Cornell Law School Library
Cornell University Library
KF 9300.B62 1883
OT
3 1924 020 148 619 law
COMMENTARIES
ON THE LAW OF
STATUTORY CRIMES:
INCLUDING THE
WRITTEN LAWS AND THEIR INTERPRETATION IN GENERAL.
“WHAT IS SPECIAL TO THE CRIMINAL LAW,
AND THE
SPECIFIC STATUTORY OFFENCES
AS TO BOTH LAW AND PROCEDURE.
BY
JOEL PRENTISS BISHOP.
—
SECOND EDITION,
REWRITTEN AND ENLARGED.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1883.
_ fH
Entered according to Act of Congress, in the year 1873, by
JOEL PRENTIsS BisHop,
In the Office of the Librarian of Congress at Washington.
Entered according to Act of Congress, in the year 1882, by
JorL Prentiss BisHopr,
In the Office of the Librarian of Congress at Washington.
Entered according to Act of Congress, in the year 1883, by
JozEL PrENTIss BIsHop,
In the Office of the Librarian of Congress at Washington.
Ae
9300
Bo2
1883
University Press:
Joun Wiuson AND Son, CAMBRIDGE.
PREFACE
TO THE SECOND EDITION.
THE volume here presented, supplementing the two vol-
umes entitled “ Criminal Law,” and the two on the law of
*Pleadmg and Evidence and the Practice in Criminal
Cases,” called, for short, “ Criminal Procedure,’”’ completes
a series covering the whole field of American Criminal
Law, Criminal Evidence, Criminal Pleading, and Criminal
Practice, both at the common law and under the statutes.
Tn the construction of the series, and in the printing of the
successive editions, there have been some changes of mat-
ter from one work to another, all duly pointed out when
they occurred. As the volumes stand in the later edi-
tions, the four which precede this, while mingling in their
explanations the written law with the unwritten, are silent
on the questions discussed in this volume. These are an
exposition of the general principles of statutory interpreta-
tion, which, since they are in the main the same in crimi-
nal cases and in civil, extends necessarily into the civil
department; elucidations of the principles of interpreta-
tion special to the criminal law, with their specific applica-
tions ; such topics as the Statute of Limitations in criminal
causes, pleadings upon private statutes and municipal by-
laws, and some others of the like kind; and, finally, dis-
cussions of the offences which are purely or in substance
iv PREFACE TO THE SECOND EDITION.
statutory, in distinction from mere statutory extensions of
common-law crimes. As to the last-named particular,
Book V. entitled “Statutory Extensions of Common-law
Offences,” might seem to occupy an exceptional position.
But the statutes discussed in it are such as, while anal-
ogous to some common-law inhibitions, were not so dis-
tinctly of the like sort as to render beyond question their
title to a standing in the other volumes; and, moreover, I
deemed that more room could be found for them here than
there.
The book of “Directions and Forms” for prosecution
and defence in criminal causes, to follow this series, and
constitute of it a part, has been for some years far under
way, and I expect soon to lay it before the profession.
In the late editions of this series of books, I have de-
parted from the common methods of legal authors, and
from my own method in the earlier editions, by stating
every thing in fewer words than is customary, and thus
finding room for an amount of legal doctrine per vol-
ume nearly unprecedented. I resolved to make, without
any increase of volumes, not only the expositions of the
criminal law and procedure more full than had been at-
tempted by any other writer, for so much I had already
accomplished, but to render them, in a reasonable degree,
complete. Thus, in the third edition of “Criminal Pro-
cedure,’ I doubled the substantial matter, and added to
the cases cited in the ratio of five new ones for every three
old ones. In like manner, I have doubled the substantial
matter of this volume. To do it, I was compelled to re-
write the whole. Yet, with slight variations, I have fol-
lowed the former order of section numberings, down to
§ 1092. Thence, for the few remaining pages, the num-
berings are new.
