Ga. 105) 193 — v. Lawrence (3 Zab. 590) 115 —, Reg. v. (2 Car. & K. 326) - 1048 ——, People v. (6 Parker C. C. 642) 530 —, Rex v. (Russ. & Ry. 355) 812 v. State (8 Cold. 125) 417 v. State (9 Fla. 208) 503 v. State (4 Harring. Del. 182) 238, 297 —— v. State (3 Kelly, 18) 140, 213 v. State (3 Ohio State, 575) 844, : 345. — v. State (20 Ohio, 7) 198, 220. ——,, State v. (39 Maine, 107) 1020: ——, State v. (3 Vroom, 158) 852, 861, 874 Hallet v. Novion (14 Johns. 273) 254 Hallett, Reg. v. (2 Den. C. C. 287; 4 Eng. L. & Eq.°570) 1387 Halliswell v. Bridgewater (2 ‘An- derson, 190) 59, Halton v. Cove (1 B. & Ad. 588) 49 — , Reg. v. (2 Moody & R. 295, note) 772 Ham v. McClaws (1 Bay, 98) 82, 90 —— v. State (7 Blackf. 314) 154 v. Steamboat Hamburg (2 Iowa, 460) 249 Hambleton, State v. (22 Misso. 452) 435, 440, 442, 448, 446 Hamilton v. Buxton (1 Eng. 24) 163 einen v. (15 Gray, 586 —, Reg. v. (1 Car. & K.212) 94, 141 ——, Reg. v. (8 Car. & P. 49) 233 v. State (25 Ind. 426) 895 , United States v. (1 Mason, 152) 304 Hamlet v. Taylor (5 Jones, N. C. 36) 28 Hammond, Rex v. (2 East P. C. 1119; 1 Leach, 444) 194, 220 Hamor, Commonwealth v. (8 Grat. 698) 1025 Hamuel v. State (5 Misso. 260) Hancock, Rex v. (Russ. & Ry. 170) 285 v. Sturges (13 Johns. 8381) 282 Hancock Fiee Bridge, Common- wealth v. (2 Gray, 58) 225 Hand v. Ballou (2 Kernan, 541) 163 715 HAR SECTION Hand, United States v. (2 Wash. C. C, 485) 664 Handley, Reg. v. (1 Fost. & F. 648) 684 Haney, State v. (2 Dev. & Bat. 390) 262 Hanger, State v. (5 Pike, 412) $56 Hannibal v. Guyott (18 Misso. 515) 1001, 1002 —, State v. (6 Jones, N. C. 57) 785 Hanning v. State (6 Ind. 4382) 1032 Hanway v. Boultbee (4 Car. & P. 850; 1 Moody & R. 15) 141 Hany v. State (4 Eng. 1838) 900 Harbaugh v. People (40 Ill. 294) 852, 861, 874 Harbeck v. New York (10 Bosw. 366) 152 Harbert’s Case (8 Co. 11) 124 Hardy, State v. (47 N. H. 538) 831 Harker, State v. (4 Harring. Del. 559) 160, 163, 818 Harkness, State v. (1 Brev. 276) 82 Harless v. United States (1 Morris, 169) Harley, Commonwealth v. (7 Met. 462) , Rex v. (4 Car. & P. 3869) Harness v. State (27 Ind. 425) Harpending v. Dutch Church (16 Pet. 455) 115 Hartell v. Harrell (8 Fla. 46) 86 Harriden, People v. (1 Parker, 344) 728 Harriet, The (1 Story, 251) 82 Harris v. Commonwealth (28 Pick. 280) 1026, 1032 —, Commonwealth »v. (18 Allen, 534) 141, 959, 962, 966 —, Commonwealth v. (7 Grat. 600) —, Commonwealth v. (8 B. Monr. 378) 214 —— v, Livingston (28 Ala. 577) 997, 1016 —, People v. (25 Cal 678) 825 ——, Reg. v. (Car. & M. 661) 214 —, Reg. v. (2 Ld. Raym. 1802) 999 , Reg. v. (2 Moody, 267; 1 862 134 210 444 Car. & K. 179) 833 ——, Rex v. (5 Car. & P. 159) 822 —, Rex v. (6 Car. & P.129) 329 ——,, Rex v. (7 Car. & P. 446) 212, 245, 814, 815 —, Rex v. (2 Leach, 701; 2 East P. C. 498) 279 —, Rex v. (4 T. R. 202) 251 — v. Robinson (2 C. B. 908) 154 —— v. State (31 Ala. 362) 917 —— v. State (38 Ala. 378) 868 ——,, State v. (11 Iowa, 414) 448 ——,, State v. (27 Iowa, 429) 1069 — , State v. (5 Ire. 287) 100 716 INDEX TO THE CASFS CITED. HAT SECTION Harris, State v. (6 Jones, N. C. 448 785 ) ——, State v. (34 Misso. 347) 505 —, State v. (17 Ohio State, 608) 255 Harrison v. Eryant (5 Ind. 240) 1040 v. Chiles (8 Litt. 194) 168, 168 ‘——, Commonwealth v. (11 Gray, 310) v. Godman (1 Bur. 12) 22 v. Nichols (81 Vt. 709) 1020 ——., Rexv. (1 Leach, 180; 2 East P. C. 926) 212, 841 v. State (2 Cold. 232 378 v. State (4 Cold. 195 857, 862 v. State (15 Texas, 239) 921 —— v. Walker (1 Kelly, 32) 86, 186 Harscot’s Case (Comb. 202) 408 Harshaw, State v. (2 Car. Law Repos. 251) 262 Hart, Commonwealth v. (11 Cush. 180) 1084, 1037 —,, People v. (1 Mich. 467) 82, 1082 v. Plum (14 Cal. 148) 255 —, Rex v. (6 Car. & P. 106) 328, 838, 840 —, State v. (4 Ire. 246) 237, 271 ——, State v. (6 Jones, N. C. 389) 820 — , United States v. (Pet. C. C. 390) * 181 Hartfiel, State v. (24 Wis. 60) 1022 Hartley v. Hooker (Cowp. 523) 250 , Rex v. (Russ. & Ry. 189) 271 Hartnett, Commonwealth v. (3 Gray, 450 97, 288, 234 Hartung v. People (22 N. ¥. 95) 183 — v. People (26 N. Y. 167; 28 N. Y. 400) 185 Hartwell, Reg. v. (Jebb, 302) 255 Harwood’s Case (1 Mod. 79) 664 Harvey, Commonwealth v. (16 B. Monr. 1) 1064, 1067 —, Rex v. (Russ. & Ry. 227) 341 Haskill v. Commonwealth (3 B. Monr. 342) 1039, 1052 Hass, State v. (22 Iowa, 193) 1069 Wassall, Reg. v. (Leigh & C. 58; 8 Cox C. C. 491) 421, 423 Hassel, Rex v. (1 Leach, 1; 2 East P. C. 598) 218 Hastings v. Aiken (1 Gray, 163) et v. Lane (15 Maine, 134) 82 Hatch, People v. (19 Ill. 283) 39 Hatcher, Commonwealth v. (6 Grat. 667) 1042 Hatfield v. Gano (15 Iowa, 177) e ; 49 Hathaway v. Moran (44 Maine, 67) 254, Hatton, Commonwealth v. (15 B. Monr. 5387) 1011 HEM INDEX TO THE CASES CITED. HIC SECTION Haughton, Rex v. (5 Car. & P. 555) 291 Hawes, Reg. v. (1 Den. C. C. 270) 610 Hawkins, Rex v. (1 East P. C. 485) 312 ——, Rex v. (2 East P.C.501) ~—- 287 v. State (83 Ala. 483) 874 v. State (3 Stew. & P.63) 168, 220 ——,, State v. (15 Ark. 259) 855 Hawley, People v. (8 Mich. 880) 992, 1007 Hawthorn, State v. (9 Misso. 385) 187, 957 Hay v. Parker (55 Maine, 855) 1015 —, State v. (29 Maine, 457) 22, 852, 856 Hayden v. Noyes (5 Conn. 391) 20 , State v. (31 Misso. 35) 861, 862 Haydon, Rex v. (7 Car. & P. 445) 271 Hayes v. Hanson (12 N. H. 284) 82 v. People (25 N. Y. 390) 592 v. People (5 Parker C. C. 825) 592 ——, State v. (1 Bailey, 275) 274 Haynes v. Jenks (2 Pick. 172) 154 v. State (6 Humph. 120) 41, 232, 786 Haynie v State (32 Missis. 400) 1019 Haynorth, State v. (3 Sneed, Tenn. 64) 840 Hays v. People (1 Hill, N. ¥. 351) 492 —— r. State (18 Misso. 246) 1024 ——, State v. (21 Ind. 176) 337 Hayward, Commonwealth v. (10 Mass. 34) 217 , Rex v. (1 Russ. Crimes, Grea. ed. 729; Russ. & Ry. 78) 315 Haywood v. Mayor (12 Ga. 404) 126 Hayworth v. State (14 Ind. 590) 446 Head, Commonwealth v. (11 Grat. 819) 1061 ——,, State v. (3 R. I. 135) 1027 v. Ward (1 J. J. Mar. 280) 84 Heald v. State (86 Maine, 62) 177 Heard v. Heard (8 Ga. 380) 28 v. Pierce (8 Cush. 338) 137 Hearn v. Ewin (3 Cold. 399) 119 Heath, Ex parte (8 Hill, N. Y.42) 255 — , Reg. v. (2 Moody, 33) 340 v. State (84 Ala. 250) 274 Heffron, Commonwealth v. (102 Mass. 148) 1069 Heisembrittle v. City Council (2 McMullan, 233) 992, 997 Helen, The, United States v. (6 Cranch, 203) 177, 180 Helfrich v. Commonwealth (9 Casey, 68) 656, 657, 674 Helgen, State v. (1 Speers, 810) 250 Heming, Rex v. (2 East P. C. 1116; 1 Leach, 445) 228 F SECTION Hemmings, Rex v. (3 Salk. 187) 250 —— v. Smith (4 Doug. 33) 609 Henderson’s Tobacco (11 Wal. 652) 158 Henderson, Rex v. (Car. & M. 828) 231 v. Sherborne (2 M. & W. 236) 168, 169 , State v. (2 Dev. & Bat. 543) 163 Hennessey, People v. (15 Wend. 147) 204 Henniker v. Contoocook Valley Railroad (9 Fost. N. H. 146) 250 Henry v. Commonwealth (9 B. Monr. 361) 1027 ——. State v. (9 Ire. 463) 812 v. Tilston (17 Vt. 479) 77, 82 Henshall’s Case (2 Lewin, 135) 814 Hensley, Commonwealth v. (2 Va. Cas. 149) 826 v. State (1 Eng. 252) 1067 Henwood». State (41 Missis.579) 1019 Herber v. State (7 Texas, 69) 185 Herefordshire, Rex v. (38 B. & Ald. 581) 110 Herman v. Sprigg (3 Mart. wn. s. 190) 160, 163 Herrick, Commonwealth v. (6 Cush. 465) 1638, 178, 1007, 1032 Herryford, State v. (19 Misso. 377) 855, 867 Hersey, Commonwealth v. (2 Allen, 173) 742, 761 Hesketh v. Braddock (8 Bur. 1847) 22 Hess v. Johnson (8 W. Va. 645) 85 Hevice, Respublica v. (2 Yates, ) 625 Heward v. State (18 Sm. & M. 261) 227 Hewes, United States v. (Crabbe, 07 Hemsy v. Nourse (54 Maine, 256) 144 Hewitt, Reg. v. (4 Fost. & F. 1101) 772 Heydon’s Case (3 Co. 7) 82 Heywood’s Case (2 East P. C. 1076) 314 Heywood, Reg. v. (2 Car. & K. 352) 306 —, Rex v. (Russ. & Ry. 16) 314 Hibbard v. People (4 Mich. 125) 992, 1056 Hibbert, Reg. v. (Law Rep. 1C. C. 184) 359 Hickerson v. Benson (8 Misso. 8) 216, 855 Hickman v. Littlepage (2 Dana, 344) 168, 988 ——, Rex v. (1 Leach, 318; 2 East P. C. 593) 194, 204, 292 ——,, Rex v. (1 Moody, 34) 242 Hicks v. Commonwealth (7 Grat. 597 7 ) 78 —— v. People (10 Mich. 395) 782, 734° 717 HOA SECTION Hicks, People v. (15 Barb. 153) 187 Higby v. People (4 Scam. 165) 1088 Higdon v. Heard (14 Ga. 255) 855 —, State v. (82 Iowa, 262) 640, 648 Higgins, Commonwealth v. (16 Gray, 19) 1069 Higgs, Rex v. (2 Car. & K. 322) 285 Hightower v. Fitzpatrick (42 Ala. 597) 144 Higley, Rex v. (4 Car. & P. 366) 772 Hiler, United States v. (1 Morris, 330) 220, 232, 728 Hiles v. Shrewsbury (3 East, 457) ou Hill v. Commissioners (22 Ga. 203) 997 , Commonwealth v. (4 Allen, 589) —, Commonwealth v. (5 Grat. 682) ——, Commonwealth v. (14 Gray, 24 1 ) v. Decatur (22 Ga. 203) 47 v. People (20 N. Y. 363) 971 —, People v. (7 Cal. 97) 34 — , Reg. v. (2 Moody & R. 458) 293 —, Rex v. (Russ. & Ry. 190) 344, 345, 346 —, Rex v. (Russ. & Ry. 483) 146 v. Smith (Morris, 70) 149 v. Spear (50 N. H. 253) 1029, 1030 ——, State v. (2 Speers, 150) 255 Hillman, Reg v. (Leigh & C. 343) 747 Hills, People v. (35 N. Y. 449) 405 Hine v, Belden (27 Conn. 384) 1057 Hinkle v. Commonwealth (4 Dana, 518) 855, 881 Hinson v. Lott (40 Ala. 123) 990 v. State (7 Misso. 244) 722 Hintermiester v. State (1 Iowa, 101) Hinton v. Commonwealth v. (7 Dana, 216) 1065 —, State v. (6 Ala. 864) 655, 656, 673, 674, 691, 706 Hirn v. State (1 Ohio State, 15) 1001, 1082, 1044 Hirschfelder v. State (18 Ala. 112) 163, 1079, 1088 Hirst v. Molesbury (Law Rep. 6 130 862 Q. B. Hitchings, Commonwealth v. (5 Gray, 482) 34, 992 Hitchins v. People (89 N. Y. 454) 852, 861, 874 Hix, State v. (3 Dev. 116) 297, 852, 10382 Hizer v. State (12 Ind. 830) 936, 937, 938, 947 Hoag, People v. (2 Parker, 36) 841, 843 Hoar, United States v. (2 Mason, 811) 718 INDEX TO THE CASES CITED. HOO SECTION Hoare, Reg. v. (1 Fost. & F. 647) 423 Hobbs v. State (9 Misso. 845) 336 - Hoblyn v. Rex (2 Bro. P. C. 829) 22 Hobson v. State (44 Ala. 380) 435 Hockaday v. Wilson (1 Head, 113) 154 Hockenberry, State v. (11 Iowa, 269) 446 Hodgdon, State v. (41 Vt. 139) 1078 Hodges, Rex v. (Moody & M. 241) 223 v. State (8 Ala. 55) 163, 169 Hodgman v. People (4 Denio, 285) 204 Hodnett, Rex v. (1 T. R. 96) 77, 82 Hoffman, People v. (37 N. Y. 9) 98 Hogan, Commonwealth v. (97 Mass. 120) 1018 — , Commonwealth v. (97 Mass. 122) 1069 —, State v. (10 Fost. N. H. 268) 997, 1011 Hogg, Reg. v. (2 Moody & R. 380) 255 ——,, Rex v. (1 T. R. 721) 101 v. Zanesville Canal and Man- ufacturing Co. (5 Ohio, 410) 90 Hoggatt v. Bigley (6 Humph. 236) 22 Holbrook, Commonwealth v. (10 Allen, 200) 991 v. Holbrook (1 Pick. 248) 48, 82, $6, 92, 190 Holland v. Makepeace (8 Mass 418) 82 —, Reg. v. (16 Law T. wn. 8. 526; 15 W. R. 879; 10 Cox C. C. 478) 489 — , Rex v. (1 T. R. 692) 999 v. State (3 Port. 292) | 908 —, State v. (22 Ark. 242) 919° Holley, State v. (1 Brev. 35) 320, 382 Holliday v. People (4 Gilman, 111) 750 Holman, State v. (8 MeCord, 306) 246 Holmes, Commonwealth v. (17 Mass. 336) 550 ——, Commonwealth v. (103 Mass. 440) Tou, 761 ——,, State v. (88 N. H. 225) 1001 —, United States v. (5 Wheat. 412) 141 v. Welch (12 Ind. 555) 992 Holt v. Commonwealth (2 Bush. 33) 898 v. School Commissioners (29 Ala. 451) 1 ». State (2 Texas, 368) 185 Holt County Court, State v. (89 Misso. 521) 112, 999 Homan v. Liswell (6 Cow. 659) 107 Homer, Commonwealth v. (5 Met. 555) 204 Hood v. Dighton Bridge (3 Mass. 263) 113 Hooker v. Commonwealth (18 Grat. 768) 279 : Hooker (10 Sm. & M. 9 HOW INDEX TO THE CASES CITED. HUN SECTION SECTION Hooper, Commonwealth v. (5 Pick. Howe, State v. (1 Rich. 260) 917 2) 7, 958, 966 | Howell v. Commonwealth (5 Grat. Hoover, Commonwealth v. (1 64) 811 Browne, Pa. App. 25) 149 Hope v. Johnson (2 Yerg. 123) 185 —, Rex v. (1 Moody, 414) 341 —, State v. (15 Ind. 474) 855, 876 Hopkins v. Commonwealth (3 Bush, 480) 789 v. Commonwealth (3 Met. 460) 2 —, Commonwealth v. (2 Dana, 418) 854, 879 v. Jones (22 Ind. 310) 84 —, Reg. v. (Car. & M. 254) 627, 635, 687, 644 —, State v. (4 Jones, N.C. 305) 1013 —, State v. (5 R. I. 68) 1069 Horan, State v. (11 Texas, 144) 163, 855 ——, State v. (25 Texas, Supp. 271 1044 Hord v. Commonwealth (4 Th * 674) Hornbeak, State v. (15 Misso. 478) 1042 Horne, Tooke’s Case (25 Howell St. Tr. 1) Horney »v. Sloan (1 Ind. 266) 22 Horrigan, Commonwealth v. (2 Allen, 159) 292 Horsey, State v. (14 Ind. 185) 163 Horton, Commonwealth v. (2 Gray, 69) 964 —, Commonwealth v. (2 Gray, 354) 681, 682 v. State (8 Eng. 62) 852, 874 Hoskins v. State (11 Ga. 92) 330 Hotaling v. Cronise (2 Cal. 60) 193 Houghton, Commonwealth v. (8 Mass. 107) 204 Hounsell, Reg. v. (2 Moody & R. 29 778 2 Houee v. State (41 Missis. 787) 156, 1001 Houseman, Reg. v. (8 Car. & P. 180 341 Houser v. State (18 Ind. 106) 1000 Houston v. Moore (6 Wheat.1) 142 Howard, Commonwealth v. (3 Met. Ky. 407) 800 v. Savannah (T. U. P. Charl. 1738) 22 v. State (5 Ind. 183) 177, 1032 v. State (5 Ind. 516) 1052 v. State (6 Ind. 444) 1065 v. State (11 Ohio State, eo 485, 8, 734 —, State v. (15 Rich. 274) 180 —, State v. (82 Vt. 380) 746, 761 Howe, Commonwealth »v. eee Gray, 26) —, People v. (4 Johns. 296) 194, 204, = 826, 328, 388 —, Reg. v. (9 Car. & P. 487) 214, 228, 281 Howes, Matter of (6 Law Re- porter, 297) 28 Howlett v. State (5 Yerg. Me) ee 82, 5, 861 Hoyt v. Thompson (3 Sandf. 48)’ 115 — v. Thompson (1 Seld. 320) 282 Hubbard v. Mack (17 Johns. 127) 290 — , People v. (24 Wend. 369) 290 v. State (11 Ind. 554) 10389, 1040 Huber v. Reily (3 Smith, Pa. 112) 806, 807, 809, 810 Huckerson v. Benson (8 ’Misso. 8) 935 Hudgins v. State (2 Kelly, 178) 204 Hudler v. Golden (86 N. Y. 446) 120 Hudson v. Thorne (7 Paige, 261) 20 Huey v. State (31 Ala. 349) 1048 ——, State v. (16 Ind. 338) 717 Huff v. Commonwealth (14 Grat. 909 648) 852, 855, 873 v. State (2 Swan, Tenn. 279) Huffman v. State (29 Ala. 40 299 Huggins v. Ball (19 Ala. 587 163 Hughes, Matter of (Phillips, 57) 808 —— v. Edwards (9 Wheat. 489) 14 v. Farrar (45 Maine, 72) 98 v. Hughes (Cart. 125) 82 —, People v. (29 Cal. 257) 536 —, Rex v. (2 Car. & P. 420) 314, 442 ——, Rex v. (1 Leach, 406 ; 2 East P. C. 491 ‘ 312 ——, Rex v. (1 Moody, 370) 271 —— v. State (12 Ala. 458) 139 v. State (1 Eng. 181) 198, 217 —, State v. (24 Misso. 147) 1001 Hulbut, People v. (4 Denio, 183) 1048 Hull v. Hull (2 Strob. Eq. 174) 656 —, Reg. v. (2 Fost. & F. 16) 257, 261 ——, State v. (21 Maine, 84) 244 Hulse, People v. (8 Hill, N. Y. 809 198 Hulseman v. Rems (5 Wright, Pa. 396) Hulstead v. Commonwealth (5 Leigh, 724) Hume »v. Gossett (48 Ill. 297) Humphrey, Rex v. (1 Root, 63) Humphreys, State v. (10 Humph. 442 339 Humphries, Commonwealth v. (7 Mass. 242) 144, 518, 519 v. State (5 Misso. 203) 216 Hunt, Commonwealth v. (4 Cush. 49) 718 719 ING SECTION Hunt v. Holden (2 Mass. 168) 105 v. Hunt (87 Maine, 333) 178 v. Jennings (5 Blackf. 195) 177 v. Murray (17 Iowa, 313) 31 ——, Reg. v. (8 Car. & P. 642) 271 ——, Reg. v. (8 Cox C. C. 495) 428 ——, Rex v. (1 Moody, 93) 318 — v. Wyman (100 Mass. 198) 423 Hunter v, Commonwealth (7 Grat. 641) 812 ——, Rex ». (2 Leach, 624; 2 East P. C. 928) 842 — , Rex »v. (3 Lev. 255) 323 , State v. (5 Misso. 360) 1092 Huntington, State v. (8 Brey. 111) 163 Huntly, State v. (3 Ire. 418) 784 Huntsville v. Phelps (27 Ala. 55) 41 Hurley, State v. (54 Maine, 562) 1050 Hurst, Rex v. (11 Mod. 140) 250 Hurt v, State (19 Ala. 19) 287 Huston, State v. (12 Texas, 245) 908 Hutchen v. Niblo (4 Blackf. 148) 82 Hutchins v. Commonwealth (2 Va. Cas. 331) 734 v. State (28 Ind. 84) 600, 602 Hutchinson, State v. (86 Maine, 261) 656, 673 Hutchison v. State (56 Humph. 142) 968 Hyde v. Hyde (Law Rep. 1 P. & M. 130) 603 v. White (24 Texas, 137) 109 Hymen, Rex v. (7 T. T. 586) 195, 250 Ike v. State (23 Missis. 525) 508 Illidge, Reg. v. (2 Car. & K. 871) 3828 —, Reg v. (Temp. & M. 127; 18 Jur. 543; 18 Law J. ny. 5s. M. C.179; 1 Den..C. C. 404) 335 Illinois and Michigan Canal v. Chicago (14 Ill. 884) 159, 168, 177 Ilsey v. Nicholas (12 Pick. 270) 290 Ince, Rex v. (1 Leach, 342) 821 Independence v. Noland (21 Misso. 304 1008 Inder, Reg. v. (2 Car. & K. 685) 341 ——, Reg v. (1 Den. C. C. 825) 841 Indianapolis v. Fairchild (1 Ind. 815; Smith, Ind. 122) 22, 997, 1006 Indianapolis and Cincinnati Rail- road v. Kinney (8 Ind. 402) 119 Industrial School District v. Whitehead (2 Beasley, 290) 159 Ingersoll v. Skinner (1 Denio, 990, 1026 —— v. State (11 Ind. 464) 151 ——,, State v. (17 Wis. 631) 177 Ingraham v. Regan (23 Missis. 218) 9 v. Speed (80 Missis. 410) 70, 81 Ingram, Rex v. (1 Ld. Raym. 215) 255 -—— v, State (89 Ala, 247) 996 720 INDEX TO THE CASES CITED. JAC SEcTION Inkster v. Carver (16 Mich. 484) 91 Innes v. Wylie (1 Car. & K. 257) 141 Inness, State v. (53 Maine, 586) 1027: Intoxicating Liquors, Common- wealth v. (13 Allen, 52) 1057 —., Commonwealth v. (13 Allen, 561 ——, Commonwealth v, (14 Gray, 875 —, Commonwealth v. (97 Mass. 382) ——, Commonwealth v. (97 Mass. 601) ——,, Commonwealth v. (103 Mass. 448) ——, Commonwealth v. (103 Maas. 454) Ton, Reg. v. (2 Den. C. C. 475; 14 Eng. L. & Eq. 556) 806 Iowa Homestead Co. v. Webster (21 Iowa, 221) 90 Irresistible, The (7 Wheat. 551) 177, 180 Irvin, State v. (5 Blackf. 343) 894 Irwin, United States v. (6 McLean, 178) 154, 168 Isaacs, Reg. v. \Usteh & C. 220) 747 ——, State v. (1 Speers, 223) 238 Iseley v. State (8 Blackf. 403) a 91 Isham v. Bennington Iron Co. (19 Vt. 230) 86, 159 Ivens, Rex v. (7 Car. & P. 213) 297 Ives, Rex v. (2 Show. 468) 250 Ivey v. Hardy (2 Port. 548) 274 Ivyes, Rex v. (2 Show. 468) 984 Jackson v. Anderson (4 Wend. 474) 127, 232 v. Collins (3 Cow. 89) 82, 93 ——, Commonwealth v. (15 Gray, 187) 748, 759 ——, People v. (30 Cal. 427) 86 —, Reg. v. (9 Cox C. C. 505) 424 —, Rex v. (Cowp. 297) 168, 169 —, Rex v. (1 Moody, 119) 271 v. State (12 Ga. 1) 161 v. State (4 Ind. 560) 910 v. State (19 Ind. 312) 1007 —, State v. (4 Blackf. 49) 1037 ——, United States v. (4 Cranch C. C. 483) 10938 —— v. Van Valkenburgh (8 Cow. 260) 107 — v. Warren (82 Ill. 331) 120 v. Young (5 Cow. 269) 255 Jacobs, State v. (2 Harring. Del. 548) : 105 ——, State v. (88 Misso. 379) 1090 Jacquins v. Commonwealth (9 Cush. 279) JOH SECTION Jailer, Commonwealth v. (1 Grant, Pa. 218) 688 James v. Commonwealth (12 S. & R. 220) 149 v. Dubois (1 Harrison, 285) 178, 186 v. Elder (23 Missis. 184) —, Reg. v. (8 Car. & P. 292) —, Reg v. (Temp. & M. 300; 14 Jur. 940; 19 Law J. x. s. M.C. 179; 1 Eng. L. & Eq. 552; 2 Den. C. C. 1) 739 Jamison, State v. (23 Misso. 330) 1006 Janes v. Buzzard (Hemp. 259) 186 ——,, Reg. v. (1 Car. & K. 308; 2 204 834 Moody, 808) 291 Jarnagin v. State (10 Yerg. 529) 446 Jarrett, State v. (85 Misso. 857) 1048 Jarrott, State v. (1 Ire. 76) 820 Jarvis v. Jarvis (8 Edw. Ch. 462) 84 Jeans, Reg. v. (1 Car. & K. 539) 316 Jeff v. State (39 Missis. 598) 508 Jefferson v. Reitz (6 Smith, Pa. 44) 163 Jeffersonville v. Weems ( 5 Ind. 547) 82 Jeffries v. State (89 Ala. 655) 163 Jenkins, People v. (1 Hill, N. Y. 469) 992 —, Rex v. (Russ. & Ry. 244) — 280 ——, State v. (5 Jones, N. C. 430) 284 —, State v. (86 Misso. 372) 529 Jennegen, United States v. (4 Cranch C. C. 118) 580 Jenness, People v. ’s Mich. 805) 680, 736 Jenning’s Case (2 Lewin, 180) 246, 814 Jennings v. Commonwealth (17 Pick. 80) 159, 163, 169 —, Commonwealth vo. (8 Grat. 624) 211 v. State (16 Ind. 335) 717 Jernegan, United States v. (4 Cranch C. C. 1) 586 Jersey, People v. (18 Cal. 337) 422 Jesson v. Wright (2 Bligh, 1) 100 Jester v. State (14 Ark. 552) a 9 Jim, State v. (8 Jones, N. C. 459) 536 ——, State v. (3 Murph. 3) 216, 344, 346 Jobson v. Fennell (35 Cal. 711) 88 John, Rex v. (7 Car. & P. 324) 141 Johns, United States v. (1 Wash. C. C. 3638) 214, 224 Johnson’s Case (1 Geeenl. 230) 89 Johnson v. Boon (1 Speers, 268) 274 ». Commonwealth (12 Grat. 714) ——, Commonwealth ». (10 Allen, 196) 585, 595 —v. Lansley (12 C. B 468; 22. Eng. L. & Eq. 468) '855, 873 INDEX TO THE CASES CITED. JON SECTION Johnson v. Laserre (2 Ld. Raym. 1459) 164 v. Merchandise (2 Paine, 601) 28, 804 —— v. Norwich (29 Conn. 407) 274 —— »v. Pennington (3 Green, N. J. 188 29 v. People (Breese, 276) 1026 —, Reg. v. (Leigh & C. 632; 10 Cox C. C. 114) , Rex v. (Russ. & Ry. 492; 2 East P. C. 488; 1 Russ. Crimes, Grea. ed. 120) 319, 321 v. Rich (9 Barb. 680) 36 v. State (19 Ala. 527) 294 v. State (87 Ala. 457) 435 v. State (8 Ga. 453) 854, 855 — v. State (11 Ohio State, 324) 346 491 v. State (4 Sneed, 614) 855, 881 ——,, State v. (1 Brev. 155) 187 ——,, State v. (1 Dev. 360) 232 ——,, State v. (19 Iowa, 2380) 536 ——, State v. (12 Minn. 476) 603, 606 ——, State v. (3 R. I. 94) 1027 v. United States (8 McLean, 6 6 89 Seattetoies Estate (9 Casey, 511) 154 Johnston, Reg. v. (2 Moody, 254) 133 — v. Russell (87 Cal. 670) 983 —— v. State (Mart. & Yerg. 129) a 87 v. State-(7 Sm. & M. 58) 896 —, State v. (5 Jones, N. C. 221) 262 , State v. (6 Jones, N. C. 485) 385 Joiner, State v. (4 Hawks, 350) 774 Jolly, State v. (3 Dev. & Bat. 110) 707 Jones v. Berry (83 N. H. 209) 1079 — v. Collins (16 Wis. 594) 120 555) 691 . (2 Jones, Pa. 365) 111 — v. Daniels (15 Gray, 488) 571, 572 v. Harrison (6 Exch. 328; 3 Eng. L. & Kq. 579) 112 v. Hungerford (4 Gill & J. 02 291. v. Jones (18 Maine, 308) 102 v. McLeod (108 Mass. 58) 1069 v. Osborne (2 Chit. 484) 297 —— v. People (14 Ill. 196) 992, 995 ——, Reg. v. (Car. & M. 611) 271 ——, Reg. v. (Dears. & B. 555) = 415 , Reg. v. (2 Moody & R. 295, note) ——, Rex v. (2 East P. C. 641) ——,, Rex »v. (1 Leach, 58; 2 East P. C. 941) ——, Rex v. (1 Leach, 174) —, Rex v. (1 Leach, 366 ; 2 East P. C. 991) 721 772 222 829 167 212 KEI SECTION Jones, Rex v. (1 Leach, 5387; 2 East P. C. 504) 287 — »v. Root (6 Gray, 435) 1056, 1057 —— v. State (26 Ala. 155) 855 —— v. State (11 Sm. & M. 815) 505 — State v. (5 Ala. 666) 163, pie —, State v. (3 Halst. 307) 144 ——, State v. (1 McMullan, 236) 163 ——, State v. (38 Vt. 443) 444, 446 —, United States ». (8 Wash. C. C. 209) 97, 168, 168, 204, 363 v. Walker (2 Paine C. C. 688) 14 Jordan, Commonwealth v. (18 Pick. 228) 1003 v. State (15 Ala. 746) 163, 177 v. State (88 Ga. 585) 179 Jordt v. State (31 Texas, 571) 248 Jortin v. Southeastern Railway (3 Eq. Rep. 281; 1 Jur. wn. s. 433, 813; 381 Eng. L. & Eq. 820) 82, 192 Josefa Segunda, The (5 Wheat. 338) 182 Josselyn, People v. (89 Cal. 893) a 76 Joyce, Reg. v. (Leigh & C. 576) Judge, State v. (14 La. An. 486) Judge of North District, State v. (12 La. An. 777) 93 Jumel, State v. (13 La. An. 399) 792 Jurgins, State v. (81 Texas, 548) 908 Justices, The, State v. (15 Ga. 408) 999 339 163 Kain v. State (8 Ohio State, 306) 472 Kaine, Ex parte (10 N. Y. Leg. Obs. 257) 14 Kalb, State v. (14 Ind. 403) 1021 Kaler, State v. (56 Maine, 88) 1057 Kamp, Commonwealth v. (14 B. Monr. 385) 1002 Kane v. People (8 Wend. 203) 167 433, 487 Kean, Rex v. (2 East P. C. 1073; 1 Leach, 527) Kearney, State v. (1 Hawks, 53) mi 24 Keat’s Case (Skin. 666) 323 ahs Commonwealth v. (7 Gray, 32) vy. People (40 N. Y. 848) 470 Keen, State v. (84 Maine, 500) 1008 Keenan, Commonwealth v. (11 Al- len, 262) 991, 1052 Keene v. State (8 Chand. 109) 181, 185 Keeran, State v. (6 R. 1.497) 1069, 1070 oor Pennsylvania v. (Addison, 90 Kegg v. State (10 Ohio, 75) 341 Keisler, State v. (6 Jones, N. C. 78) 299, 855 Keith v. Johnson (1 Dana, 604) 290 122 INDEX TO THE CASES CITED. KIM SECTION Keithler v. State (10 Sm. & M. 192 348 Keller v. State (11 Md. 525) 47, 992, 10382 v. State (12 Md. 822) 177 Kelly, Commonwealth v. (10 Cush. 69) —, Commonwealth v. (12 Gray, 175 ) 069 ——,, State v. (24 Texas, 182) 855, 68, 897 Kemp, Rex v. (1 Leach, 222) 276 Kendall, Commonwealth v. (12 Cush. 414) 992, 1085 Keniston, Commonwealth v. (5 Pick. 420) 198, 212, 218 Kennebec and Portland Railroad v. Kendall (31 Maine, 470) 22 Kennedy, Commonwealth v. (15 B. Monr. 531) 852, 855, 985 ——, Commonwealth v. (97 Mass. 224) 1069 v. Kennedy (2 Ala. 571) 97 v. Palmer (6 Gray, 316) 29 —— v. People (39 N. Y. 245) 470 —, State v. (1 Ala. 31) 1002 Kennett’s petition (4 Fost. N. H. 139) 85 Kennon, State v. (21 Misso. 262) 963 Kent, Commonwealth v. (6 Met. 221) 211 ——, People v. (1 Doug. Mich. 42) 345 v. State (8 Blackf. 163) 194, 222 Kenyon v. People (26 N. Y. 203) 638, 639 Kern v. State (7 Ohio State, 411) 1034 Keyport, &¢., Steamboat Co. v. Farmers’ Transportation Co. (3 C. E. Green, 13) 76 Kilbourn v. State (9 Conn. 560) 1061 Kilburn v. Deming (2 Vt. 404) 319 Kilby Bank, Petitioners (23 Pick. 93) 70 Kilgore, State v. (6 Humph. 44) 920 Killet v. State (32 Ga. 292) 788 Killminster, Rex v. (7 Car. & P. 228) 262 Kilpatrick v. Byrne (25 Missis. 571) 146 Kimball, Commonwealth v. (7 Gray, 328) 1057, 1069 ——, Commonwealth v. (7 Met. 304) 1042, 1052 —, Commonwealth »v. (21 Pick. 378) 163, 168, 177, 180 ——, Commonwealth v. (24 Pick. 59) 990, 992 ——, Commonwealth v. (24 Pick. 866) 238, 1020 v. Lamson (2 Vt. 138) 105 — v. People (20 Ill. 348) 1013 Kimm v. Osgood (19 Misso. 68) 29, 111 LAC SECTION King v. Burrell (12 A. & E. 460) 80 ——, Commonwealth v. (13 Met. 115) 168 ——, Commonwealth v. (1 Whart. 448) 205 v. State (21 Ga. 220) 508 v. State (2 Ind. 523) 41, 168, 167, 1032 ——, State v. (12 La. An. 593) 38 Kingston, Rex v. (20 Howell St. Tr. 355 601 ——, State v. (5 R. I. 297) 1069 Kinne, State v. (41 N. H. 288) 103 Kinney v. Mallory (8 Ala. 626) 160 Kinzer v. State (9 Ind. 543) 1044 Kipps, Reg. v. (4 Cox C. C. 167) 634 irby, Commonwealth v. (2 Cush. 577) 664 Kirk, Commonwealth v. (7 Gray, 496 1018 ) —, Commonwealth v. (4 B. Monr. 1) 934, 937 v. Nowill (1 'T. R. 118) 22 Kirkham, State v. (1 Ire. 884) 1013 Kirkland v. Randon (8 Texas, 10) 873 Kirkwood, Rex v. (1 Moody, 311) 326 Kisten v. Hildebrand (9 B. Monr. 2 72 97 ) Kitchen v. Tyson (8 Murphy, 314) 242 Kitty, State v. (12 La. An. 805) 160 izer_v. Randleman (5 Jones, N. C. 428) Kliffield v. State (4 How. Missis. 304) 1034 Knapp, Commonwealth v. (9 Pick. 496 142, 155 ——, Reg. v. (2 Ellis & B. 447; 22 Eng. L. & Eq. 157) Kneeland, Commonwealth v. (20 Pick. 206) Knight’s Case (8 Mod. 117 ; Comb. 38) 163, 166, 168, 784 Knott, State v. (5 R. I. 293) 1069 Knoup v. Piqua Bank (1 Ohio State, 603) 175 Knowles v. State (3 Day, 103) 163, 171 Knox v. Chadbourne (28 Maine, 160) 319 —, Commonwealth v. (6 Mass. 76) Kober v. State (10 Ohio State, 444) 1013 1003 204 Krebs, State v. (64 N. C. 604) 960 Kreig, State v. (138 Iowa, 462) 1069 Kube, State v. (20 Wis. 217) 452 Kunzmann, Commonwealth v. (5 Wright, Pa. 429) 813 Kyle v. State (10 Ala. 236) 220 ——, State v. (10 Misso. 389) 924 La Bore, State v. (26 Vt. 765) 602 Lackey, State v. (2 Ind. 285) 177 INDEX TO THE CASES CITED. LAW SECTION Lacon v. Hooper (6 T. R. 224) 105 La Crosse, State v. (11 Wis. 50) 34 Ladd v. Dillingham (84 Maine, 316) 1030 —, State v. (15 Misso. 430) 1087, 1040 Lafayette v. Jenners (10 Ind. 70) 91 Lafferty, Commonwealth v. (6 Grat. 672) 656 Lafontaine, Commonwealth v. (3 Gray, 479) J Lahey, Commonwealth »v. (14 Gray, 91) 680 Lahy, Commonwealth v. (8 Gray, 459) 1052 Laidler v. Young (2 Har. & J. 69) 48 Lair v. Killmer (1 Dutcher, 522) 198 Lake, People v. (83 Cal. 487) 255 Lambert, Commonwealth v. (12 Allen, 177) 716 v. State (8 Misso. 492) 1003 Lamond v. Fiffe (3 Q. B. 910) 80 Lane, State v. (8 Ire. 256) 98, 232 , State v. (83 Maine, 536) 1034 Laney, State v. (4 Rich. 193) 244, a 55 Lang, Commonwealth v. (10 Gray, ll 503 v. Gale (1 M. & S. 111) 105 v. Phillips (27 Ala. 311) 29 v. Scott (1 Blackf. 405) 249 Langdon v. Fire Department (17 Wend. 234) 287, 292 Langford, Reg. v. (Car. & M. 602) 132 , State v. (1 Dev. 253) 285 ——, State v. (3 Ire. 354) 902 Langley, Commonwealth «. (14 Gray, 21) 1069 v. Ergensinger (3 Mich. 314) 992, 998 Lanthrop v. Commonwealth (6 Grat. 671) Larrimore, State v. (19 Misso. 391) La Seile v. Whitfield (12 La. An. 81) 97 Lash, State v. (1 Harrison, 880) 655 Lathrop v. Mills (19 Cal. 518) 34 Lauer v. State (14 Ind. 131) 1024 163 v. State (22 Ind. 461) 992 Laughlin, State v. (8 Jones, N. C. 354) 536 Lavender, Rex v. (2 East P. C. 566) 220 Law, People v. (84 Barb. 494) 552 Lawrence v. Allen (7 How. U.S. 785) 99 —— v. Gracy (11 Johns. 179) 1000 , Rex v. (4 Car. & P. 231) 312 Lawson v. Commonwealth (14 B. Monr. 225) 1082 723 LEW INDEX TO THE SECTION Lawson v. State (20 Ala. 65) 674, 686, 704, 706 Layman, State v. (8 Blackf. 3830) 244 Leach, Rex v. (3 Starkie, 70) 271 , State v. (88 Maine, 432) 1057 Lean, State v. (9 Wis. 279) 255 Lear v. McMillen (17 Ohio State, 464) 848 Learned, State v. (47 Maine, 426) 370 Leary, State v. (20 Misso. 498) 992 Ledbitter, Rex v. (1 Moody, 76) 287 Lediard, Rex v. (Say. 242) 664 Lee v. Clarke (2 East, 333) 167 v. Forman (3 Met. Ky. 114) 98 v. Gansel (Cowp. 1) 287, 290 — »v. Lincoln (1 Story, 610) 99 vy. Wallis (1 Keny. 292) 34 Leech, Commonwealth v. (12 Harris, Pa. 25 180 Lees v. Summersgill (17 Ves. 508) 48 Leese v. Clark (20 Cal. 387) 76 Leftwich, Commonwealth v. (5 Rand. 657) 177 Lehman v. McBride (15 Ohio State, 573) 811 Leicester, Rex v. (7 B. & C. 6) 255 Leigh v. Kent (3 T. R. 362) 104 | —.,, Rex v. (1 Leach, 52) 344 v. Westervelt (2 Duer, 618) 112, 999 874 v. Walker (9 N. H. 59) 159, 163, 185 Leighton, State v. (3 Fost. N. H. 167 Lemp, State v. (16 Misso. 889) 1007 Lennard, Rex v. (2 W. Bl. 807; 1 Leach, 90; 1 East P. C.170) 319 Leonard v. Bosworth (4 Conn. 421) 194, 216, 220, 225 —, Commonwealth v. (8 Met. 529) 1035, 1042 —,, State v. (22 Misso. 449) 314 Leppert v. State (7 Ind. 300) 1020 Lesterjelle v. Columbus (80 Ga. 936) 25 Levy v. State (6 Ind. 281) 997 Lewellen v. State (18 Texas, 538) 44, 946 Lewis v. Commonwealth (2 8. & R. 551) 326 —— v. Foster (1 N. H. 61) ita u. Littlefield (15 Maine, 233) 848, 873 — , Rex v. (2 Car. & P. 628) 312 — v. State (21 Ark. 209) 23 —. State v. (12 Wis. 434) 895, 897 — »v. Stout (22 Wis. 234) 162 ». United States (1 Morris, 199) 1004 —— v. Welch (14. N, H. 294) 254, 1030 724 CASES CITED. LON SEcTION Lewiston v. Fairfield (47 Maine, 481) 406 Leyner v. State (8 Ind. 490) 1032 Libby, State v. (44 Maine, 469) yee 86 License Cases (5 How. U.S. 504) 990, 995 License Tax Cases (5 Wal. 462) 991 Lichtenstein v. State (5 Ind. 162) 154 Liddle, United States v. (2 Wash. C. C. 205) 664 Lightner v. Commonwealth (7 Casey, Pa. 341) 1005 Lillard v. McGee (4 Bibb, 165) = 168 Linam v, Johnston (2 Bailey, 187) 163 Lincoln, Commonwealth v. (11 Allen, 233) 452 v. Smith (27 Vt. 828) 992, 1056, 1057, 1058 Lincolnton v. McCarter (Busbee, 429) 1026, 1082 Lindsey, Commonwealth v. (10 Mass. 153) 295 v. Miller (6 Pet. 666) 142 Lines, Reg. v. (1 Car. & K. 393) 494 Liness v. Hesing (44 Ill. 113) 826 Link v. Beuner (8 Caines, 325) = 211 Linkous v. Commonwealth (9 Leigh, 608) 902 Linn, United States v. (Crabbe, 807) 255 Linney v. State (6 Texas, 1) 204 Liston, State v. (9 Humph. 603) 818 Lithgo, Rex v. (Russ. & Ry. 357) 285 Little, Rex v. (1 Bur. 609) 1075 ——, State v. (6 Blackf. 267) 944 Livingston v. Indianapolis Insur- ance Co. (6 Blackf. 183) 82 ——, People v. (6 Wend. 526) 181 Lloyd, Rex v. (4 Esp. 200) 546 ——, State v. (2 Ind. 659) 177 Lock v. Miller (8 Stew. & P. 13) 155 Lockett, Rex v. (7 Car. & P. 300) 88 — , Rex v. (1 Leach, 94; 2 East P. C. $40) 328 Lockhart v. State (10 Texas, 275) 878 Lockwood v. State (1 Ind. 161) 187 Lodano v. State (25 Ala. 64) 992, 1082 Loeffner v. State (10 Ohio State, 598 472 Loftin, State v. (2 Dev. & Bat. 31) a 7 Logan, Commonwealth v. (12 Gray, 136) 1069 , United States v. (2 Cranch C. C. 259) 1098 Logwood v. Planters’ and Mer- chants’ Bank (Minor, 23) 193 Lohman, People v. (2 Barb. 216) 752 Loker v. Brookline (18 Pick. 848) 154 Lolley, Rex v. (Russ. & Ry. 237) 579 London v. Bernardiston (1 Lev. 14) 408 LYO SECTION London, Rex v. (2 Lev. 200) 403 Long v. State (27 Ala. 82) 1004 v. State (13 Ind. 566) 898 ——, State v. (7 Jones, N. C. 24) 1048 Loom, Rex v. (1 Moody, 160) 247 Loomis, People v. (4 Denio, 880) 3841 Loose, Reg. v. (Bell C. C. 259; 8 Cox C. C. 302) 421, 423 Lopez, State v. (18 Texas, 33) 904 Lord v. Chadbourne (42 Maine, 429) 1081 v. Jones (24 Maine, 439) 1006 Lore v. State (4 Ala. 173) 175, 176 Loring, Commonwealth v. (8 Pick. 370) 82, 198, 200, 212, 244 v. Halling (15 Johns. 119) 105 Lot v. State (1 lowa, 507) 1069 Lottery Tickets, Commonwealth v. (5 Cush. 369) 958, 966 Loughran, Reg. v. (8 Crawf. & Dix C. C. 338) 306 Loughridge v. State (6 Misso. 594) 144 Louisville v. Baird (15 B. Monr. 246) * 36 v. Kean (18 B. Monr. 9) 997, 999 v. Roupe (6 B. Monr. 591) x Louisville and Nashville Railroad v. Davidson (1 Sneed, Tenn. 637) 36 Love v. Hinckley (1 Abb. Adm. 436) 104 Lovell, Reg. v. (2 Moody & R. 236) 271 v. State (12 Ind. 18) 681 ——,, State v. (23 Iowa, 304) 119 Lovett, State v. (3 Vt. 110) 220 Lowry v. State (1 Misso. 722) 855 Loxdale, Rex v. (1 Bur. 445) 82, 256 Luck, Commonwealth v. (2 B. Monr. 296) 1002 Ludwick v. Commonwealth (6 Harris, Pa. 172) 970 Lufkin, Commonwealth v. (7 Al- len, 579) 1098, 1099, 1101, 1102 Luke v. State’ (5 Fla. 185) 126, 168 Lumley, Reg. v. (Law Rep. 1 C. C. 196) 611 Lunning v. State (9 Ind. 309) 177 Lunt’s Case (6 Greenl. 412) 992 Lyde v. Barnard (1M. & W.101) 82 Lyerly, State v. (7 Jones, N. C. 158) 704, 708 Lyman, State v. (8 Blackf. 330) 94 Lyme Regis, Rex v. (1 Doug. 149 405 ) Lynde, United States v. (11 Wal. 632) Lyon, Rex v. (2 Leach, 597; 2 East P. C. 938) 341 —, Rex v. (Russ. & Ry. 255) — 255 Lyons, Rex v. (1 Leach, 185; 2 East P. C. 497) 279 INDEX TO THE CASES CITED. MCC SECTION Lytle, People v. (1 Idaho, 161) 162 ——,, United States v. (6 McLean,. 385 9) Mabry v. Bullock (7 Dana, 337) 1003, 1079 v. Tarver (1 Humph. 94) 992 McAfee v. Southern Railroad (36 Missis. 669) McAlister v. Clark (88 Conn. 91) 21 McAllister, State v. (24 Maine, 139) 405 McAlpin v. State (3 Ind. 567) 895 McArthur v. Franklin (16 Ohio State, 193) McArty, Commonwealth v. (11 Gray, 456) 1069 McAtee, Commonwealth v. (8 Dana, 28) 949 McAuly v. State (7 Yerg. 226) 346 McBee v. Hoke (2 Speers, 188) 255 McBride, State v. (8 Hump. 66) 918, 914 ——, State v. (4 McCord, 332) 1005 ——, State v. (4 Misso. 303) 37 McCann, People v. (16 N. Y. 58) 163 —— v. State (13 Sm. & M. 471) 166 McCarn, State v. (11 Humph. 494) 144 McCartee v. Orphan Asylum So- ciety (9 Cow. 487) 97, 154, 163 McCauley v. State (26 Ala. 69) 298 McClanahan, Commonwealth v. (2 Met. Ky. 8) 798 McCleary, State v. (17 Iowa, 44) 991 McClellan, Commonwealth v. (101 Mass. 84) 1098, 1099, 1100 McCloskey v. People (5 Parker C. C. 299) 530 McClurken v. Detrich (33 Ill. 3849) 935 McCollum, State v. (44 Misso. 343) 388 McComas v. State (11 Misso. 116) 489 McConnell, Commonwealth v. (11° Gray, 204) 143 —, Reg. v. (1 Car. & K. 871; 2 Moody, 298) 329, 833 McCool v. Smith (1 Black, 459) 154 McCormack, State v. (22 Texas, 297) 462 v. Terre Haute, &e. Railroad -(9 Ind. 283) 249 McCoy, State v. (2 Speers, 711) 248 Macuboy, Commonwealth v. (3 Dana, 70) 1034 McCuen »v. State (19 Ark. 630) 997, 1084, 1037 v, State (19 Ark. 634) 179 McCulley, Reg. :v. (2 Moody, 34; 2 Lewin, 272) 247, 298, 326 McCulloch v. State (11 Ind. 424) 29, 34, 37 McCune, State v. (5 R. I. 60) 525 725 MCK SECTION McDaniel v. Commonwealth (6 Bush, 326) 61, 874 v. State (85 Ala. 390) 298 v. State (8Sm.&M.401) 471 McDermot v. Lorillard (1 Edw. Ch. 273) —, Rex v. (Russ. & Ry. 356) 815 McDonald’s Case (1 Broun, 238) a McDonald, People v. (9 Mich. 150) 492 —, Reg. v. (12 U. C., Q. B 543) 336 —, State v. (4 Harring. Del. 555) 806 McDonough v. Campbell (42 Ill. 490) ——, Commonwealth v. (13 Al- len, 581) 177, 984, 1069 v. State (19 Texas, 293) 917 McDougald v. Dougherty (14 Ga. 674) McDuell, United States v. (5 Cranch C. C. 391) 1093 Mace v. Cammel (Lofft, 782) 48, 51 ——,, State v. (5 Md. 837) 92, 242, 958 McElhaney v. State (24 Ala. 71) 244 McElhiney v. Commonwealth (10 Harris, Pa. 365) 250 Meee v. Carmichael (6 Texas, 54) —v. Chancellor (8 Texas, 270) 873 McFarland v. State Bank (4 Pike, 410) 126 McGarry, State v. (21 Wis. 496) 246 McGavaran, Reg. v. (6 Cox C. C. 64) 491 McGeorge, Commonwealth v. (9 B. Monr. 3) 200, 1011 McGlynn, State v. (84 'N. H. 422) 1057, 1058 McGowan ». State (9 Yerg. 184) 55, 135, 855, 865 ——, State v. (20 Conn. 245) 289 McGowen v. Deyo (8 Barb. 340) 178, 1002 McGrew, State v. (11 Iowa, 112) 1069 McGuffie v. State (17 Ga. 497) 255 McGuire v. Commonwealth (3 Wal. 387) 991 ——, Commonwealth v. (1 Va. Cas. 119) 912 v. State (7 Humph. 54) 821 — ». State (87 Missis. 369) 1020 — v. State (18 Sm. & M. 257) 1052 McIntosh, Rex v. (2 East P. C. 942; 2 Leach, 883; 2 Russ. Crimes, Grea. ed. 515) 829, 388 McIntyre v. Ingraham (85 Missis. 25) 70, 93 McKay, Rex v. (Russ. & Ry. 71) 205 McKearney, Rex v. (Jebb, 99) 812 "McKeay, Rex v. (Car. Crim. Law, 190; 1 Moody, 130) 205, 326 726 INDEX TO THE CASES CITED. MCW SECTION McKee, Commonwealth v. (Addi- son, 1) : 774, 780 v. McKee (17 Md. 352) 97 v, People (82 N. Y. 239) 185 McKeehan v. Commonwealth (8 Barr, 151) 103 McKeen v. Delancy (5 Cranch, 22) 104 McKenney, Commonwealth v. (14 Gray, 1) 178, 185 McKenzie, Rex v. (Russ. & Ry. 429) 183, 184 uv. State (6 Eng. 594) 97 Mackerell, Rex v. (4 Car. & P. 448 214 McKissick v. State (2 Texas, 356) 921 McKnight, Rex v. (10 B. & C. 784) 1076 McKune v. Weller (11 Cal. 49) 255 McLain, State v. (2 Brev. 443) 247 McLaughlin v. Hoover (1 Oregon, 31) 86 McLeland v. State (25 Ga. 477) 697 McLelland, State v. (4 Sneed, 437) 852, 855 McLendon, State v. (1 Stew. 195) 111 McLeod ». State (385 Ala. 395) i, e McLeran, State v. (1 Aikens, 311) 163 McLoughlin, Reg. v. (8 Car. & P. 635) 314 McManus v. Carmichael (3 Iowa, ‘ 308 1) ——, People v. (84 Barb. 620) 838 McMonagle, Commonwealth v. (1 Mass. 512) 295 McMullen v. Guest (6 Texas, 275) 180, 181 v. Hodge (5 Texas, 34) 90 McNair, State v. (1 Jones, N. C. 180) 1011 McNeely, State v. (Winston, No. 1, 284) 1004 McNeil, Reg. v. (1 Crawf. & Dix C. C. 80) 199, 318 MecNight v. Biesecker (1 Harris, Pa. 328) 958 Macomber, Commonwealth v. (3 Mass. 254) 139, 142, 194, 218 —, State v. (7 R. I. 349) 828, 830 McOmber, State v. (6 Vt. 215) 194, 216 Macom v. State (4 Humph. 421) 238 Macon County Court, State v. (41 Misso. 4538) 97, 126, 152 McQuilkin v. Doe (8 Blackf. 581) 154 McRae v. Wessell (6 Ire. 153) 126, 997 McSherry, Commonwealth v. (3 Gray, 481, note) 1042 McWhinney, State v. (5 Blackf. 364) 739 MAR SECTION Macy v. Raymond (9 Pick. 285) 101, 242 Madison’s Case (1 Hale P. C. 693) 585 Madison, &c., Railroad v. (White- neck, 8 Ind. 217) Magdalen College Case (11 Co. 66) 82 Magellan Pirates (18 Jur. 18; 25 Eng. L. & Eq. 595) 98 Pee Succession of (12 Rob. La. 58: Magill, roe States v. (1 Wash. C. C. 463) 242 Magruder v. Carroll (4 Md. 885) —-82 — v. State (40 Ala. 347) 163 Mahan, State v. (2 Ala. 840) 282, 935 Maher, State v. (35 Maine, 225) 1018, ‘ 1027 Mahony, Commonwealth v. (14 Gray, 46 1018 Maicus, State v. (20 Ark. 201) 1034 Main, State v. (16 Wis. 398) 811, 813 Mairs, State v. (Coxe, 453) 212, 315 Maize v. State (4 Ind. 342) 34, 36 Major, Commonwealth v. (6 Dana, 298) 1024, 1045, 1049 , Rex v. (2 East P. C. 1118) 346 Malone v. State (14 Ind. 219) 513 Maloney, State’v. (R. M. Charl. 84) 168, 171 Manchester v. Harrington (10 N. Y. 164) 163 Maner, State v. (2 Hill, S. C. 453) 140 Mankletow, Reg. v. (Dears. 159; 6 Cox C. C. 148) 359, 627, 634, 636 Manlove v. White (8 Cal. 376) 186 Manly v. State (7 Md. 135) 92 Mann, Commonwealth v. (1 Va. Cas. 308) 969 —— v. State (384 Ga. 1) 649 ——,, State v. (13 Texas, 61) 921 Manning, Reg. v. (Law Rep. 1 C. C. 838 292 —, Rex v. (Comyns, 616) 135 Mansell v. Reg. (8 Ellis & B. 54) 97 Maple Lake v. Wright (12 Minn. 403 163 Marbury v. Madison (1 Cranch, 187) March v. Commonwealth (12 B. Monr. 25) Mardre v. Felton (Phillips, N. C. 279) 82 Marianna Flora, The (11 Wheat. 1) 182 Marienthal v. Shafer (6 Iowa, 223) 1030 Markham, People v. (7 Cal. 208) 855 v. State (25 Ga. 52) 287 —, State v. (15 La. An. 498) oe 87 Markle v. Akron (14 Ohio, 586) 22, 997, 1007, 1016 INDEX TO THE CASES CITED. MAS SECTION Markoe, Commonwealth v. (17 Pick. 465) 1003 Marks, ae le v. (4 Parker, 153) 295 Rex v. (3 East, 157) 48, 51 Marner, Reg v. (Car. & M. 628; 2 East P. C. 703) 231, 282 Marriot, Rex v. (4 Mod. 144 ; 11 Mod. 140) 250, 629, 984 Marsh, Rex v. (4D. & R. 260) 132 Marshall, Commonwealth v. (11 Pick. 350) 177, 180, 184, 186 v. State (31 Texas, 471) 426 ——,, State v. (45 N. H. 281) 817, 838, 842 ——,, State v. (13 Texas, 55) 246 v. Vultee (1 E. D. Smith, 294) 120 Marson v. London, &c., Railway (Law Rep. 6 Eq. 101) 277 Marston v. Commonwealth (18 B. Monr. 485) 852, 855 Martin v. Commonwealth (1 Mass. 347) 131 —, Commonwealth v. (17 Mass. 359) 198, 212 ——- v. Hunter (1 Wheat. 304) 14 ——, People v. (82 Cal. 91) 378 ——, Reg. v. (9 Car. & P. 215) 487 ——, Reg. v. (2 Moody, 128; 9 Car. & P. 218) 491, 498 ——, Rex v. (1 Moody, 483; 7 Car. & P. 549) 306, 341, 348 —, Rex v. (Russ. & Ry. 108) 279 v. State (6 Humph. 204) 1042 v. State (24 Texas, 61) 185, 212, 263 —,, State v. (9 Humph. 55) 341, 348 ——, State v. (5 Misso. 361) 1092 Martindale v. Martindale (10 Ind. 566) 181 —, State v. (1 Bailey, 163) 1381 Marvin, State v. (12 sows 499) 712 , State v. (385 N. H. 22) 680 Mary v, State (24 Ark. 44) 811, 586 Mash, Commonwealth v. (7 Met. 472) 356, 664 Mason v. Armitage (13 Ves. 25) 48 v. Fearson (9 How. U. 8. 248) 97, 112 v. Finch (2 Scam. 223) 82 v. Johnson (24 Ill. 159) 304 v, Lancaster (4 Bush, 406) 992, 997 — v. Lothrop (7 Gray, 354) — 1018, 1056, 1057 v. People (26 N. ¥. 200) ° 287 ——., State v. (18 Ire. 341) 443 — v. Waite(1 Pick. 452) 159, 161, 168 Masters, Reg. v. (1 Den. C. C. 882; 2 Car. & K. 930; Temp. & M. 1; 18 Law J. . 8. M. C. 2) 271 727 MEH SECTION Masters, Reg. v. (3 New Ses. Cas. 326 ; 12 Jur. 942). 271 Mather, People v. (4 Wend. 229) a Mathews v. Shores (24 Ill. 27) 35 —, State v. (2 Brev. 82) 852, 855 ——, State v. (2 Dev. & Bat. 424) 297 Mathis, State v. (3 Pike, $4) 854, 855, 878 Matthews, Rex v. (2 East P. C. 642) 222 v. State (4 Ohio State, 539) 621 —, State v. (14 Misso. 133) 179 v. Zane (7 Wheat. 164) 28 Matthis, State v. (1 Hill, 8. C. 37) 1024 Maull v. State (87 Ala. 160) 671, 674, 701, 702 855, 858, 868 Mawegridge, Reg. v. (J. Kel. 119) 467 Maxwell v. Collins (8 Ind. 38) 120 Maurer, State v. (7 Iowa, 406) v. State (27 Ala. 660) 1011 ——, State v. (5 Blackf. 23Q) pe 96 May v. Breed (7 Cush. 15) 175 ——, Reg. v. (10 Cox C. C. 448; 15 W. R. 751; 16 Law Times, N. 8. 362) 773 v, State (9 Ala. 167) 1086 Maybry v. Bullock (7 Dana, 337) 1030 Mayers v. State (2 Eng. 68) 171 v. State (3 Eng. 222) 225, 852 Maynard, Rex vu. (2 East P. C. 501) 287 —, Rex v. (Russ. & Ry. 240) 774 Mayor v. Davis (6 Watts & S. 269) 195, 204 v. Hussey (21 Ga. 80) 997 Mayor and Alderman v. Maberry (6 Humph, 368) 2 Mays v. Williams (27 Ala. 267) 178 Maze, State v. (6 Humph. 17) 250 Mead, Rex v. (4 Car. & P. 535) 214, 344, 845 Meade v. Deputy Marshal (1 Brock. 324) 82, 141 Meadows, Reg. v. (1 Car. & K. 399) 633, 644 Mears, Reg. v. (1 Eng. L. & Eq. 581; 2 Den. C. C. 79; Temp. & M. 414) 625 Medford v. Learned (16 Mass. 215) 84 Medlock v. State (18 Ark. 363) 899 Medway v. Natick (7 Mass. 88) 274 Meerchouse, State v. (84 Misso. 344) 279 Megowan v. Commonwealth (2 Met. Ky. 3) 997 Mehan, Commonwealth v. (11 Gray, 321) 1047 v. State (7 Wis. 670) 728 1052 INDEX TO THE CASES CITED. MIL SECTION Mellish, Rex v. (Russ. & Ry. 80) 220, 271 Melody v. Reab (4 Mass. 471) 155, 220 Melton, State v. (Bushee, 49) 274 Mence, Reg. v. (Car. & M. 234) 204 Mendon v. Worcester (10 Pick. 285) 82 Mercer v. Commonwealth (2 Va. Cas. 144) 232 v. State (17 Ga. 146) Merchant v. Langworthy (6 Hill, N. Y. 646) 255 Merchants Bank v. Cook (4 Pick. 405) 242 Meredith, Reg. v. (8 Car. & P. 589) 138 Merriam, Commonwealth v. (14 Pick. 518) 680 v. Langdon (10 Conn. 460) 210, 1075, 1088 Merrifield, Commonwealth v. (4 Met. 468) 422 Merrill v. Gorham (6 Cal. 41) 86 Merry, State v. (8 Misso. 278) 163 Mertz’s Case (8 Watts & S. 374) 1026 Meshmeier v. State (11 Ind. 482) 34, 36, 992 Messenger, Commonwealth v. (4 Mass. 462) 144 Messinger, Commonwealth v. (1 Binn. 273) 218 Metts v. Bright (4 Dev. & Bat. 173) 29 Metzger, Ex parte (5 N. Y. Leg. Obs. 83) 14 —, In re (1 Barb. 248) 14 —, In re (5 How. U.S. 176) 14 Meyer, State v. (1 Speers, 805) 250 Michell v. Brown (1 Ellis & E. 267) 168 Middleton v. Crofts (2 Atk. 650) 160 , State v. (11 Iowa, 246) 891 Mierelles v. Banning (2 B. & Ad. 909) 823 Miffin v. Commonwealth (5 Watts & 8. 461) ‘ 625 Milburn, State v. (9 Gill, 105) 142 ——, United States v. (4 Cranch C. C. 719) Miles v. State (40 Ala. 39) 185 —— v. State (5 Ind. 239) 1040 —, State v. (2 Nott & McCord, 1) 248, 244 Millard, State v. (18 Vt. 574) 714 Miller’s Case (3 Wils. 420; 1 W. BL. 451) 177 Miller, Commonwealth v. (5 Dana, 320) 104 —, Commonwealth v. (8 Gray, 484) 971, 981 —— v. Graham (17 Ohio State, 1) 85 v. Knox, 4 Bing. N. R. 574) 187 MOO SECTION Miller v. Post (1 Allen, 484) 254 —, Reg. v. (2 Moody, 249) 271 —— v. State (5 How. Missis. 250) 244 v. State (83 Missis. 856) 985, 939, 948 —— v. State (3 Ohio State, 475) 37, 255, 992, 998, 1011, 1026, 1027, 1032, 1034 v, State (5 Ohio State, 275) 1022 —. State v. (24 Conn. 522) 1044 —, State v. (7 Ire. 275) 1044 —, State v. (24 Misso. 532) 1040 Mills v. Commonwealth (1 Harris, Pa. 631) 744, 752 ——, People v. (17 Cal. 276) 489 v. State (20 Ala. 86) 298, 878 v. Wilkins (6 Mod. 62) 45, 48 Millspaugh, People v. (11 Mich. 278) 642 Millward »v. Littlewood (5 Exch. 775; 1 Eng. L. & Eq. 408) 638 Milne v. Huber (8 McLean, 212) 186 Minnick, State v. (15 Iowa, 123) 815, 817, 838 Minor v. Mechanics Bank ( 46) > Miskimmons, State v. (2 Ind. 440) ae Mister, State v. (5 Md. 11) 82 Mitchell v. Duncan (7 Fla. 18) 86, cn —— ». Foster (12 A. & E. 472) 110 ——, Rex v. (2 East P. C. 9386) — 194, 199, 326, 828, 329, 380, 332 —— v. Smith (1 Binn. 110) 254 ——., State v. (8 Blackf. 229) 798 —, State v. (5 Ire. 350) 248, 310 —, State v. (28 Misso. 562) 1019, 1020 v. Tibbets (17 Pick. 298) 141 v. United States (9 Pet. 712) 14 —. United States v, (Bald. 866) 306, 308 Mobile v. Yuille (8 Ala. 187) 19, 24 Mobile and Ohio Railroad v State (29 Ala. 5738) 34, 126 Moders, Rex v. (6 Howell St. Tr. 273) 601, 610 Moffat v. State (6 Eng. 169) 894, 898 Moffett, State v. (1 Greene, Iowa, 247) 63, 169 Monarch, Commonwealth v. (6 Bush, 298) 897 ——, Commonwealth v. (6 Bush, 801) . 897 Monopolies, Case of (11 Co. 84) 846 Monroe v. Collins (17 Ohio State, 665) 809 Moody v. State (17 Ohio State, 110) 762 v. Stephenson (1 Minn. 401) 79 Mooers v. Bunker (9 Fost. N. H. 420) 98 INDEX TO THE CASES CITED. 47 . MOR SECTION Moon v. Durden (2 Exch. 22; 12 Jur. 138) 82 Mooney v. State (8 Ala. 328) 244 Moor, Rex v. (2 Mod. 128) —_ 168, 169 Moore v. Commonwealth (6 Met. 248) ¥ 678 —., Commonwealth v. (2 Dana, 402) 854, 933 —— v. Hussey (Hob. 93) 82 —— v. Moss (14 Ill. 106) 154 ——, Rex v. (2 Car. & P. 235; 1 Moody, 122) 204, 319 —, Rex »v. (Jefferson, 8) 107 ——, Rex v. (2 Lev. 179) 644 —., Rex v. (2 Mod. 128) 629 v. State (16 Ala. 411) 168, 1016 v. State (80 Ala. 550) 299 v, State (40 Ala. 49) 185 v. State (12 Ohio State, 387) 1060 v. State (18 Sm. & M. 259) 216 v. State (9 Yerg. 353) 1065 ——,, State v. (19 Ala. 514) 160, 163 —,, State v. (5 Blackf. 118) 1009 —, State v. (38 Dutcher, 105) — 835, 836 ——, State v. (25 Iowa, 128) 742 —, State ov. (1 Jones, N. C. 276) 1001 ——.,, State v. (14 N. H. 451) 992, 1000, 1047 ——, State v. (1 Swan, Tenn. 136) 712, ® 724 ——, State v. (8 West. Law Jour. 184) 585 v. Vance (1 Ohio, 1) 154, 163 Moorhouse, Commonwealth v. (1 Gray, 470) 1045 Mooty, State v. (3 Hill, S. C. 187) 1016, 1032 Moran v. Miami (2 Black, 722) 119 ——, State v. (40 Maine, 129) 1057 Moreland, State v. (27 Texas, 726) 382 Morford v. Unger (8 Iowa, 82) 36 Morgan v. Monmouth Plank Road (2 Dutcher, 99) : 36 —— »v. Pettit (38 Seam. 529) 852, i 93 v. State (11 Ala. 289) 730, 738, 736 v. State (13 Fla. 671) 459 v. State (18 Sm. & M. 242) 504, 608 Moriarty v. Brooks (6 Car. & P. 684) 314 Moring, People v. (47 Barb. 642) 1080 Morley v. Greenhalgh (3 B. & S. 374) —— v. Pragnell (Cro. Car. 510) Morlot v. Lawrence (1 Blatch. C. 1118 546 C. 608) 155, 160, 163 Morman v. State (24 Missis. 54) 503, 504, 508 729 MUN SECTION Morris v. Blackman (2 Hurl. & Colt. 912) 956 —, Commonwealth v. (1 Cush. 391) 680 v. Delaware and Schuylkill Canal (4 Watts & S. 461) 160 — v. Miller (4 Bur. 2057; 1 W. Bl. 682) 609 — , Reg. v. (2 Cox C. C. 489) = 771 — , Rex v. (1 B. & Ad. 441) 82 ——,, Rex v. (1 Leach, 468 ; 2 East P. C. 748) 344 v. Rome (10 Ga. 532) 22, 997 Morris Canal and Banking Co., State v. (2 Zab. 537) 188 Morrison v. Barksdale (Harper, 101) 104, 154 v. Commonwealth (7 Dana, 218) —, State v. (3 Dev. 299) 1052 v. Witham (1 Fairf. 421) 167 Morrow, State v. (26 Misso. 131) 154 —, United States v. (4 Wash. C. C. 7383) 136 Morse, Commonwealth v. (2 Mass. 128) 223, 809 v. State (6 Conn. 9) 100, 222, 271 Morton v. Fletcher (2 A. K. Mar. 137) 958 —, People v. (7 Barb: 477) 999 ——, State v. (27 Vt. 310) 164, 388 Moseley, State v. (14 Ala. 390) 168, 222, 246, 852, 855, 872 Mosely v. State (28 Ga. 190) 435 Moses, State v. (7 Blackf. 244) 167 Mosher, People v. (2 Parker, 195) 586, 587, 588 Mosier, State v. (25 Conn. 40) 1057 Mott, Commonwealth v. (21 Pick. 492) 180, 185, 186 —, Rex v. (2 East P. C. 1075; 1 Leach, 73) 212, 442 Moulton, Commonwealth v. (10 Cush. 404) 1060 —, United States v. (5 Mason, 587) 199, 344 Mount v. State (7 Sm. & M. 277) 878 Mountford, Rex v. (7 Car. & P. 242; 1 Moody, 441) 216, 822 Mowry, Commonwealth v. (11 Al . len, 20) 527 Moyle, Rex v. (2 Hast P. C.1076) 212, 247, 442 Mullen v. People (31 Ill. 444) 154, 185 , State v. (14 La. An. 570) 469 Mullikin, State v. (Blackf. 260) 168 Mullinix, State v. (6 Blackf. 554) 10388 Mulvey v. State (48 Ala. 816) 1025 Munger, State v. (15 Vt. 290) 1037 Munshower v. Patton (108. & R. 142 834) 730 INDEX TO THE CASES CITED. NEW SECTION Munson v. Hungerford (6 Barb. 265) ; 302 Munzenmaier, State v. (24 Iowa, 1057, 1058, 1069 Kilbourn (6 Wis. 848, 933 139 82 87) Murdock v. 468) ——,, State v. (9 Misso. 730) Murphy, Matter of (8 Zab. 180) —,, Commonwealth v. (2 Allen, 163) 640, 692 ——, Commonwealth v. (2 Gray, 510) 1025, 1042 — , Reg. v. (Jebb, 315) 163 v State (1 Ind. 366; Smith, Ind. 261) 141, 1018 v. State (28 Missis. 637) 1046 — , State v. (6 Ala. 845) 244 — , State v. (8 Dutcher, 112) 747 ——, State v. (21 Ind. 441) 474, 505 Murray vu. Fitzpatrick (3 Caines, 88) 3849, 400 v. Gibson (15 How. U.S. 421) 82, 90 606 314 v. Reg. (7 Q. B. 700) Murrow, Rex v. (1 Moody, 456) Muse, State v. (4 Dev. & Bat. 319) 992, 1037 Myers v. State (1 Conn. 502) 132, 196 v. State (1 Ind. 251) 927 v. State (8 Sneed, 98) 855, 873 ——, State v. (10 Iowa, 448) 3l Myrick v. Hasey (27 Maine, 9) 97 Nancy v. State (6 Ala. 483) 204 Napier v. Hodges (31 Texas, 287) 992 Nash, Rex v. (Russ. & Ry. 386) 145 v. State (2 Greene, Iowa, 286) 198 Nat, State v. (13 Ire. 154) 163 Nates, State v. (8 Hill, S. C. 200) 242, 854, 855, 857 Nathan v. Bloomington (46 IU. 847) 1001 Nave v. Nave (7 Ind. 122) 112 Nazro v. Merchants’ Mutual Insur- ance Co. (14 Wis. 295) 79 Neal v. Moultrie (12 Ga. 104) 192 ——, State v. (7 Fost. N. H. 131) 1024 Neale, Reg. v. (1 Car. & K. 591) 487 Neales v. State (10 Misso. 498) 1087, 1040, 1042 Needham v. State (1 Texas, 139) 852 Neeper, State v. (3 Greene, Iowa, 337 997 Nelson, State v. (19 Misso. 393) 908 Ness, State v. (1 Ind. 64) $52, 855 Nettleton, Rex v. (1 Moody, 259) 271 Nevin v. Ladue (8 Denio, 43; 3 Denio, 487) 1008 Nevins, State v. (23 Vt. 519) 328, 330 Newark, State v. (8 Dutcher, 185) 85 NOR SECTION New Bedford Bridge, United States v. (1 Woodb. & M. 401) 15, 187, 196 Newbegin, State v. (25 Maine, 500 282, 312 Newberry, People v. (20 Cal. 439) 272 ——, State v. (26 Iowa, 467) 505 Newburg Turnpike v. Miller (5 Johns. Ch. 101) 112 Newell v. Commonwealth (2 Wash. Va. 88) 832 —, Commonwealth v. (7 Mass. 245) 142, 316 New Gloucester v. Bridgham (28 Maine, 60) 1018, 1030, 1048 Newkirk v. Chapron (17 Ill. 844) 178 Newland v. Marsh (19 Ill. 3876) 90 New Orleans v. Mechanics and Traders Bank (15 La. An. 107) 163 New Orleans, &c., Railroad v. Hemphill (35 Missis. 17) 93 Newsom, State v. (5 Ire. 250) 793 Newton, Reg. v. (2 Moody, 59) — 328, 33 New York v. Mason (4 E. D. Smith, 142) —v. Walker (4 E. D. Smith, 258) 163 New York Central Railroad, People v. (28 Barb. 284) 259 Nicholas, State v. (2 Strob. 278) ve : 1 Nichols, Commonwealth v. (10 Allen, 199) 858 —, Commonwealth v. (10 Met. 259) 186, 1024, 1049 v. Mudgett (32 Vt. 546) 826 —— v. Squire (5 Pick. 168) 159, S 6: (8 Car. & P. 134, 145 Nightingale, petitioner (11 Pick. 168 Nickless, Reg. v. 757 Nihols, United States v. (4 Mc- Lean, 23) 127 Nimmo v. Commonwealth (4 Hen. & Munf. 57) 142 € Mee v. Piffit (16 La. An. 379) 154 —, Rex v. (7 Car. & P. 442) 216 , State v. (5 Jones, N. C. 257) 563 Noakes v. People (25 N. Y. 880) 328 , Rex v. (5 Car. & P. 826) 821 Noble v. State (1 Greene, Iowa, . 825) 75, 87 Noland, State v. (29 Ind. 212) 373 Norman, State v. (2 Dev. 222) 606 Norris, Reg. v. (9 Car. & P. 241) 3818 , Rex v. (Russ. & Ry. 69) 246, 292 North, Rex v. (2 East P. C. 1021) 291 , State v. (27 Misso. 464) 1080 Nix, Commonwealth v. (11 Leigh, - 5 INDEX TO THE CASES CITED. OM SECTION North Canal Street Road, (10 Watts, 351) 177 Norton, Commonwealth v. (18 Allen, 550) 163 —, People v. (7 Barb. 477) 999 v. State (15 Ark. 71) 855 v. State (4 Misso. 461) 146 ——,, State v. (19 Texas, 102) 291, 878, 902 ——,, State v. (8 Zab. 33) 155, 164 Noyes, State v. (10 Fost. N. H. 279 Nott, United States v. (1 McLean, 499) 220 Nudd v. Burnett (14 Ind. 25) 848, 9387 Nunn »v. State (1 Kelly, 248) 785, 792 Nusser v. Commonwealth (1 Ca- sey, 126) 126 Nutbrown’s Case (2 East P. C. 496) 279 Nutting, State v. (16 Vt. 261) 428 Nutwell, State v. (1 Gill, 54) 1037 4 Oath before Justices (12 Co. 180) 187 ae Commonwealth v. (12 Cush. 93) 1076, 1080 oO see v. State (12 Misso. 311) 145, 859, 881 O'Brian, Rex ». (7 Mod. 378) 163, 166, 167 —— v. State (12 Ind. 369) 119 O’Brien, People v. (88 N. ¥. 193) 405 , State v. (2 Root, 516) 291 O’Connell, State v. (26 Ind. 266) 536 O’Conner, State v. (4 Ind. 299) 1082 —, State v. (13 La. An. 486) 177 , State v. (49 Maine, 594) 1018 O’Connor, Commonwealth v. (7 Allen, 583) 796 =— vy. Towns (1 Texas, 107) 110 O’Daily v. State (9 Ind. 494) 992 Odlin, Commonwealth v. (23 Pick. 275) 1018, 1082, 1034, 1037, 1039 O’Donnell, Commonwealth v. (8 Allen, 548) 991, 1069 Ogden v Strong (2 Paine, 584) 45, 46, 70, 82 O’Hanlon v. Myers (10 Rich. 128) 149 Ohio, The v. Stunt (10 Ohio State, 582) 82 Ohio and Mississippi Railroad, State v. (23 Ind. 362) 212 Oldham, Reg. v. (2 Den. C. C. 472; 14 Eng. L. & Eq. 568) 204, 246, 319 Ollifer, Reg. v. (10 Cox C. C. 402) 359, 634 Olney, United States v. (1 Abb. U.S. 275 952, 956 O’Meara v. State (17 Ohio State, 515) 487 731 PAC SECTION One Hundred and Twelve Casks of Sugar, United States v. (8 Pet. 277) 99 O’Neal, State v. (7 Ire. 251) 460 Onondaga v. Briggs (8 Denio, 178) 178 Open Boat and Lading, United States v. (5 Mason, 120) —_ 216, 220 Opie, Reg. v. (8 Cox C. C. 382) 778 Opinion of Judges (30 Conn. 591) 811 Opinion of Justices (7 Mass. 528) at —— (44 N. H. 633) —— (8 Pick. 517) 104 (22 Pick. 571) 70, 82 Orcutt v. Nelson (1 Gray, 586) 1031 , People v. (1 Parker C. C. 52 289 oe v. Holmes (138 La. An. 502) Orr v. Hodgson (4 Wheat. 453) 14 v. State (18 Ark. 540) 923 Ortega, United States v. (4 Wash. C. C. 531) 664 Orvis v. Thompson (1 Johns. - 500) ‘ 1002 Osgood v. People (89 N. Y. 449) 1045 Oskins, State v. (28 Ind. 364) 81 Ossulston, Rex v. (2 Stra. 1107) 625, 627 Ottawa v. La Salle (12 Il. 339) 126, 163 Our v. Commonwealth (9 Dana, 30) Our House v. State (4 Greene, Iowa, 172) 992, 1069, 1070 Overfield v. Sutton (1 Met. Ky. 621) 98 Overseers Crown Point v. War- ner (3 Hill, N. Y. 150) 297, 984 Overseers Pittstown v. Overseers Plattsburg (18 Johns. 407) 187 Overshiner v. Commonwealth (2 « B. Monr. 344) 1061 Overton, Reg v. (4 Q. B. 83) 163 Owen v. Boyle (22 Maine, 47) 293 —, Rex v. (2 East P. C. 645; 2 Leach, 572) 233 —— v. Slatter (26 Ala. 547) 111 —— »v. State (31 Ala. 387) 787, 793 ——,, State v. (15 Misso. 506) 1042 Owens, Rex v. (1 Moody, 205) 316 Oxfordshire, Rex v. (1 B. & Ad. 289) 301 Oystead v. Shed (13 Mass. 520) 290 Package of Lace, United States v. (Gilpin, 338) 163 Package of Wool, United States v. (Gilpin, 349) 132 Packard, Commonwealth v. (5 Gray, 101) 1046 —— v. Richardson (17 Mass. 122) 104 732 INDEX TO THE CASES CITED. PAR SECTION Packer v. Sunbury and Erie Rail- road (7 Harris, Pa. 211) 65 Paddle, Rex v. (Russ. & Ry. 484) 220 Paddock, State v. (24 Vt. 312) 210, : 1016, 1039 Page v. Allen (8 Smith, Pa. 348) 92, 245, 809 ——,, People v. (3 Parker, 600) 1032 —, Reg. v. (8 Car. & P. 122) 132 , Rex v. (12 Mod. 123) 255 —— v. State (11 Ala. 849) 1002 v. State (6 Misso. 205) 210, 1075, 107! 9 Paine, Rex v. (7 Car. & P. 135) 281, 312 ——, Rex v. (1 East P. C. 5) 155, 160, 168 Palmer v. Conly (4 Denio, 374; 2 Comst. 182) 178 v. Cuyahoga Commissioners (3 McLean, 226) 141 ——, Rex v. (1 Leach, 352) 82 —, Rex v. (2 Leach, 680; 2 East P. C. 586) 216 —, Rex v. (1 Moody & R.70) 319, 321 —, Rex v. (Russ. & Ry. 72; 1 New Rep. 96; 2 Leach, 978) 307 ——,, State v. (18 Vt. 570) 603 ——, United States v. (8 Wheat. 610) 46 Pangborn v. Young (3 Vroom, 29) 29 Pankey v. People (1 Scam. 80) 159, 171 Pannell v. State (29 Ga. 681) 1048 Paris v. People (27 Ill. 74) 377 Park, Commonwealth v. (1 Gray, 553) 1024, 1045 Parke v. Evans (Hob. 62) 290, 312 Parker v. Commonwealth (6 Barr, 507) 36, 992 ———, Commonwealth v. (4 Allen, 313) 723 ——, Commonwealth v. (9 Met. 263) 744, 753 —_ v. Flint (Holt, 366) 297 —.,, People v. (4 Johns. 424) 285, 286 ——, People v. (38 N. Y. 85) 550 ——, Reg. v. (9 Car. & P. 45) 310 —, Reg. v. (Leigh & C. 459; 9 Cox C. C. 475) 261 ——, Rex v. (2 East P. C. 592; 1 Leach, 820) 190, 194, 196, 204, mi 9 v. State (89 Ala. 365) 426 v. State (4 Ohio State, 563) 1049 v. State (26 Texas, 204) 912 ——.,, State v. (26 Vt. 357) 36 Parkhurst v. Foster (1 Salk. 387 ; Carth. 417) 297 Parkinson v. State (14 Md. 184) ae 99: PEA SECTION Parks, State v. (29 Vt. 70) _ 1003 Parnell, State v. (16 Ark. 506) — 1087 Parramore v. Taylor (11 Grat. 220) 98 Parrot, Rex v. (6 Car. & P. 402) 291 Parrott v. State (5 Eng. 574) 923 Parsley v. Hutchins (2 Jones, N. C. 159) 1002 Parsons v. Bedford (3 Pet. 483) 90 v. Bridgham (34 Maine, 240) 168, 1032 — v. Chamberlin (4 Wend. 512) 105 — v. State (2 Ind. 499) 852, 855, 899, 937 254 Parton v. Hervey (1 Gray, 119) Pash, Commonwealth v. (9 Dana, 31 204, 937 Passey, Rex v. (7 Car. & P. 282) 88 Passmore, United States v. (4 Dall. 372) 177 Pateman, Rex v. (Russ. & Ry. 455) 216 Paterson v. Society (4 Zab. 385) 18, 36 Patrick, Rex v. (2 East P. C. 1059) 443 Pattee, Commonwealth v. (12 Cush. 501) 855 ‘Patten v. Shepard (4 Conn. 450) 319 Patterson v. Barlow (10 Smith, Pa. 54) v. State (21 Ala. 571) 1049 ——, State v. (2 Ire. 346) 613 —, (T. U. P. Charl. 311) 218 Pattison v. Bankes (Cowp. 540) 48 Pattle, Rex v. (1 Stra. 405) 291 Patton, State v. (4 Ire. 16) 138 Paty, Rex v. (2 East P. C. 1074; 1 Leach, 72; 2 W. BL. 721) 247, 440, 442 Paul, State v. (5 R. I. 185) 1069, 1070 Paulina, The v. United States (7 Cranch, 52) Paulus, Commonwealth v. (11 Gray, 305) 336 Payne v. Connor (8 Bibb, 180) 151 —., People v. (38 Denio, 88) 955, 958 , Rex v. (4 Car. & P. 558) 314 Peables v. Hannaford (18 Maine, 106) Peak v. State (10 Humph. 99) 725 Pearce v. Atwood (18 Mass. 824) 86 v. Bank of Mobile (88 Ala. 693) 126 — , Rex v. (1 Leach, 527; 2 East P. C. 1072) 438, 437 — , Rex v. (2 Leach, 1046) 142 —, State v. (2 Blackf. 818) 655, 663 ——, State v. (Peck, 66) 440, 442 ——, United States v. (2 McLean, 14) 141, 216, 246 Pearson, Commonwealth v. (8 Met. 449) 1061 INDEX TO THE CASES CITED. PER SECTION Pearson, Commonwealth v. (23 Pick. 280, note) 1039 — v. Lovejoy (53 Barb. 407) 120 —, Rex v. (4 Car. & P. 572) 271 Pease, People v. (80 Barb. 588) 824, 826 Peat’s Case (2 Lewin, 111) 618 — (2 Lewin, 288) 618 Peat, Rex v. (1 East P. C. 229) 770 Peck v. Burr (10 N. Y. 294) 254 ——,, People v. (11 Wend. 604) 255 v. Weddell (17 Ohio State, 271) 36 Pecker, State v. (47 N. H. 869) 1057 Peckham, Commonwealth v. (2 Gray, 514) 1007 ——, State v. (8 R. I. 289) 992 Peel, Rex v. (Russ. & Ry. 407) 141 Peer’s Case (5 Grat. 674) 1045 Pegram, Commonwealth v. (1 Leigh, 569) 163, 171, 183 Peirce v. New Hampshire (5 How. U. S. 504) 990 Pekin v. Smelzel (21 Ill. 464) 997 Pelham v. Messenger (16 La. An. 99) 119 Pelfryman, Rex v. (2 Leach, 563) 518 Pemberton, State v. (2 Dev. 281) 854 Pendergast v. Peru (20 Ill. 51) 1052 Pennington, State v. (3 Head, 119) 380 Pennock, Commonwealth »v. (3 8. & R. 199) 277 v. Dialogue (2 Pet. 1) 97 Pennsylvania Hall, Matter of (5 Barr, 204) 180 Pennybaker v. State (2 Blackf. 484) 102 Penson, Rex v. (5 Car. & P. 412) 591 Penton v. Brown (1 Keb. 698 ; Sid. +186) 290 Percavil, Commonwealth v. (4 Leigh, 686) 246 Perdue v. Ellis (18 Ga. 586) 992 —— v. State (2 Humph. 