The combined criminal law of England, of our numerous
States, and of our National jurisdictions, constitutes a vast
PREFACE TO THE SECOND EDITION. Vv
system of jurisprudence. A reader may get some idea of
it from comparing, if he will take the pains, the tables of
Cited Cases for my five volumes, with the like table in
Fisher’s “ Digest of the Reported Cases determined in the
House of Lords and Privy Council, and in the Courts of Com-
mon Law. Divorce, Probate. Admiralty, and Bankruptcy”
for England ; including, as the Preface explains, “‘ selections
from the equity decisions, and the modern series of Irish
reports.” He will see that I have apparently almost as
many cases as Fisher. who has covered nearly the entire
body of the English jurisprudence. From this seeming,
some deductions should be made because of the fact that,
in the aggregate, there are a considerable number of cases
which, pertaining to more than one branch of the criminal
law. are cited in more than one of the books of this series.
And equally from Fisher’s work and from mine, some of
the cases, not deemed important, are purposely omitted.
If the reader will further “look and see” for himself,
he will discover, that, whatever be the merits of other
works on like subjects with this series, it is the first and
only endeavor to reduce to order for professional use this
vast system. by one mind. examining for itself in full the
cases in the books of reports; together, of course, with
whatever else should be considered in connection there-
with. The unity of aim, and the qualification for every
part, which this method is adapted to secure, ought to pro-
duce results in the highest degree desirable. If. in the
present instance, such results do not appear. the fault lies
in an utter Jack of ability in the author. How far he has
proved competent is a question which can be definitively
decided only by a future generation. Until then, even
the most prejudiced inquirer. who shall entirely exclude
from his examinations my own books. will admit, that,
since the time when their publication began, somehow the
literature of this department of the law has been making
vi PREFACE TO THE SECOND EDITION.
rapid improvement, while yet no new writers in it of emi-
nence have appeared. Perhaps those who will take the
trouble to “look and see” may not find it difficult to
search out the reasons.
The condition of our books of Forms in criminal prac-
tice, and other things connected therewith, remains, the
reader will note, substantially as it was when the publica-
tion of this series began. Why is not the advance per-
ceptible also in them? Why the halting here, while there
the movement is onward? For what is this waiting? It
may not be unprofitable to observe, during coming years,
how fares this hitherto inert department.
The long time this book has lain out of print has been
to me a source of deep regret. Three years ago, I dis-
covered that, of ten volumes of mine which bore the im-
print of the publishers of this one, the editions of six were
exhausted. I was then laboring upon new editions, and
ever since I have been doing the same, to the full extent
of my strength. With the issue of this volume, one only
—the one entitled “The First Book of the Law” —
will remain, still out of print. And the demand for
“ Directions and Forms,” completing this series, is so
urgent that I have resolved to make it my next venture.
Hoping, therefore, to come before the profession again
soon, and thanking them for past indulgence, I introduce
the reader to the body of the work.
CamBripGeE, March, 1883.
CONTENTS.
BOOK I.
THE WRITTEN LAWS CLASSIFIED AND EXPLAINED.
CHAPTER SECTION
I. Intropuctory Views .... . . . . « «+. - 1-10
II, Tae DirFrerent Sorts oF WRITTEN Laws AND THEIR
ORDER OF PRECEDENCE ......... .11-17a
§ 11, 11a. Introduction.
12. Constitution of United States.
13,14. Treaties.
15. Acts of Congress.
16. Constitution of State.
17. State Statutes.
17 a. Municipal By-laws.
JU. Municrpat By-Laws ..... «4. +... « « « 18-26
JV. Ar wHat Time Statutes TAKE Errect ... . . 27-82
V. Tae Enactmwent AND VALIDITY OF STATUTES . . .32a-41
§ 32 a. Introduction.
83,34. Constitutional Validity.
85-35 b. Interpreters of Constitution.
86-37 a. Constitutional Formalities at Enactment.
88-41. Defects other than Constitutional.
VI. Tue SEVERAL CLAssEs OF STATUTES DISTINGUISHED . 42-42¢
VU. Tae SEverRAL Parts oF A STATUTE CONSIDERED . . 43-67
§ 43. Introduction.
44-47. The Title.
48-51. The Preamble.