494) 3808 Pereira, Rex v. (2 A. & E. 375) 80 Perine v. Van Note (1 Southard, 146) 163, 168 Perkes, Rex v. (1 Car. & P. 300) 312 Perkins, State v. (6 Fost. N. H. 9 1003, 1032 825 1018" ——, State v. (42 Vt. 399) Perley, Commonwealth v. (2 Cush. 559) Perrigo, Commonwealth v. (3 Met. Ky. 5) Perry v. Commonwealth (3 Grat. 632) 180 v. People (14 Ill. 496) 168 ——, People v. (13 Barb. 206) 999 —,, Reg. v. (Dears. 471; 6 Cox C. C. 581) 771 733 908 PIN INDEX TO THE SECTION Perry, State v. (5 Jones, N. C. 252) 562, 563 , State v. (6 Ohio State, 497) 34 —— v. Wilson (7 Mass. 393) 113 Pervear v. Commonwealth (5 Wal. 475) Peterson, People v. (9 Cal. 318) Peyton v. Moseley (2 T. B. Monr. 77) 82, 155 Phalen v. Commonwealth (1 Rob. Va. 713) 856, 957, 958 ——., State v. (8 Harring. Del. 441) 856 Phelps, Commonwealth v. (11 Gray, 73) 1048 v. Parks (4 Vt. 488) 164 Philadelphia and Erie Railroad v. Catawissa Railroad (3 Smith, Pa. 20) 101, 104 Phile v. Anna (1 Dall. 197) 211 Phillips, Commonwealth v. (11 Pick. 28) * 180, 204 v. New York (1 Hilton, 483) 47 —, Reg. v. (2 Moody, 252) 223 ——, Rex v. (3 Camp. 73) 745, 755 ——, Rex v. (Crawf. & Dix C. C. 164) 991 318 —, Rex v. (Russ. & Ry. 369) 261, 264 v. State (15 Ga. 518) 102 v. State (29 Ga. 105) 536 Philpotts, Reg. v. (1 Car. & K. 112 132 Phipson v. Harvett (1 Cromp., M. & R. 473) 160 Pickens v. State (20 Ind. 116) 1024 Picket, Rex v. (2 East P. C. 501) 287 Pierce’s Case (16 Maine, 255) 193 Pierce v. Bartrum (Cowp. 269) 22 —,, Comnionwealth v. (11 Gray, 447) 680, 681 —, Rex v. (3 M. & S. 62) 49 —, Rex »v. (2 Show. 327) 546 — 1. State (18 N. H. 536) 992 ——, State v. (7 Ala. 728) 435 ——, State v. (14 Ind. 302) 163 Pierpont %. Crouch (10 Cal. 815) 156 Pierson, Reg. v. (1 Salk. 382) 667 ——, Rex »v. (Andr. 310) 627 Pigot, Rex v. (Holt, 758) 619 Pike v. Commonwealth (2 Duvall, 89) 379 Pike v. Jenkins (12 N. H. 255) ~—-200, 204 ——, Rex »v. (1 Leach, 317 ; 2 East P. C. 647) Pim v. Nicholson (6 Ohio State, 176) —, Rex v. (Russ. & Ry. 425) 174 Pinchback, State v. (2 Mill. 128) 216, 952, 958 216 422 | Pingree v. Snell (42 Maine, 53) 159 734 CASES CITED. POV SECTION Piper, Commonwealth v. (9 Leigh, 657) 138 Pirates, United States v. (5 Wheat. 184) 163, 242, 304 Pitman v. Commonwealth (2 Rob. Va. 800) 169, 183, 855 v. Flint (10 Pick. 504) 80, 146 Pitt v. Laming (4 Camp. 73) 297 Pittsburgh, Commonwealth v. (2 Harris, Pa. 177) Place v. State (8 Blackf. 319) 1032 Planters’ Bank v. Black (11 Sm. & 86 M. ot v. State (6 Sm. & M.628) 160 Planters and Merchants’ Bank v. Andrews (8 Port. 404) 212 Platt v. Brown (16 Pick. 553 250 v. Sherry (7 Wend. 236) 163, 164 Pleasants 7. Rohrer (17 Wis. 577) 265 Plumb v. Sawyer (21 Conn. 351) 82 Plummer v. Commonwealth (1 Bush, 26) 1005 v. Plummer (37 Missis. 185) 104 Plunket, State v. (2 Stew. 11) 247, 298 Plunkett, State v. (3 Harrison, 5) 22 —,, State v. (1 Ire. 115) 1032 - Poage v. State (3 Ohio State, 229) 336 Poggi, People v. (19 Cal. 600) 422, Polly, Reg. v. (1 Car. & K.77) 276 Pomeroy v. Commonwealth (2 Va. Cas. 342) —,, Commonwealth v. (5 Gray, 486, note) 34, Pond v. Negus (3 Mass. 230) 255 vy. People (8 Mich. 150) 285, 286 Pool, State v. (2 Dev. 202) 167 Pooley, Rex v. (3B. & P. 311; Russ. & Ry. 31) 388 , Rex v. (Russ. & Ry. 12) 338 Poor Law Commissioners, Rex v. (6 A. & E. 1) 80 Pope v. Lewis (4 Ala. 487) 177 v. State (2 Swan, Tenn. 611) 1000 Porter v. State (5 Sneed, 358) 946 ——, State v. (4 Harring. Del. 556) 806 Poterfield v. Clark (2 How. U.S. 76) 115 Portland Bank v. Maine Bank (11 Mass. 204) 29, 107 Posey, Commonwealth v. (4 Call, 109) 207, 218, 277 ——,, State v. (1 Humph. 384) — 842, 855, 873, 929 Potter, Reg. v. (2 Den. C. C. 238; 15 Jur. 498; 20 Law J. . 8s. M. C. 170; 4 Eng. L. & Eq. 575) 295 Potts, Rex v. (Russ. & Ry. 353) 139 Poulton, Rex yv. (5 Car. & P. 829) 780 Povey, Reg. v. (Dears. 32; 6 Cox C. C. 83) 610 PUR SECTION Powell v. Price (4 C. B. 105) 277, 284 , Reg. v. (14 Eng. L. & Hq. 575; 2 Den. C. C. 403) 344 v. State (27 Ala. 51) 1011 ——, State v. (10 Rich. 878) 1085 Powers, In re (25 Vt. 261) 992 ——., State v. (25 Conn. 48) 1044 Powlter’s Case (11 Co. 29) 82 Pratt v. Atlantic and St. Law- rence Railroad (42 Maine, 579) 160 v. Jones (25 Vt. 803) 163 ——, State v. (84 Vt. 323) 970 Pray v. Burbank (12 N. H. 267) 222 , Commonwealth v. (13 Pick. 359) 1087, 1042, 1084 v. Edie (1 T.R. 818) 49, 70, 82 Presbrey v. Williams (15 Mass. 193) 107 Prescott v. Illinois and Michigan Canal (19 Tl. 824) 29 v. Kyle (103 Mass. 381) 1069 , State v. (27 Vt. 194) 992, 1056 Presnell, State v. (12 Ire. 103) 1028 Preston v. Hunt (7 Wend. 53) 182, 282 Prettyman, State v. (3 See Del. 570) Prevost, Succession of (12 La. Fs 577) 14 Prewitt, State v. (10 Texas, 310) 921 Price, Commonwealth v. (8 Leigh, 757) 852, 855, 878 —v Hopkins (18 Mich. 318) él , Reg v.(3 Per. & D. 421; 11 A. & Ii. 727; 4 Jur. 291) — 188, 821 —, Rex »v. (5 Car. & P. 510) 223 ——,, State v. (6 Halst. 203) 244 —— v. Thornton (19 Misso. 185) 182 Priester, State v. (Cheves, 103) 1045 Prim v. State (82 Texas, 157) 417 Prince, Rex v. (2 Car. & P. 517) 271 Pringle, Reg. v. (2 Moody, 127) 341 Prior v. State (4 Texas, 383) 902 Pritchard v. Spencer (2 Ind. 486) 82 Protector, The v. Ashfield (Hardr. oe 62) Puddifoot, Rex v. (1 Moody, 247) 247 Pugh, Reg. v. (6 Mod. 140) 1638, 168 , State v. (15 Misso. 509) na 1 159 Pullbrook, Reg. v. (9 Car. & P. 37) 335 Pulling v. People (8 Barb. 384) 111 Pulse v. State (5 Humph. 108) 10138 Pulver v. Burke (56 Barb. 890) 938 Purcell v. Commonwealth (14 Grat. 679) 298, 878 Purdon, State v. (8 Misso. 114) 854, 855, 881 Purdy v. People (4 Hill, N. Y.384) 37 Purtle, Commonwealth v. (11 Gray, 78) 1057 Pulaski County v. Downer (5 Eng. 588) INDEX TO THE CASES CITED. | Raake, Reg. v. (2 Moody, 66; 8 3 ) 3 RAW SECTION Putnam, Commonwealth v. (4 Gray, 16) 1046, 1049, 1052 —— v. Longley (11 Pick. 487) 80, 82 v. Putnam (8 Pick. 483) 586 ——,, State v. (88 Maine, 296) Pyle v. Maulding (7 J. J. Mar. 202) eae v. Danks (1 Denio, Quant, People v. (2 Parker, 410) 990, 992, 1032 Quarles v. State (5 Humph. 561) 205, 871, 935, 937 Quigley v. Gorham (5 Cal. 418) 101 Quinlan v. People (6 Parker C. C. 9) 530 Quinn, Commonwealth v. (12 Gray, 178) 1069 , People v. (18 Cal. 122) 179 Jar. & P. 626 29, 333 Rachel v. United States (6 Cranch, 329) 177 Rackley, State v. (2 Blackf. 249) 86 Radford, Reg. v. (1 Car. & K. 707) 306 —, Reg. v. (1 Den. C. C. 59) 306 Ragsdale, United States v. (Hemp. 497) 72, 193 Rahl, State v. (88 Texas, 76) 691 Railroad v. Clinton (1 Ohio State, 77) 33 Raines, State v. (McCord, 583) 129 Raleigh v. Kane (2 Jones, N. C. 288) 999 Ramey v. State (14 Texas, 409) 921 Ramsay, United States v. (Hemp. 481 193 Ramsey v. State (6 Eng. 35) 1032 Randall, Rex v. (Russ. & Ry. 195) 255, 328, 338 , Rex v. (8 Salk. 27) * 984 Randless, State v. (7 Humph. 9) 839 Randolph v. State (9 Texas, 521) 198, 855 Rankett’s Case (2 Rol. Abr. 189) 546 Ratcliff v. Ratcliff (1 Swab. & T. 467) 17 Ratcliffe’s Case (3 Co. 87 a) 633 Rathbone v. Bradford (1 Ala. 312) 28 Rathbun v. Acker (18 Barb. 393) 198 Ratzky v. People (29 N. Y. 124) 185 Raudebaugh v. Shelley (6 Ohio State, 307) 156 Ravenscroft, Rex v. (Russ. & Ry. 161) 328 Rawlins v. Ellis (10 Jur. 1039) 198 735 RIC SECTION Rawson v. State (19 Conn. 292) 82, 194, 200, 1061 Raymond, State v. (24 Conn. 204) 1057, 1058 Raynard v. Chase (1 Bur. 2) 196 Read, Reg. v. (2 Car. & K. 957; 1 Den. C. C. 377; 8 Cox C. C. 266) j 491 Reader, Rex v. (4 Car. & P. 245) 289 Ream v. Commonwealth {3 5S. & R. 207) 204 Reams v. State (23 Ind. 111) 992, 1039 Reardon, Commonwealth». (Cush. 78) 657, 672 Records, State v. (4 Harring. Del. 554) 852, 861, 878 Red, State v. (7 Rich. 8) 865 ae State v. (5 Harring. Del. 505 Reddott v. State (17 Texas, 610) Redding v. Commonwealth (3 B. Monr. 239) 1039 Redman v. Sanders (2 Dana, 68) oe v. State (23 Ala. 428) 852, 873 Redmond v. Glover (Dudley, Ga. 107) 105 Redpath v. Nottingham (5 Blackf. 267 1002 Reed v. Davis (8 Pick. 514) v. Omnibus Railroad (33 Cal. 212) 34 ——, Reg. v. (23 Law Times Rep. 1013 299 193 156; 28 Eng. L. & Eq. 133) 245 | ——, Reg. v. (1 Moody, 62; 8 Car. & P. 623; 2 Lewin, 185) 339 ——, State v. (35 Maine, 489) 1039 ——, State v. (40 Vt. 603) 503 Reekspeer, Rex v. (1 Moody, 342) 204 Rees, Rex v. (6 Car. & P. 606) 271 Reeves, Reg. v. (5 Jur. x. 8.716) 423 v. State (9 Texas, 447) 905, 909 Reid v. State (20 Ga. 681) 85 ——, State v. (1 Ala. 612) 793 Remnant, Rex v. (6 T. R. 169) 220 Renwick v. Morris (3 Hill, N. Y. 621; 7 Hill, N. Y. 575) 163, 169, 250, 252 Report of the Judges (3 Binn. 595) 159, 161, 163, 580 — (3 Binn. App. 595) 618, 628, 767, 851 Rese v. Davis (Russ. & Ry. 499) 312 Reynes, United States v. (9 How. U. S. 127) Reynolds v. State (1 Kelly, 222) v. State (3 Kelly, 53) Rhodes, State v. (2 Ind. 321) 1067 Rice v. Commonwealth (12 Met. 82 84 179 INDEX TO THE CASES CITED. 246) 204 —, Commonwealth v. (9 Met. 253) 20 | —— ». Foster (4 Harring. Del. 479) 36 | 7386 ROB SECTION Rice v. People (15 Mich. 9) 505 v. Railroad (1 Black, 358) 178 ——. Reg. v. (Bell C. C. 87) 415 —, Rex v. (6 Car. & P. 634) 341 v. State (10 Texas, 545) 878, 901 Rich v. Flanders (89.N. H. 304) 91 v. Keyser (4 Smith, Pa. 86) 98 Richards v. Dyke (3 Q. B. 256) = 164 v. Patterson (30 Missis. 583) 160 ——, Rex v. (Russ. & Ry. 193) 328, 329 Richardson, Matter of (6 Law Re- porter, 392) —— Matter of (2 Story, 571) Richardson v. Broughton (3 Strob. 1) 141, 231, 232 —— v. Emswiler (14 La. An. 658) 119 — , Rex »v. (6 Car. & P. 335) 216 —— v. State (8 Cold. 122) 179 Ricker, State v. (29 Maine, 84) 142 Riddick v. The Governor (1 Misso. 147) 70 v. Walsh (15 Misso. 519) 70, 81 Ridgaly, Rex v. (1 East P. C. 171; 1 Leach, 189) 204 Ridley v. Sherbrook (3 Cold. 569) 807, 28 29 809, 810 Rigg v. Wilton (13 Ill. 15) 97 Riggs v. Martin (5 Pike, 506) 178 v. Pfister (21 Ala. 469) 130 Riley v. State (9 Humph. 646) 246 — v. State (43 Missis. 397; 2 Morris State Cas. 1682) 987, 1037, 1049 Rineman v. State (24 Ind. 80) 1021 Ripley, State v. (2 Brev. 300) 168 Ritchie, State v (2 Dev. & Bat. 29) 896 Ritte v. Commonwealth (18 B. Monr. 35) 855, 826 ee v. Guthrie (1 Jones, N. C. 4) Rix v. Borton (12 A. & E. 479) Road in Hatfield (4 Yeates, 392) Robb, Reg. v. (4 Fost. & F. 59) — 634 Robbins vy. Omnibus Railroad (32 Cal. 472) 86 v. State (8 Ohio State, 131) 154, 472, 747 1044 105 160 177 ——, State rv. (9 Ire. 356) Robbinson v. State (24 Texas, 153) 876 Robert, Respublica v. (1 Dall. 89) 225 Roberts v. Commonwealth (11 B. Monr. 3) 854, 855, 878 —— v. Commonwealth (10 Leigh, 686) 904, 909 ——, Commonwealth v. (1 Cush. 505) 1040, 1042 — v. O’Conner (33 Maine, 496) 1024 —. Reg. v. (2 Moody, 258; Car. & M. 652) 32s, 884 —, Reg. v. (2 Russ. Crimes, Grea. ed. 522) 424, 382 ROS SECTION Roberts, Respublica »v. (2 Dall. 124; 1 Yeates, 6) 656, 691 v. State (21 Ark. 183) 881 — v. State (2 Tenn. 423) 180, 184 ——,, State v. (1 Tread. 116) 222 Robertson. Commonwealth v. (5 Cush. 488) 22, 26, 82 Robins, Reg. v. (1 Car. & K. 456) 359, . 636, 644 Robinson v. Commonwealth (6 Bush, Ky. 309) 592 ‘v. Mayor (1 Humph. 156) 22 ——, Rex »v. (2 Bur. 799) 188, 250 —, Rex v. (2 Leach, 749; 2 East P. C. 1110) 168, 174, 346 —_, Rex v. (1 Moody, 327) ‘812 —, Rex v. (2 Stark. 485) 204 v. State (6 Wis. 585) 846 — ,, State v. (83 Maine, 564) 204, 1057 ——,, State v. (49 Maine, 285) 990 ——, State v. (19 Texas, 478) 992 ——,, United States v. (4 Mason, 307) 304 v. Varnell (16 Texas, 382) 82 Robson, Reg. v. (Leigh & C. 98; 9 Cox C. C. 29) 421, 423 Roby v. West (4 N. H. 285) 180 Rochester v. Collins (12 Barb. 559) 22 Rodebaugh v. Hollingsworth (6 Ind. 389) 715 Roderick, Rex v. (7 Car. & F. 795) 138 Rodgers v. State (26 Ala. 76) 855, 902 Rodway, Reg. v. (9 Car. & P. 784) 341 Roe, People v. (1 Hill, N. Y. 470) 992 Rogers v. Alexander (2 Greene, Towa, 443) v. Goodwin (2 Mass. 475) 104 v. Jones (1 Wend. 287) 20, 28, 26 —, Reg. v. (8 Car. & P. 629) 888 — , Reg. v. (9 Car. & P. 41) 382, 335 — ., Rex v. (1 Leach, 89; 2 East P. C. 506) 287 v. Smith (4 Barr, 98) 277 v. Watrous (8 Texas, 62) or 63 Rogier, Rex v. (2D. & R. 481; 1B. & C. 272) 886 Roland, Commonwealth v. (12 Gray, 182) 1042 Rolfe v. Delmar (7 Rob. N. Y. 80) 952, 959 Rollins, State v. (8 N. H. 550) 186 Romdic v. Fennell (1 Wils. 233) 4038 Romp v. State (3 Greene, Iowa, 276) 893, 894 Roosevelt v. Godard (52 Barb. 533) 90 Roquemore v. State (19 Ala. 528) a 9 Rorie, State v. (28 Ark. 726) 862 Rose v. The Governor (24 Texas, 496) 0 Rosebaugh v. Saffin (10 Ohio, 31) 25 INDEX TO THE CASES CITED. SAF SECTION Rosenbaum v. State (4 Ind. 599) 1032 Ross, Rex v. (Russ. & Ry. 10; 2 East P. C. 1067) 220 ——,, State v. (7 Blackf. 322) 896 —, United States v. (1 Gallis. 624 304 Rourke, Rex v. (Russ. & Ry. 886) 233 Rowe, Commonwealth v. (14 Gray, 47) 1050 Rowley, Rex v. (Russ. & Ry. 110) ae ——., State v. (12 Conn. 101) 97 Royal v. State (9 Texas, 449) 905 Ruckmaboye v. Mottichurd (82 Eng. L. & Eq. 84) Ruffner, Commonwealth v. (4 Ca- sey, Pa. 259) 264 Ruhl, State v. (8 Iowa, 447) 682, a Rum, State v. (85 N. H. 222) 1057 Rumrill, Commonwealth v. (1 Gray, 388) 1018, 1018 Rumsey v. People (19N. ¥Y. 41) 508 Rushworth, Rex v. (Russ. & Ry. 317; 2 Russ. Crimes, Grea. ed. 517) 329 Russell v. Commonwealth (3 Bush, 469) v. Commonwealth (7 8. & R. 489) 167 —, Reg. v. (Car. & M. 541) 310 ——,, Rex v. (1 Leach, 8) 841 ——, Rex v (1 Moody, 356) 745 —, Rex v. (1 Moody, 377) 312 —— v. Sloan (38 Vt. 656) 1013, 1020 v. Wheeler (Hemp. 3) 197 Rust v. State (4 Ind. 528) 1032 , State v. (85 N. H. 488) 1039 Rutherford v. Commonwealth (2 Va. Cas. 141) 344 v. Greene (2 Wheat. 196) 85 Rutledge, State v. (8 Humph. 32) 1638, 169 Ryall v. Rolle (1 Atk. 165) 49 Ryalls v. Reg. (138 Jur. 259; 18 Law J. x. s. M. C. 69) 105 Ryan, Commonwealth v. (9 Gray, 1038 137) Rye, State v. (9 Yerg. 386) 716 Ryegate v. Wardsboro (30 Vt. 746) 86 Ryland, Reg. v. (11 Cox C. C. 101) 498 Saco v. Gurney (34 Maine, 14) 177 Sacramento v. Bird (15 Cal. 294) 159 Sadi, Rex v. (2 East P.C. 601) 887 ——, Rex v. (1 Leach, 468 ; 2 East P. C. 748 139, 344 Safford v. People (1 Parker C. C. 474 639, 648 ——, People v. (5 Denio, 112) 238, 1020, 1027 137 SCA SECTION St. George, Reg. v. (9 Car. & P. 483 245 St. Giles, Reg. v. (3 Ellis & E. 224) 86 St. Lonis v. McCoy (18 Misso. 238) 20 St. Louis County Court v. Sparks (10 Misso. 117) 255 St. Paul v. Troyer (3 Minn. 291) 997 Salem Turnpike and Chelsea Bridge v. Hayes (5 Cush. 458) a 70 Salisbury, Reg. v. (2 Q. B. 72) 154, 160 , Rex v. (5 Car. & P. 155) 271 Salkeld v. Johnston (1 Hare, 196) 49 Salmon, Rex v. (Russ. & Ry. 26) 4383 Salomon, People v. (46 Ill. 415) . 86 v. State (27 Ala. 26) 958 Salters v. Tobias (8 Paige, 338) 192 Salters’ Company v. Jay (3 Q. B. 109) 48 Samperyac, United States uv. (Hemp. 118) 85 Sampeyreac v. United States (7 Pet. 222) Sampson v. Commonwealth (5 Watts & S. 385)’ Samuel, Commonwealth v.* (2 Pick. 103) 1088 Sanborn, Commonwealth v. (14 Gray, 393) 506 Sanderlin vy. State (2 Humph. 315) 300, 1011, 1060, 1061, 1063 Sanders, Commonwealth v. (5 Leigh, 781) 285 , Reg. v. (9 Car. & P. 79) 216, 295 Sandy, State v. (3 Ire. 570) 289, aa 31 Sanford, State v. (1 Nott & Me- Cord, 512) 194 San Francisco v. Hazen (5 Cal. 169) 82 ——, People v. (4 Cal. 127) 84 ——, People v. (21 Cal. 668) 84 San Francisco, &c., Railroad, Peo- ple v. (28 Cal. 254) 154 ——,, People v. (35 Cal. 606) 91 Santo v. State (2 Iowa, 165) 34, 36, 91, 1057 Sapeliet United States v. (Gilpin, 73) f Sassovich, People v. (29 Cal. 480) 91 Saunders v. Carroll (12 La. An. 798) 84 Savage, Rex v. (1 Ld. Raym. 847) 250 , State v. (32 Maine, 583) 93, 220 Savannah v. Hussey (21 Ga. 80) 24 ——, State v. (T. U. P. Charl. 235) 22, : 141, 163, 164 Saviers, People v. (14 Cal. 29) 902 Sawyer, Rex v. (2 Car. & K. 101) 141 Scagys, State v. (23 Misso. 92) 890 Scammon v. Scammon (8 Fost. N. H. 419) 298 738 INDEX TO THE CASES CITED. SEN SECTION Scannel, Commonwealth »v. (11 Cush. 547) 486 Schaffner v. State (8 Ohio State, 642 ) 10 Schieve v. State (17 Wis. 252) 163 Schilling, State v. (14 Iowa, 455) 1069 Schlict v. State (31 Ind. 246) 1047 Schmidt v. State (14 Misso. 137) 186, 1024, 1052 Schnier, State v. (5 Rich. 299) 111 Schooner Harriet (1 Story, 251) 194, 200 Schriefer v. Wood (5 Blatch. 215) 101 Schutze v. State (20 Texas, 508) 382 Schuyler v. Mercer (4 Gilman, 20) 112, - 155 Schwartz, People v. (82 Cal. 160) 586 Scidmore v. Smith (13 Johns. 322) 163 Scoggin v. Taylor (8 Eng. 280) 163 Scott, Reg. v. (3 Q. B. 543) 220 v. Searles (1 Sm. & M. 590) 82 — v, Smart (1 Mich. 295) 90, 180 v. State (29 Ga. 263) 876 — v. State (25 Texas, Supp. 168) 1049 , State v. (17 Misso. 521) 36 Scribner, State v. (2 Gill & J. 246) 958 Scrinegrour v. State (1 Chand. 48) ae 6 Scriveners’ Company v. Brooking (2 Gale & D. 419; 6 Jur. 835) 22 Scudder, State v. (3 Vroom, 203) 84, 85 Scutt ». Commonwealth (2 Va. Cas. 54) 151, 177 Seaborn v. State (20 Ala. 15) 255 ——,, State v. (4 Dev. 805) 159, 161, : 163 Seal v. State (13 Sm. & M. 286) 55 Seamans v. Carter (15 Wis. 548) 84 Searle, Commonwealth v. (2 Binn. 332) 166, 306 v. Williams (Hob. 288) 193 Searls v. People (13 Ill. 597) 697 Sears v. State (33 Ala. 347) 790 v. United States (1 Gallis. 257) 167 Seas, Rex v. (1 Leach, 304; 2 East P. C. 643) 233 Seaving v. Brinkerhoff (5 Johns. Ch. 329) 193 Sefton, Rex v. (Russ & Ry. 202) 280 Segur v. State (6 Ind. 451) Seibert v. State (40 Ala. 60) 407 Sellers v. Dugan (18 Ohio, 489) 254 Rae Case (5 Co. 91; Yelv. 29 Seiple v. Elizabeth (3 Dutcher, : ) 112 Seneca County Bank v. Lamb (26 Barb. 595) SHE SECTION Senior, Rex v. (1 Leach, 496; 2 East P. C. 598) 220 Septon, State v. (3 R. I. 119) 37 Sergeant, People v. (8 Cow. 189) 874 Sewall v. Jones (9 Pick. 412) 192 Sewell v. Taylor (7 C. B. n. s. 160) 298 Seymour, Ex parte (14 Pick. 40) 3849 v. Milford and Chillicothe Turnpike (10 Ohio, 476) 163 Shadbolt, Rex ». (5 Car. & P. 504) 212 Shadley, State v. (16 Ind. 280) 444 Shafer v. Mumma (17 Md. 381) 23 Shaffer, State vy. (21 Iowa, 486) 179 Shannon v. Commonwealth (2 Har- ris, Pa. 226) 667 Shapleigh, State v. (27 Misso. 844) 990 Sharp v. Johnson (4 Hill, N. Y. 92) 198 v. Speir (4 Hill, N. Y. 76) 193 Sharpe’s Case (2 Lewin, 233) 220 Sharpe, Rex v. (1 Moody, 125) 232 Sharpless, Commonwealth v. (28. & R. 91) 550 Shattuck, Commonwealth v. (14 Gray, 23) 1069 v. Woods (1 Pick. 171) 163 Shaver, Commonwealth v. (3 Watts & 8. 338) 242 Shaw, Commonwealth v. (5 Cush. 522) ——, Commonwealth v. (7 Met. 52) 834, 841 , People v. (5 Johns. 286) 830 —, State v. (2 Dev. 198) 1089 ——, State v. (31 Maine, 523) 286 ——,, State v. (82 Maine, 570) 1000 ——,, State v. (85 N. H. 217) 1044, 1052 Shawnee v. Carter (2 Kansas, 115) 197 Shea, Commonwealth v. (14 Gray, 386) 1069 Shean, State v. (82 Iowa, 88) 639, 648, 650 Shear, People v. (7 Cal. 139) 880 Sheard, Rex v. (2 Moody, 18; 7 Car. & P. 846) 314 Shearer v. State (7 Blackf. 99) 1052 ——,, State v. (8 Blackf. 262) 1060 Shearman, Commonwealth v. (11 Cush. 546) 1047 Sheeley, State v. (15 Iowa, 404) 824 Sheets v. Selden (2 Wal. 177) 105 Sheffield Canal Company, Rex v. (4 New Sess. Cas. 25; 14 Jur. 170) 188 Shelton v. Baldwin (26 Missis. 489) 163 ——, Commonwealth v. (8 Grat. 592) - 852, 855, 861, 872 Shepard, People v. (86 N. Y. 285) 38 , State v. (10 Iowa, 126) 508 Shepardson v. Milwaukee, &c., Railroad (6 Wis. 605) 34 Shepherd v. People (25 N. Y. 406) 185 INDEX TO THE CASES CITED. SKI SECTION Shepherd, Rex v. (2 East P. C. 944; 1 Leach, 226) 204, 826, 328 — , Rex v. (1 Leach, 539 ; 2 Hast P. C. 1078) 438, 487 Sheppard v. Gosnold (Vaugh. 159) 97 —, Reg. v. (9 Car. & P. 121) 271 v. State (42 Ala. 531) 427 Sherban v. Commonwealth (8 Watts, 212) 940, 941 Sherrod v. State (25 Ala. 78) 298 Shihagan v. State (9 Texas, 430) o Shilling v. State (5 Ind. 448) 1067. Shinn v Commonwealth (8 Grant, Pa. 205) 159 Shoemaker, State v. (7 Misso. 177) 216 Shortridge, Commonwealth »v. (3 J. J. Mar. 638) 105 Shorts, State v. (8 Vroom, 398) a 96: Shott, Reg. v. (8 Car. & K. 206) 487 Shotwell v. State (87 Misso. 359) 755 Shropshire v. Glascock (4 Misso. 586) 246, 852, 855, 861 ——, Reg. v. (8 A. & E. 173) 107,110 Shouse, Commonwealth v. (16 B. Monr. 325) 942 Shukard, Rex v. (Russ. & Ry. 200) 141, 306 Shuler, People v. (28 Cal. 490) 519, 528 Sibley v. Phelps (6 Cush. 172) 836 —— v. Smith (2 Mich. 486) 77, 80, 193 Sickles v. Sharp (18 Johns. 497) 199 Sights v. Yarnalls (12 Grat. 292) 999, 1002 Siker v. Chicago, &c., Railroad (21 Wis. 370) 186 Sill, Reg. v. (14 Eng. L. & Eq. 185) 168 Silsbee, Commonwealth v. (9 Mass. 417) 188 Simmons, State v. (3 Ala. 497) 316 , State v. (46 N. C. 622) 1018, 1045 Simonds v. Powers (28 Vt. 354) 70, 938 ——, State v. (3 Misso. 414) 18 Simonton, Ex parte (9 Port. 890) 112 Simpson, Commonwealth v. (9 Met. 188) 141, 142 —, Reg. v. (Car. & M. 669) 185 —, Reg. v. (10 Mod. 841) 80 ——,, Reg. v. (10 Mod. 378) 144 —— v. State (10 Yerg. 525) 163, 169 Sims v. Cross (10 Yerg. 460) 232 Sinking Fund Commissioners v. Northern Bank (1 Met. Ky. 174) 178 Sipe v. Finerty (6 Iowa, 394) 848, 937 Skelley, Commonwealth v. (10 Gray, 464) ‘ 1069 Skelton, Reg. v. (3 Car. & K. 119) 775 Paea United States v. (11 Pet: 38 ) 232 Skinner v. Perot (1 Ashm. 57) 348 —— v. State (80 Ala. 524) 299 739 SMI INDEX TO THE SECTION | Skutt, Rex v. (1 Leach, 106; 2 East P. C. 582) 217 Slack, Commonwealth v. (19 Pick. 304) 82, 132, 232, 239 Slate, State v. (24 Misso. 530) 1060 Sleep, Reg. v. (9 Cox C. C. 559) = 778 Sloan, Commonwealth v. (4 Cush. 52) 238, 1020 uv. State (8 Blackf. 361) 18, 1032 Small, United States v. (2 Curt. C. C. 241) Smets v. Wetherbee (R. M. Charl. a 537 Smith v. Adrian (1 Mich. 495) 992, 1024, 1032, 1052 v. Causey (22 Ala. 568) 193 Commonwealth (4 Grat. 820 —_ 532) ——, Commonwealth v. (6 Cush. 80) 977 ——, Commonwealth v. (1 Grat. , Commonwealth v, (14 Mass. 374) 204 , Commonwealth v. (102 Mass. ——, Commonwealth v. (103 Mass. 444) 358, 885 | ——, Commonwealth v. (7 Pick. 137) ——, Commonwealth v. (1 Whart. Dig. 825) 597 v. Hoyt (14 Wis. 252) 31, 186 v. Joyce (12 Barb. 21) 10380 v. Kinne (19 Vt. 564) 239 — v. Lockwood (13 Barb. 209) 249 v Moffat (1 Barb. 65) 155, 192 v. Pelah (2 Stra. 1264) 548 v. People (1 Parker, 583) 990, 992 v. Randall (6 Cal. 47) 93 ——, Reg. v. (1 Car. & K. 423) 271 —, Reg. v. (1 Car. & K. 700; 1 Den. C. C. 79) 333 , Reg. v. (8 Car. & P. 173) 314 — , Reg. v. (Dears. 561; 7 Cox C. C. 93; 33 Eng. L. & Eq. 569) 340 , Reg. v. (2 Den. C. C. 449; 9 Eng. L. & Eq. 532) S41 , Reg. v. (7 Mod. 77) 3x2 —, Reg. v. (2 Moody, 295) 326, 338 —, Rex v. (4 Car. & P. 569) AgH —, Rex v. (2 Doug. 441) 128 | —, Rex v. (2 East P. C. $97; 2 Leach, 1018) 279, 270 ——,, Rex v. (1 Moody, 178) 31z —, Rex v. (1 Moody & R. 256) 279 ——, Rex v. (Russ. & Ry. 267) 212 —— Rex v. (Russ. & Ry. 516) = 271 —, Rex v. (1 Stra. 704) 546 —— v. Smith (Mart. N. ©. 26) 28 —— v. Spooner (3 Pick. 229) 192 TA40 CASES CITED. SNO SECTION Smith v. State (22 Ala. 54) 852, 855, 878, 1032 — +. State (23 Ala. 39) 298, 855 —— v. State (87 Ala. 472) = 254, 878 —— »r. State (39 Ala. 554) 697 —— «. State (19 Conn. 443) 1009, 1011 v. State (1 Humph. 346) 96%, 975 vy. State (6 Humph. 163) 210, $55, 861 . State (28 Ind. 321) 54 v. State (14 Misso. 147) 159, 163 v. State (12 Ohio State, 466) 491, 492, 493 v. State (1 Stew. 506) 159, 163, i~y 168, 171 u. State (17 Texas, 191) 868 v. State (24 Texas, 547} 1022 ——,, State ». (Cheves, 157) 46, 82, 200, 216, 316 ——, State v. (8 Hawks, 275) “650 ——,, State v. (6 Humph. 244) 99 . (7 Iowa, 244) 160 ——,, State v. (82 Maine, 369) 139, 204, 745 ——,, State v. (Meigs, 99) 857, 872, 944 ——,, State v. (19 Misso. 683) 855, 861, 876, 890 —, State v. (24 Misso. 356) 944 ——,, State v. (18 N. H. 91) 805 —, State v. (20 N. H. 399) 380 ——, State v. (Phillips, 302) 489 ——,, State v. (21 Texas, 744) 443 —, State v. (22 Vt. 74) 992 ——, United States v. (4 Day, 121) 242, 264 ——,, United States v. (1 Mason, 147) ——, United States v. (5 Wheat. 153) Smitherman v. State (27 Ala. 25) 304 ——, State v. (1 Ire. 14) 220, 852. 445, 861, 878 Smoot v. State (18 Ind. 18) 852, 570 Smyth v. State (8 Eng. 696) 729 Sneed v. Commonwealth (6 Dana, 333) 227 , State ». (25 Texas, Sup. 66) 265 Snell v. Bridgewater Cotton Gin Man. Co. (24 Pick. 296) 154 —, Rex v. (2 Moody & R. a 216, 7, 772 Snelling, Commonwealth v. ne Binn. 379) 199 —, Reg. v. (Dears. 219 ; 23 Law J.n.3.M.C.8; 17 Jur. 1012; 22 Eng. L. & Eq. 547) 335 Snoddy v. Cage (3 Texas, 106) 97 Snow, State v. (3 R. IL. 64) 34, 992, 993, 1051, 1056 Snowden v. Snowden (1 Bland, 550) 149 STA SECTION Snowley, Rex v. (4 Car. & P. 890) 271 Snyder, People v. (2 Parker, 23) 285 Soares, Rex v. (2 East P. C. 974) 189 Soldiers’ Voting Bill (45 N. H. 695) 811 ea v. Dreschler (4 Minn. 278 Solomons, State v. (3 Hill, S. C. 96 85 Somerset v. Dighton (12 Mass. 383 Sonnerkalb, State v. McCord, 280) Soragan, State v. (40 Vt. 450) 405, 4 Souter v. The Sea Witch (1 Cal. 162) 141 South, State v. (5 Rich, 489) 242 Southwark Bank v. Common- wealth (2 Casey, 446) 29, 77, 151 Southworth v. State (5 Conn. 325) 163, 171 Sowle, Commonwealth v. (9 Gray, 304) 448, 446 Spaight v. State (29 Ala. 32) 855 Spain, State v. (29 Misso. 415) 1037 Sparrow, State v. (2 Taylor, 93) 421, 422 Specht v. Commonwealth (8 Barr, 312) Speed, Rex v. (1 Ld. Raym. 583) 182, ‘ 232 Spencer, Rex v. (Russ. & Ry? 299) 271 v. State (20 Ala. 24) 242 Spicer, Reg. v. (1 Den. C. C. 82; 1 Car. & K. 699) 212, 247, 326 Spielman v. State (27 Md. 520) 1091 Spooner v. Fletcher (8 Vt. 133) 319 Sprague v. Birdsall (2 Cow. 419) 113 v. Norway (31 Cal. 178) 105 , State v. (4 R. I. 257) 775 Spratt v. State (8 Misso. 247) 909 Sprecker v. Wakeley (11 Wis. 432) 265 Spring, Commonwealth v. (19 Pick. 396) 1000 Sprinkle, State v. (7 Humph. 36) 1088 Squire, Commonwealth v. (1 Met: 258) 292 —.,, Rex v. (2 Starkie, 349) 271 Squires, State v. (26 Iowa, 340) 85 Staats, United States v. (8 How. U.S. 41) 204 - Stackhouse v. Halsey (8 Johns. Ch. 74) 105 Stafford v. Ingersol (8 Hill, N. Y. 38) 163 Stahl, Commonwealth v. (7 Allen, 304) 557 Stallings, State v. (3 Ind. 531) 917 Stallion, Rex v. (1 Moody, 398) 291, 310, 311 INDEX TO THE CASES CITED. STE SECTION Standen v. University of Oxford (W. Jones, 17) 126 Stanley, Rex v. (Russ. & Ry. 482) 163 v. State (26 Ala. 26) 1022 Stanton, State v. (387 Conn. 421) 1013 , State v. (1 Ire. 424) 309 Starr, United States v. (Hemp. State Treasurer v. Weeks (4 Vt. 215) 142 Staten, State v. (6 Cold. 233) 806, 807, 809 Stayton v. Hulings (7 Ind. 144) 256 Stealing Women, Case of (12 Co. 20) 617 Stearns, Commonwealth ». (2 Met. 343) 204, 271 Stedman y. Crane (11 Met. 295) 280, 287, 290 Steed v. Carey (1 C. B. 496) 38 Steedman, State v. (8 Rich. 312) 1087 Steel v. State (26 Ind. 82) 119 Steele v. Midland Railway (Law, Rep. 1 Ch. 275) 277 —— v. State (5 Blackf. 110) 34 v. State (1 Texas, 142) 255 Stegar v. State (89 Ga. 583) 524 Stein v. State (37 Ala. 123) 550 Steinwehr v. State (45 Sneed, 586) 816 Stephen v. State (40 Ala. 67) 185 Stephens, Commonwealth v. (14 Pick. 370) 347 v. State (14 Ohio, 386) 1045 — v. Watson (1 Salk. 45) 984 Stephenson, Commonwealth v. (8 Pick. 354) 312 v. Higginson (3 H. L. Cas. 688; 18 Eng. L. & Eq. 50) 100 —-, State v. (2 Bailey, 334) 46, 190, 192, 198, 200 Sterling, State v. (8 Misso. 697) 856, 957 Stern, United States v. (5 Blackf. C. C. 512) Sterne v. State (20 Ala. 43) 163, 1084 Stetson, People v. (4 Barb. 151) 231 Stevens v. Commonwealth (4 Leigh, 683) 207 v. Dimond (6 N. H. 3830) 182 v. Gourley (7 C. B. x. s. 99) 292 ——,, People v. (18 Wend. 841) 171, 249, 252, 1027 — , Rex v. (1 Moody, 409) 314 v. State (2 Pike, 291) 856 —— v. State (3 Pike, 66) 916 —, State v. (47 Maine, 357) 1057 ——., State v. (86 N. H. 59) 973 Stevenson, State v. (2 Pike, 260) 31 Steward, Commonwealth ov. (7. Dane Abr. 186) 312 Stewart v. Commonwealth (10 Watts, 306) 208 741 STR INDEX TO THE SECTION | Stewart v. State’(13 Ark. 720) 82 | v. State (4 Blackf. 171) 212 ——, State v. (6 Conn. 47) 289 ——,, State v. (31 Maine, 515) 1024 v. Stringer (41 Misso. 400) 119 Stief v. Hart (1 Comst. 20) 1387 Stillwell, State v. (20 Ark. 96) 876 Stimson, State v. (4 Zab. 9) 837 Stine v. Bennett (13 Minn. 153) 85 Stinson, State v. (17 Maine, 154) 82, 1035, 1037 Stirman v. State (21 Texas, 7: B4y 159 Stith v. State (18 Ark. 630) 855, 876, 878 Stock, Rex v. (2 Leach, 1015; Russ. & Ry. 185; 2 Taunt. 339) 279, 280 Stockdale v. State (82 Ga. 225) 788, Ty2 Stockden v. State (18 Ark. 186) 917 Stockett v. Bird (18 Md. 484) 64 Stodder, Commonwealth v. (2 Cush. 562) 18, 19, 22 | Stoever v. Immell (1 Watts, 258) 177 Stofer v. State (8 W. Va. 689) 878 Stogdel, State v. (13 Ind. 565) 647 Stoke Damerel, Rex v. (7 B. & C. 563) 80 Stokes v. Rodman (5 R. I. 405) 85 , State v. (Coxe, 392) 141 Stone, Reg. v. (1 Den. C. C. 181; 2 Car. & K. 864) 339 ——, Rex »v. (1 Leach, 334; 2 East P. C. 643) 295 v. State (Spencer, 401) 204 Stoneman v. Whaley (9 Iowa, 390) 79, * 163 Storer v. Freeman (6 Mass. 485) 305 , Rex v. (1 Leach, 334; 2 East P. C. 643) 238 Storkey, State v. (63 N. C. 7) 487 Stoughton v. Baker (4 Mass. 522) 142 Stout, Commonwealth v. (7 B. Monr. 247) 632 ——,, People v. (23 Barb. 349) 36 Stowel v. Zouch (Plow. 353) 82 Stowell, Commonwealth v. (9 Met. 572). 852, 861, 1061 Stoyell, State v. (54 Maine, 24) 641 Stradling v. Morgan (Plow. 199) 46 Stratton v. Hague (4 Call, 664) 132 Strauss v. Pontiac (49 Ill. 3801) 997 Straw, State v. (42 N. H. 393) aTT Strawn v. State (14 Ark. 549) 603 Street v. Commonwealth (6 Watts & S. 209) 155, 163 Striker v. Kelly.(7 Hill, N. ¥. 9) 255 Strong v. Birchard (5 Conn. 857) 105 v. Daniel (5 Ind. 348) 33 v. State (1 Blackf. 193) 168, 167, 185 | Stroud, State v. (1 Brev. 551) 742 + 237 | Swisher, State v. (17 Texas, 441) CASES CITED. SWI SECTION Struble v. Nodwift (11 Ind. 64) 1020 | Struckman v. State (21 Ind. 160) 1039 Stubblefield, State v. (82 Misso. 568) 378 Stultz, State v. (20 Iowa, 488) 991 Sturdevant, People v. (28 Wend. 418) 958, 966 Sturges v. Crowninshield (4 Wheat. 193) 15 v. Maitland (Anthon, 153) 664 Stutson, State v. (Kirby, 52) 204 Sublett v. State (9 Texas, 53) 902 Sudbury Meadows v. Middlesex Canal) 23 Pick. 36) Sugar v. Sackett (13 Ga. 462) Sugland, Commonwealth v. Gray, 7) Sullivan v. Adams (3 Gray, 476) 250 198 (4 481, 487 41, 152 v. La Crosse, &¢., Packet Co., (10 Minn. 386) 119 uv. Park (23 Maine, 488) 192, 1031 v. People (15 Ill. 233) 154, 168, 186, 1032 Summers, Rex v. (2 East P. C. 785) 525 Summey, State v. (Winston, No. 2, 108 1009 Sumner v. Cummings (23 Vt. 427) 177 ——,, State v. (10 Vt. 587) 194, 282, 245 Supervisors v. Heenan (2 Minn. 330) 37 v. United States (4 Wal. 435) 112 Surman v. Darley (14 M. & W. 181) 277, 289 Sussex Peerage (11 Cl.& F. 85) 70 Sussex v. Strader (3 Harrison, 108) 301 Sutcliffe, State v. (4 Strob. 372; 13 Law Reporter, 165) 213, 277, 289 Sutphin v. Crozer (1 Vroom, 247 ; 3 Vroom, 462) Sutton, Rex v. (4M. & S. 532) 49, 50 v. State (12 Fla. 135) 788 ——,, State v. (25 Misso. 300) 1042 Swadley, State v. (15 Misso. 515) 1048 Swain v. Bussell (10 Ind. 438) 952 Swallow, Rex v. (1 Russ. Crimes, Grea. ed. 792) v. State (20 Ala. 80) 291, 861, 878 Swan v. State (11 Ala. 544) 291, 1011 x. State (29 Ga. 616) 966 Swann v. Buck (40 Missis. 268) 144, 159 Swanson, Reg. v. (7 Mod. 101) 617 Sweeting, Rex v. (1 East P. C. 457) 638 Sweetser, State v. (53 Maine, 438) 112 Swift v. Luce (27 Maine, 285) 72, 81 Swinney, Commonweath »v. (1 Va. Cas. 146) 344, 345, 346 36 TEA : SECTION Swope, State v. (7 Ind. 91) 97 , State v. (20 Ind. 106) 797 Sword v. State (5 Humph. 102) 1042, 1044 Sydney v. State (8 Humph. 478) 131 Sykes, State v. (28 Conn. 225) 958, 959 Sylvester, Commonwealth v. (13 Allen, 247) 852, 878 —, Reg. v. (2 B. & S. 322) 999 Szudurskie, Rex v. (1 Moody, 429) 888 Tabb v. Baird (8 Call, 475) Taggart, Commonwealth v. (8 254 Grat. 697) 1087 Tallamon v. Cardenas (14 La. An. 509) 186 Tandy, Rex v. (1 Car. & P. 297) 276 Tanner, Commonwealth v. (5 Bush, 316) 378 Tannis v. St. Cyre (21 Ala. 449) 154 Tarr, Commonwealth v. (4 Allen, 815) 686 Tate v. State (5 Blackf. 174) 346, 901 Tattersal, Rex v. (1 Russ. Crimes, Grea. ed. 27) : 185 Tattle v. Grimwood (8 Bing. 493) 186 Taunton v. Sproat (2 Gray, 428) 1026 Taylor, Commonwealth »v. (14 Gray, 26) 858, 861, 874 —— v. Humphries, 17 C. B. n.s. 539) 1052 v. Mitchell (7 Smith, Pa. 209) 84 v. Morton (2 Curt. C. C. 454) 14 —— v. Palmer (31 Cal. 240) 87 ——. People v. (8 Denio, 91) 964 —, People v. (2 Mich. 250) 286 ——., Reg. v. (1 Car. & K. 218) 828 ——, Rex v. (1 Leach, 49; 2 Hast P. C. 1020) 811 —, Rex »v. (Russ & Ry. 373) 168, ‘ 171, 204, 224 —, Rex v. (Russ. & Ry. 418) le 2 ——,, Rex v. (2 Stra. 1167) 548 v. Rushing (2 Stew. 160) 178 v. State (22 Ala. 15) 298 v. State (31 Ala. 383) 28 — v. State (7 Blackf. 93) 151, ae 180 vy. State (6 Humph. 285) 488, 440, 442, 443, 446 —— v. State (7 Humph. 510) i — , State v. (29 Ind. 517) 863 —, State v. (2 McCord, 488) —_ 151, 168, 171, 204, 242, 260 v. United States (8 How. U.S. 197) 195, 199 Teague, Rex v. (2 East P. C. 979; Russ. & Ry. 338) 326 INDEX TO THE CASES CITED. THO SECTION Temple v. Hays (Morris, 9) 28 Ten Cases of Shawls, United States v. (2 Paine, C. C. 162) 248 Tenbroek, United States v. (2 Wheat. 248; Pet. C. C. 180) 278 Territt v. Bartlett (21 Vt. 184) 10381 Terry, Commonwealth v. (2 Va. Cas. 77) 855, 861 —, State v. (4 Dev. & Bat. 185) 289, 852, 855 Testick’s Case (2 East P. C. 925) 841: Tewksbury, Commonwealth v. (11 Met. 55) 565 Texas v. White (7 Wal. 700) 246 Thacher, Commonwealth v. (97 Mass. 583) 955, 962 Thackarey v. The Farmer (Gilpin, 524) 304 Thackman, State v. (1 Bay, 858) 290 Thayer v. Bond (3 Mass. 296) 82 —, Commonwealth v. (8 Met. 528) 1008, 1013, 1041 — v. Thayer (101 Mass. 111) 682 Theriat v. Hart (2 Hill, N. Y. 880) 98 Thomas v. Commonwealth (2 Leigh, 741) : —, Commonwealth v. (10 Gray, 483) —, Reg. v. (4 Car. & P. 237) — 228 —., Rex v. (2 East P. C. 605; 2 Leach, 877) 204 ——., Rex v. (2 Moody, 16; 7 Car. & P. 851) 384 — v. Shoemaker (6 Watts & S. 179) 105 v. State (88 Ga. 117) 477 —— v. State (5 How. Missis. 20) 276 216, 204 —— v. State (37 Missis. 353) 1013, 1052 ——,, State v. (8 Rich. 295) 260 Thomasson v. State (15 Ind. 449) 992, 1020 Thompson v. Basset (5 Ind. 585) 177, ——, Commonwealth v. (6 Allen, 3857, 666 ——., Commonwealth v. (11 Allen, 23) 857, 597, 666 ——, Commonwealth v. (99 Mass. 444) 671, 687 ——, Commonwealth v. (12 Met. 31 206 —— v. Harvey (4 Hurl. & N. 254) 1001 —— v. Lacey (3 B & Ald. 283) 297 v. Lack (8 C. B. 540) 82 —— v. Mt. Vernon (11 Ohio State, 688) 22, 997 , Reg. v. (16 Q. B. 882; 4 Eng. L. & Eq. 287) 127, 260 , Reg. v. (20 Law J. ny. 8. M. C. 188; 15 Jur. 654) 168 743 TIN INDEX TO THE CASES CITED. TRI SECTION SEcTION Thompson, Rex v. (1 Leach, 338 ; Tiphaine, People v. (3 Parker C. 2 Hast P. C. 644) 233 C. 241 34 ——, Rex v. (2 Leach, 519) 841 | Tipton v. State (27 Ind. 492) 832 , Rex v. (2 Leach, 771; 2 », State (2 Yerg. 542) 974 East P. C. 498) 279 | Tisdale, State v. (2 Dev. & Bat. , Rex v. (2 Leach, 910) 341 159) 262 v. State (20 Ala. 54) 82 | Tivey, Reg. v. (1 Den. C. C. 63; —— v. State (37 Ala. 151) 1004 1 Car. & K. 704) 182, 163, 434, 440, v, State (5 Humph. 138) 1024 442 ——,, State v. (2 Kansas, 432) 992 ——} State v. (2 Strob. 12) 163, 166, 168, 252 Thorley, Rex v. (1 Moody, 343) 271 Thorn, Reg. v. (2 Moody, 210; Car. & M. 206) 216, 826, 328, 382, 334, 339 Thorne v. Cramer (15 Barb. 112) 36 ——, Rex v. (2 East P. C. 622) 168 Thorniley, Commonwealth v, (6 Allen, 445) 991 Thornton, State v. (37 Misso. 360) 23 Thorp, Rex v. (5 Mod. 221) 625 Thrasher, Commonwealth v. (11 Gray, 456) 680, 682 Thrift, State v. (80 Ind. 211) 571 Thurborn, Reg. v. (1 Den. C. C. 387) 357 Thurlow, Commonwealth v. (24 Pick. 374) 1037, 1044 —— v. Massachusetts (5 How. U. S. 504) 990 Thurman ». State (18 Ala. 276) 274 Thurstin, State v. (85 Maine, 205) 676 Thurston v. Adams (41 Maine, 419) 1057 —— v. Prentiss (1 Mich. 193) 249 Tibbetts, People v. (19 N. Y. 523 303 ) ——, State v. (36 Maine, 553) 1082 Ticknor’s Estate (13 Mich. 44) 87 Tidwell, State v. (5 Strob. 1) 149, 624, 6 28 Tiernan, Commonwealth v. (4 Grat. 545) 898, 917 Tierney v. Dodge (9 Minn. 166) 152 Tillery, State v. (1 Nott & Mc- Cord, 9) 336 Tilton, Commonwealth v. (8 Met. 232) 852, 855, 859 Timmins, Reg. v. (Bell C. C. 276; 8 Cox C.C. 401) 620, 634, 637, 644 Timothy, Commonwealth v. (8 Gray, 480) 1007, 1048, 1057, 1058 Tims v. State (26 Ala. 165) B4 Timson v. Moulton (8 Cush. 269) 1030 Tinkler, Reg. v. (1 Fost. & F. 513) 359, 633 Tinsdale, People v. (10 Abb. Pr. n. 8. 874) 1107, 1110 Tinsley, Reg. v. (4 New Sess. Cas. 47; 14 Jur. 174,19; LawJ.n.s. M. C. 50) 164 744 Tohayle’s Case (cited Cro. Car. 5 10) 546 Tollett v. Thomas (Law Rep. 6 Q. B. 514) 862 Tolson, Reg. v. (4 Fost. & F.103) 610 Tomkins County v. Taylor (21 N. Y. 173) 1008 Tompson, Commonwealth v. (2 Cush. 551) 673 Toole, State y. (29 Conn. 342) 280 Tootle, State v. (2 Harring. Del. 541) 212, 247, 248 Topping, Reg. v. (Dears. 647; 7 Cox C. C. 103; 36 Eng. L. & Eq. 614) 587 Torney v. State (13 Misso. 455) 852 Torrance v. McDougald (12 Ga. 526) 82 Torrey v. Corliss (23 Maine, 333) 82 ‘Tottenham, Rex v. (7 Car. & P. 237) 216 Towbeckbee Bank, State v. (1 Stew. 347) 177 Towle v. Blake (38 Maine, 528) 1031 v. Marrett (3 Greenl. 22) 159, ve Townley v. State (3 Harrison, 811) 1044 Townsend v. Brown (4 Zab. 80) 65 ——,, Reg. v. (2 Car. & K. 168) 9271 —, Reg. v. (Car. & M. 178) 271 Townsey, People v. (5 Denio, 70) 163, 177, 184 Toynbee, People v. (2 Parker, 829; 2 Parker, 490; 3 Kernan, 3878) 992, 993 Tracy v. Perry (45 N. H. 504) 1026 , Reg. ov. (6 Mod. 30) 139 ——, Rex v. (Russ. & Ry. 452) 313 v. State (3 Misso. 2) 1092 Trapnall, Ex parte (1 Eng. 9) 163 Trapp, State (14 Rich. 203) 443 Trapshaw, Rex v. (1 Leach, 427; 2 East P. C. 506) 287 Treble, Rex v. (2 Leach, 1040; 2 Taunt. 828; Russ. & Ry. 164) 336 Tredway v. Gapin (1 Blackf. 249) 31 Trenton Ins. Co. v. Johnson (4 Zab. 576) Trevenner, Reg. v. (2 Moody & R. 476) 415 Trickey, Commonwealth v. (13 Allen, 589) 14 TWI INDEX TO THE CASES CITED. VAU SECTION SECTION Trimmer, Commonwealth v. (1 Twitty, State v. (1 Hayw. 102) 286 Mass. 476) 281, 312 | Two Hundred Chests of Tea (9 Trott v. Irish (1 Allen, 481) 1052 Wheat, 430) 99 Trotter, State v. (6 Yerg. 184) 944 | Tyers, Rex v. (Russ. & Ry. 402) 271 Troy’s Case (1 Mod. 5) 189 | Tyler v. People (8 Mich. 320) 91, 308 Trueman v. Lambert (4M. & S. v. State (2 Humph. 37) 8380 234) 49 | ——»v. Tyler (19 Il. 151) 97 Trull v. Wilson (9 Mass. 154) 276 | Tynen, United States v, (11 Wal. Tryon, Commonwealth v. (99 88) 158 Mass. 442) 1025 | Tyson v. Postlethwaite (13 Ill. 727) 1638 Tubbs, Commonwealth v. (1 Cush. 2 1018 Tucker v. Burns (2 Swan, Tenn. 35 v. State (16 Ala. 670) Turck v. Richmond (18 Barb. 533) 1 Turley v. Logan (17 Ill. 151) Turner v. American Baptist Mis- sionary Union (5 McLean, 345) ——, Commonwealth v. (4 B. Monr. 4) —, Commonwealth v. (1 Cush. 493) 19, 22 —, Reg. v. (8 Car. & P. 755) 220, 771 —, Reg. v. (9 Cox C. C. 145) 356 180 846 030 29 —_, Rex v. (4B. & Ald. 510) 1078 —, Rex v. (6 Car. & P. 407) 279, 285 ——, Rex v. (1 Leach, 305; 2 East P. C. 492) 279 v. State ce Ala. 21) 168 v. State 1 Ohio State, 422) 519, 521 ——,, State v. (5 Blackf 253) 1032 Turney v. Wilton (36 Ill. 385) 87 Turnpike, Commonwealth v. (2 Va. Cas. 361) 250 Turtle v. Hartwell (6 T. R. 426) 190 Tuskaloosa Bridge v. Jennison (88 Ala. 476) 120 Tuttle v. Commonwealth (2 Gray, 505) 1 -——, Commonwealth v. (12 Cush. 502) ——, Commonwealth v. (12 Cush. 05 ) 1045 —v. Jackson (6 Wend. 218) ih, 32 v. State (4 Conn. 68) 208 Tweed, State v. (8 Dutcher, 111) 835 Twenty-eight Packages, United States v. (Gilpin, 306) 195, 225 Twenty-five Cases of Cloths, United States v. (Crabbe, 356) an Twenty-four Casks, United States v. (Bald. 502) 100 Twisleton, Rex v. (1 Lev. 257; 1 Sid. 387) 640 Twitchell v. Commonwealth (9 Barr, 211) 625 14 | 48 Ulrich v. Commonwealth (6 Bush,, 400) 1022 Union Branch Railroad v. East Tennessee and Georgia Railroad (14 Ga. 827) 163 University v. Williams (9 Gill & J. 865) 9 Upchurch, State v. (9 Ire. 454) — 168, 193, 196, 199 Urlyn, Rex v. (2 Saund. Wms. ed. 308, note) 166 Utica Ins. Co., People v. (15 Johns. 358) 77, 98, 212 Uwchlan Township Road (6 Casey, Pa. 156) 177 Valentine, State v. (7 Ire. 225) 348 Vallance v. Everts (3 Barb. 558) 1048 v. King (3 Barb. 548) 163 Van Houten, State v. (37 Misso. 357) 755 Van Rensselaer v. Livingston (12 Wend. 490) —— v. The Sheriff (1 Cow. 448) 198 Van Shaack, Commonwealth v. (16 Mass. 105) 310, 311 Van Schmidt v. Huntington (1 Cal. 55) . Van Stone, Commonwealth v. (97 Mass. 548) 1048 Van Valkenburgh v. Torrey (7 Cow. 252) 176, 180, 190, 193, 199, 852, 855, 873 Van Zant v. People (2 Parker, 168) 1082 Vandeleer, Rex v. (1 Stra. 69) 80 105 Vanderwell v. Commonwealth (2 Va. Cas. 275) Vandeventer v. New York and New Haven Railroad (27 Barb. 244) 141 Vandine, petitioner (6 Pick. 187) 20, 22 —,, Commonwealth v. (6 Grat. 689) , 298 Vannoy v. Patton (5 B. Monr. 248) 1030 Vaughan, Reg. v. (8 Car. & P. 276) 341 745 WAL SECTION Vaughn »v. State (5 Iowa, 369) 1057 Vaux v. Brooke (4 Co. 39 6; 2 Leon. 83) 279 Vawter, State v. (7 Blackf. 592) 755 Veach v. Elliott (1 Ohio State, 189) 852, 855, 9384 Verder, State v. (24 Iowa, 126) 1069 Verrill, State v. (54 Maine, 408) 471 Very, Commonwealth v. (12 Gray, 124) 1045 Vicaro v. Commonwealth (5 Dana, 504) 246, 854, 855, 859 Vice, People v. (21 Cal. 344) 522 Victory v. Fitzpatrick (8 Ind. 281) 249 Vincent, Ex parte (26 Ala. 145) a Vivian, Reg. v. (1 Car. & K. 719) 332 — , Reg. v. (1 Den. C. C. 38) oe Von Glon, State v. (1 McMullan, 187) 210 Voorhies, Commonwealth v. (12 B. Monr. 361) 1002 (1B. & C. ) 1638, 171 Wade v. Deming (9 Ind. 35) 855, ae 872 v. State (40 Ala. 74) 185 , State v. (84 N. H. 495) 1044 Wadsworth, State v. (380 Conn. 1024 55) Wakefield’s Case (2 Townsend St. Tr. 112; 2 Lewin, 279; 1 Bishop Mar. & Div. § 196 and note) Wakefield v. Phelps (37 N. H. 295) 86, 159 Wakeling, Rex v. (Russ. & Ry. 504) 216 Walbridge, People v. (6 Cow. 512) 899 Wales v. Stetson (2 Mass. 143) 118 Walford, Rex v. (5 Esp. 62) 174 Walker v. Chapman (22 Ala. 116) 255 — v. Commonwealth (8 Leigh, 748) — v. Commonwealth (2 Va. Cas. 515) — v. Fox (2 Dana, 404) Waddington, Rex v. 26 613, 623 290 —— v. Prescott (44 N. H. 511) 1007 — v. State (28 Ind. 61) 366 v. State (2 Swan, Tenn. 287) 858 —, State v. (38 Harring. Del. 547) 1037 —, State v. (16 Maine, 241) 10038 ——, State v. (2 Taylor, 229) 163, 164 Wall v. McNeil (20 Ga. 239) 163 —— v. State (18 Texas, 682) 177 Wallace, Commonwealth v. (7 Gray, 222) 746 1050 INDEX TO THE CASES CITED. WAT SECTION Wallace v, Minor (6 Ohio, 366) 142 v. Minor (7 Ohio, part I., 249) 142 ——, Reg. v. (2 Moody, 200) 204 ——,, State v. (9 N. H. 515) 655 v. Young (5 T. B. Monr. 155) 289 Waller v. State (40 Ala. 325) 494 ——, State v. (3 Murph. 229) 968 Walls v. State (7 Blackf. 572) 288, 789 Walters v. Commonwealth (8 Wright, Pa. 135) 477 ——, Reg. v. (Car. & M. 588) 384, 335 ——, Rex v. (1 Moody, 18) 284, 285 Walton v. State (14 Texas, 381) 874 v. State (6 Yerg. 377) 330 Walwin v. Smith (1 Salk. 177) — 195 Wan-kon-chaw-neek-kaw v. United States (Morris, 332) 255 Ward v. State (22 Ala. 16) 852, 855, 881 v. State (17 Ohio State, 82) 852, 874 —, State v. (6 N. H. 529) 168, 326, 336 , State v. (9 Texas, 370) 898, 909 Wardle, Rex v. (Russ. & Ry. 9) 525 Warfield, In re (22 Cal. 51) 104 Warman, Reg. v. (1 Den. C. C. 183) 314 Warner v. Commonwealth (1 Barr, 154) 174, 198, 888 v. Fowler (8 Md. 25) 198 ——,, People v. (4 Barb. 814) 205, 958, 966 ——, United States v. (4 McLean, 463) 80, 82, 477 Waring v. Clarke (5 How. U.S. 441 100 wae v. Charlestown (2 Gray, 4) v. State (18 Ark. 195) 919 ——, State v. (83 Maine, 30) 279 Warrock v. State (9 Fla. 404) 603 Wasden »v. State (18 Ga. 264) 708 Wash v. State (14 Sm. & M. 120) 216 Washburn v. McInroy (7 Johns. 134) 244, 1026 Washingham’s Case (Plow. 565) 65 Washington v. Page (4 Cal. 388) 47 v. State (8 Eng. 752) 856, 992 v. State (86 Ga. 242) 787, 799 Waterford and Whitehall Turn- pike v. People (9 Barb. 161) 164 Waterhouse v. Kean (4 B. & C. 200; 6 D. & R. 257) 243 Waters, State v. (1 Strob. 59) 916 Watkins v. Haight (18 Johns. 138) 84 Rex v. (1 Russ. Crimes, Grea. ed. 574) , United States v. (8 Cranch C. C. 441) 450 WEN SECTION Watkins v. Wassell (20 Ark. 410) 249 Watrous, State v. (13 Iowa, 489) 446 Watson v. Blaylock (2 Mill, 351) 149 v. Mercer (8 Pet. 88) 85, 185 ——,, Rex v. (2 East P. C. 562) 220 ——, Rex v. (2 East P. C. 680) 233 v. State (3 Ind. 123) 852, 855, 873, 927, 928 ——,, State v. (5 Blackf. 155) 1044 ——,, State v. (4 Ind. 595) 337 Watts, Commonwealth v. (4 Leigh, 672) 211 —, Reg. v. (1 Eng. L. & Eq. 558; 2 Den. C. C, 14) Way, People v. (10 Cal. 336) 828 —, State v. (6 Vt. 811) 656, 691 Weatherby, State v. (48 Maine, 258 666 Weatherhead v. Bledsoes (2 Tenn. 352 142 Weaver v. State (24 Texas, 887) 508 Webb ». Baird (6 Ind. 18) 163 Webber v. Williams (86 Maine, 512) 1 Webster v. Commonwealth (7 Dana, 215) 1067 v. French (12 Ill. 802) 256 v. State (8 Blackf. 400) 896 ——, State v. (5 Halst. 293) 1042 ——, United States v. (Daveis, D. C. 38) : 49, 82 Weed, State v. (1 Fost. N. H. 262) 33 Weekly, State v. (29 Ind. 206) 298 Weikman v. City Council (2 Speers, 371) Weise, United States v. (2 Wal- lace, Jr. 72) 103 Welch, Commonwealth v. (2 Dana, 330) 177 —, Commonwealth v. (97 Mass. 593) 1025 —, Reg. v. (2 Car. & K. 296) =. 271 —, Reg. v. (2 Den. C. C. 78; 1 Eng. L. & Eq. 588; Temp. & M. 409; 15 Jur. 136) 306 —, State v. (7 Port. 463) 871, 874 — v. Stowell (2 Doug. Mich. 382) 22 v. Wadsworth (80 Conn. 149) 177 Welland, Rex v. (Russ. & Ry. 494) 426 Wellington v. Stearns (1 Pick. 497) 216 Wells, Reg. v. (1 Fost. & F. 109) 424 —, Rex v. (1 East P. C. 414) 185 —, State v. (31 Conn. 210) 490 —, State v. (28 Misso. 565) 1019 Welman, Matter of (20 Vt. 653) 28, 29 Welsh, Commonwealth v. (1 Al- len, 1) 1069 —, Commonwealth v. (7 Gray, 324) —,, State v. (8 Hawks, 403) 45 Wendover v. Lexington (15 B. Monr. 258) 856 INDEX TO THE CASES CITED. WHI SECTION West, Commonwealth v. (1 Dana, 165) 917 —, Reg. v. (2 Car. & K. 784; 2 Cox C. C. 500) 742 ——,, Reg. v. (2 Car. & K. 496; 1 Den. C. C. 258) 341, 343 ——, Rex v. (Owen, 134) 167 v. State (1 Wis. 209) 645, 648, 651 West Branch Boom Co. v. Dodge (7 Casey, 285) 85 West Feliciana Railroad v. John- son (5 How. Missis. 278) 31 West Riding of Yorkshire, Rex v. (4B. & Ad. 685) 107, 110 Westwood, Rex v. (2 Dow & CL. 21; 4 Bligh, n. s. 218; 7 Bing. 1; 4B. &C. 781) 18 ——, Rex v. (Russ. & Ry. 495) 279, 284 Wetherby v. Foster (5 Vt.186) 319 Wetmore v. Tracy (14 Wend. 250) 169 Wetumpka v. Winter (29 Ala. 651) 101 Whaley, Commonwealth v. (6 Bush, 266) 602, 606 Wheaton v. Hibbard (20 Johns. 290) 168 Wheeldon, Reg. v. (8 Car. & P. 747) 312 Wheeler v. Chicago (24 Ill. 105) 255 v. Chubbuck (16 Ill. 361) 31 v. State (23 Ga. 9) 163 , State v. (25 Conn. 290) 992 Wheelock, People v. (3 Parker, 9) 1007 v. State (15 Texas, 260) 291, 878 Whetstone, State v. (18 La. An. 376) 193 Whiley, Reg. v. (2 Moody, 186) 599 Whistler, Rex v. (2 Salk. 542; 11 Mod. 25) 139 Whitcomb v. Rood (20 Vt. 49) 97 White v. Boot (2 T. R. 274) 149 —— v. Commonwealth (4 Binn. 418) —, Commonwealth v. (18 B. Monr. 492) , Commonwealth v. (10 Met. 14) 1048 v. Crutcher (1 Bush, 472) 107 v. Johnson (28 Missis. 68) 82, 155, 163 ——, People v. (84 Cal. 183) 378 ——, Reg. v. (8 Car. & P. 742) 271 ——, Reg. v. (9 Car. & P. 282) 326, 834 —,, Reg. v. (2 Crawf. & Dix C. C. 479) 291 —, Reg. v. (20 Eng. L. & Eq. 585 204 171 ——, Rex v. (1 Bur. 333) 546 ——, State v. (28 Ark. 275) 1000 ——,, State v. (4 Jones, N. C. 849) 286 ——,, State v. (13 La. An. 578) 348 v. Steam-Tug Mary Ann (6 Cal. 462) 120 TAT SECTION Whiteman, Reg. v. (Dears. 353; 6 Cox C. C. 870; 25 Eng. L. & Eq. 590) Whitfield v. Longest (6 Ire. 268) 22 —, Rex v. (1 Russ. Crimes, Grea. ed. 728) 815 v. State (4 Pike, 171) 917 Whitman v. Hapgood (10 Mass. 487) 84 Whitmarsh, Commonwealth v. (4 Pick. 233) 204, 214, 309 Whitnash, Reg. v. (7 B. & C. 596) 245 Whitney, Commonwealth v. (11 Cush. 477) 972 —, Commonwealth v. (5 Gray, 85) 970, 977, 978 ——, Rex v. (1 Moody, 8) 212, 344, 442 —— v. State (10 Ind. 404) 966 —— v. Whitney (14 Mass. 88) 93 Whittaker, Reg v. (2 Car. & K. 686; 1 Den. C. C. 809; 3 Cox C. C. 50) 77, 145 —, Reg. v. (1 Den. C. C. 310) 135, 145 ——, State v. (83 Misso. 457) 1092 Whittier, State v. (21 Maine, 341) 443 Whittingham, Reg. v. (9 Car. & P. 224) 291, 313 Whitton v. State (37 Missis. 379) 1024 Whitworth, State v. (8 Port. 434) 159, 163, 168 Wicks, Rex v. (Russ. & Ry. 149) 338 Wigg, Reg. v. (2 Ld Raym. 1163) 164, 169, 546 Wiggin v. Mayor of New York (9 Paige, 16) 255 ——, State v. (20 N. H. 449) 1024 Wigglesworth, United States v. (2 Story, 369) 193, 194, 195 Wiggot, Rex v. (Comb. 205) 138 Wilbor, State v. (1 R. 1.199) 82, 163, 166, 167 Wilbur v. Crane (13 Pick. 284) 181, 155 Wilcox’s Case (2 Russ. Crimes, Grea. ed. 497) 336 Wilcox, Commonwealth v. (1 Cush. 503) 1034, 1037 v. State (7 Blackf. 456) 910 ——, State v. (3 Yerg. 278) 199 Wild v. Harris (7 C. B. 999) 638 Wilde v. Commonwealth (2 Met. 408) 82, 163 Wiley, Reg. v. 567; 2 Den. C. C. 37) ——, United States v. (11 Wal. 508 ) id Wilkins, State v. (17 Vt. 151) 326, 836 Wilkinson v. Leland (2 Pet. 627) 70, 77 ——, State v. (2 Vt. 480) 168, 164, 170 Willace, Rex v. (1 East P. C. 186) 261 Willard, Commonwealth v. (2: Pick. 476) 748 1029 INDEX TO THE CASES CITED. WIL SEcTION Willard v. State (4 Ind. 407) 1039 William Gray, The (1 Paine, 16) 124, 182 Williams v. Augusta (4 Ga. 509 22 v. Cammack (27 Missis. 209) 36 —, Commonwealth »v. (4 Allen, 587 1024, 1029 — ., Commonwealth v. (2 Cush. 582) 276 ——, Commonwealth v. (3 Gray, 461) ——, Commonwealth v. (6 Gray, ——, Commonwealth v. (9 Met. 3 340, 341 v. East India Co. (3 East, 192) 549 v. McDonal (4 Chand. 65) = 102 v. Matthews (3 Cow. 252) 220 v. Middlesex (4 Met. 76) 177 v. Potter (2 Barb. 316) 155, 160, 16 3 v. Pritchard (4 T. R. 2) 160, 190 v. Reg. (10 Jur. 155) 167 v. Reg. (7Q. B. 250) 163, 166, 427 ——., Reg. v. (2 Car. & K. 51) 326, 328, 832, 335 ——, Reg. v. (Car. & M. 259) 185 ——, Reg. v. (9 Cox C. C. 888) 445 ——, Reg. v. (11 Cox C. C. 684) 780 ——, Reg. v. (1 Den. C.C. 389) 188 , Reg. v. (14 Law J. x. s. M. C. 164) 167 ——, Rex v. (1 Leach, 529) 236 ——, Rex v. (1 Leach, 629) 282 ——, Rex v. (1 Moody, 107) 211 ——, Rex v. (1 W BI. 93) 45 v. Spencer (5 Johns. 352) 290 v. State (2 Ind. 4389) 732 v. State (12 Sm. & M,) 216, 346, 881, 935, 939, 947 ——,, State v. (21 Ind. 206) 447 ——, State v. (20 Iowa, 98) 606 ——,, State v. (25 Maine, 561) 814 » State v. (2 Rich. 418) 163, 166, 176, 185 ——, State v. (2 Strob. 474) 246 ——,, State v. (1 Vroom, 102) 1027 v. Tappan (3 Fost. N. H. 385) 254, 1016 —, United States v. (6 McLean, 183 103 ——, United States v. (1 Paine, 261) 28, 29 Williamson, Commonwealth v. (2 Va. Cas. 211) —— v. Farrow (1 Bailey, 611) 105 v. State (16 Ala. 431) 1092 ——, State v. (19 Misso. 384) 1034 Willington v. Stearns (1 Pick. 497) 242 Willis, Commonwealth v. (14 8. & R. 398) 1075 ——,, State v. (37 Misso. 192) 1090 woo SECTION Willis v. Warren (1 Hilton, 590) 917 Willoughby, Rex v. (2 East P. C. 581 326, 383 —, Rex v. (2 East P. C. 944) 204, 328 Wilson v. Biscoe (6 Eng. 44) 82 v. Commonwealth (12 B. Monr. 2) 1027 ——, Commonwealth v. (11 Cush. 412) ——, Commonwealth v. (9 Leigh, —— v. Hill (2 Beasley, 148) 613 ——., Reg. v. (9 Car. & P. 27) 271 ——, Reg. v. (87 Eng. L. & Eq. 605; Dears. & B. 127; 7 Cox C. C. 190) 747, 748 v. State (81 Ala. 371) 299 v. State (24 Conn. 57) 298, 295 v. State (2 Ohio State, 819) 746 —— v. State (5 Texas, 21) 902 ——,, State v. (3 Brev. 196) 326, 336 —— , State v. (Cheves, 1638) 246 ——,, State v. (Coxe, 439) 812 — , State v. (1 Hayw. 242) 286 ——, State v. (22 Iowa, 364) 657, 670, 688 ——, State v. (48 N. H. 415) 154, 156 —, United States v. (Bald. 78) 97, 135, 142, 194, 200, 242, 320, 363 Wiltberger, United States v. (5 Wheat. 76) 141, 198, 304 Wiltshire v. Baker (11 C. B. n. 8. 287 295 Windham v. State (26 Ala. 69) 298, 855, 869 Windsor v. Commonwealth (4 Leigh, 680) 298, 855, 896 Winn, United States v. (3 Sumner, 209) 209 Winslow v. Kimball (25 Maine, 493) 70, Winter v. Jones (10 Ga. 190) 82 v. Perratt (6 Man. & Gr. 314) 100 —, Rex »v. (Russ. & Ry. 295) 291 v. State (80 Ala. 22) 1024 Winterfield v. Stauss (24 Wis. 394) 248 Wishon, State v. (15 Misso. 503) 1042 Witkouski v. Witkouski (16 La. ‘An, 232) 186 Withers, Rex v. (1 Moody, 294; 4 Car. & P. 446 314 Witherspoon v. Dunlap (1 Mc- Cord, 546) 187 Witt, Rex v. (1 Moody, 248) 280 Wittmar, State v. (12 Misso. 407) 1007 Wolf v. Clark (2 Watts, 298) 1079 Wolfenberger, State v. (20 Ind. 242) 289 Wood, Commonwealth »v. (4 Gray, 11) 722 INDEX TO THE CASES CITED. WRI SECTION Wood, Commonwealth »v. (11 Gray, 85) 748, 749, 760, 761 — v. London (1 Salk. 397) 403 ——, Rex v. (4 Car. & P. 381) 314 ——,, Rex v. (1 Moody, 278) 814 —— v. Smith (23 Vt. 706) 141, 282, 238 —— v. United States (16 Pet. 342) 160 ——, United States v. (8 Wash. C. C. 440) 320 Woodcock v. McQueen (11 Ind. 14) 848, 936 Wooden v. Shotwell (8 Zab. 465) 952, Woodhead, Rex v. (1 Moody & R. = Woodly, State v. (2 Jones, N. C. Woodrow, Reg. v. (15 M. & W. 404 211 1052 132 ——, Reg. v. (2 New Sess. Cas. 346 182 Wood’s Case (1 Co. 40 8) Woods v. Commonwealth (1 B. Monr. 74) ———, Commonwealth v. (10 Gray, 477) —— v. Pratt (5 Blackf. 377) 1002 Woodside, State v. (9 Ire. 496) 160 Woodward, Rex v. (2 Hast P. C. weds 443 ——, Rex v. (1 Moody, 323) 291 ——, State v. (34 Maine, 293) 163, 1008, 1052 ——, State v. (25 Vt. 616) 244 Woodworth v. Paine (Breese, 294) 246 Wooldridge, Rex v. (1 Leach, 307 ; 1 East P. C. 179) 101, 307 Worcester, Commonwealth v. (3 Pick. 462) 20, 22, 26, 163, 406 Worrall, Rex v. (7 Car. & P. 516) 292 Worrell v. State (12 Ala. 782) 215 Wortham v. Commonwealth (5 Rand. 669) 905 Worthington v. Black (13 Ind. 344) 848, 933 Wragg v. State (14 Ala. 592) 232 Wright, Commonwealth »v. (12 Allen, 190) ——, Commonwealth v. (1 Cush. 46) 78 v. Freeman (5 Har. & J. 467) 1638 —, Reg. v. (9 Car. & P. 754) = 145, 774 ——, Rex v. (1 Bur. 543) 250 ——, Rex v. (7 Car. & P. 159) 209, 344 v. Smith (13 Barb. 414) 163, 1032 —— v. State (8 Blackf. 385) 697 v. State (80 Ga. 825) 435, 437 ——, State v. (Jones, N. C. 508) 1018 ——,, State v. (4 McCord, 358) 139, 741 749 WYN SECTION Wrockledge v. State (1 Iowa, 167) 1039, 1060 Wyat, Reg. v. (1 Salk. 880; 2 Ld. Raym. 1189) Wyatt, Commonwealth v. (6 Rand. 694) 246, 852, 855, 864 —, Rex v. (Russ. & Ry. 230) 255 Wycherley, Reg. v. (8 Car. & P. 262) 745 Wyckoff v. Boggs (2 Halst. 188) 237, 739 188 Wyer, Rex v. (1 Leach, 480; 2 East P. C. 753; 2 T. R.77) vd 04 ‘Wyman v. Campbell (6 Port. 219) 154 ——, Commonwealth v. (8 Met. 7 246, 271 Wyndham, Rex v. (Russ. & Ry. 197; 3 Camp. 78) 126 Wynehamer, People v. (2 Parker, 377; 2 Parker, 421; 3 Kernan, 378 ; 20 Barb. 567) 990, 992, 993, 1032 Wynn v. Davies (1 Curt. Ec. 69) 160 , Reg. v. (1 Den. C. C. 365; 1 Temp. & M. 32; 13 Jur. 107; 18 Law J. wn. s. M. C. 51) 163 Wynne, State v. (1 Hawks, 451) 1002 v. Wright (1 Dev. & Bat. 9) 1080 70 INDEX TO THE CASES CITED. ZUM SECTION Yancey v. Hankins (Minor, 171) 198 Yarmouth v. North Yarmouth (34 Maine, 411) 34, 178 Yates, Rex v. (1 Moody, 170; Car. Crim, Law, 273) 340 Yeager, Ex parte (11 Grat. 655) 112, 999 ety v. United States (5 Cranch, 1 York v. Dalhousen (9 Wright, Pa. 872) 8 ——, Rex »v. (3 B. & Ad. 770) 22 Yorkshire Justices, Reg. v. (2 Eng. L. & Eq. 296) 4 Youmans, State v. (5 Ind. 280) 163, 178 Young v. Higgon (6 M. & W. 49) 109 v. McKenzie (3 Kelly, 31) 155 v, Shaw (1 D. Chip. 224) 164 ——, State v. (5 Cold. 51) 1039 Yslas, People v. (27 Cal. 6380) 508 Zachary v. Chambers (1 Oregon, 321) Zarresseller v. People (17 Ill. 101) 1032, 1039 Zouch v. Empsey (4 B. & Ald. 522) 110 v. Moor (2 Rolle, 280) 58 Zumhoff v. State (4 Greene, Iowa, 626) 992 ANALYTICAL INDEX OF SUBJECTS. Nore. — The object of this Index is simply to enable a reader who may not know under what head to look for a thing in the Alphabetical Index, to trace the order of the discussion, -so as to see at what point to turn to the text and pass his eye along the headings to the sections. It does not, therefore, mention every particular topic treated of in the book. General View of Statutory Interpretation . . . .. . Different Sorts of Written Law distinguished . . . . . General enumeration, 11; Constitution of United States, 12; treaties, 18,14; statutes enacted by Congress, 15; State con- stitutions, 16; State statutes, 17; municipal by-laws, 18-26. At what Time Statutes take Effect . . . . . Statutes as being Unconstitutional. . . . 1. . 2. es Other Obstructions to their taking Effect . . . . .. The Title of a Statute 2. 2. 2. 1. 1. we ee eee The Preamble of aStatute. . . . .. 2... The Purview of aStatute . . . ... 0... ee In general, 52; clause, 53 ; interpretation clause, 54, 55; enact- ing clause, 56; proviso, 57; exception, 58; saving clause, 59; other clauses, 60; sections, 61. Precedence in the several Parts of a Statute . . ... Objects to be attained by Interpretation. . . . .. . What looked at in determining Meaning. . . . .. . General Rules of Interpretation stated . . . . . . By what the Meaning contracted or expanded. . . . . Statutes as to Crime combining with each other and with Common Law ........ + ee « General doctrine, 122-125; specific rules, 126-146. Repeal of Criminal Statutes. . 2. 2. 6 6. we ee General doctrine, 147-163 ; particular applications of doctrine, 164-174 ; consequences, 175-187. SECTION 1-10 11-26 . 27-32 . 33-37 . 388-41 . 42-47 . 48-51 . 52-61 - 62-67 . 68-73 . TAT7 . 78-117 118-121 122-146 147-187 T51 b § 188-499 ANALYTICAL INDEX OF SUBJECTS. How Criminal Statutes expand and contract by Construc- COT: Soe ak oe ee el ee General view, strict construction, liberal, &c., 188-201; strict construction, and the rules relating thereto, with illustrations, 202-225 ; liberal construction of criminal statutes, 226-240. Some further Doctrines of Statutory Interpretation . . . Technical words, &c., 241, 242; grammatical construction, &c., 243; different clauses, &c., 244; particular words followed by general, 245, 246; words overlying one another in meaning, 247, 248; excluding things by implication, 249; remedy for statutory right, 250-258 ; effect of statute on right of action, &c., 254; directory, mandatory, &c., 255, 256. Statutes of Limitations in Criminal Cases . . . . =. Meanings of Particular Words and Phrases . . ~~ . Introductory views, 268-270 ; words to denote the person act- ing, 271-275 ; words indicating time and place, 276-305 ; in- dicating the thing done, 306-818 ; indicating the object acted upon and the instrumentalities, 319-347 ; employed to desig- nate the proceedings, 348-350. No Crime without Criminal Mind. . . . ..... Common-law Rules as governing Statutory Criminal Act . Common-law Procedure mingling with Statutory. . . . Fundamental Doctrines as to Form of Indictment or Com- plain see. Jon ste fee Seo Wht Ss Bh, me ote Se se GR Mee a SS Practical Directions for drawing the Indictment . . . . The formal parts, 375-377 ; substantial parts, 378-388 ; illustra- tions and practical hints, 384-393. How to draw the Indictment on a Private Statute . . . Proceedings on Municipal By-laws . . . . . 1s Course of the Further Discussion. . . . . 1... Larceny at the Common Law . . ......4.. Statutory Larcenies . . . . . 2. ee ew eee Things not subjects of common-law larceny, &c., 413-417 ; em- bezzlement, 418; larceny by bailee, 419-424; summary of doctrines, 425; larceny of particular animals, 426-429. Malicious Mischief at Common Law . . . .... Malicious Mischief under Statutes. . . ...... Cheats at Common Law . . . . 1... ee we ee Cheats under Statutes. . 2... 2 ee ww ee Altering Marks on Cattle, &. . 2. . 2. 1... eee Unlawful Use of Estray Animals. . . . ..... Homicides at Common Law and under Statutes . . . . Rape and Carnal Abuse of Children. . . . 2... . Mayhem and other Maimings . . ........ 752 188-240 241-256 257-267 268-350 351-361 362-364 365-367 368-374 3875-393 394-402 403-407 408, 409 410-412 413-429 430 431-449 450 451, 452 453-461 462 463-477 478-494 495-499 ANALYTICAL INDEX OF ‘SUBJECTS. Other Aggravated Assaults . . . Simple Assaults. . 2. 2. 1. 1. ew ee ee Robbery at the Common Law ..... . Robbery under Statutes . . . . . Garroting . Burglaries. . . es ah ee es eh Ge eR Arson and its Kindred Pisses Riot, Rout, Affray, &e. The Doctrine of Common-law Nuisance . Statutory Nuisances Offences analogous to Nuisances § 500-843 500-510 511-514 515-518 519-530 531 532, 583 534-538 539-541 543-551 552-558 559-566 Enumerated, &c., 559, 560 ; illegal tolls and flee, toll. dish, 562, 563 ; laws regulating use of property, 564-566. Common-law Obstructions of Governmental Order The like Obstructions under Statutes . 5067-569 570-574 Perjury and analogous offences, 571, 572; biiheny and the like, 578, 574. How the more purely Statutory Offences treated of . Polygamy . : é Law of the often. 