52-61. Purview and its Subdivisions.
62-65. Precedence of Provisions.
66,67. Division into Sections.
Vili CONTENTS.
BOOK I.
THE INTERPRETATION OF WRITTEN LAWS ABSOLUTE AND
WITH THE UNWRITTEN.
CHAPTER SEcTION
VIII. Tae Porrost anp MEANS oF INTERPRETATION . 68-77
§ 68,69. Introduction.
70-73. What Interpretation seeks.
74-77. Into what Interpreter looks.
IX. Some Leapine Ruies or INTERPRETATION EPIt-
OMIZED: “03.5 oe Mp Gay ee Gad es RR he 78-82
X. ProsPecTivE aND RETROSPECTIVE LEGISLATION
AND INTERPRETATION . . . .. . es we 83-85 5
XI. ConstrRuine THE Various Laws TOGETHER. . 86-90
XII. Tae INTERPRETATION OF WRITTEN CONSTITL-
TIONS: % Ge: RL le ROR RR ee a 91-92¢
XUJI. Tat Meanines or tHe Laneuace ... . . 92d-104a
XIV. THe Computation or Time 1n Statutes. . . 1046-111
XV. How tHe SpeciaL Matter OF A STATUTE IN-
FLUENCES ITS INTERPRETATION . . . . . . llla-ll3a
XVI. How tue DoctRINE THAT ALL THE LAWS ARE
TO BE INTERPRETED INTO ONE SYSTEM IS
PRACTICALLY APPLIED TO THE STATUTES . . 1136-121
XVII. How rue Errect oF Statutory anp ComMmon-
Law PROVISIONS IS CURTAILED AND EXTENDED
BY INTERPRETING EACH IN COMBINATION WITH ,
THE OTHERS. . « 6 © 6 «© © © «© © @ 122-146
§ 122. Introduction.
123-125. The General Doctrine.
CONTENTS. 1x
CHAPTER SECTION
§ 126-127. One Statute cutting short another.
128-180. One Statute extending another.
131-133. Common Law shortening Statute.
134-137. Common Law extending Statute.
188, 188 a. Statutes abridging and enlarging the Com-
mon Law. ;
139, 140. Taking Qualities and Incidents from Com-
mon Law.
141-144. Otherwise construed by Common Law.
145, 146. Adhering to Terms of Statute.
XVIII. Tae Generar Doctrine or RepeaL ... .- 147-163a
§ 147,148. Introduction.
149, 150. Whether by Non-user.
151-152 a. By Express Words.
153-162. By Implication.
163, 163 a. In Particular States.
XIX. Toe Doctrine or Impriep REPEAL COMBINING
WITH OTHER DoctrRinES . .... . . . 1638-174
§ 163 b, 163 c. Introduction.
163 d-164, Concurrence in Laws avoiding Repeal.
164a-174. Divisibility of Laws avoiding Repeal.
XX. Tne CoNSEQUENCES FOLLOWING ACTUAL AND
ATTEMPTED REPEALS . ...... . . 174a-187
§ 174a. Introduction.
175-180. General Doctrine.
181-187. Specific Questions.
XXI. How tHe Meantncs oF STATUTES ARE VARI-
OUSLY CONTRACTED AND EXPANDED UNDER THE
DiFFERING REASONS CONTROLLING THE INTER-
PRETATION . . 6 1 «© © © «© «© «© « « « 188-1906
XXII. To waar STATUTES AND UNDER wHaT CrrcuUM-
STANCES THE PROCESSES OF CONTRACTION
AND EXPANSION OF MEANINGS ARE APPLIED . 191-1994
XXIII. Expositions or THE Strict INTERPRETATION . 199 0-225
XXIV. Toe Lisperat INTERPRETATION WHICH MINGLES
WITH THE STRICT ... =... « « « 226-240
CONTENTS.
‘
CHAPTER SECTION
XXV. Some Miscettaneous Doctrines oF STATU-
TORY INTERPRETATION... .. =. . « 241-256a
§ 241. Introduction.
242-242 b. Technical Meanings for Technical Words.
243. Grammatical Construction.
244. Provisions in the Alternative.
245-246 6. General Words following Particular.
246 c-248. Meanings overlying one another.
249, 249 a. Express Mention implying Exclusion.
249 b-253. Statutory and Common-law Remedies min-
gling.
254-256. Mandatory and Directory Statutes.
256 a. Concluding Suggestions and Views.
BOOK IiIl.
SPECIAL INTERPRETATIONS PERTAINING TO THE
CRIMINAL LAW.
XXXVI. Sratures or Limrrations oF CrmunaL PrRo-
SECUTIONS . . 2. 2. «© «© © © «© «© « « 257-267
XXVIII. THe Meranines or ParticuLaR Worps AND
PHRASES IN THE CrRimiInAL Law ... . 268-850
§ 268-270. Introduction.
271-275. The Person acting.
276-305. The Time and Place.
806-318. The Thing done.
319-347. Objects acted on and Instrumentalities.
347 a-350. The Proceedings.
CONTENTS. xi
BOOK IV.
THE PROCEDURE ON WRITTEN LAWS.
CHAPTER SEcrTIoN
XXVIII. Wat was BEEN ALREADY EXPLAINED. . . . 831-8355
XXIX. Proceepixes on Private Statutes anp Mv-
wictpaL By-Laws... ... «+ +. « 394-408
§ 394. Introduction.
395-402. Indictment on Private Statutes.
403-408. Procedure on Municipal By-laws.
BOOK Y¥.
STATUTORY EXTENSIONS OF COMMON-LAW OFFENCES.
XXX. Srarcrory ENLARGEMENTS OF THE Coxmwon-
Law Larcexy . .. +. + + + + + + + 409-429
§ 409-411. Introduction.
412-416. Purely and partly Statutory.
417-424 Larceny under Bailment.
425-429. Larcenies of Animals.
XXXI. Statutory EstarGeMENTS oF THE ComMon-
Law Mauicious MiscHmer. . .. +. - + 430-449
§ 480. Introduction.
431, 432. Generally of the Statutes.
432 a~437. Nature of the Malice.
438-447 b. Indictment and Evidence.
448, 449, Further of the Offence.
Xii CONTENTS.
CHAPTER SEcTIoN
XXXIL Starurory ENLARGEMENTS OF THE CoMMON-
Law Cugeat. . .. . . 6 © se ee + 490-464
§ 450,451. Introduction.
452,453. Unlawful Driving of Cattle.
454-461. Fraudulent Marking and Altering of
Marks.
462-464. Violations of Estray Laws.
XXXIII. Srarurory Homicmmes. . ... =. .- + . 465-477
§ 465, 466. Introduction.
467-470. Making the Civil Wrong indictable.
471-477. Felonious, purely or partly Statutory.
XXXIV. Sratutory RavisHincs anp CarnaL Apuse 478-499
§ 478,479. Introduction.
480-482. Statutory Modifications of Rape.
483-491. Statutory Carnal Abuse.
492-499, Attempts.
XXXV. Statutory AssaULTs AND Batreries . - . 500-515
BOOK VI.
OFFENCES MORE PURELY STATUTORY.
XXXVI. Potyreamy . ...... 6. 6 « © « « 577-618
§ 577,578. Introduction.
579-597. Law of the Offence.
5698-613. The Procedure.
XXXVII. Tue Forciste AppuctTion or Women. . . 614-624
§ 614,615. Introduction.
616-621. Law of the Offence.
622-624. The Procedure.
CONTENTS.
CHAPTER
XXXVI. Sepuction of WomEN. . . . 1. - eee
§ 625, 626. Introduction.
627-643. Law of the Offence.
644-652. The Procedure.
MAXI, ADULTERY 2 = 2 6 6 8 we A ee ee
§ 653. Introduction.
654-668. Law of this Offence.
669-690. The Procedure.
XL. FornicaTion anp CriminaLt BasTaRgpy- . .
XLL Livine iwOADULTERY OR FORNICATION. . .
§ 695. Introduction.
696-698. Law of the Offence.