577-597; ritiaes ta 598-618, Abduction of Women . Law of the offence, 614-621 ; peueedutes 622-624, Seduction of Women . . . 5% Law of the offence, 625-648 ; prcetinre, 644-652. Adultery .. . haa 8, Se An Oa Law of the efiince, 653-668 ; procedure, 669-690. Fornication Living in Adultery or Fornication . , _ Law of the offence, 695-698 ; procedure, 699-709. Open and Notorious Lewdness . Law of the offence, 710-718 ; procedure, 719-725. Incest 5 , Law of the canes, 726-730 ; 5s Sroeetiars: 731-736, Marriage Laws . . . 2. 1 we ee Abortion . . Lebo Law of the cieiios 740-750 ; -Aeeosaine, 751-762. Concealment of Birth, or Child Murder . Law of the offence, 768-776 ; procedure, 777-780. Carrying Weapons. . . . j Law of the offence, 781-793 ; soba dace) 794-801. Election Frauds and Obstructions . . . aby Bs Law of the offence, 802-826 ; procedure, 827-843. 575, 576 577-618 614-624 625-652 653-690 691-694 695-709 710-725 726-736 737-739 740-762 763-780 781-801 802-8438 753 § 844-1118 ANALYTICAL INDEX OF SUBJECTS. Gaming —The Law . . . . a GA tease. Le ae How at the common law, 644-848 ; anhiee old English stat- utes, 849-851 ; how the American legislation, 852-854 ; ex- positions of di ceteinen: 855-881. Gaming — The Procedure . . ........ Under the English law, 882-888; American statutes and form of the indictment, 889-892; discussions of American procedure, 893-917 ; special views as to betting on games, 918-926 ; horse-racing, betting on horse-race, shooting- match, &c., 927-930. Betting on Elections . . . 6» «© - 1 + ee ee Law of the offence, 931-937; procedure, 988-949. Lotteries . . . . SEC ee ee eee Law of the offence, 950-960 ; procedure, 961-966. Drunkenness . . . . «a eis Bs, = Bea Law of the offence, 967-973 ; procedure, 974-981. Selling Intoxicating Liquor— The Law. . . .. . History of this legislation, 982-988 ; how far constitutional, 989-998 ; the license and its effect, 999-1006 ; meanings of some statutory words, 1007-1011; expositions of main pro- visions, 1012-1032. Selling Intoxicating Liquor — The Procedure. . . Keeping Intoxicating Liquor for Unlawful Sale . . Liquor Nuisance. . 2. 1 1 2 6 we ee At common law, 1059; selling to be drank on premises, 1060-1063; keeping tippling-shop, 1064-1067; keeping building for illegal sales, 1068-1070. Hawkers and Peddlers. . . . .....e..s..s Law of the offence, 1071-1080 ; procedure, 1081-1088. Dealing as a Merchant without License . . . . . . Cruelty to Animals. . . . 2. 1. 2 ee How at common law, 1093-1095 ; under older statutory law, 1096-1103 ; under recent enactments, 1104-1118, 754 - 844-881 - 882-930 - 931-949 - 950-966 - 967-981 982-1032 1033-1053 1054-1058 1059-1070 1071-1088 1089-1092 1093-1118 ALPHABETICAL INDEX OF SUBJECTS. Norte. — The references, in this Index, are to the sections. When, in the text, a particular subject is treated of between two sections, this Index merely refers to those sections in a general way (as, 1098-1118); and the reader is expected to turn to the text, and there consult the sub-titles and headings of the sections. ABATEMENT, (See Nuisance.) of nuisance, in connection with other remedies, 169, 1070 and note. of indictment, effect of, as to statute of limitations, 262. of statutory nuisance, 554, 555. private, of public liquor nuisance, 1070. ABDUCTION OF WOMEN, (See Sepuction or WoMEN.) of girl, mistaking age, 359, 632. what the ‘‘ possession” of parent, &c., 359 and note, 636. law of the offence, 616-621. the procedure, 622-624. ABORTION, law of the offence, 740-750. procedure, 751-762. ABSURDITY, in statute, avoided by construction, 82, 200. «« ABUSE,” word, in indictment for carnal ravishment, 489. «¢ ACCEPTANCE,” meaning of the word, 338, note. ACCESSORY, (See PrincipaAL AND ACCESSORY.) in statutory felonies, 139. in child murder, 770, 771, 775. to gaming, how, 881. in selling liquor, 1029. ACCOMPLICE, (See Particers Criminis — Principat anp Ac- CESSORY. ) whether woman is, in her own abortion, 749, 760. why testimony of, needs confirmation, 760. effect of presence of, in concealment of birth, Ge., 770, 771, 775. whether there can be, in concealment of birth, 775. in gaming, how, 881. 756 AGE ALPHABETICAL INDEX OF SUBJECTS. “« ACCUSED OF CRIME,” meaning of the words, 242. “ ACQUITTANCE,” meaning of the word, 343. ACT, (See Evit Act.) one, may constitute parts of several offences, 143. legislative acts of different dates, construed together, 82, 86, 87. ACT OF INCORPORATION, (See Crry CHarrer — Incorpora- TIon — MonicrpaL CorPoraTIOn.) whether complaint on municipal by-law must set out the, 405. ACTION, (See Crviz Suir.) not, for thing contrary to statute, 254, 255. ACTS OF CONGRESS, precedence of, among laws, 11, 15. “ACTUAL VIOLENCE,” words, in statute against assault with intent to ravish, how the indictment, 490. “* ACTUALLY OCCUPY,” meaning of the words, 145. ‘‘ ADJOINING,” meaning of the word, 223. ‘* ADMINISTERING DRUG,” (See Drove.) with intent, &c., offence of, 746-748. ADMINISTERING POISON, what it is, 225. to procure abortion, 747, note. ADULTERATED MILK. (See Sevtinc ADULTERATED MirK.) ADULTEROUS INTENT, proof of, on indictment for adultery, 679-684. ADULTERY, (See Livine in ADULTERY.) by cohabitation under second marriage, where the first is mistakenly supposed to be dissolved by death, 357. law of the offence, 654-668. the procedure, 669-690. indictment for, need not aver knowledge of the marriage, 733. ADVERB, sufficient, in alleging material fact in indictment, 421, 779. ‘“ ADVERTISEMENT,” sign-board is an, 207. ““ ADVERTISING,” lottery tickets, how, 958. ADVICE, what, justify illegal voting, 805, 806, 820-825. AFFIDAVIT, not in statutory form, good, 255. AFFIRMATIVE STATUTE, and negative, division of statutes into, 153. repeals by, 154 et seq. AFFRAY, law of, explained, 539-542. offence of, akin to nuisance, 560. ““ AFORETHOUGHT.” (See Marice AFORETHOUGHT.) ‘* AFTER,” use of word, in indictment, 438, note. “AGAINST FORM OF STATUTE,” words, rejected as surplusage, 164. when to be singular and when plural, 167 and note, 168 and note, 293, note, 392 and note. words, whether necessary in indictment, and when, 377, 384, 399, 400. when indictment must conclude, in larceny, 413, 414, 427. conclusion, in rape, 468. “AGAINST HER WILL,” words, in definition of rape, 479, 482. AGE, as to alleging, in rape and carnal ravishment, 487. AGENT, (See Clerk — Servant.) false pretence made to, 134. permit from, same as from principal, 134. 756 ALPHABETICAL INDEX OF SUBJECTS. ARB AGENT, — continued. meaning of the word, 271. may sell liquor under principal’s license, 1004. selling liquor by — guilty if principal is, 1024. unauthorized selling by, 1024. qvidence when liquor sold by, 1049. AIDER, (See Accessory — ACCOMPLICE.) meaning of the word, 272. ALEHOUSE, (See Trerrinc-Hovss.) disorderly, common-law nuisance, 546, 984. ALIENATION, how statutes in restraint of, construed, 119. “« ALL,” bow construed, 102. «ALL OTHERS,” meaning of the words, 245, 246. ‘© ALL PROPERTY,” (See Property — Pusric Usz.) effect of the words, in statute, 156. ALLEGATION, (See InpicrMEnT.) proofs cover so much of the, as shows offence, 800. expanding the, beyond statutory words, 942, 943. “ALTER,” meaning of word, as to bank-bills, 217. «“‘ ALTERING,” what — the word in indictment, 460, 461. ALTERING MARKS, (See Marxs.) offence of, discussed, 454-461. ALTERNATIVE CLAUSES, (See Anp — Or.) how draw indictment on, 244, 383. AMICUS CURIA, taking views of, on interpretation of statute, 77. ANCIENT INTERPRETATION, compared with modern, 116. ‘¢ AND,” when interpreted as ‘‘ or,” 243. in indictment, for ‘‘ or,” in statute, 244. in indictment, on statute against living in adultery ‘‘ or ” fornication, 701. use of, in indictment on statute, 795. not usually proper in alleging negative, 1043. ANIMALS, (See CruELTY TO ANIMALS — EsTRAy ANIMALS.) are ‘‘ chattels,” 344. larceny of, 426-429. word, in cruelty to animals, 1112. «+ ANY BANK-NOTE,” words, include notes of other States, 205. “ANY OTHER PROPERTY,” meaning of the words, 246. «« ANY PROPERTY,” meaning of the words, 102. APPEAL, by force of constitutional provision, 89. statutes extending, construed liberally, 120. in other circumstances, how, 126, note. APPEAL CLAUSE, in statute, concerning, 60. APPROPRIATION ACT, effect on salary previously established, 130. when, not repeal former statute, 156. « APPURTENANCES,” meaning of the word, 291, note. ARBITRATION, statutes concerning, how construed, 120. ARBITRATORS, when, cannot administer oath, 137, note. . ToT AUT ALPHABETICAL INDEX OF SUBJECTS. ARMS, (See Carrying Weapons — Krep snp BEAR ARMS — Loapep Arms — OFFENSIVE ARMS.) what are, 792. ARREST, statutes authorizing, how construed, 198. ARRESTED, having weapon when, how the indictment, 796. ARSON, (See Bury.) ° jail is dwelling-house in, 207. when place improperly laid as ‘‘ dwelling-house,” 213. what it is, 277. ; indictment for, has ‘‘ house,” not ‘* dwelling-house,” 277. when indictment for, should use word ‘‘ dwelling-house,” 289. committed by burning a barn, 289. what the burning in, 310, 311. created by the one word, defined by common law, 363. at common law, 534. statutory, discussed, 535. ART UNION, is a lottery, 955. «« ASS,” is ‘‘ cattle ” and ‘‘ beast,” 222, 442. ASSAULT, (See Battery.) word, means real, not constructive, assault, 216. an attempted battery, 463. ; with intent to ravish, 490-493. whether included in carnal abuse, 480-492. word, in the indictment for carnal abuse, &c., 491. whether conviction for, 492, 493. general views of, 500. how the indictment, 501. with intent to kill, murder, &c., 502-508. simple, under statutes, discussed, 511-514. the, in indictment for robbery, 518. in connection with abortion, 751, 752. ASSESSORS, statutes governing, directory, 255. ASSIGNMENT, of license to sell liquor, 1004. ‘“‘AT LEAST,” meaning of the term, in statute, 110. ‘“* ATTAINT,” meaning of the word, 348. ATTEMPT, (See Assavtt.) to commit statutory crime, indictable at common law, 138, 140. to cheat by forged stamps, 306. _to defame by libel, 389-392. how the indictment, 392. subject of, not well understood, 391. indictable, 463. to commit carnal abuse, 493. to kidnap or steal heiress, indictable, 619. how, in abortion, 746-748, 753, 755. AUCTIONEER. (See TRAVELLING AUCTIONEER.) AUTHORITY, proof of want of, to sell liquor, 1051. the allegation, 1042-1044. same in peddling, 1088. 758 ALPHABETICAL INDEX OF SUBJECTS. BET ‘“* AUTHORIZED BY LAW,” meaning of the term, 205. AUTREFOIS CONVICT. — (See Former Prosecution — Twice IN JEOPARDY.) AVERMENT. (See Necative AVERMENTS.) AWNING, what it is to spread an, 208, note. BAKERS, by-law concerning, 25. BAILEE, larceny by, discussed, 417, 419-425. BANK NOT EXISTING, what is, 223. BANK-BILL, meaning of the term, 337. not ‘*‘ money,” 346. subject of larceny, by statutes, 414. ‘““BANK-BILL OR NOTE,” meaning of the phrase, 337. BANK-CHECK, is an ‘‘ order,” 328. ‘* BANK-NOTE,” (See Any Bank Nore.) meaning of the term, 337, 346, note. whether ‘‘ goods and chattels,” 344, 345. BANKRUPT ACT, former, time of repeal of, 29. BANKRUPT’S LETTERS, detaining, from him, 823. BANKRUPTCY, false swearing in cases of, punished under prior statutes, 129. BARN, part of dwelling-house, 278, 286. when burning of, arson, 289. when may be broken into, 290. is an outhouse, 291, note. meaning of the word, 536. BARRATRY, offence of, akin to nuisance, 560. obstruction of governmental order, 568. BASTARD, (See Narurat DauGHTEr.) same as legitimate child, in incest, 729. BAT, whether an ‘‘ offensive weapon,” 321. BATTERY, (See AssauLt.) of two persons, how the indictment, 1116. BAWDY-HOUSE, (See In-Famz.) by-laws concerning, 21. common-law nuisance, 546. indictment on statute for keeping, how, 557. “BEAR ARMS,” (See Krrp anp Brar ARMs.) ‘*BEAST,” meaning of the term, 440-442. what corresponding word to be employed in indictment, 440. ‘¢ BEAT,” word, in indictment for malicious mischief, 447. word, in cruelty to animals, 1098, 1100, 1101, 1113, 1116. ‘© BEATING,” a man, what is not, 216. «* BEER,” meaning of word — whether intoxicating, 1007. BENEFICIAL STATUTES, how interpreted, 192. BET, (See Berrine on Evecrion — BeTtinc on Gamns'— Gam- ING — Wacer — Winning Money.) deposit of bank-note as a, 346. 759 BRE ALPHABETICAL INDEX OF SUBJECTS. BET, — continued. meaning of the word, 870, 871. various views concerning, 870-875. recovering, in civil suit, 933. what is, 937. BETTING ON ELECTION, statute against, how interpreted, 205.’ indictable under statutes, 852. not gaming, 872. law of the offence, 931-937. procedure for, 938-949. BETTING ON GAMES, indictable under statutes, 852, 854. procedure for, discussed, 918-926. BETTING ON HORSE-RACE, (See Horsz-Racina.) procedure for, 929. a ape y) Pes SEAS Ye PEt od tion of, in statutes against polygamy, 595. Oke Arerae TIVE HECORDS.): “how enacted, 44. presenting, to Governor for signature, 109. “BILL OF EXCHANGE,” meaning of the term, 338. not ‘‘ money,” 346. BILLIARD TABLE, indictable under statutes, 852, 856, note. statute against keeping, 874, note, 877. in connection with house where liquor is sold, 878. BILLY, statute against carrying, with indictment, 794, 795. BIRTHS. (See Recister oF Brirrus.) BITING, whether injury by, is a wound, 314. BLACK ACT, concerning the, 432, 434. form of indictment on the, 438. “BLACK AND WHITE HORSES,” meaning of the phrase, 94, 95. BLASPHEMY, offence akin to nuisance, 560. BLIND-HAZARD, game of, 864. BLUDGEON, an ‘‘ offensive weapon,” 321. BODILY HARM. (See Grievous Bopity Harm.) BODILY INJURY, assault with intent to commit, 503. ‘“‘BOHEA TEA,” meaning of term, in statute, 99. BOND, for duties, when valid, 255. “BOOK OF ACCOUNTS,” meaning of the words, 340, note. BOOTH, not dwelling-house, 279. BOOTH FOR ROPE-DANCERS, common-law nuisance, 546. “* BOWIE-KNIFE,” what is “like” a, 790. BOWLING ALLEY, how, as statutory nuisance, 556. indictable under statutes, 852. BRAND. (See ALreriInG Marks.) * BREACH OF THE PEACE,” (See Pace.) meaning of the words, 198. BREAD, by-law regulating weight of, 25. ‘‘ BREAK,” meaning of the word, 312, 313. BREAKING, lifting the latch is, in burglary, 290. entering by craft, 290. 760 ALPHABETICAL INDEX OF SUBJECTS. CAR BREAKING, — continued. of castle, what, 290. BREW-HOUSE, when common-law nuisance, 546. BRIBERY, obstruction of governmental order, 568. of United States officers, 573. of voter, indictable, 803. “BRIDGE,” meaning of the word, — what a, 301. ' BRIDGE COMPANY, effect of repealing part of the charter of, 151, note. BROKER, acting as, without license, forms of proceedings against, 402, note. “BUILD.” (See Errcr anp Bumxp.) BUILDING, (See Wooprn Buripines.) statutes restricting erection of, 208, 211. meaning of the word, 292, 536. statutory regulations concerning, 553. keeping, for illegal sale of liquor, 1068-1070. \ BULL, offence of wounding a, 1099. ‘““BULLION,” meaning of the word, 346, note. BURDEN OF PROOF, (See Evipence — Proor.) as to the necessity of an abortion, 762. BURGLARY, (See Breakine.) in shop, &c., statute construed, 221, 233, 234, 240. what, at common law, &c., 276, 277. indictment for, has ‘‘ dwelling-house,” not ‘‘ house,” 277. how indictment lay place of offence, 278. what the breaking in, 312. leading doctrines of, 582, 538. BURIAL GROUND, statute forbidding streets through, 156, note. ** BURN,” (See Wiru Intent To Burn.) meaning of the word, 310. BUSINESS, by-law regulating, 20. “BUSINESS OR EMPLOYMENT,” meaning of the words, 1016. BUYING COUNTERFEITS, statute against, construed, 225. “BY FORCE,” words, in indictment for robbery, 524. BY-LAW, (See Munictpat By-Laws.) meaning of the term, 19. CAMP MEETING, disturbance of, 211. CANAL BOAT, selling goods from, peddling, 1077. CANDLES, whether making, in town, a common-law nuisance, 546. CAPITAL EXECUTION, done at different time from that ordered, 255. CARDS, a gambling device, 867-869. or dominoes, how, 917, note. CARELESSNESS, (See Evin Intent — Misraxe or Fact.) as to fact, in adultery, 664. in other cases, 358, 596, 632, 877, 1021, 1022. CARNAL ABUSE OF CHILDREN, (See Ravz.) doctrine of, discussed, 478-494. 49 761 CHU ALPHABETICAL INDEX OF SUBJECTS. CARNAL KNOWLEDGE, the, in rape and abuse of children, 494. CARNAL RAVISHMENT. (See CarnaL ABUSE OF CHILDREN — RaPeE.) “CARNALLY KNOW,” words, in indictment for rape, 489. CARRIAGE HOUSE, part of dwelling-house, 286. “CARRY,” (See Weapon.) meaning of the word, in statutes against concealed weapons, 787. CARRYING WEAPONS, pistol, for curiosity, 238. law of the offence, 781-793. the procedure, 794-801. CART-WHEEL, not a ‘‘ tool,” 319. “CASTAWAY,” meaning of the word, 224. CASTLE, meaning of the word, 277. what — rights of, 290. CASUS OMISSUS, what is, and doctrine of, 146. CATTLE, what included under word, 212. meaning of the word, 440-442. what corresponding word to be employed in, indictment, 440. altering marks on, offence discussed, 454-461. “CAUSE AND PROCURE,” in statute, how in indictment, 758. “CAUSING; TO BE TAKEN,” what is, 747, note. CERTIFICATE OF MARRIAGE, neglecting to file, statute construed, 222, CHAMBERS IN COLLEGE, are dwelling-houses, 279. CHAMPERTY, judicial sale not, 232. obstruction of governmental order, 568. CHANCE, (See Game OF CHANCE.) game of, indictable under statutes, 854. CHAPMAN. (See Perry Cuapmay.) ‘“* CHARACTER.” (See Previous CHasTE CHARACTER.) ‘CHARGED WITH CRIME,” meaning of the words, 242. ‘* CHASTE.” (See Previous CHasTE CHaARsCTER.) “‘CHATTELS,” meaning of the word, 344, 345. CHEAT, (See Fase PREtTENCEs.) limitation of indictment for, 260. at common law, general view of, 450. same under statutes, 451, 452 CHECKS AND COUNTERS, money and valuable things, 874, 875. CHILD, (See Parenr.) meaning of the word, in child murder, 772, 773. homicide of one’s, 1101. CHILD MURDER. (See Conce:LMENT or Birra.) CHILDREN, (See CannaL ABUSE OF CHILDREN.) capacity of, for crime, 353. CHIMNEY, part of dwelling-house, 281. CHOSES IN ACTION, whether ‘ personal goods,” 209. whether ‘‘ goods and chattels,” 344, 345. subjects of larceny, by statutes, 414. CHURCH EDIFICE, a public place, 298, note. 762 ALPHABETICAL INDEX OF SUBJECTS. coM CITY CHARTER, (See Acr or INcorPoRATION — FRANCHISE.) not repealing general statute, 156, note. CITY ORDINANCE. (See MunicipaL By-Laws.) CIVIL CAUSE. (See Acrion — Crviz Suir.) CIVIL INJURY, intent to commit, when sufficient under criminal stat- ute, 359. CIVIL REMEDY, not interfere with proceeding by indictment, 171, note. CIVIL SUIT, (See AcTIon.) not on corrupt election agreement, 826. for wages, how, 848. whether wager on horse-race recoverable by, 873. whether other bet recoverable by, 933. for price of liquor unlawfully sold, &e., 1030, 1031. CLAUSE, (See ALTERNATIVE CLAUSES.) of statute, what, and how, 53-56, 59, 60. when, must give way by interpretation to another, 82, 126. “CLEAR DAYS,” meaning of the words, 110. CLERGY, statutes forbidding, how construed, 128. circumstances to oust, must transpire in county, 221. CLERICAL ERRORS, effect of, in statute, 79, 215, 243. not to be presumed, 80. CLERK, (See AGENT.) meaning of the word, 271. may sell liquor under employér’s license, 1004. selling liquor, how, 102+. CLOSE INTERPRETATION, (See Srrict INTERPRETATION.) what and how, 191. CLUB, an ‘‘ offensive weapon,” 321. COCK-FIGHTING, (See GamE-Cock.) offence of, 1118. CODIFICATION, some evils of, 390. COFFEE-HOUSE, not an inn, 297. COHABITATION, offence of, under foreign polygamous marriage, 588. under invalid marriage, whether open and notorious lewdness, 718. COIN, whether ‘‘ goods and chattels,” 344, 345. COINAGE PRESS, a “ tool or instrument,” 319. COINING, having mould, &ec., adapted for, 211. COLLAR FOR COINING, whether “tool or instrument,” 319. COLLECTOR OF CUSTOMS, how as'to deputy, 129. COLLEGE. (See Cuamprrs in Cottece— YaLe CouiEce.) COLOR, of animal, need not be alleged, 443. COLT, is “ cattle” and ‘‘ beast,” 442. COMBUSTIBLE ARTICLES, when common-law nuisance, 549. COMMAND, in statute, directory, 255. COMMENCEMENT, of prosecution, what, 261. COMMENTATORS. (See Legan AUTHORS.) “COMMIT ADULTERY,” words, whether sufficient in indictment for adultery, 674. COMMITMENT. (See Warrant OF COMMITMENT.) 768 CON ALPHABETICAL INDEX OF SUBJECTS. COMMON BARRATRY. (See BarratTry.) COMMON CARRIER, larceny by, considered, 419, &c. COMMON DRUNKARD, (See Di UNKENNESS.) meaning of the words, 970-972. how the indictment, 977-979. selling liquor to, 1011. COMMON GAMBLER, (See Gaming.) statutory offence of being, 879. COMMON LAW, statutes construed in accord with, 114, 119, 124, 144. construction of statutes strict as against, 119. how statutes to be construed in connection with, 122-146. not presumed to be abrogated by statute, 142, remedy, for statutory right, 144. whether repealed by custom, 150. when statute repeals, 154, note, 155-162. blends with the statutes, 88, 364. procedure, blends with statutory, 365-367. indictments on statutes conform to rules of the, 374, 378, 381. COMMON-LAW NAME, offence created by, how the, indictment, 381. COMMON-LAW RIGHTS, statutes in derogation of, how construed 193. COMMON NUISANCE. (See Nuisance.) COMMON SCOLD, common-law nuisance, 547. COMMON SELLER, meaning of words — doctrine of, 1018. procedure ior being a, 1035. COMPLAINT, (See InFoRMATION.) as remedy concurrent with indictment, 170. meaning of the word, 242. before magistrate, whether commencement of prosecution, 261. fundamental doctrines regulating the, 368-374. on municipal by-laws, how, 403-407. form of the, on by-law, 407. by whom made — wife against husband, 688. COMPUTATION OF TIME. (See Time.) ‘* CONCEAL,” meaning of the word, 769 et seq. ‘* CONCEALED,” meaning of the word, in statutes against carrying weap- ons, 787. CONCEALED WEAPONS. (See Carryinc Weapons.) CONCEALMENT OF BIRTH, law of the offence, 763-776. procedure, 777-780. CONCLUSION, (See AGarnst Form or SraTurte.) of indictment, how, 378. CONCLUSION OF LAW. (See Law.) CONDITION, statutes taking effect upon, 36. CONFESSIONS, as evidence of adultery, 686. in proof of fact of marriage, 687. admissible in charge of incest, 736. evidence of bastardy, 780. as evidence of selling liquor, 1048. 164 ALPHABETICAL INDEX OF SUBJECTS. CON CONFISCATION, of liquor, whether constitutional, 993, 994. statutes directing, of liquors, 1055, 1056. CONFLICT OF LAWS, as to enforcing payment for liquors sold, unlaw- fully in one State, and lawfully in another, 1030. CONFLICTING PROVISIONS, (See Provisions.) repeal by force of, 153-163. ‘*CONGREGATION ASSEMBLED,” meaning of the term, 211. CONGRESS, (See ConstiruTionaL Law.) power of, over right of voting in States, 808-810. CONNECTION, words expanded or contracted by the, in statute, 118, 121. CONSENT, to statutory treason, how, 139. of girl, in seduction, 634. of parents, &c., how, 635. of woman, parents, &c., in abortion, 749. CONSISTENT PROVISIONS, new, whether ever repeal old law, 158- 162. CONSPIRACY, indictment for, not barred by limitation of offence intended, 260. ; in other particulars, as to statutes of limitations, 260. as obstruction of governmental order, 568. to seduce woman, 625. to procure marriage, 625. to charge with adultery — wife as witness, 688. CONSTABLE, whether, act by deputy, 88. CONSTITUTION, ' (See Consrrrutrona Law.) whether courts are sole guardians of the, 35. how as to other departments of the government, 36. statutes to be construed with, 89, 90. is a law, 89. how construed, 91, 92, 97. general power in, carries the particulars, 137, note. CONSTITUTION OF UNITED STATES, precedence of, as law, 11, 12. CONSTITUTIONAL LAW, (See Constrrution — State Consti- TUTIONS — UNCONSTITUTIONAL. ) as to holding statutes void, 33-37. requiring subject of act to be stated in title, 47. as to the form of the indictment, 369-374. how indictment for murder in first degree, 3872, £71. as to statutes against carrying weapons, 792, 793. as to the right to vote, 807-813. as to statutes forbidding gaming, 856. how as to lotteries, 957. statutes against selling liquor, 989-998. as to form of the indictment for selling liquor, 1036. statutes punishing keeping liquor for sale, 1056. as to statutes against peddling, 1080. CONSTRUCTION, offence not created by, 220. 7165 cou ALPHABETICAL INDEX OF SUBJECTS. CONTAGIOUS DISORDER, exposing person infected with, common-law nuisance, 546. CONTEMPORANEOUS INTERPRETATION, effect of, 104. CONTEMPORANEOUS USAGE, effect of, on construction of statute, 104, 149. CONTEMPT, implied power of punishing for, 137. of court, obstruction of governmental order, 568. CONTEXT, meaning of words determined by the, 82, 86, 87, 246. CONTINUANDO, (See Time.) laying living together in adultery with, 703. discussion as to the, 722, 979. in open and notorious lewdness, 720, 722, 723. when to be used and when not, 751, note. in indictment for being common drunkard, 977-979. CONTRACT, (See Expand and CONTRACT.) what will, the meanings of words, 118-121. indorsement on promissory note is not a, 336, note. whether, an essential element in bailment, 423. about unlawful selling of liquor, void, 1030. “CONTRARY TO FORM OF STATUTE.” (See AGainst Form or STatTure.) CONVENIENCE. (See Pusric CONVENIENCE.) CONVICTION, meaning of the word, 348. for selling liquor, not a license, 1005. “CORD OF WOOD,” meaning of the term, 222. CORD-WOOD, statute regulating sale of, construed, 222. “CORN,” meaning of the word, 426. CORN-HOUSE, part of dwelling-house, 278. CORPORATION, (See MunrcrpaL Corporation.) municipal, by-laws of, how made, their effect, &c., 18-26. included in term ‘‘ person,” 212. CORPUS DELICTI, proof of, in abortion, 761. CORRUPTLY INFLUENCING, a voter, indictable, 803. COSTS, statutes as to, how construed, 85, note, 112. by what statute governed, 178, note. “COTTAGE,” meaning of the word, 291, note. COUNSEL, for joint defendants in treason, 227. COUNTERFEIT COIN, (See Passinc — Pur Orr.) statute against having, how interpreted, 214. against buying, 225. COUNTERFEIT MONEY, statute against passing, construed, 223. statute against purchasing, construed, 225. what an uttering of, 306. what is putting off, 307; passing, 308. having in possession, 309, note. COUNTERFEITING, bank-bills, &c., 217. COUNTERS. (See Cuzcks anD CouNTERS.) “ COUNTERSIGNED BY CASHIER,” meaning of the words, 217. 7166 ALPHABETICAL INDEX OF SUBJECTS. DEA ““ COUNTING-HOUSE,” meaning of the term, 295, note. COUNTRY, statutes extend only to offences within the, 141. COUNTS and indictments, equivalent, 262 and note. COUNTY, when divided, where crime tried, 144. statutes as to the, of trial, how construed, 198. COUNTY CLAIM, not ‘‘ money,” 346. COURTS, power of, to pronounce statutes unconstitutional, 35. differ in their interpretation of statutes, 116. being abolished, cause transferred to new jurisdiction, 180. . COVERTURE, (See Marrrep Woman — WIFE.) as excusing criminal act, 354. ‘‘ COW,” a beast — proper word in indictment. 440, note, 442. CRAFT, does not include a steam-tug, 245. entering by, is breaking in burglary, 290. ‘© CREW,” what the word, includes, 209. CRIME, * (See OrrEencn.) statutes punishing, how construed, 193. CRIMINAL MIND, (See Evit IntEnv.) CROWN, not bound by statute, 103. CRUCIBLE, not a * tool,” 319. “ CRUELLY KILL,” (See Kiniine Cattiez.) words, in cruelty to animals, 1111, 1113. CRUELTY TO ANIMALS, how at common law, 1093-1095. under older statutory law, 1096-1103. under recent enactments, 1104-1118. CRUTCH, whether, an ‘‘ offensive weapon,” 321. ‘“‘CURTILAGE,” meaning of the word, 286. CUSTOM, power of, to repeal a law, 149, 150. “CUT,” meaning of the word, 315. CUT OFF THE EAR, concerning the offence, 314-316. DAGGER, an ‘offensive weapon,” 821. DAIRY-HOUSE, part of dwelling-house, 278. DAMAGES, (See Dous.te Damaces — To Tur Damaaz.) whether allege the, in malicious mischief, 444, 445. rule for estimating the, 445. “DAMAGING,” meaning of the word, 318, note. “DANGEROUS WEAPON,” meaning of the words, 242, note, 320, 321. robbery with, 527. DAUGHTER, alleging that injured person is not, in rape, 485. DAY, whether fractions of, 28, 29, 30, 108, 111. of sentence, reckoned as part of the term, 218. ‘“* DAYTIME,” meaning of the word, 276. ‘**DEADLY WEAPON,” (See Wuaron.) meaning of the words, 320. words, in indictment for aggravated assault, 505. “DEAL IN SELLING,” meaning of term, 210, 1016. 167 DIS ALPHABETICAL INDEX OF’ SUBJECTS. DEALING AS MERCHANT, (See Mercuant.) without license, offence of, 1089-1092. DEATH, (See Conceatment or Birta — Homicipz.) what penalties milder than, 185. alleged, in concealment of birth, 779. ‘*DEBAUCH,” (See Szpuce anp Drsauca.) “DECEIT,” meaning of the word, 260. DECISION. (See Jupicrat Dzcision.) DECLARATORY ACT, how construed, 144. repeal of, by custom, 150. DEED, (See MortGaGE-DEED.) time of registration of, parol proof, 29. meaning of the word, 340, note. DEER STEALING. (See Larceny.) DEFEATED, statute to be so construed as not to be, 82. DEFILEMENT OF WOMEN, (See SepuctTion or Women.) statute against, how interpreted, 215. DEFINITION, whether indictment must follow the, of crime, 511-514, 1066. And see 381, 386-392, 470-473. DEGREE. (See Principat In SECOND DEGREE.) DEGREES OF OFFENCE, one indictment charge different, 171. “DELIBERATELY PREMEDITATED,” words, in indictment for mur- der in first degree, 372, 471 and note. “DEMOLISH HOUSE,” what it is to, 214. ““DEPRIVE OF NECESSARY SUSTENANCE,” words, in cruelty to animals, 1111. ; DEPUTY COLLECTOR, power of, to administer oath, 129. DEROGATION OF COMMON LAW, (See Common Law.) statutes in, construed strictly, 119, 155. DESERTING SEAMEN, (See Sartors.) construction of statute for commitment of, 218. “DESIGNED FOR EXPORTATION,” what the words refer to, 206. “DESTROY,” meaning of word, as to thrashing machine, 214. meaning of word, as to trees, 224; as to vessel, 214, note, 224. word, in indictment for malicious mischief, 446. DESTROYING HOUSE, statute against, construed, 223. DESTRUCTION, of liquor, history of the law, 988. whether constitutional, 994, 1056. “DESTRUCTIVE MATTER,” meaning of the words, 324. “DEVICE,” (See Gampuinc Device.) meaning of the word, in statutes against gaming, 867-869. DIRECTORY STATUTE, what, effect of, distinguished from mandatory, 255, 256. DIRK, statute against carrying, with indictment, 794, 795. “ DISABLING,” meaning of the word, 316, note. * DISCHARGE LOADED ARMS,” meaning of the words — what act, B22. DISCRETIONARY POWER, (See Power.) non-user as affecting, 149. 