699-709. The Procedure.
XLIL Oren anp Norortous LEwpNESS. .. -
§ 710. Introduction.
711-718. Law of the Offence.
719-725. The Procedure.
XLT. INGEST. ..4.6..4..5 4 Soe a eS
§ 726. Introduction.
727-730. Law of the Offence.
731-736. The Procedure.
XLIV. Orner OFFences AGAINST MaRRIAGE . . -
XLV. ABORTION . .. . ee 8 © s+ # # #8
§ 740,741. Introduction.
742-750. Law of the Offence.
751-762. The Procedure.
XLVL ConceaLMent oF Birt, or Cainp MugpER
§ 763. Introduction.
764-776. Law of the Offence.
7i7-780. The Procedure.
xi
SECTION
625-652
653-690
691-694
695-709
710-725
726-736
737-739
740-762
763-780
xiv
CHAPTER
XLVILI.
XLVIII.
XLIX.
LI.
LII.
LIT.
CONTENTS.
Carrying WEAPONS . ..--.--
§ 781, 782.
783-793.
794-801.
Introduction.
Law of the Offence.
The Procedure.
Evectrion Orrences —Tue Law.
§ 802.
803, 804.
Introduction.
These Offences in General.
805-806 a. Offences by Officers of Elections.
807-826.
By Voters and others as to Voting.
Evection Orrences — THE PROCEDURE
§ 827.
828-840.
841-843.
Introduction.
The Indictment.
The Evidence.
Gaming — Tue Law
§ 844, 845.
846-851.
852-856.
857-881.
Introduction. .
Common Law and old Statutes.
Generally of our own Legislation.
Expositions of Particular Provisions.
Gaming —TuHE ProcepurE. . .
§ 882, 883.
884-892.
893-917.
918-926.
927-930.
Introduction.
Particular Forms of Gaming.
Particular Questions.
Specially of Betting on Games.
Specially of Horse-racing and the like.
BETTING ON ELECTIONS
§ 981, 932.
933-987.
938-949.
LoTrerigs .
§ 950.
951-960.
961-966.
Introduction.
Law of the Offence.
The Procedure.
‘Introduction.
Law of the Offence.
The Procedure.
SECTION
781-801
802-826
827-843
844-881
882-930
931-949
950-966
CONTENTS.
CHAPTER
LIV. DRUNKENNESS. . . . 2. 1. 1 2 eo ew ew ww
§ 967. Introduction.
968-973 b. Law.of the Offenee.
974-982. The Procedure.
LY. Sexurwe Intoxicatise Liguor— THe Law
§ 983. Introduction.
984-988 b. History and Policy of this Legislation.
989-998. Constitutionality and further of its
Forms.
999-1006. The License.
1006 a-1032. Expositions of Statutes and Doctrines.
LVL Sexttiwe Intoxicatine Liqguor—THE Pro-
CEDURE: . 6 3 ws W 4 ee wR He SG
§ 1033. Introduction.
1033 a-1045. The Indictment.
1045 a-1053. The Evidence.
LVIL Keerimse Intoxicatinc Liquor For UNLaw-
FGL SAGE. ao @ 8 Aw ee es mw SH ew
LVI. Liquor NcisaNcES . . ... +. +. el
§ 1059. Introduction.
1060-1063. Selling to be drank on Premises.
1064-1067. Tippling-shops.
1068-1070. Buildings for Illegal Sales.
1070 a, 1070 6. Keeping open at Forbidden Times.
LIX. Hawkers AND PEDDLERS . . +--+: =
§ 1071. Introduction.
1072-1080. Law of the Offence.
1081-1088. The Procedure.
LX. FurtHer or UNLIceNsED BUSINESS. . «. + «
§ 1089. Introduction.
1090-1092. Dealing as Merchant.
1093-1097. In Violation of Public Order.
1098. In Breach of Revenue Laws.
xv
SEcTION
967-982
983-1032
1033-1053
1054-1058
059-1070 6b
1071-1088
1089-1098
xvi CONTENTS.
CHAPTER SEcTION
LXI. Cruetty to ANIMALS... .... «© « + 1099-1122
§ 1099. Introduction.
1100-1113. Law of the Offence.
1114-1122. The Procedure.
LXII. Orger Statutory Orrences .... . . . 1123-1139
§ 1128. Introduction.
1124-1127. Adulterated Milk.
1128-1132. Protection of Fish.
1133-1135. Protection of Game.
1186-1139. Cattle at Large.
PacGE
InpEX oF SUBJECTS. . : . ie eel le et RS Ga ee ce BAT
InpExX TO THE CASES CITED. . . .......... 758
STATUTORY CRIMES.
BOOK I.
THE WRITTEN LAWS CLASSIFIED AND EXPLAINED.
CHAPTER I.
INTRODUCTORY VIEWS.
§ 1. Misapprehensions. — On this subject of the Interpretation
of Statutes, misapprehensions more wide and injurious prevail in
the profession than on almost any other in the entire law. It is
often assumed to proceed without rules, and to‘ present views
changing, as in a kaleidoscope, with every legislative turn in the
enactment of a new statute. But, —
§ 2. Doctrines Stable. —In truth, statutory interpretation is
governed as absolutely by rules as anything else in the law.
And the rules are of common-law origin. In large part, they
adhere to the subject itself, in whose very nature they dwell, so
that even legislation cannot cast them off. A few of them have,
in England and some of our States, been legislated upon. But
legislation on them is less extensive than on most other legal
subjects. The making of a new statute no more changes a rule
of interpretation than does the deciding of a new issue in a court.
So that, on the whole, the rules of statutory interpretation are
specially stable.
§ 3. Importance of Subject.—In practical importance, there is
no legal subject which approaches this. .No lawyer can advise a
client an hour but some question of the interpretation of a stat-
ute will, directly or indirectly, come up for decision. It may not
seem difficult; yet blunders without end are constantly being
made, in questions of this class, where‘the familiar rules of inter-
pretation were either unknown to or overlooked by the adviser.
3
§ 6 THE WRITTEN LAWS. [BOOK 1.
And more causes are lost in court from practitioners stumbling
on these questions than on any other. For the judges are but
lawyers on the bench, and they need specially to be guarded
against this class of mistake.