768 ALPHABETICAL INDEX OF SUBJECTS. DUP ‘‘DISFIGURE,” meaning of the word, 316, note. 448. DISCIPLINE, cruelty to horse or child, in way of, 1101. DISJUNCTIVE ALLEGATION, (See ‘‘ Or.”) in indictment for highway robbery, 526. DISORDERLY INN, (See Trppiine-Housr.) is common nuisance, 546. «‘ DISPOSE,” (See SscreT DispPosirTion.) meaning of word, in statutes against child murder, 771 and note. DISTILLATION, of grain, whether constitutional to prohibit, 996. ‘‘ DISTILLER,” meaning of the word, 273, 1011. DISTURBING MEETING, (See MEETING.) how statute against, interpreted, 211. offence akin to nuisance, 560. ‘““DIVERS DAYS.” (See ConTINUANDO.) DIVORCE, (See Marriace.) statutes authorizing, retrospective, 84. when new statute as to, does not repeal old law, 156, note. word, how construed in statute against polygamy, 229, 583. form of the sentence from bed and board, 583. guilty party marrying after, contrary to statute, 666. evidence of adultery in cases of, compared with the same on the in- dictment, 677-688. DOG, whether ‘‘ other property,” 246. not ‘‘ goods and chattels” in statute against larceny, 344. ownership of, in malicious mischief, 443. when common-law nuisance, 548. DOG-RACE, whether a game, 862. DOMICILE, for voting, what, 817. proof of, 842. DOMINOES, as gaming device, 868, note, 869. or cards, how, 917, note. DOORS. (See Instipz Doors.) DOUBLE DAMAGES, statutes giving, how construed, 193. note. DOUBLE VOTING, (See Erecrion Fraups anp Ossrructions.) offence of, 803 et seq., 825, 829, 837. DOUBT, what, of meaning, calls for interpretation, 201. DOUBTFUL POWER, (See Power.) statute construed to avoid, 82. “DRAFT FOR PAYMENT OF MONEY,” meaning of the words, 338, note. DRIVING. (See Fast Drivinc — Furious Drivine.) ** DRUG,” (See Mepicinz.) intoxicating liquor not a, 1019. DRUNK IN STREET, offence of being, 973. DRUNKENNESS, (See Common DrunxKarD.) arrests for, without warrant, 796. law of the offence, 968-973. the procedure, 974-981. DUPLICITY, what is not, in indictment for abortion, 759. 769 ERR ALPHABETICAL INDEX OF SUBJECTS. DUTIES, statutes for collection of, directory, 255. DUTY. (See Statutory Dury.) ‘“ DWELLING-HOUSE,” jail is a, 207. distinguished from ‘‘ house,” 213. larceny in, statute construed, 233, 234, 240. meaning of the term, 277-288, 1011. robbery from, discussed, 525. statutes as to nuisances connected with, 556. EAR-KNOBS, are ‘‘ jewelry,” 347. EAVESDROPPING, common-law nuisance, 547. EFFECT OF STATUTES, distinguished from meaning of, 189. «*EFFECTS.” (See SECURITIES AND EFFECTS.) ELASTIC, how far criminal statutes are, 188-240. ELECTION, on what statute to proceed, 164. how allege the, in indictments for election frauds, 832-834. doctrine of, as to prosecution for selling liquor, 1027. ELECTION FRAUDS AND OBSTRUCTIONS, (See Brttine oN ELECTIONS.) resisting illegal questions, 223. law of the offence, 803-826. the procedure, 827-843. how resylt of election proved, 947. “ELECTION IN THIS STATE,” meaning of words, 205. ELECTIVE FRANCHISE, (See Rerusine VorTE.) nature of the, 807-809. forfeiture of, 910. ELUDED, statute to be so construed as not to be, 82, 200. EMBEZZLEMENT, who servant, &c., in, 271. the proceeding for, 418. EMBRACERY, obstruction of governmental order, 568. EMISSION, whether essential in rape, 479, 494. EMPLOYMENT. (See Bustness on EMPLOYMENT.) ENACTMENT, (See STaTUTE.) of statute, how, 44. ENACTING CLAUSE, whether restrained by preamble, 49, 51. of statute, how, 5i). ENCLOSURE, effect of, as to buildings within curtilage, 285, 286. ENGLISH STATUTE, (See SraTures.) as common law here, when repealed, 161. ENGROSSED BILLS. (See LeaistativE REcorps.) “ ENLIST.” (See Persuaprinc To EN Ist.) ENTRY. (See Fatse Entry.) ENUMERATION, effect of, in statute, 245, 246. “ERECT AND BUILD,” meaning of the words, 208. “ ERECTION,” meaning of the word, 291, note. ERGOT, proof of administering, to procure abortion, 761, note. ERRONEOUS PROCEEDINGS, effect of, as to Statute of Limitations, 262. TT0 ALPHABETICAL INDEX OF SUBJECTS. EXP ERRORS. (See Crrricat Errors.) ESCAPE, (See Nraricunr Escape.) statute against, considered, 217. obstruction of governmental order, 568. ESTABLISHED COURSE OF THINGS, statutes against, how con- strued, 119. “ ESTATE,” word, not sufficient to describe owner, 458. ESTRAY ANIMALS, wrongly using, 462. EUCHRE, game of, 868, note, 917, note. EVIDENCE, (See Proor — Testimony — Wirvyzss.) confined within period of limitations, 264. ‘ need not be set out in indictment, 372. of adultery in divorce and criminal causes compared, 677-688. (And see under the several offences.) EVIL ACT, (See Act.) to combine with evil intent, 360. how far the, to be taken from common Jaw in statutory crimes, 362-364. ‘“*EVIL-DISPOSED PERSON,” words not necessary in indictment, 751 and note. “EVIL EXAMPLE.” (See To tue Evin Exampce.) EVIL INTENT, (See Crvit Insury — Particutar Evin Inrent.) to concur with statutory act, 231. essential to statutory crime, discussed, 132, 351-361. common law as to the, to be engrafted by construction on the stat- utes, 362. what, in offence of carrying weapon, 789. how in election frauds, 805, 806, 820-825. what, in selling liquor, 1021-1023. “EWE,” is a ‘‘ sheep,” 212. whether a sheep is a, 247. “EXAMPLE.” (See To roe Evit Examrte.) EXCEPTION, (See Provisos.) in statute, concerning, 58. .one statute construed to create an, in another, 156. in criminal statute. how construed, 229. EXCEPTIONS AND PROVISOS, | (See Provisos.) negativing in indictment, 605, 606, 798, 1088. negativing, on statutes against gaming, 893. in liquor laws, negativing, and how, 1042-1044. proof of the negative, 1051, 1052. EXECUTION OF SENTENCE, at different time from that ordered, 255. EXISTING RIGHTS, (See Ricur.) statutes not construed as interfering with, 85. EXPAND, what will, the meanings of words, 118-121. EXPAND AND CONTRACT, when criminal statutes do, by force of interpretation, 183-240. EXPIRING, statute, by its limitations, 182. “EXPORTATION,” meaning of the word, 205. 771 FAV ALPHABETICAL INDEX OF SUBJECTS. EX POST FACTO LAWS, doctrine of, as to when statutes take ef- fect, 29. statutes as being, 85. not, to give jurisdiction to new court, 180. statutes changing punishment, 185. what is, 185, 265. what, and whether statute reviving prosecution barred by time is, 265-267. EXPRESS MENTION, (See Mention.) of one thing in statute, whether excludes others, 249. EXPRESS REPEALS, (See REPEAL.) what, &c., 151, 153. EXPRESS WORDS, repeal of statute by, 151, 152. EXTORTION, (See IrteGan FEEs.) statute against, interpreted, 217. indictment for, variance in proof, 346, note. as breach of governmental order, 570. FACT, (See Facrs—Icnorance or Fact—Law anp Fact — Mistake OF Fact.) FACT OF MARRIAGE, proof of, 608-613, 687. FACTS, recited in statute, how taken, 50. not evidence, required in indictment, 370-373. “FALSE ENTRY,” meaning of term, 210. FALSE GRAMMAR, (See GRAMMATICAL CONSTRUCTION.) effect of, in statute, 215. FALSE IMPRISONMENT, of seamen, how scatite construed, 209. FALSE OATH, (See Prrsury.) to obtain marriage license, &c., 571, 572. FALSE PRETENCES, (See Carats.) limitations of general words of statutes against, 133, 134. made to agent, 134. obtaining goods by, considered, 451, 452. «FALSE RUMOR,” (See Rumor.) words, in statute against polygamy, 597. “FALSE STATEMENT,” meaning of term, 210. FALSE TOKEN. (See Token.) FALSE TOLL-DISH, offence of keeping, 562-564. ° “FALSELY AND FRAUDULENTLY,” not equivalent for ‘‘ wilfully,” 840. FAMILIES. (See Separate Famiries.) FARMER, not included in 2 Car. 2 against Sabbath breaking, 245. FARO, who guilty of, as aiding at, 135. FARO BANK, statute against setting up, construed, 221. indictable under statutes, 852. offence of exhibiting, 864, 866. FAST DRIVING, prohibited by city by-laws, 20. FAVORED, things, how regarded in the law, 192, 193. TT2 ALPHABETICAL INDEX OF SUBJECTS. FOR FELONIES, statutes construed not to multiply, 218. “FELONIOUS ASSAULTER,” words, in indictment for aggravated assault, 506. ‘* FELONIOUSLY,” use of the word, in indictment, 387, 439, 452. FELONY, aiders in, how regarded, 135. statutory, how, 140. making, misdemeanor repeals former law, 174. indictment for, as to word ‘‘ feloniously,” 387, 439, 452. FENCE, not part of dwelling-house, 281. FENCE-VIEWERS, perjury in false testimony before, 572. FIGHTING TOGETHER, © (See Arrray.) offence of, 540. FINE, under by-law, effect of, 23. FISHING, by-law, regulating, 20. “FIVE DAYS BEFORE,” meaning of the phrase, 110. ‘“* FLEEING FROM JUSTICE,” meaning of the term, 242, note. FETUS, how the, in abortion, 744-746. secretion of, as evidence in abortion, 761. word, distinguished from ‘ child,” in child murder, 772, 773. FOOD. (See UNWHoLESOME.) FORCE. (See Puysrca Forcer.) “FORCE AND ARMS.” (See Witn Force anp Ars.) FORCIBLE ENTRY AND DETAINER, whether vi for manu forti, &e., ill in indictment, 400. analogous to riot, 541. : akin to nuisance, 560. “ FORCIBLE PASSING,” meaning of the words, 313, note. FORCIBLE TRESPASS, analogous to what offences, 541, 560. FORCIBLY, (See By Forces.) “FORCIBLY BREAK,” meaning of the words, 313. FOREIGN STATUTES, how construed, 115. FORFEITURE, statutory, not extend to married women, 131. statutes working, how construed, 192, 193. imposed, whether equivalent to prohibition, 254. for breach of municipal by-laws, how, 403. of right to vote, how, 809, 810. of liquor license, 1005. statutes directing, of liquors, 1055, 1056. FORGERY, statute changing punishment for, 185. of deed of lands in another State, 205, note. orders for money, &c., 206. what an uttering in, 306. various instruments of statutory, described, 825-348. viewed as obstruction of governmental order, 568. FORM, (See Inpicrment, Form or tH.) complaint on by-law, 407. FORMER PROSECUTION, (See Szconp Jroparpy — Twice IN JEOPARDY.) effect of, on subsequent indictment for selling liquor, 1027. T73 GAM ALPHABETICAL INDEX OF SUBJECTS. FORNICATION, (See Living in ApULTERY — Livine IN Fornt- CATION.) evidence of, 689. conviction of, on indictment for adultery, 690. whether indictable at common law, 691. statutory offence of, discussed, 691-694. ‘““FOUND,” word, not necessary in indictment for larceny, 421 and note. word, in statutes, how the indictment, 980. ‘“*FOURTEEN DAYS AT LEAST,” meaning of the phrase, 110. FRANCHISE, (See City CuarTEr.) statutes granting, how construed, 193, note. statute creating, mandatory, 256. FRAUD, practised on legislature, effect of, on statute, 38. statute to suppress, how construed, 192. goods obtained by, the indictment, 417, 419. whether there can be a bailment which is procured by, 423. consent of parent obtained by, in seduction, 635. of owner, in larceny, 635. « FRAUDULENTLY,” (See KNOWINGLY AND FRAUDULENTLY.) in statute, not covered by ‘‘ wilfully and feloniously ” in indictment, 459. ‘‘FREE NEGRO,” words, when rejected in statute, 222. FREEHOLD, things attached to, whether larceny of, under statute, 413, 414. “FROM,” construed to mean ‘ to,” 215. “FROM THE PERSON,” (See Person.) words, in indictment for robbery, 524. FUNDAMENTAL JUSTICE, statutes against, whether valid, 41. FURIOUS DRIVING, when common-law nuisance, 549. FURNACES, statutes restricting the erection of, 565. ‘* FURNISHING,” meaning of the word, 1011. GAMBLING DEVICE, (See Device.) meaning of the words, 867. offence of setting up a, 876. GAMBLING-HOUSE. (See Pusric GaAMBLING-HOUSE.) ‘©GAME,” (See Untawrut Game.) meaning of .he word, 857-863, 936. “GAME OF CHANCE,” meaning of the term, 862, 863. kinds of, 864. “GAME OF HAZARD.” meaning of the term, 862. ‘* GAME-COCK,” (See Cock-FIGHTING.) not ‘‘implement of gaming,” 319. GAMING, (See Ber — GaME-cock.) when, punishable under both by-law and statute; 23, note. interpretation clause in statute against, 55. who guilty of, as aiders, 135. TT4 ALPHABETICAL INDEX OF SUBJECTS. GRI GAMING, — continued. statute against, construed, 221. statute against, in storehouse for retailing, construed, 294. at ‘‘ public place,” considered, 298. in ‘‘ public house,” considered, 299. word in statute, whether covered by ‘‘ gambling” in indictment, 908. law of the offence, discussed, 844-881. the procedure, discussed, 882-930. GAMING-HOUSE, common-law nuisance, 546, 847. statutory nuisance, 557. indictment for keeping, 557. x constitutionality of tax on, 856. GARROTING, offence of, 531, 794. ‘* GELDING,” whether embraced in term ‘‘ horse,” 248. is ‘‘ cattle ” — proper word in indictment, 212, 440. is ‘‘ beast,” 442. GENERAL PROVISION, (See ParTicuLaR Provision.) controlled by specific, 126. as to repeal of particular, 126, note. restrained by common law, 131. carries with it the particulars, 137 and note. not repealed by subsequent specific, 152, 156. and particular, standins tozether, 165, note. enactment of, to cure particular defect, 236. GENERAL TERMS, how construed in connection with particular, 245, 246 and note. * GENERAL WORDS, after particular, how interpreted, 245, 298. GIFT EXHIBITION, is a lottery, 956. GIFT SALE, is a lottery, 955. GIRL UNDER SIXTEEN, (See Szpuction or WomEN.) taking out of custody, &., 359, 631 et seq., 644 et seq. GOLD RINGS, are ‘ jewelry,” 347. “¢ GOODS,” meaning of the word, 344, 345. “GOODS AND CHATTELS,” what the term, includes, 209, note. “GOODS AND MERCHANDISE,” (See MERCHANDISE.) meaning of the term, 209, 344. GOOSE-HOUSE, part of dwelling-house, 285. GOVERNMENTAL ORDER, (See OrvER.) obstruction of, at common law, considered, 568, 569. statutory obstructions, discussed, 570-574. GOVERNOR'S SIGNATURE, (See SiGNaTURE. ) attached to statute by mistake, 37. repealing statute before it receives the, 151, note. GRAIN, is ‘‘ goods and chattels,” 344. GRAMMATICAL CONSTRUCTION, (See Fase GrAMMar.) how regarded in statute, 81, 243. GRAND JURY, power of, over witness, 137. GRAND RIVER, in Michigan, navigable, 303. GRIEVANCES, considered in construing statute, 82. 775 HOM ALPHABETICAL INDEX OF SUBJECTS. “GRIEVOUS BODILY HARM,” meaning of the term, 318. GUILTY. (See Pies or Guitty.) GUN, an “offensive weapon,” 321. GUNPOWDER, keeping, common-law nuisance, 548, 565. ‘HABITUAL DRUNKARD,” (See Common Drunkarp — Dronk- ENNESS.) meaning of the words, 970-972. HAP-HAZARD, game of, 864. HAPPINESS, statutes contrary to, how construed, 193. HARBORS, statutes for preservation of, 565. HARDSHIPS, avoided in construing statutes, 82. statutes creating, how construed, 192. HARMONY OF PROVISIONS, (See Conriictine Provisions — PROVISIONS. ) to be obtained by construction, 123. HAVENS, waters of, whether high seas, 304. HAVING FOR SALE, (See Kuzrine Liquor.) . lottery tickets, how, 958. HAVING WEAPON, when arrested, how the indictment, 796. « HAWKER,” meaning of the word, 210, 1072, 1074. HAWKERS AND PEDDLERS, (See PeppLer — Perry Cwap- MAN.) unlawful, law of the offence, 1071-1080. the procedure, 1081-1088. HAZARD. (See Game or Hazarp.) HEALTH AND SPIRITS, evidence of woman's, in abortion, 761, note. HEARSAY EVIDENCE, not sufficient in charge of open lewdness, 725. “ HEREAFTER,” effect of word, applied to punishment, 183, 185, note. HIGH SEAS, (See Szas.) meaning of the term, 304. larceny on the, 416. HIGHWAY, (See Pusric Way — Way.) meaning of the word, in statutes against gaming, 878. how allege, in indictment for gaming, 906. what is proof of place being, 928. HIGHWAY ROBBERY, (See RospBery.) crime of, discussed, 525, 526. “HIS,” what included under word, 212. HISTORY, how in interpretation of statutes, 50, 77. “« HOG,” (See Swinn.) is ‘‘ domestic beast ” — proper word in indictment, 440, 442. HOMICIDE, (See MansLtavGuTer — MuRDER.) statute changing punishment of, after commitment, 181, 185, note. doctrine of indictable, discussed, 465-477. sanity need not be alleged in indictment for, 488. resulting from actual or attempted abortion, 742, 743, 759, 761, note. 176 ALPHABETICAL INDEX OF SUBJECTS. INP ‘‘ HORSE,” is ‘‘ cattle” and ‘‘ beast” — proper word in indictment, 212, 440, 442. whether the word, includes gelding, 248. meaning of the word, 426. , indictment for killing a, 446. what it is to ‘‘ disfigure ” a, 448. offence of beating, 1098, 1101. overloading, 1107, 1108, 1110, 1113. HORSE-RACING, (See Brrrine on HorsE Race.) indictable under statutes, 852. whether a game, and what, 862, 871-873. unlawful, procedure for, 927-929. HORSE STEALING how statute against, construed, 248. statutory crime of, discussed, 426-429. HORSEWHIP, whether an ‘‘ offensive weapon,” 821. ‘* HOTEL,” meaning of the word, 297. HOUSE, jail is a, 207, note. distinguished from ‘‘ dwelling-house,” 213. breaking, stealing in, &c., statutes construed, 233, 234, 240. meaning of the word, 277, 289. HOUSE OF CORRECTION, statute concerning management of, construed, 246, note. HOUSE OF ENTERTAINMENT, meaning of the term, 297. how allege in indictment, 903, 904. «© HUMAN BEING,” unborn child is not, 947, note. HUMAN LIFE, driving horse painfully, to preserve, 1102. HUSBAND AND WIFE. (See Coverturr — Marrrep WomEen — Wire.) IGNORANCE OF FACT. (See Mistake oF Fact.) IGNORANCE OF LAW, (See KNowLepGeE or Law.) how in election frauds, 820-825. ILLEGAL FEES, proceeding for taking, 171, note. ILLEGAL TOLLS, (See Tots.) offence of taking, 562-564. “ILLEGALLY,” in statute, covered by ‘‘ unlawfully” in indietment, 840. ILLEGITIMATE CHILD. (See Bastarp — Natura DavuGHTER.) ILL-FAME. (See Bawpy-Houssz.) «« IMPLEMENT, ” meaning of the word, 319. ‘“« IMPLEMENTS OF GAMING,” meaning of the words, 216. IMPLICATION, men not made punishable by, 194. things proceeding from statute by, 249. IMPLIED REPEAL, doctrine of, 154 et seq. IMPRISONMENT, as punishment, compared with whipping and death, 185. «« IN,” in statute against wooden building, 216. IN PARI MATERIA, statutes to be construed, 82, 86, 87, 124, 160, note, 191. 50 TTT IND ALPHABETICAL INDEX OF SUBJECTS. “IN PEACE OF GOD,” (See Peace or Gop.) words, not necessary in indictment, 751 and note. INACCURATE EXPRESSIONS, (See CrericaL Errors — Fase GRAMMAR.) in statute, how, 81. INCEST, evidence of other acts of, 681, note. law of the offence, 727-730. procedure, 731-736. INCONSISTENT ACTS, (See STATUTE.) express repeal of, 151, 152. INCONSISTENT PROVISION, repeal by force of, 154 et seq., 165. INCONVENIENCE, in statute, avoided by construction, 82. INCORPORATION, (See Act or INcorPoRaTION.) : acts of, how construed, 119. INDECENCY. (See ScanpaLous INDECENCIES.) INDEPENDENT CLAUSES, (See Or.) indictment on, how, 244, 383. INDICTMENT, (See Acainst Form or Statute — ALLEGATION —InpEPenDENT CLausEs — Joint — SEpaRsTE— Two In- DICTMENTS, &c.) defective, on statute, may be good at common law, 164. to allege all which concerns the punishment, 166. form of, where statute provides a new punishment for old offence, 167. how conclude, 167, 168. not lie on repealed statute, 177. whether, essential to commencement of prosecution, 261. fundamental doctrines regulating the, 368-374. in statutory form, void as unconstitutional, 370-372, 1036. practical directions for drawing the, with general views respecting, 375-393. on private statute, 394-402. on municipal by-law, 403-407. how follows statute, 557. various views concerning, on statute, 795. before drawing, must interpret statute, 389, 390, 795-797. INDICTMENT, FORMS OF THE, for selling adulterated milk, 385. libel, 388. attempt to libel, 392. allegation on private statute, 402. larceny by bailee, 421. malicious mischief, 438, 446. altering mark on cattle, 455, 456. murder in first degree, 474. murder in second degree, 475. mayhem, 496-498. aggravated assault with intent to rob, 506. simple assault on Indiana statute, 513. robbery, 521-523. robbery in first degree, 529. 178 ALPHABETICAL INDEX OF SUBJECTS. INF INDICTMENT, FORMS OF THE, — continued. arson, 537. keeping false toll-dish, 563. polygamy, 598, 600, 601, note. abduction (on 3 Hen. 7, c. 2), 622. seduction — taking girl under'sixteen, &c., 644. seduction — other forms, 645-647. adultery, 671, 672, 674, note. fornication, 692, 693. living in adultery or fornication, 700, 704 and note. open and notorious lewdness, 720. being a lewd and lascivious person, 723. incest, 734, note. abortion — assault and administering drugs to produce, 751 other forms of actual or attempted abortion, 752, 755, 756. concealment of birth, or child murder, 777. carrying weapons — slung-shot, &c., 794. wearing a concealed weapon — revolver, 797. against election officer for refusing to receive vote, 828. for casting more than one vote, 829. voting not being qualified, 830. attempting to prevent one from voting, 831. winning money at gaming, 885, 887. gaming for valuable thing, 889. permitting gaming on one’s premises, 890, 891. permitting gaming table’to be exhibited, 892. betting on game, 919 and note. horse-racing, 927. winning, betting, &c., on election, 938-940. selling lottery tickets, 962. 3 drunkenness and common drunkard, 974, 977, 978. selling intoxicating liquor — various forms, 1034, 1035. selling liquor to be drank on premises, 1062. keeping tippling-shop, 1066. hawking and peddling, 1087. cruelty to animals — beating a horse, 1098. wounding a bull, 1099. overloading horses on street car, 1107, 1108. «““INDORSEMENT,” meaning of the word, 338, note. INDUSTRIAL ESTABLISHMENTS, statutory provisions respecting, as to law of nuisance, 556. “INFAMOUS CRIME,” meaning of the words, 242. INFANCY, as excusing criminal act, 353. INFANTS, (See Minors.) below capacity for.crime, not embraced by general terms of statute, 131. « INFLICTED.” (See Wounp Inriicrep.) INFORMALITIES, in elections, effect of, 814. 779 INT ALPHABETICAL INDEX OF SUBJECTS. INFORMATION, (See Compiainr — INDICTMENT.) withheld because of non-user of statute, 149. INFORMATION QUI TAM, defeated by outlawry, 132. INHABITED, building must be, to be dwelling-house, 279. “INHABITED DWELLING-HOUSE,” jail is an, 207. ‘““INJURE,” (See Puysican Insunizs.) word, in indictment for malicious mischief, 447. INJUSTICE, in statute, avoided by construction, 82. INN, (See Disorperty Inn —Seiine Liquor.) meaning of the word, 297. whether keeping, indictable, 984. INN OF COURT, is dwelling-house, 279. INSANITY, person insane not embraced in general statute, 131. excuses statutory criminal act, 7, 352, 1021, 1022. INSIDE DOORS, breaking, in burglary —to serve process, &c., 290. “ INSTRUMENT,” when writing is not an, 217. meaning of the word, 319. “INTENDED FOR SALE,” meaning of the words, 370. INTENT, (See ApuLTEROUs InTENT— Evin Intent — LeEcisia- TIVE INTENT.) to sell liquor, evidence of, 1058. INTENT CLEAR, interpretation not resorted to when, 201. INTERPRETATION, different sorts of, operating together, 191-193. governed by varying rules, 199, 200. INTERPRETATION CLAUSE, of statute, concerning, 54, 55. how construed, 55. INTERPRETATION OF STATUTES. (See Lecisnative INTENT — Statutes, &c.) introductory views concerning, 1-10. different sorts of written law distinguished, 11-26. when and how statutes take effect, 27-41. several parts of statute considered, 42-67. leading principles of, stated and illustrated, 68-121. how statutes operate together and with common law, 122-146. repeals of criminal statutes, 147-187. how expand and contract, 188-240. technical words, &c., 141, 142. grammatical construction, &c., 143, 144. specific terms followed by general, 145, 146. terms overlying one another in meaning, 247, 248. exclusion of things by implication, 249. remedy for statutory right, 249-253. effect of statute on right of action, &e., 254. directory, mandatory, &c., 255, 256. statutes of limitations of crime, 257-267. » meanings of particular words and phrases, 268-350. evil intent must accompany the statutory act, 351-362. statutory act, how governed by common-law rules, 362-364. 7380 ALPHABETICAL INDEX OF SUBJECTS. JUR INTERPRETATION OF STATUTES, — continued. mingling of common-law and statutory procedure, 365-367. (And see numerous heads in this Index for the particulars of the interpretation. ). “INTIMIDATION,” word, in indictment for robbery, 524. “INTOXICATING LIQUOR,” (See Krrrinc Liquor — SELLING Liquor.) meaning of the words, 1007. ‘“INVEIGLE,” meaning of the word, in seduction statutes, 640. JACK, unlicensed standing of, 214. JAIL, (See Prison.) is dwelling-house, 207, 279, 285. also, a house, 289. meaning of the word, 536. ‘* JEOPARDY,” (See Former PRrosECcUTION.) meaning of the word, 242, note. “ JEWELRY,” meaning of the word, 347. JOINDER, (See Jomnt — SEVERAL.) of defendants, in gaming, 912. how, in indictments for selling liquor, 1045. JOINT, (See JornDER.) indictment may be, for adultery, 670. indictment for living in adultery may be, 708. open and notorious lewdness, 721. JOINT DEFENDANTS, in treason, how as to counsel, 227. JUDGES, differ in interpretation of statutes, 116. not to follow private views, 235. JUDGES’ SALARIES, statutes regulating, 130. JUDGMENT, cannot be rendered on repealed statute, 177. JUDICIAL CAPACITY, of officers of elections, doctrines relating t the, 802, 806, 820-825. JUDICIAL DECISION, effect of, on construction of statute, 104. JUDICIAL KNOWLEDGE, of facts, employed in construing statutes, 82. JUDICIAL PROCEEDINGS, (See PRocEEDINGS.) statutes concerning, retrospective, 84. cannot be carried on without notice, 141. ‘* JUNK SHOP,” meaning of the word, 296. JURISDICTION, statute creating new, its effect on old, 156, note. election as to the, 164. after offence committed, changed, 180. statutes as to, how construed, 142, 197. JURORS, statutes regulating qualifications of, retrospective, 85. drunkenness by, 969. JURY, (See Granp Jury.) attempt corruptly to influence, indictable, 568. province of, in adultery cases, 689. what for the, in indictments for gaming, 907. 781 LAR ALPHABETICAL INDEX OF SUBJECTS. JURY TRIAL, how secured by construction, 89. JUSTICE. (See Fireuinc rrom Justice — FUNDAMENTAL JUSTICE.) JUSTICE OF PEACE, appeal from, by force of constitution, 89. statutes concerning jurisdiction of, how construed, 126. office of, a ‘*‘ public house,” 299. drunkenness by, 969. ‘““KEEP AND BEAR ARMS,” meaning of constitutional provision con- cerning, 792-794. KEEPING LIQUOR, (See Havine ror Sate — InToxicaTInG Liquor — Setitine Liquor.) for unlawful sale, 1054-1058. KEYS, whether ‘ instruments for house-breaking,” 319. KIDNAPPING, statute against, how interpreted, 205, 236. by stealing an heiress, 619. KILL, word, in indictment for malicious mischief, 446. assault with intent to, 502-508. word, in cruelty to animals, 1111, 1113. KILLING CATTLE, (See Crugitiy Kitt.) indictment for, as malicious mischief, 438. KING, not bound by statute, 103. ‘“* KNOWING,” meaning of word, in polygamy statute, 596. ‘““KNOWINGLY,” word, in election laws, 824, 825. “KNOWINGLY AND FRAUDULENTLY,” effect of words, in election laws, 820-825. KNOWLEDGE, (See Carnat Knowiepce—Jvupician Knxow1- EDGE — Mistake or Fact.) of the relationship in incest, 730-734. KNOWLEDGE OF LAW, (See Ianorance or Law — Law — Law anp Facr— Mistake or Fact.) presumption of, when statute could not be known, 30. when conclusively presumed, and when not, 805, 806, 820-825. LACHES, of agent of State, effect of, 103, note. “LAMB,” is a ‘‘ sheep,” 212. whether included in word “ sheep,” 248. LAND, construction of statutes about taking, for public use, 119. LANGUAGE, changes from age to age, 116. elasticity of, 268. , LAPSED RIGHT, after repeal of statute, revived, 180. LARCENY, (See PrivatTELy STEALING — STEAL.) statutes as to value of goods in, how construed, 127. statutory, in any county where goods carried, 140. of deer, statutes against, construed, 232. in particular places, statutes against, construed, 233, 234. not, of dogs, 246. of sheep, statute against, construed, 247. of horses, how statute against, construed, 248. 782 ALPHABETICAL INDEX OF SUBJECTS. LET LARCENY, — continued. various instruments, subjects of statutory, described, 325-343. dog not subject of, as ‘‘ goods and chattels,” 344. how as to coin, 344. requires specific evil intent, 360. created by the one word ‘‘ larceny,” defined by common law, 363. how indictment for statutory, 381. at common law, outline of, 410-412. statutory, discussed, 413-429. thing obtained by fraud, 635. ‘“LASCIVIOUS BEHAVIOR,” meaning of the words, 714. ‘““LASCIVIOUS CARRIAGE,” meaning of the phrase, 713. LAW, (See Ignorance or Law — KnowiepcGe or Law — Poricy or Law — Prior Law.) existed before legislation, 4, 11. knowledge of prior, necessary to interpretation of statute, 6. must have penalty, 21. conclusion of, need not be alleged, 421, 506. LAW AND FACT, (See Icnorance or LAw— KNOWLEDGE oF Law — Mistake or Fact.) distinctions between, in proceedings for gaming, 907. ‘“*LAWFUL MONEY,” bank-notes are not, 346, note. LAWS, (See Stature.) whether extra-territorial, 812, 813 and note. LEGAL AUTHORS, consulted, as to interpretation of statutes, 77. “LEGAL CHARGE,” meaning of the words, in seduction’ statute, 638 and note. LEGAL MEANING, given to words of statute, 96, 97, 269. words having, how construed, 224. LEGAL RULE, (See Ruz.) how to determine a, 125. LEGISLATIVE CONSTRUCTION, effect of, 104. LEGISLATIVE INTENT, (See SraTurTE.) how gathered from preamble, 49, 50. chief object of interpretation to ascertain, 70, 82, 93. determined by the words, 80. obtain, from whole statute, 102. how reached by construction, 121. looked after, in strict interpretation, 200, 201, 202. followed in construing criminal statute, 231, 235. LEGISLATIVE MEANING, how to be regarded, in interpreting statute, 75-77. LEGISLATIVE RECORDS, (See REcorDs.) consulting the, as to statutes, 37. whether look into, in interpreting statute, 76, 77. LEGISLATURE, not bound by statute, 31. to construe constitution, 35, 36, 91. LETTER, (See Strict INTERPRETATION.) how adhere to the, in criminal statutes, 190. 783 LOC ALPHABETICAL INDEX OF SUBJECTS. LETTER, — continued. how in civil, 190. doctrine as to following the, in construing statute, 230. LETTERS, (See Post-oFrFIcz.) wittingly, &c., detaining, 823. LEWD, &c. PERSON, indictment for being, how, 723. ““LEWDLY ASSOCIATE,” &c., meaning of the phrase, 712. LEWDNESS, (See Open anp Notorious LEWDNESS.) when indictable at common law, 654, 691, 711, 728. meaning of the word, 716. LIBEL, how the indictment for, 388, 389. further of the doctrine of, 388-392. LIBERAL INTERPRETATION, (See Srrict anD LIBERAL.) what and how, 93. to what statute applies — how, 120. in favor of defendants in criminal cases, 190 et seq. and strict, blend in criminal statutes, 196-199. in favor of defendants, explained, 226-240. for statutes of limitation, 259. LIBERTY, statutes against, how construed, 119, 193. LICENSE, for selling liquor, the, and how granted, its effect, &c., 999- 1006. LIFE, (See Human’ Lirs.) statutes taking away, how construed, 193. ‘* LIKE,” a bowie-knife, what, 790. LIMITATIONS, statutes of, not run against State, 103, 142, note. statutes of, as to crime, discussed, 257-36.7 6 7 statutes of, as to gaming, 916. « LIQUOR,” (See Kuzrine Liquor — Seine Liquor.) meaning of the word, 1010. : LIQUOR NUISANCE, (See TIppLING-sHOP.) statutory offence of maintaining, 1059-1070. LIQUOR SELLING. (See Setting Liquor.) LITERAL INTERPRETATION, what and how, 93. LITIGATION, statute construed to avoid, 82. “LIVING CREATURE,” words, in cruelty to animals, 1112, 1113. LIVING IN ADULTERY, &c., (See ApuLTErRY — LivING IN Fornicatron — Orzn anp Notorious Lewpnzss.) distinguished from simple adultery, 656, note. one act, as evidence of, 680, note. law of the offence, discussed, 695-698. the procedure, discussed, 699-709. LIVING IN FORNICATION, (See Lrvine in Aputrtery, &c.) indictment for, need not negative marriage, 693, note, 700. “LOADED ARMS,” meaning of the words, 322. “LOAF SUGAR,” meaning of term, in statute, 99. LOCAL STATUTES, (See Stature.) when not controlled by general, 126 and note. against selling liquor, 997. 784 ALPHABETICAL INDEX OF SUBJECTS. MAL LOCALITY, within what, by-laws have force, 22. LODGERS, whether rooms of, are dwelling-houses, 287. LODGING-HOUSE, private, not an inn, 297. LOFT, may be dwelling-house, 279. LORD’S DAY, (See SaBBATH-BREAKING. ) breach of, by selling liquor, 148. by peddling, 143. statute as to arrest on, 198. statutes against ‘‘ tippling-houses ” on, 213. observance of, statute construed, 237. construction of 29 Car. 2 against violating, 245. gaming on, indictable under statutes, 852. LOSING, by bet, indictment for, 938. LOTTERIES, (See Lottery.) whether statutes against, constitutional, 856. unlawful, law of the offence, discussed, 951-966. the procedure, discussed, 961-966. « LOTTERY,” (See LoTTERIEs.) meaning of the word, 952. LOTTERY TICKETS, (See Marertats ror LorrEry.) meaning of statute against selling, 205, 207. term includes quarter tickets, 211. seizure of, constitutional, 957. having, with intent, 963. selling, 965. LUGGAGE OF PASSENGER, (See PassENGER.) is ‘‘ goods and merchandise,” 344. MAIL. (See Rossing Matt.) MAIM, (See MayxHem.) meaning of the word, 316, 448. word, in indictment for malicious mischief, 447. assault with intent to, 505. MAINE LAW, history of the, 988. MAINTAIN, meaning of word, 223. maintenance obstruction of governmental order, 568. MALFEASANCE AND NONFEASANCE IN OFFICE, obstruction of governmental order, 568. “MALICE AFORETHOUGHT,” meaning of the term, 465, 467, 471 and note. words, whether necessary in indictment for aggravated assault, 505. MALICIOUS MAYHEM, (See MayuHEm.) statute and form of indictment, 497. MALICIOUS MISCHIEF, (See Miscurer.) when statute against, not repealed, 156, note. to cattle, statute construed, 246. what the wounding in, 314. summary of common-law doctrines, 430. statutory, discussed, 431-449. 785 MAX ALPHABETICAL INDEX OF SUBJECTS. ‘* MALICIOUSLY,” meaning of the word, 434, 435, 437. MALUM IN SE, as to, where law could not be known, 30. : ‘““MAN AND WOMAN,” words, in statute against living together in adul- tery, whether must be in indictment, 705. MANDATORY STATUTE, what, effect of, distinguished from directory, 255, 256. ‘‘ MANIFEST,” of cargo, must be true, 211. “ MANSION-HOUSE,” meaning of the term, 277-288. MANSLAUGHTER, (See Homicipz.) dividing, into degrees after offence committed, 181, 185, note. meaning of the word, 242. doctrines of, discussed, 465, 466, 468-470, 477. assault with intent to commit, 502-508. “* MANUFACTURE,” what a “stage,” &c., of, 211. meaning of the word, 1011. “‘MARE,” meaning of the word, 426. is ‘‘ cattle” and ‘‘ beast,” 442. MARKET, established by by-laws, 20. when sales at, peddling; 1078. MARKS. (See ALTERING Marks.) MARKS OF QUOTATION. (See Quotation Manrgs.) MARRIAGE, (See Divorce — Promise or MarriaGE.) law for solemnizing, when obsolete, 149. neglecting to file certiticate of, statute construed, 222. of minors, statute construed, 237. valid, though forbidden by statute, 254. validity of foreign, 585, 602, 603 and note. void and voidable distinguished, 589. by cohabitation, mutual promise, &e., 593. how allege, in indictment for polygamy, 601-604. how, in indictment for adultery, 673. proof of, 607-613. allegation of, in seduction, to be proved, 651. mistake as to, in adultery, 663-665. presumption of death, no adultery, 666. MARRIAGE LAWS, general view of, 737-739. MARRIAGE LICENSE, false oath to obtain, 571, 572. MARRIED WOMAN, (See CoveRTURE.) when, not within general terms of statute, 131. whether, can be bailee, 423. ‘“«MARRY,” meaning of the word, in statute against polygamy, 590. MARTIAL LAW, in one State, not extend into another, 205. “MATERIALS,” effect of word, in statute, 273. “MATERIALS FOR LOTTERY,” meaning of term, 209. MAXIMS, cessante legis procemio, cessat et ipsa lex, 51. qui heeret in litera heret in cortice, 93. leges posteriores priores contrarias abrogant, 126, note, 156, note. a verbis legis non est recedendum, 145, note. expressio unius est exclusio alterius, 249. 786 ALPHABETICAL INDEX OF SUBJECTS. MIS MAXIMS, — continued. sic utere tuo ut alienum non ledas, 565. semper prasumitur pro matrimonio, 608. ** MAY,” meaning of the word, in statute, 112. MAYHEM, (See Marm — Maticious MayHem.) what, at common law and under statutes, 316. offence of, discussed, 495-498. “MEANING OF STATUTE, (See InrERPRETATION — LecaLt Mran- Inc — OLD Mzaninc — OnE MEANING.) distinguished from effect of, 189. how, when words overlie one another in, 247, 248, 326. of particular words, discussed, 268-350. MEANING OF WORDS, how broad, in strict interpretation, 204. MEANS, given where end enjoined, 137 and note. MEDICINE, (See Drug — Pracrisine MEpIcINe.) selling liquor for, 238, 1019, 1020. how allege the, in indictment for abortion, 751 and note, 755, 757. MEETING. (See DisturBInG MEETING.) MEETING-HOUSE, a public place, 298, note. MENTION. (See Express MENTION.) MERCHANDISE. (See Goops anD MrRcHANDISE.) MERCHANT, (See Deatine as Mercuant.) when follow vocabulary of, in interpreting statutes, 99. meaning of the word, 1011. METAL KNUCKLES, statute against carrying, with indictment, 794, 795. METHODISTS, disturbing, at camp-meeting, 211. K. (See SELtLinc ADULTERATED MILK.) MILL-SAW, not a “tool,” 319. MINISTERIAL OFFICERS, (See OFFICER.) power of, to appoint deputy, 88. MINOR, ownership by, in malicious mischief, 443. MINOR OFFENCE, (See OFFENCE.) conviction for, on indictment for higher, 171. MINORS, admitting, to games, 877. selling liquor to, 1011, 1021, 1022. MISCARRIAGE, word, in statutes against abortion, 746. attempt to procure one’s own, whether indictable, 749, note. MISCHIEF, (See Maticrous Miscurer.) considered in construing statute, 82. construing statutes to meet the, 190. consideration of the, in criminal statutes, 220. things within the, of statute, 232, 235, 236. MISDEMEANOR, aiders in, how regarded, 136. statutory, how, 140. raising, to felony, repeals former law, 174. indictment for, as to word ‘‘ feloniously,” 387, 489, 452. MISNOMER, effect of, in statute, 243. 787 MUR ALPHABETICAL INDEX OF SUBJECTS. MISPRISION, of statutory treason, how, 139. MISTAKE, effect of, on statute, 39. how, of officers of elections, 805, 806. MISTAKE OF FACT, (See Eviz Inrent — Know.epes or Law.) case of, excepted out of statute, 132. excusing statutory criminal act, 355-359. age of girl seduced, 359, 632. as to the person, or marriage, in adultery, 663-665. as to the relationship, in incest, 730. effect of, in illegal voting, 820-825. as to age of minor admitted to game, 877; buying liquor, 1021, 1022. as excusing the otherwise criminal act, 1021, 1022. MODERN INTERPRETATION, compared with ancient, 115. MONEY, security for, not, 217. meaning of the word, 346. whether “‘ goods and chattels,” 344, 345. meaning of the word, in statutes against gaming, 874. how allege and prove the, in indictment for gaming, 898-901. “‘MONTH,” meaning of, in statute, 105, 107, 109, 110. in notes and contracts, 105, note. MORAL WRONG, intent to commit, when sufficient under criminal statute, 359, 632. MORALITY, open breach of, common-law mnisy yce, 546. MORTGAGE, is a sale, 1015. MORTGAGE-DEED, not “ goods and chattels,” 344. MOTIVES, of legislators, effect on statute, 38. MOULD, a “tool or instrument,” 319. MOUNTEBANK’S STAGE, common-law nuisance, 546. ‘«MULATTO,” meaning of the word, 274. MULTIPLY FELONIES, statute construed not to, 218. MUNICIPAL BY-LAWS, (See By-Law.) how made, and effect of, as laws, 11, 18-26. against unlicensed junk-shop, 296. how the procedure on, 403-407. against gaming, how, 856. against selling liquor, 997. MUNICIPAL CORPORATION, (See Act or IncorroraTION — Ciry CHARTER.) whether indictable to vote illegally for officers of, 818. construction of statute authorizing, to dispose of property, 960. MUNICIPAL TAXATION, (Sce Taxation.) statutes in exemption from, when repealed, 156. MURDER, (See Homicrz.) how indictment for, in first degree, 371, 372, 471. doctrines relating to, discussed, 465-477. two degrees of, 470-475. assault with intent to, 502-508. 788 ALPHABETICAL INDEX OF SUBJECTS. NOX NAME, (See OwnERSHIP.) indictment allege the, of person from whom stolen goods received, 378, note. of owner, to be alleged in larceny, 429. of owner in malicious mischief, alleging, 443. of owner, in indictment for altering mark, 458. of medicine, whether, in indictment for abortion, 751 and note, 755, 757. of game, effect of changing the, 868. of third person, alleging in indictment for gaming, 894, 895. of game, alleging and proving the, 896. of gambling device, 897. alleging, of person with whom a wager is made, 944. whether allege, of person to whom liquor is sold, 1037; prove, 1047. of liquor, whether allege, 1038. of owner, whether allege, in cruelty to animals, 1098, 1099. NAME OF OFFENCE, (See OFFENCE.) not material, 559. ‘NAME SUBSCRIBED,” what is, 228. NATURAL DAUGHTER, (See Bastarn.) how as to, under seduction statute, 633, note. NATURAL RIGHT, statutes against, how construed, 119. ‘“*NATURAL-BORN SUBJECT,” meaning of the words, 205. NATURE OF OFFENCE, (See OFrrEnce.) as affecting doctrine of principal and accessory, 145. ‘“*NAVIGABLE RIVER,” (See River.) what — meaning of the words, 303. ““NAVIGABLE WATERS OF UNITED STATES,” what — meaning of the phrase, 303. NECESSITY, excuses performance of statutory duty, 132. NEGATIVE, (See AFFIRMATIVE STATUTE — EXcErPrTions anp Pro- VISOS. ) proof of, 1051, 1052. NEGATIVE AVERMENTS, how, in the indictment, 382, 835. NEGATIVE STATUTE, repeals by, 153. ‘* NEGLIGENT ESCAPE,” meaning of the words, 242. NEGRO, meaning of the word, 274. right of, to carry arms, 793, note. gaming with, indictable under statutes, 854. selling liquor to, 1011. NEW STATUTE, interpreted, like old, 97. NIGHT TIME, meaning of the term, 276. NOISES, as common-law nuisance, 546, 547. NON-USER, repeal of statutes by, 149, 150. NOTE. (See Promissory Nore — Banxk-NOTE.) NOTICE, must be given, though statute silent respecting, 141. NOXIOUS TRADES, statutes against, 565. 789 OFF ALPHABETICAL INDEX OF SUBJECTS. NUISANCE, (See ABaTEMENT — Liquor Nuisance — Tippiine- SHOP.) by-laws concerning, 20, 21. statute against, not repeal common law, 156, note. proceeding for abatement, or by indictment, 169. of standing jack for mares, 214. public, not legalized by time, 257. doctrine of common law, discussed, 544, 551. statutory, discussed, 552-558. open repetitions of adultery, 654. of drunkenness, 968, 974-976. NUMBER. (See PLurat Number — SinguLtar NuMBER.) OATH, (See Fase OaTu.) when administered by deputy, 129. power to take, implies power to summon to give, 137. affirming qualifications as voter, not prevent indictment, 815. OBSCENE BOOKS AND PICTURES, common-law nuisance, 550. OBSOLETE, whether statutes become, 149. OBSTRUCTING OFFICER, statute against, construed, 223. ODIOUS, thing in the law regarded, 192, 193. “‘OF,” rejected in the construction, 215. OFFAL, by-laws regulating removal of, 20. OFFENCE, (See Minor Orrence — Name or OFFENCE — NaTURE oF OFFENCE — Past OrFrENcES — SECOND OFFENCE.) punishable both under by-law and statute, 22 and note, 23, 24. and punishment, separable in respect of repeal, 166. repeal of statutes as to the, in distinction from punishment, 173, 174. barred by statute of limitations, whether can be revived, 265-267. “OFFENSIVE ARMS,” meaning of the words, 321. OFFENSIVE TRADE, (See Traps.) common-law nuisance, 546. “OFFENSIVE WEAPON,” meaning of the words, 321. ‘‘OFFER TO SELL,” meaning of the words, 1016. “OFFER TO VOTE,” meaning of the words, 811, 816. « OFFERING,” reward to voters, how, 818. OFFICER, (See ELecrion Fraups aNp Osstrructions — Mrnis- TERIAL Orricers — RESISTANCE TO OFFICERS.) word, not include special deputy, 216. when statute governing, directory, 255, 256. rights of, to break doors, 290. refusing to insert voter’s name on list, 805 et seq. of election, refusing vote, 828. drunkenness by, 969. OFFICERS OF ELECTIONS, (See ELecrion Fraups anp Os- STRUCTIONS — OFFICER.) act judicially, 805, 806. 790 ALPHABETICAL INDEX OF SUBJECTS. OTH OFFICIAL BOND, construction of statutes authorizing proceedings on, by motion. 119. OFFICIAL CHARACTER, proof of, 841. OLD MEANING, given to new statute, 97. OMNIBUS, indictment for malicious injury to, how, 447. “ON COMPLAINT,” meaning of the words, 242. “ONE CALENDAR MONTH’S NOTICE,” meaning of the phrase, 109. ‘ONE DAY PREVIOUS,” meaning of the words, 109. “ONE DAY’S NOTICE,” meaning of the phrase, 111. ONE MEANING, to a single phrase, 94, 95. OPEN AND NOTORIOUS ADULTERY, (See ADULTERY.) what it is, 698. . OPEN AND NOTORIOUS LEWDNESS, (See Lewpness.) law of the offence, 710-718. the procedure, 719-725. OPEN BOAT, “ ship or vessel” is not, 216. OPEN INTERPRETATION, (See LiseraL INTERPRETATION.) what and how, 191. OPINION. (See Private Oprnton.) OPINION OF LEGISLATOR, not regard, in construing statutes, 76, 77. OPPORTUNITY, proof of, on indictment for adultery, 679 et seq. “ OR,” (See ALTERNATIVE CLAUSE.) effect of, in statute against deserting seamen, 218. when interpreted as ‘‘ and,” 243. clauses of statute connected by, how the indictment, 244, 383. in indictment for highway robbery, 526. in statute against living in adultery ‘‘ or” fornication, 701. use of, in indictment on statute, 795. proper in alleging a duty, 1043. in alleging a negative, 1043. ORDER, (See GOVERNMENTAL ORDER.) not ‘‘ money,” 346. “ORDER FOR DELIVERY OF GOODS,” meaning of the words, 327— 831, 335. “ORDER FOR PAYMENT OF MONEY,” meaning of the words, 206, 827-331, 335. ORDINANCES. (See Municrpat By-Laws.) ORDINARY PROCEDURE, (See Procepvre.) statutes construed in accord with, 114. “OTHER BEAST,” meaning of the term — what corresponding word to be employed in indictment, 441. «OTHER CAUSE,” meaning of the words, 246, note. “OTHER CRAFT,” meaning of the words, 245. «*OTHER PERSON,” meaning of the words, 245. «OTHER PROPERTY,” meaning of-the words, 246. «OTHER PUBLIC PLACE,” meaning of the phrase, 298. “OTHER THING,” words construed,=217. 791 PAR ALPHABETICAL INDEX OF SUBJECTS. OUT-BUILDINGS, what, constitute parts of “ dwelling-house,” 278, 283-286. what, part of ‘‘ house,” 289. “‘ OUT-HOUSE,” meaning of the word, 291. meaning of the word, in statutes against gaming, 878. “‘OUT-HOUSE WHERE PEOPLE RESORT,” meaning of the phrase, 291. meaning of the words, in statutes against gaming, 878. how allege and prove, 902. OUTLAWED PERSON, when, not within general statute, 182. “OVERDRIVE,” word, in cruelty to animals, 1111. OVERLOADING, animal, offence of, 1107, 1108, 1110, 1113, 1117. OVERLYING IN MEANING, words, effect of, 247, 248, 441. OVERSEER, permit from, same as from master, 134. “« OVERWORK,” word, in cruelty to animals, 1111. OWNERSHIP. (See Name.) in whom laid, in malicious mischief, 443. whether allege, in cruelty to animals, 1098, 1099. PAPER-MOULD, not a ‘‘ tool,” 319. PARENT, (See CHILD.) killing child in correcting, 1101. PARI MUTUEL, game of, 862. PAROL, proving time of registering deed by, 29. proving time of enactment of statute by, 29. cannot show meaning of statute by, 76, 77. PART OF HOUSE, as dwelling-house, 280, 282, 287. PARTICEPS CRIMINIS, (See ACCOMPLICE.) in adultery, whether punishable, 662. how in polygamy, 594. selling liquor, 1029. PARTICIPLE, sufficient, in alleging material fact in indictment, 421, 779. PARTICULAR EVIL INTENT, (See Evin Inrent.) distinction between, and general, 360. PARTICULAR POWER, derivable by construction from general, 137. PARTICULAR PROVISION, (See GENERAL PROVISION — SPE- CIFIC PROVISION.) and general, standing together, 165, note. controls general, 390. PARTICULAR TERMS, how construed in connection with general, 245, 246 and note. PARTICULAR WORDS, followed by general, how the interpretation, 2435. PARTNER, whether, sell liquor under license to other partner, 1004. PARTNERSHIP, liquor license to, 1004. PARTS, (See InTERPRETATION or StaTuTES — PROVISIONS OF SraTurEs— STATUTES.) of statute harmonized by construction, 82. construed together, 82, 123. 792 ALPHABETICAL INDEX OF SUBJECTS. PER “PARTY,” meaning of the word, 242, note. “PASSED,” meaning of the word, 306, note, 308. PASSENGER. (See LuaGaGe or PassENGER.) PASSENGER TICKET, is a “ chattel,” 344. PASSING, (See CounTerreir Corn — CounTerreitT Money — Pay orn vuT orr — Pur OFF.) counterfeit money, statute against, construed, 223. a paper, what, 308. PAST OFFENCES, (See Orrencr.) whether statutes of limitations apply to, 263. reviving, after barred by statutes of limitations, 265-267. PATERNITY, proof of, in cases of abortion, 761, note. “PAY OR PUT OFF,” (See Countrrreit Monry — Pot ofr.) meaning of the phrase, 307. PEACE. (See Breach or THE PEaAcz.) ‘““PEACE OF GOD.” (See Ly Peace or Gop.) PEDDLER, (See Hawkers aND PEDDLERS.) partial repeal of statute against, 151, note. meaning of the term, 210, 1074. PEDDLING, act of, may be breach also of liquor laws, 143. PEG-MACHINE, not a * tool,” 319. PENAL ACTION, not on repealed statute, 177. how in case of a vested right, 178. PENAL STATUTES, construed strictly, 119, 193. PENALTIES, concurrent, for same offence, 166-171. PENALTY, inseparable from law, 21. in by-law, reasonable, 25. subsequent statute changing mode of enforcing, cumulative, 156, note. statutes subjecting to, how construed, 198, 222. by whom recovered, 251, note. imposed, whether equivalent to prohibition, 254. meaning of the word, 260. PENETRATION, essential in rape, 479, 494. PEOPLE, cannot directly enact laws, 36. PERJURY, how U. S. act of 1825, construed, 129. when not punishable under repealed baMrupt law, 183. indictment to set out circumstances of the, 378, note. obstruction of governmental order, 568, 570-572. statutory, considered, 570-572. commission of, not bar indictment for illegal voting, 815. PERMITTING GAMING, offence of, 876. procedure for, 890-892. « PERSON,” (See From THe Person.) what the word, includes, 212. “PERSON OF COLOR,” meaning of the term, 274. «« PERSONAL GOODS,” whether include choses in action, 209. meaning of the words, 344. 51 793 POW ALPHABETICAL INDEX OF SUBJECTS. “PERSUADING TO ENLIST,” (See Enuisr.} meaning of the words, 225. PETTY CHAPMAN, (See Hawkers aND PEDDLERS.) meaning of the term, 210. PHRASES, interpretation not confined to, 93. PHYSICAL FORCE, (See Puysican Ingurizs-) how, as being indictable, 515. PHYSICAL INJURIES, (See Insure.) when indictable, 463, 515. PHYSICIAN, advising abortion, 746, 762. prescription of, as excusing sale of liquor, 1019, 1020. *< PIG,” is ‘* cattle” and ‘‘ beast,’” 212, 442. PIGSTY, when an outhouse, 291. PISTOL, a ‘‘ dangerous weapon,” 320. an ‘‘ offensive weapon,” 321. when ‘‘ Joaded arms,” 322. what is a — loaded — lock, 79L PLACE, (See VENUE.) of meeting of legislature, in recital of private statute, 402. as to the, of gaming, 878. how allege and prove the, of gaming, 902-907. * PLANTATION,” meaning of the word, 300, 1011. PLAY-HOUSE, when, common-law nuisance, 546. PLEA OF GUILTY, constitutes ‘‘ conviction,” 348. PLURAL NUMBER, (See Number.) comprehends singular, 213. POACHING, construction of statute against, 88. limitation of proecedings for, 257, 261. POISONING, (See ApminisTER Poison.) statute against, construed, 225. POLICY OF LAW, (See Law.) statutes against, how construed, 119. POLYGAMY, indictment for, in what county, 112. former consort mistakenly supposed to be dead, 356. how at common law, 577. ' statutory, law of, 579-597. the procedure, 598-Gi3. not, after divorce, though a statute forbids the marriage, 666. POOL, game of, 868, note. POPULAR MEANING, given words, in strict interpretation, 204. POPULAR SENSE, when give, to words of statute, 100, 101. ‘* POSSESSION,” by parent, of girl, in seduction and abduction, 359 and note, 636. meaning of the word, in seduction statutes, 636. POST-OFFICE. (See Lerrers.) “ POT,” a ‘* weapon drawn,” 323. POWER, (See Discretionary Power — Dousrrut Power.) statute creating, mandatory, 256. 794 ALPHABETICAL INDEX OF SUBJECTS. PRI PRACTISING MEDICINE, . (See Drug — MEDICINE.) statutes against, construed, 238. PREAMBLE, concerning the, of statute, 48-51. look to, as to meaning, 82, 200. effect of — whether indictment on private statute should recite, 399. PRECEDENCE, of provisions, in statute, 62-67. PRECEPT, (See Writ.) whether set out, in indictments for election fraud, 832-834. “PREGNANT WITH CHILD,” words, whether require fetus to be alive, 746. ‘““PREMEDITATED DESIGN,” words, in indictment for murder in first degree, 471 and note. PREMISES, meaning of the word, 291, note, 1011. permitting, to be used for gaming, 852, 854. meaning of the word, in statutes against gaming, 878. selling liquor to be drank on the, 1060-1063. PRESIDENTIAL ELECTION, betting on, 935. ““PRESUME TO BE SELLER,” meaning of the words, 1017. PRESUMPTION, (See KNowLepGE or Law.) effect of, in proof of marriage, 607-613. of chastity — innocence, 648 et seq. as to domicile, 842. as to license to do an act, 1051, 1052. PRETENDED TITLES, (See TrTLEs.) buying and selling, obstruction of governmental order, 568. ‘*PREVIOUS CHASTE CHARACTER,” meaning of the words, in seduc- tion statutes, 639, 642. evidence of, 648-680. PRICE, of liquor sold, whether allege, 1040. PRINCIPAL, (See AGEN’ — CLERK.) selling liquor by agent, 1024. : PRINCIPAL AND ACCESSORY. (See ArpER — AccomPLICcE — ParTicErs CRIMINIS.) distinction of, not presumed taken away by statute, 142. particular statutory words creating exceptions as to general doctrine of, 145. nature of offence as to, 145. PRINCIPAL IN SECOND DEGREE, (See Szconp Drcrez.) what is, 88. doctrine of — applied to statutory crimes, 135, 139. how in polygamy, 594. how in adultery, 662. how in concealment of birth, 770, 771, 775. in liquor selling, how, 1029. PRINTING-PRESS, not a ‘‘ tool,” 319. PRIOR LAW, (See Law.) considered in construing statutes, 6, 7, 75, 82. statutes contrary to, construed strictly, 155. PRISON. (See Jat.) 795 PRO ALPHABETICAL INDEX OF SUBJECTS. PRISON BREACH, obstruction of governmental order, 568. PRIVATE OPINION, (See Oprnion.) not to influence interpretation of statute, 235. PRIVATE STATUTES, how interpreted, 113, 193, note. repeal of, 160, note. indictment and proceedings on, 394-402. “PRIVATELY STEALING,” (See Larceny.) what is, 222. PRIVILEGES. (See SprcraL PriviteGes.) PRIVY, part of dwelling-house, 286. when, a ‘‘ public place,” 298, note. PRIZE CONCERT, is a lottery, 955. PROCEEDINGS, (See JupiciaL ProcEepines.) to conform to law at time carried on, 176, 177. authorized after statute repealed, 180. PROCEDURE, (See Ornpinary PROCEDURE.) common-law and statutory, blend, 365-367. PROCESS, (See Service or Process.) breaking doors to serve, 290. “PROCESS OF MANUFACTURE,” what is, 211. PROFANENKESS, offence of, akin to nuisance, 560. PROFERT, whether, of private statute, 402. PROFITS, participants in the offence by receiving the, 135. PROHIBITION, by implication in statute, 249. whether implied from penalty or forfeiture, 254. PROMISE, not false pretence, 451. ‘“*PROMISE OF MARRIAGE,” (See Marrrace.) meaning of the words, in seduction statutes, 638. ‘¢ PROMISING,” reward to voters, how, 818. PROMISSORY NOTE, (See Nore.) what is, in criminal law, 336. not ‘‘ money,” 346. for liquor unlawfully sold, not valid, 1030. PROOF, (See BurDEN or Proor — Evipencer — PrEsUMPTION.) of marriage, 607-613. (And see the specific offences.) PROPERTY, (See ALL Property — Pusric Use —Usz or Pror- ERTY.) statutes taking away, how construed, 193. statutes taking, for public use, how construed, 193, note. PROSECUTION, what is commencement of, 261. “PROSTITUTE,” (See Purposs or Prostitution.) who is a, 641. PROVISIONS, (See Conriicting Provistons — Harmony or Pro- VISIONS.) differing, of statutes, harmonized by construction, 82. PROVISIONS OF STATUTES, (See Parts.) construed together, 82, 86, 87. with common law, 86-88. 796 ALPHABETICAL INDEX OF SUBJECTS. PUR PROVISIONS OF STATUTES, — continued. construed with constitution, 89-92. PROVISOS, (See ExcEertions aND PROVISOS.) in statute, concerning, 57. in criminal statute, how construed, 229. PUBLIC CONVENIENCE, statutes to promote, how construed, 120. PUBLIC DUTY, (See Statutory Dury.) ‘*PUBLIC GAMBLING-HOUSE,” (See GamBiine-Housz.) meaning of the words, 878. PUBLIC HOUSE, meaning of the words, 299. gaming in, indictable under statutes, 852. meaning of the words, in statutes against gaming, 878. how allege and prove, 902-907. meaning of the words, in statute against selling liquor, 1011. “PUBLIC INDECENCY,” meaning of the words, 717. PUBLIC INTERESTS, not sacrificed, by construction of statute, 82. ‘““PUBLIC PLACE,” meaning of the term, 298. gaming in, indictable under statutes, 852. meaning of the words, in statutes against gaming, 878. how allege and prove, 902-907. PUBLIC STATUTES, courts take judicial cognizance of, 29 and note, 77. indictment need not recite, 395. effect of misrecital, 395, 401. PUBLIC USE, (See Property.) how statutes allowing the taking of private property for, construed, 119, 193, note. PUBLIC WAY, (See Highway — Way.) out-buildings separated by, not part of dwelling-house, 284. PUNCTUATION, effect of, on meaning of statute, 78. on indictment, 78, note. PUNISHMENT, must be part of law, 21. statute silent as to, when indictment lies, 138. and offence, separable, in respect of repeal, 166. effect of repeal of statute, as to the, 166, note. what concerns the, to be set out in indictment, 166, 167, 370, 371, 444, 445, 945. generally as to effect of statute changing the, 166-171. two or more penalties for one offence, 169-172. belongs to the remedy, 176. to be what law provides at time of sentence, 176. vary with time when offence committed, 183, 184. effect of some statutory changes as to, 184, 185. statutes subjecting to, how construed, 193. degree of, as effecting interpretation of statute, 199. not in statute, act misdemeanor at common law, 873. for selling liquor, how, 1026. «PURPOSE OF PROSTITUTION,” (See ProstiTvTE.) meaning of the words, in seduction statutes, 641. PURPOSE OF STATUTE, carried out by interpretation, 200. 797 RE- ALPHABETICAL INDEX OF SUBJECTS. » PURVIEW, meaning of term, 52. discussed, 52-61. concerning the, of statute, 52-61. repealing acts within the, 151. of private statute, how recited in indictment, 400, 401. ‘* PUT-OFF,” (See Passina.) meaning of the words, 307. QUALIFICATIONS, of general doctrines in construing statute, 83. QUANTITY, of liquor sold, whether and how allege, 1039. proof of the, 1047. QUARANTINE, regulations’ of, by by-laws, 20. QUASHING INDICTMENT, effect of, as to statute of limitations, 262. “QUICK WITH CHILD,” meaning of the words, 745. whether woman must be, in abortion, 744-746. allegation of, in indictment, 753. QUOTATION MARKS, effect of, in indictment, 79, note. ‘““RAM,” whether, a ‘‘ sheep,” 248. RAMPS, game of, 869. RAPE, (See CarnaL ABUSE OF CHILDREN — RaVISH.) by negro on white woman, 211. cutting the private parts, 318. at common law and under old English statutes, discussed, 478-480. under our own statutes, discussed, 481-494. assault with intent to commit, how the indictment, 511 and note. distinguished from seduction, 643. RAVISH, (See Rarz.) word, in indictment for rape, 489. assault with intent to, 505. RAVISHMENT. (See Carnat Asuse or CHILDREN — Rape.) REALTY, things pertaining to, subjects of larceny under statutes, +13- 415. REASON OF LAW, statutes interpreted by, 102. REBELLION, effect of the, on limitation of actions, 267. “RECEIPT FOR GOODS,” meaning of the words, 341, 342. ‘RECEIPT FOR MONEY,” meaning of the words, 341, 342. “RECEIVING,” mere possession is not, 208, note. RECEIVING STOLEN GOODS, statute against, interpreted, 345. indictment to ‘allege from whom goods received, 378, note. RECOGNIZANCE, not strictly conforming to statute, good, 164, note. in case of gaming, how, 917. RECORDS. (See Lecisiative Recorps.) RECTIFIER OF SPIRITS, whether, a “distiller,” 273. REDEMPTION, statutes allowing, after tax sale, how construed, 120. REDUNDANT WORDS, rejected in interpretation, 215. RE-ENACTMENT, of statute simultaneously with repeal, 181. 798 ALPHABETICAL INDEX OF SUBJECTS. RES “REFRESHMENT SALOON,” meaning of the words, 1011. REFUSAL, of license, does not authorize sales, 1006. REFUSING VOTE, (See ELzection Fravups.) : offence of, 805, 806, 828. * REGISTER OF BIRTHS, false, &c., 210. REGISTRATION LAWS, (See Exxction FRavps.) as to voting, when constitutional, 809. RELATIONSHIP, knowledge of the, in incest, 730-734. proof of, 735. REMEDIAL STATUTES, how construed, 120, 192. REMEDIES, of different nature, operating together, 169-172. REMEDY, considered in construing statute, 82. to enforce statute, created by construction, 137. common-law, for statutory right, 138, 144. what statute governs the, 176. when statute cannot take away the, 178. flows from right, 249. when cumulative, 249. for statutory right, what, 249-253. REPEAL, (See Express REPEALS — REPEALING STATUTE.) of general provision by particular, &c., 126, note. statutes restricted in operation, without, 131. of criminal statutes, doctrine of, discussed, 147-189. REPEALED STATUTE, considered with existing, 82. no proceeding under, 177. REPEALING CLAUSE, does not operate till statute goes into effect, 31. REPEALING STATUTE, (See Express Repeats — Repeats.) how when the validity of the, is in doubt, 151, note. repeal of, 186. expiring, 187. REPLEVIN, for liquor unlawfully sold, 1030. ‘“REPUBLICAN FORM OF GOVERNMENT,” constitutional provi- sion guaranteeing, how, 808. REPUGNANCE, of provisions in statutes, 65. avoided by construction, 82. when works repeal, 154 et seq., 165 et seq. «REQUEST FOR DELIVERY OF GOODS,” meaning of the words, 334, 335. “REQUEST FOR PAYMENT OF MONEY,” meaning of the words, 334, 335. RESCUE, obstruction of governmental order, 568. ‘““RESEMBLE OR PASS FOR,” what, in counterfeiting, 225. RESIDENCE, of voter, what is, 817. proof of, 842. RESISTANCE TO OFFICERS, (See OrFicer.) statute against, construed, 216. breach of governmental order, 570. **RESORTED TO,” words, in statute must be also in indictment, 557. 799 SAI ALPHABETICAL INDEX OF SUBJEOTS. “RETAIL,” (See Sertina Liquor.) gy meaning of the word, 1016 and note,10 5, note. : RETROSPECTIVE, whether statute to be construed as, 82, 84, 85. REVENUE LAWS, how construed, 195. when, directory, 255. REVISED STATUTES, (See Revision or STATUTES.) how interpreted, 98. REVISION OF STATUTES, construed in harmony with prior laws, 144. omitting parts in, effect as to repeal, 160 and note, 161, note. of whole subject, effect of, as to repeal, 158-162. RIGHT, (See Existing Rigur — Larsep Rigor — Natura. Rieut — Staturory Ricut — Vestep Rieuts.) what statute governs the, 175. carries with it remedy, 249. RIGHT AND REMEDY, rules distinguishing the, 175 et seq. “RIGHT OF PROPERTY,” means legal right, 223. RIOT, law of, explained, 539-542. “RIVER,” (See NavicaBLe RIver.) what — meaning of the word, 302, 303. ROAD. (See Way.) ROB, (See Rospery.) meaning of the word, 242, note. assault with intent to, 505, 506. ROBBERY, (See Hranway Ropzery.) created by the one word “robbery,” defined by common law, 363. how, indictment for statutory, 381. at common law, summary of doctrines, 517, 518. under statutes, discussed, 519-530. degrees in offence of, 528-530. ROBBING MAIL, (See Mai.) statute against, construed, 320. RONDO, whether, game of chance, 863. ROOMS OF LODGERS, whether, ‘ dwelling-houses,” 287. how in hotel, 287. ROULETTE, game of, 866, ROUT, law of, explained, 539-542. offence akin to nuisance, 560. ‘ RULE. (See Lecat Rute.) « RUMOR.” (See Fatsz Rumor.) SABBATH-BREAKING, (See Lorv’s Day.) offence akin to nuisance, 560. SADDLER’S SHOP, a ‘‘ public house,” 299, note. “SAID,” effect of the word, in indictment, 401. SAILORS. (See Desrrtine Sramen.) 800 ALPHABETICAL INDEX OF SUBJECTS. SEL SALARIES, statutes regulating, how construed together, 130. change of, by statute, as to repeal, 156. SALE, (See MortGaGE-DEED.) of services of slave, 211. what constitutes a, 1013-1015. whether allege, in indictment for peddling, 1082-1086. ‘““SAME OR LIKE KIND,” meaning of the words, 864-866. SAND-CLUB, statute against carrying, with indictment, 794, 795. SANITY, need not be alleged, 488. SAVING CLAUSE, in statute, concerning, 59. limiting effect of repeal, 180, 182, 183. SCANDALOUS INDECENCIES, (See INDECENCY.) common-law nuisance, 546. SCHOOL-HOUSE, whether, a ‘‘ house,” 289, note. ‘«SEA,” meaning of the word, 304. SEAMAN. (See DesertTInG SEAMAN.) SEAS. (See Hig Snas.) SEA-SHORE, meaning of the term, 305. SECOND DEGREE. (See PrincreaL in Seconp Ducree.) SECOND JEOPARDY, (See Former PROSECUTION.) some views concerning, 143. SECOND OFFENCE, (See OFFENCE.) statutes punishing, more heavily, how construed, 240. how, as to drunkenness, 981. ‘“SECRET DISPOSITION,” (See Dispos.) meaning of the words, 773. ‘‘SECRETLY,” meaning of the word, in statute against carrying weapons, 788. SECTIONS, of statutes, concerning, 61, 66, 67. effect of the division, 251. “ SECURITIES,” meaning of the word, 340. “SECURITIES AND EFFECTS,” meaning of the words, 340. “SECURITY FOR MONEY,” does not mean money, 217. ‘““SEDUCE AND DEBAUCH,” meaning of the words, 642. “SEDUCE AND HAVE ILLICIT CONNECTION WITH,” words, sufficient in indictment for seduction, 645-647, 674. “SEDUCED BY DEVIL,” words, not necessary in ‘indictment, 751 and note. SEDUCTION OF WOMEN, (See ABDUCTION — DEFILEMENT OF Women.) mistaking age of girl, 359, 632. general views respecting, 625. law of the offence, discussed, 627-648. the procedure, discussed, 644-652. SEIZURE, of lottery tickets, constitutional, 957. of liquor, whether constitutional, 993, 994. SELECTMEN, indictment against, for neglect, 379. SELF, whether woman can commit crime of abortion on, 748, 749. statute allowing one to testify for, how construed, 193. 801 SHE ALPHABETICAL INDEX OF SUBJECTS. “ SELL,” (See Satu — Setiine.) , a slave, what it is not, 225. SELLING ADULTERATED MILK, (See Mixx.) statutory offence of, how, 358. where seller mistakenly believes milk not adulterated, 358. how the indictment, 385. offence of, 561. SELLING LIQUOR, (See Drat in THE SELLING — SaLE — SELL.) by-laws against, 24. general statute restraining, whether controls local, 126. act of, may be sabbath-breaking also, 143. * city charter as repealing general statute, concerning, 156, note. at ‘‘ booth,” &e., statute construed, 223. not essential, to constitute tavern-keeper, 297. how, for medicine, 238, 1019, 1020. mistakenly believed not to be intoxicating, 358, 1021, 1022. how indictment drawn to be constitutional, 870, 1036. gaming in places for, indictable under statutes, 852. law of the offence, discussed, 982-1032. the procedure, discussed, 1033-1053. keeping liquor for sale, 1054-1058. liquor nuisance, 1059-1070. to be drank on premises, 1060-1063. SENTENCE, cannot be, after statute is repealed, 177. time, how computed in the, 218. when time not essential element in the, 255. SEPARALITER, how, in indictments for gaming, 912. SEPARATE, (See Joint — SEVERAL.) indictments, for adultery, 670. SEPARATE FAMILIES, (See Parr or Hovsz.) effect of, occupying dwelling-house, 287. “SERVANT,” meaning of the word, 271. SERVANTS, selling liquor to, 1011. SERVICE OF PROCESS, (See Process.) statutes regulating, how construed, 119. “SET FIRE TO,” meaning of the words, 311, 536. SEVERAL, (See JoInDER. ) 7 indictment for living in adultery, 708. how, for open and notorious lewdness, 721. SEX, not necessary to mention, in indictment for living together in adultery, 705. ‘“* SHALL,” meaning of the word, in statute, 112. ‘“‘SHED,” meaning of the word, 291, note. SHEEP, killing, with intent to steal, 211, note. whether word, includes ewe, 212, 247. is ‘* cattle” and ‘* beast,” 442. SHEEP STEALING, statute against, construed, 247. SHELL-FISH, by-law as to taking, 20. 802 ALPHABETICAL INDEX OF SUBJECTS. SPE ‘“‘SHIP OR VESSEL,” (See VESSEL.) an open boat is not, 216. ‘““SHOCK,” meaning of the word — distinguished from ‘‘ stack,” 536, note. SHOE-SHOP, whether, a ‘‘ public house,” 299, note. SHOOTING AT, person present encouraging, 135. SHOOTING-MATCH, betting on, 930. SHOP, larceny in, statute construed, 233. part of dwelling-house, 285. meaning of the word, 295, 1011. SHOP BREAKING, (See Bureary.) statute against, how construed, 233. ‘““SHOW FORTH IN EVIDENCE,” meaning of the phrase, 309. SHUFFLEBOARD, whether game of chance, 863. SHUTTER-BOX, not part of dwelling-house, 281. SIGN, not essential to inn, 297. SIGNATURE. (See Governor’s SIGNATURE. ) SIGN-BOARD, is ‘* advertisement,” 207. ‘*SIMILAR PIECES,” meaning of the words, 214. SIMPLE MAYHEM, (See Mayuem.) statute and form of indictment, 498. SINGULAR NUMBER, (See NuMBER.) includes also the plural, 213. SISTER, alleging that injured person is not, in rape, 485. “SIX MONTHS,” meaning of the term, 105, note. SKIN-CAP, game of, 864. SLAUGHTER-HOUSE, when statute against, does not repeal common law, 156, note. SLAVE TRADE, statute forbidding, construed, 232. SLAVERY, various statutes concerning, construed, 232. ‘““SLIT THE NOSE,” meaning of the words, 317. SLUNG-SHOT, statute against carrying, with indictment, 794, 795. SMOKING IN STREET, how statute agaiust, construed, 206. SNEAD, a ‘‘ weapon drawn,” 323. SODOMY, overtures to commit, whether ‘‘ infamous,” 242. SOIL, statute forbidding carrying away the, 565. SOLDIER, voting out of State, 811-813. gain residence for voting, 817. SOLDIER’S FAMILY, indictment for neglect to raise money for, 379. SOVEREIGN, not bound by statute in general terms, 142. SPECIAL PRIVILEGES, acts granting, how construed, 119. , SPECIFIC, allegations in indictment should be, 903-906, 1112-1114. SPECIFIC EVIL INTENT. (See Particutar Evin Intent.) SPECIFIC EXPRESSIONS, interpreted by general, 102. SPECIFIC PROVISION, (See GENERAL PRovisIon — ParticuLaR PROVISION.) controls general one, 126. as to repeal of general, 126, note. and general, may stand in different statutes together, 152, 156. 803 STA ALPHABETICAL INDEX OF SUBJECTS. SPECIFIC PROVISION, — continued. followed by general, how construed, 289. SPEECHES, legislative, on interpretation of statute, 76, 77. SPIRIT OF STATUTE, (See LiseraL INTERPRETATION.) doctrine as to following the, 230-232. « SPIRITUOUS LIQUOR,” (See SzLiine Liquor.) meaning of the words, 1007, 1009. “SPREAD AWNING,” meaning of the words, 208, note. « STAB,” meaning of the word, 315. ‘© STAB, CUT, OR WOUND,” meaning of the phrase, 314, 315. «« STACK,” meaning of the word — distinguished from ‘‘ shock,” 536, note “STACK OF STRAW,” (See Straw.) meaning of the words, 216. “STACK OF WHEAT,” (See Wuxat.) meaning of the words, 217. “STAGE OF MANUFACTURE,” what is, 211. STARE DECISIS, rule of, 269. STATE, whether bound by statute, 103 and note. as to suits against the, 103. effect of laches of agent of, 103, note. not bound by statute in general terms, 142. how statutes authorizing suits against, construed, 142, note. included in term ‘‘ person,” 212. meaning of the word, 291, note. right of, to determine who shall vote — power of Congress as to, 807- 810. voting out of, how far permissible, 811-813. STATE CONSTITUTION, precedence of, among laws, 11, 16. STATE COURTS, whether, derive jurisdiction from United States statute, 142. STATE STATUTES, precedence of, among laws, 11, 17. how United States court construe, 115. STATEMENT. (See Farse STaTEMENT.) STATUTE, (See Acr — Acts or ConGress — AFFIRMATIVE STAT- ures — Direcrory Statutes — EnactmMent — INCONSISTENT Acts — INTERPRETATION OF StaruTES — Laws — LEGISLATIVE Intent — Locat Statutes — Manpatory Sraturs — NEcG- ATIVE StTatuTE — Private StatutrE — Pusiic STaTuTE — STATE STATUTE.) viewed as a writing, 2-5. is modification of prior law, 5, 7, 11. modifies other statutes, &., 10. difficulties of interpreting, 9. by-law operating in connection with, 22 and note, 23, 24. by-law antagonistic to, 24. authorizing by-law, how construed, 25. does not bind future legislation, 31. null between its passage and taking effect, 31. rules as to when, takes effect, 28-32. 804 ALPHABETICAL INDEX OF SUBJECTS. STATUTE, — continued. unconstitutional, doctrines concerning, 33~37. interpreted by other departments of the government than the judi- cial, 35 and note. taking effect on vote of the people, 36. legislative motive — fraud — mistake, 38, 39. against fundamental justice, 40. ambiguity, inconsistency, and repugnance in, 41. several parts, considered, 42-67. precedence among provisions of, 62-67. parts of, control each other, 64. repugnance of provisions, 65. division of, into sections, 66, 67. < how construed in connection with common law and other statutes, 122-146. interpreted to require an evil intent, 351-361, 632; 877, 1021, 1022. indictment on, how drawn, 368-407. how closely indictment must follow, 378-380. construed before drawing indictment on it, 389, 390, 795-797. indictment complying with, void as unconstitutional, 370-372, 1036. how interpreted when word cannot have its true meaning, 590. how closely follow, in indictment for gaming, 908. : swelling allegation beyond words of, 909. against gaming, how interpreted and how proceed on, 855, 913- 918. effect of repeal of, on suit for unlawful sale of liquor, 1030. presumption created by, of liquor selling, 1050. STATUTE OF LIMITATIONS. (See Lauirations.) STATUTES, ENGLISH, — cited, — Westm. 2 (13 Edw. 1), c. 34, — 489. 4 Edw. 1, c. 5, — 579, note. 12 Edw. 2, c. 6, — 985, note. 2 Edw. 3, ¢. 3, — 783. 25 Edw. 3, stat. 5, ¢. 2, —594. 2 Rich. 2, v. 5, — 399. 17 Edw. 4, ce. 8, — 849. 8 Hen. 7, c. 2, — 616, 622. 11 Hen. 7, c. 2, — 985, note. 23 Hen. 8, c. 1, § 3, — 525. 25 Hen. 8, c. 6, — 1072. 83 Hen. 8, c. 4, — 1072. 33 Hen. 8, c. 9,— 849, 850. 37 Hen. 8, c. 7, —434. 1 Edw. 6, c. 12, § 10, — 240, 525, 5 & 6 Edw. 6, c. 25, — 985, note. 5 & 6 Edw. 6, c. 25, § 4, — 1018. 4 & 5 Phil. & M. c. 8, — 618, note. 4&5 Phil. & M. c. 8, — 627, 631. 805 ° STA ALPHABETICAL INDEX OF SUBJECTS. STATUTES, ENGLISH, — cited, — continued. 14 Eliz. ce. 8, —272. 18 Eliz. c. 7, § 4, — 489. 39 Eliz. c. 9, — 616. 1 Jac. 1, c. 8, § 2, —315. 1 Jac. 1, c. 9, —985, note. 1 Jac. 1, c. 11, — 579, 580. 4 Jac. 1, c. 4, —985, note. ° 4 Jac. 1, c. 5, — 985, note. 7 Jac. 1, c. 10, —985, note. 21 Jac. 1, c. 7, — 985, note. 21 Jac. 1, c. 27, — 764, 767, 768, 769. 1 Car. 1, c. 4, — 985, note. 8 Car. 1, c. 8, — 985, note. 8 Car. 1, c. 4, § 22-767, note. 16 Car. 1, c. 4, — 767, note. 16 Car. 2, e. 7, — 881. 8 Will. & M. c. 9, § 1, — 525. 7 Will. 8, c. 8, § 1, — 227. 8 & 9 Will. 8, c. 25, — 1072. 8 & 9 Will. 8, c. 26, § 9, — 261, note. 10 & 11 Will. 3, ce. 17, — 851. 11 Will. 3, c. 3, — 233. 6 Anne, c. 16, § 4, 5, — 402, note. 9 Anne, c. 6, — 851. 9 Anne, c. 10, § 40, — 823. 9 Anne, c. 14, — 851, 884. 10 Anne, ec. 26, — 841. 12 Anne, stat. 1, c. 7, — 233, 234. 9 Geo. 1, c. 22, § 1, —135, 228, 314. 9 Geo. 1, c. 22, — 482, 434. 4 Geo. 2, c. 82, — 415. 7 Geo. 2, c. 21, — 321, note. 9 Geo. 2, c. 35, § 10, — 321, note. 27 Geo. 2, c. 15, — 228. 43 Geo. 3, c. 58, § 1, — 747, note. 483 Geo. 3, c. 58, § 3, — 765. 49 Geo. 3, c. 14, — 765. 50 Geo, 3, c. 41, § 6, — 1078. 3 Geo. 4, c. 71, — 1097. 4 Geo. 4, c. 54, § 3, — 242, note. 6 Geo. 4, c. 108, § 56, — 321, note. 7 Geo. 4, c. 22, — 206. 7 & 8 Geo. 4, ¢..29, § 12, — 234. 7 & 8 Geo. 4, c. 29,.§ 13, —285. 7 & 8 Geo. 4, c. 29, § 17, — 209, note. 7 & 8 Geo. 4, c. 2, § 25, — 425, note. 7 &8 Geo. 4, c. 29, § 88, — 223, note. 7 & & Geo. 4, c. 80, — 481, 434. » 806 ALPHABETICAL INDEX OF SUBJECTS. STA STATUTES, ENGLISH, — cited, — continued. 7 & 8 Geo. 4, c. 30, § 8, — 223. 7 & 8 Geo. 4, c. 30, § 16, — 316. 7 & 8 Geo. 4, c. 80, § 19, — 445. 9 Geo. 4, c. 81, § 11, 12, —822. 9 Geo. 4, c. 81, § 12, — 314. 9 Geo. 4, c. 31, § 14, —765, 766, note, 771, 775, 777. 9 Geo. 4, e. 31, § 20, —359. 9 Geo. 4, ¢. 31, § 22, —581, 594, 598. 9 Geo. 4, c. 69, § 4, — 261. 9 Geo. 4, v. 69, § 9, — 88. 10 Geo. 4, c. 34, § 17, — 766, note. 11 Geo. 4 & 1 Will. 4, c. 66, § 3, 10, — 325. 8 & 4 Will. 4, c. 19, § 28, 29, — 1097. 3 & 4 Will. 4, c. 53, § 60, — 321, note. 5 & 6 Will. 4, c. 59, — 1097. 5 & 6 Will. 4, ec. 76, § 90, 91, —407. 6 & 7 Will. 4, ¢. 86, § 41, 43, — 210. 7 Will. 4 & 1 Vict. c. 85, § 4, —314. 7 Will. 4 & 1 Vict. c. 85, § 5, — 324. 7 Will. 4 & 1 Vict. c. 85, § 6, —747, note. 1 Vict. c. 85, § 14, — 276, note. 2 & 8 Vict. c. 58, § 10, — 415. 8 & 9 Vict. c. 109, — 884, note. 12 & 18 Vict. c. 92, — 1097, 1104. 13 & 14 Vict. ¢. 61, § 13, — 112. 17 & 18 Vict. c. 88, — 884, note. 17 & 18 Vict. c. 60, — 1097, 1104. 20 & 21 Vict. c. 54, § 4, — 420, note. 22 & 23 Vict. 24 & 25 Vict. c. c. c. c. c. 86, — 1072. c. 96, § 3, — 420, note. 24 & 25 Vict. c. 96, § 10, — 425, note. 24 & 25 Vict. c. 97, — 431. 24 & 25 Vict. ¢. 97, § 58, — 484, note. 24 & 25 Vict. c. 100, § 21, — 531. 24 & 25 Vict. c. 100, § 50, — 489. 94 & 25 Vict. v. 100, § 55, — 359. 24 & 25 Vict. c. 100, § 57, — 581, 590, note. 24 & 25 Vict. c. 100, § 58, 59, — 747, note. 24 & 25 Vict. c. 100, § 60, —765, 766, 773. c. c. c. 26 & 27 Vict. c. 44, — 531. 31 & 32 Vict. c. 52, — 884, note. 33 & 84 Vict. ¢. 72, — 1072. 34 & 35 Vict. c. 96, — 1072. STATUTORY DUTY, (See Pusiic Dury.) common-law indictment for breach of public, 138. STATUTORY OFFENCE, defined as at common law — how the indict- ment, 381. scope of the discussion of, 408, 409. 807 SUI ALPHABETICAL INDEX OF SUBJECTS. STATUTORY OFFENCE, — continued. connected with the common law, considered, 410-574. more purely statutory, 575-1118. STATUTORY PROVISION, how affected by other provisions, 126-146. STATUTORY RIGHT, what the remedy for, 249-253. STATUTORY USE, meaning of words acquired by, 242. STEAL, (See Larceny.) attempt by killing sheep, 211, note. assault with intent to, 506, 509. STEALING AN HEIRESS, (See ABpucTIoN or WoMEN.) offence of, discussed, 616-624. STEALING IN DWELLING-HOUSE, statute against, construed, 233, 234, 240. STEAMBOAT, a ‘‘ public place,” 298. STEAM-TUG, whether, a ‘‘ craft,” 245. ‘‘ STEER,” is cattle — proper word in indictment, 440. STORE, part of dwelling-house, 285. meaning of the word, 295, 1011. as a ‘‘ public place,” 298. «« STOREHOUSE,” meaning of the word, 294. as a ‘‘ public place,” 298. as a ‘‘ public house,” 299. “STOREHOUSE WHERE LIQUOR,” &c., how allege, in indictment, 905. «‘STOREHOUSE WHERE PEOPLE RESORT,” how allege, in indict- ment, 903, 904. STRANGERS, how far by-laws bind, 22. “STRAW.” (See Strack or Srraw.) STREET, (See Way.) lane, &c., meaning of terms, 206. form of complaint on municipal by-law for obstructing, 407. STRICT AND LIBERAL, (See LiseraL anp STRICT.) interpretations, blend in criminal statutes, 196-199. STRICT INTERPRETATION, what and how, 93. to what statutes applied, 119, 155-162. what and how in criminal cases, 190-194. explained and illustrated, 202-225. “STRONG CORROBORATING CIRCUMSTANCES,” meaning of the words, 843. “STRONG LIQUOR,” meaning of the words, 1008. STUDENT, meaning of the word, 100. statute against giving credit to, construed, 222. SUBJECT, words of statute explained as controlled by the, 118-120. when foreigner esteemed a, 205. SUBORNATION OF PERJURY, obstruction of governmental order, 568. “SUCH,” rejected from statute as surplusage, 243. ‘““SUFFERED,” to go at large, what, 223. . SUIT. (See Crviz Surr.) 808 ALPHABETICAL INDEX OF SUBJECTS. THE SUM, alleging the, bet on election, 945. proof of, 949. SUMMARY PROCEDURE, not favored by construction, 114. SUMMARY PROCESS, when not taken away by subsequent statute, 126, note. SURGICAL OPERATION, permissible on animal, 1102. SURPLUS WORDS, should not be so used in indictment as to require proof, 386, 443. SURPLUSAGE, rejecting, in statute, 578. SURVEYOR, violating instructions, 85, note. SWINE, (See Hoa.) keeping of, proceedings to have sold, 169. suffering, to go at large, statute construed, 223. keeping, in town, common-law nuisance, 546. SWORD, a ‘‘ dangerous weapon,” 320. SYMBOL, or token, essential in common-law cheats, 450. TALLOW FURNACE, common-law nuisance, 546. “TAVERN,” meaning of the word, 297. TAX, on lottery, without conviction for crime, how, 957. time, not essential element in assessment of, 255. TAX SALE, statutes allowing redemption after, how construed, 120. TAXATION. (See Municrpat Taxation.) TECHNICAL WORDS, (See Worps.) how interpreted, 96, 97, 99, 100, 224. TEETEF, whether injury by, is a wound, 314, 315. TEMPORARY STATUTE, subsequently made of force, &c., 187. «* TEN CLEAR DAYS,” meaning of the phrase, 110. “TEN DAYS’ NOTICE,” meaning of the phrase, 107, 108. ‘“¢ TEN SIMILAR PIECES,” meaning of the words, 214. TENPINS, not a game of chance, 863. TENSE, the, in recital of private statute, 402. TENT, not dwelling-house, 279. TERRITORIAL LIMITS, statutes not embrace offences beyond the, of country, 141. TERRITORY, power of Congress over, as to voting, 808. how, becomes a State, 808. “TERM OF YEARS,” (See Yuars.) meaning of the words, 859. 4 TESTIMONY, (See EvIpENCE conflicting, how viewed, 801. THEATRICAL PERFORMANCE, indictment for unlawfully exhibiting, 379. “THEN AND THERE,” words, when necessary in indictment for adul- tery, 676. words, after a continuando, 722. « THEREAFTER,” effect of word, applied to punishment, 185, note. See 183. 52 809 TRA ALPHABETICAL INDEX OF SUBJECTS. THIMBLE, game of, 865. THIMBLES AND BALLS, game of, 865. THINGS FAVORED, statutory interpretation as to, 192. THINGS ODIOUS, statutory interpretation as to, 192. THIRD PERSONS, (See Name — OwNERSHIP.) alleging names of, in indictment for gaming, 894, 895. THOUGHTS, multitudes and varieties of, 268. “THREAT,” meaning of the word, 315. THREATENING LETTERS, statute against, construed, 228, 242. TICKET. (See Passencer T1cKET.) TIGRIS RIVER, in China, whether “high seas,” 304. TIME, (See ContrnvanDo — THEN AND THERE.) fixed, for statutes to take effect, 31. how computed in construing statutes, 105-111. how computed in the sentence, 218. not essential in directory statutes, 255. how computed in statutes of limitations, 259. certainty as to the, in indictment, 722. TINMAN, noise of, as nuisance, 546. TIPPLING-HOUSE, (See DisorpERLY Inws — Liquor NuIsance.) word “ tippling-house ” includes a single house, 213. disorderly, common-law nuisance, 546. TIPPLING-SHOP, (See Taquor NvIsANceE.) statutory offence of keepiag, 1064-1067. TITLE, (See PRETENDED TITLES.) concerning the, of statute, 44-47. taken into view in construing statute, 82, 200. effect of — whether indictment on private statute should recite, 399. “ TOGETHER,” effect o! word, in statutes against open lewdness, 697, 699, 702-708, 721. TOKEN, or symbol, essential in common-law cheats, 450. TOLL. (See IrtxGat Toxts.) TOLL-DISH. (See Fatst Toiz-pisu.) TOLL-GATE, offence of forcibly passing, without paying toll, 318, note. “TO THE DAMAGE,” words, not necessary in indictment, 388, note. “TO THE EVIL EXAMPLE,” words, not necessary in indictment, 388, note. “TOOL,” meaning of the word, 319. “TORTURE,” word, in indictment for malicious mischief, 447. word, in offence of cruelty to animals, 1098, 1100, 1118. TOWN-LOTS, scheme for disposing, lottery, 956. TRADE, (See OrrEeNnsIvE TRADES.) how far, regulated by by-law, 22. how statutes in restraint of, construed, 119. interpretation of old statutes as to exercise of, 196. TRADING WITH SLAVE, statute against, construed, 237. TRAINING, cruelty to horse or child in way of, 1101. TRANSACTION, one, may be covered by many inhibitions, 143. TRAVELLER, as peddler, 1078. 810 e ALPHABETICAL INDEX OF SUBJECTS. VAL TRAVELLING AUCTIONEER, as peddler, 1078. TREASON, (See PERSUADING TO ENLIST.) aiders in, how regarded, 136. aiders in statutory, how, 139. defence by counsel in, 227. obstruction of governmental order, 568. TREASURY WARRANT, not ‘‘ money,” 346. TREATISES. (See Lega AuTHORS.) TREATY, nature and force of, as law, 11, 13, 14. when, takes effect, 32. TREE, (See Destroy.) malicious mischief to, 444-447. TRESPASS, allegations as respects the, in larceny, 417. TURNPIKE. (See Way.) TWICE IN JEOPARDY, (See Aurrerors Convict — ForMER PROSECUTION — SECOND JEOPARDY.) under by-law and statute; 24. TWO INDICTMENTS, equivalent to two counts, 262 and note. “TWO YEARS,” meaning of words, in statute, 259. UNCONSTITUTIONAL, (See ConstiTuTIoNAaL Law.) statutes void as being, 33-37. pronouncing statutes, 91, 104. statute, as repealing constitutional statute, 152. statute taking away vested rights, 178. ‘UNDERTAKING FOR PAYMENT OF MONEY,” meaning of the d words, 339. ‘UNITED STATES, Constitution of, and of States, distinguished as to interpretation, 92. no common-law crimes against the, 363. UNITED STATES STATUTE, whether, gives jurisdiction to State courts, 142. : : UNLAWFUL ASSEMBLY, law of, explained, 539-542. offence akin to nuisance, 560. UNLAWFUL GAME, (See Gamine.) meaning of the term, 859. “UNLAWFULLY,” meaning of the word, 732. not equivalent in meaning to ‘‘ knowingly,” 732. equivalent for “ illegally,” 840. UNWHOLESOME FOOD, selling, common-law nuisance, 550. USAGE, effect of, on interpretation of statute, 104. contrary to statute, not valid, 149, USE OF PROPERTY, statutes regulating, considered, 564, 565. ‘“‘UTTER,” meaning of the word, 306. ‘““ VALUABLE SECURITIES,” meaning of the words, 340. “VALUABLE THING,” meaning of the words, 346, note. meaning of the words, in statutes against gaming, 875. ; 811 WAR. ALPHABETICAL INDEX OF SUBJECTS. “VALUABLE THING,” — continued. indictment, &c., for playing for a, 889, 890-901. VALUE, statutes as to, in larceny, how construed, 127. whether allege, in larceny, 427. whether allege, in malicious mischief, 444, 445. whether allege, in indictment for altering mark, 457. alleging the, of bet on election, 945. proof of, 949. VARIANCE, in the proceeding for gaming, 910, 911. VARIETY, of things and thoughts, 268. VEHICLE. (See Fast Drivine.) VENUE, (See Prace.) statutes as to the, how construed, 198. VERDICT, how, in child murder, 780. VESSEL. (See Destroy Vessrt— Sure or VESSEL.) VESTED RIGHTS, not taken away by repeal of statute, 178. “VIOLATION OF DECENCY,” words, in statute, how the indictment, 980. VIOLATION OF SABBATH. (See Lorp’s Day.) “VIOLENTLY,” word, in indictment for robbery, 518. VOID, as to holding by-law, 26. VOID AND VOIDABLE, marriage, in cases of incest, 727. “VOLUNTARILY WITHDRAWN,” meaning of the words, 597. VOTER, (See Exxcrion Fraups anp OBSTRUCTIONS.) tampering with, 803 et seq. who is, and how the right determined, 807-813. casting more than one vote, 829. voting, not being qualified, 830. attempting to hinder, 831. VOTING, (See Erection Fraups, &c.) out of State, how far permissible, 811-813. what is, 816. VOTING TWICE, (See Erzcron Fraups, &.) offence of, 825, 829, 837. WAGER, (See Bet— Berrine on Games — Winwine Money.) statutes restricting suits on, prospective, 85, note. civil action for, 848. indictable under statutes, 852. whether essential to gaming, 857 et seq. meaning of the word, 870, 871, 936. various views concerning, 870-875. WAGON, indictment for malicious injury to, how, 447. WALKING-STICK, whether,: an ‘ offensive weapon,” 321. WAREHOUSE, part of dwelling-house, 285. meaning of the word, 298. “WARES,” meaning of the word, 344. WARRANT, right to detain Se law, statute, 24. 812 ALPHABETICAL INDEX OF SUBJECTS. WIT ‘“WARRANT FOR DELIVERY OF GOODS,” meaning of the words, 332, 333, 335. “WARRANT FOR PAYMENT OF MONEY,” meaning of the words, 332, 333, 335. WARRANT OF COMMITMENT, (See Precept — Writ.) whether, commencement of prosecution, 261. WATER, is “ destructive matter,” 324. making, unwholesome, common-law nuisance, 550. WAY, (See Highway —Pustic Way — STREET.) through burial-ground, 156, note. indictment for non-repair of tornpike, at common law, though pen- alty in charter, 164, note. what is a, 206. what, a ‘‘ public place,” 298. WEAPON, (See Carrying Weapon — Dancrrous WEAPON — Drapty Wearon— Having Wraron—Orrensive WEAPON.) ‘WEAPON DRAWN,” meaning of the words, 323. WHAMPOA, in China, on high seas, 304. WHEAT. _— (See Srack or WuzEat.) ‘* WHEREAS,” when good, in indictment, 402. WHIPPING, as punishment, compared with imprisonment and death, 185 and note. ; “WHITE MALE CITIZEN,” meaning of the words, 274. WHITE PERSON, crime committed between, and slave, 144, note. statute against, cohabiting with black, construed, 221. meaning of the term, 274. «‘ WHOREDOM,” meaning of the word, 715. WIDER MEANING, of words, in strict interpretation, 204. WIFE, (See CoverturE — Marrizep WomEn — WITNESS.) stealing in husband’s dwelling-house, 233. whether indictment for rape negative that the woman is defendant’s, 486. as witness against husband in- adultery, 688. husband selling liquor by — how when she is the owner, 1025. “ WILFULLY,” meaning of the word, 824. word, in election laws, 824, 825. ; in statute, not covered by ‘‘ falsely and fratidulently” in indictment, 840." “*WILFULLY AND FELONIOUSLY,” words, not equivalent for ‘‘ frau- dulently,” 459. WINNING MONEY, (See Ber — Wacmr.) indictment, evidence, &c., for, 884-888, 894, 938. “WITH EACH OTHER,” effect of the words, in statutes against open lewdness, 721. “WITH FORCE AND ARMS,” words, whether necessary in indict- ment, 751 and note. “ WITH INTENT TO BURN,” meaning of the words, 311. ‘“‘WITHIN AGE OF CONSENT,” meaning of the phrase, 584. ‘« WITHOUT,” effect of word, in statute against burglary, 221. 813 YEA ALPHABETICAL INDEX OF SUBJECTS. ‘‘ WITHOUT HER CONSENT,” words, in definition of rape, 479, 482. WITNESS, (See Evipence — SELF — TESTIMONY.) power of grand jury over, 187. for self, statute allowing, how construed, 193. husband or wife as, in polygamy, 613. es woman forcibly married, a, 623. wife, against husband, 688. tampering with, indictable, 568. one, seeing, another not seeing, 801. “* WOMAN,” girl under twelve a, 211, 212. but not always, 211, note. word ‘‘ his” may signify, 212. woop, (See Corp or Woop.) WOODEN BUILDINGS, restraiving erection of, by by-laws, 20, note. what are, 208. statute against, construed, 216. statutes against erecting, 565. WOOD-SHED, part of dwelling-house, 286. WORDS, (See Express Worvs — TzcuntcaL Worps — Lxea, MEaninG.) Fheauty 26-9 all, of statute, to have meaning, 80, 82. ie interpretation not confined to, 93. variety of meanings of, 93-97. how expand in meaning, in strict interpretation, 204 et seq. when supplied in statutes, 79-81, 146, 243. are of many meanings, 268. overlying one another in meaning — how the indictment, 441. “ WOUND,” meaning of the word, 314, 448. word, in cruelty to animals, 1099, 1113. “WOUND INFLICTED,” (See InriicTEep.) meaning of the words, 216. WRIT, (See PRECEPT.) breaking doors to serve, 290. WRITING, statute to be interpreted as a, 2. distinction between, and oral words, 3. not dispensed with by verbal consent, 237. WRITING LIBEL, with intent to publish, 390-392. YALE COLLEGE, statute regulating credit to students of, construed, 100, 222. “YEAR,” (See Trrm or YEars.) meaning of the word, 106. 3 ve 814 Cambridge: Press of John Wilson & Son.