§ 4. Relations of Subject. — This subject is related to some
others of prime importance; deriving help from them, and in
turn imparting it to them. Foremost of these is the —
Interpretation of Private Writings. — A statute is a writing,
equally with a will or a contract. And to a considerable extent
the rules for the one class are those also for the other. But
there are differences rendering it unsafe to follow the rules inter-
changeably, except where appearing in connection with their
reasons. Again, —
Science of Entire Law. — Statutory interpretation, more than
any other one legal subject, interweaves itself with the science
and reasons of the entire law. A new statutory provision, cast
into a body of written and unwritten laws, is not altogether
unlike a drop of coloring matter to a pail of water. Not so fully,
yet to a considerable extent, it changes the hue of the whole
body; and how far and where it works the change can be seen
only by him who comprehends the relations of the parts, and
discerns how each particle acts upon and governs and is governed
by the others. Further to explain, —
§ 5. Nature of Statute. — Every statute operates to modify or
confirm something in the law which existed before. No statute
is written, so to speak, upon a blank in the institutions of soci-
ety. No such blank exists or can exist.! A particular thing is
to-day either lawful or unlawful. It can fill no middle space —
no blank—between the two. If, for example, it is lawful, a
statute may make it unlawful, either generally or under specified
circumstances, or it may settle a supposed doubt ofits lawful-
ness. In every case, it is a thread of woof woven into a warp
which before existed. It is never to be contemplated as a thing
alone, but always as a part of a harmonious whole. Hence, —
§ 6. Knowledge of Prior Law.— Whatever may be the rules of
interpretation, and however known, obviously no statute can be
understood except by him who understands the prior law. Not,
therefore, to theorize, but for practical help, persons seeking the
meaning of statutes constantly go back to see what is the unwrit-
1 Crim. Law, I. § 5-7.
4
CHAP. 1.] INTRODUCTORY VIEWS. § 8
ten or otherwise prior law; with which “lock and key,” says
Coke, they ‘‘ set open the windows of the statute.”! Otherwise
their search after the statutory meaning would be vain. To
illustrate, —
§ 7. Prior Law and Statute combining. — Every statute, as just
said, combines and operates with the entire law whereof it
becomes a part; so that, without a discernment of the original
mass, one can form no correct idea of the action of the new ele-
ment. As, if the provision is, “that he who steals another’s
watch shall] be imprisoned in the penitentiary five years,” it com-
bines with the prior law as follows. A babe of two years seizes
the watch and throws it into the fire. Here is an act, not speak-
ing now of the intent, apparently within the statutory terms.
No exception in favor of babes is written in the enactment. So,
if we do not look to the prior law, the babe must go to the
penitentiary. But the unwritten law had already provided, that
no child under seven years of age shall be the subject of criminal
prosecution.2, By interpretation, therefore, the statutory pro-
vision is limited by this one of the common law, — a consequence
quite impossible to be seen by a man who does not know the
common law. Again, if a person of mature years and well-bal-
anced judgment does this thing to another’s watch, does he steal
it? The answer turns on the meaning of the verb ‘to steal.”
It is a word of ancient and common use in indictments for lar-
ceny. And, as the statute is a law, we know its language to be
legal; so that this word ‘steal’ has here the same meaning as
in indictments for larceny at the common law. And thus we are
remitted to the question, not perhaps quite settled, whether or
not the taking, to constitute larceny, must be Zuert causa.? Here
is an obscurity arising from the not quite settled condition of the
common law. But,—
§ 8. Obscurities. — There are other obscurities ; as, —
Whether Statute or Common Law give way. — If, at the point of
contact between the common law and a statute, the former is
plain, still not always will it be interpreted to limit the latter,
though, as just seen, it sometimes will be. The very object of
the statute may be to control the unwritten law on the particu-
1 2Inst. 808. And see Harbert’s Case, 8 Crim. Law, IT. § 842-848.
3 Co. 11 , 13 6. 4 See Bishop First Book, § 482.
? Crim. Law, I. § 368.
5
§ 10 THE WRITTEN LAWS. [BOOK 1.
lar question; then, of course, it must prevail. Here is one of
the main difficulties of interpretation. In subsequent parts of
this volume, rules will be given as helps in this difficulty, while
yet no rules can make plain every thing of this sort under all
circumstances. One’s general knowledge of the science of legal
doctrine, and power to balance things throughout the entire sys-
tem of law, will then come into special service. Again, —
§ 9, Meaning of Statute. — The particular terms of a statute
may not have acquired an exact legal meaning; then not unfre-
quently it will be indoubt. Or the arrangement of the sentences
may be such as to leave uncertain some question concerning what
was intended. In circumstances like these, rules will furnish
some help, but more will come from one’s general knowledge of
the language, and of the entire law in its scientific combinations.
§ 10. Statute modifying Statute. — Thus far we have contem-
plated the prior law chiefly as unwritten. But some of the
greatest difficulties occur where enactment has been piled on
enactment, — nothing is in terms repealed, but this year a stat-
ute is added to what was written last year, and so from year to
year, — and, while plainly the later law repeals by construction
the earlier in part, it as plainly does not in whole; yet where
the repeal begins and where ends is the question. While inter-
pretation does what it can in such cases, it cannot be uniform ;
for, the judges being men, they will necessarily, like other men,
see things differently in cases of doubt and uncertainty.
6
CHAP. Il.] DIFFERENT SORTS OF WRITTEN LAWS. § 11
CHAPTER II.
THE DIFFERENT SORTS OF WRITTEN LAWS AND THEIR ORDER
OF PRECEDENCE.
§ 11, 114. Introduction.
12. Constitution of United States.
13,14. Treaties.
15. Acts of Congress.
16. Constitution of State.
17. State Statutes.
17a. Municipal By-laws.
§ 11. Jurisdiction of Laws. — Laws, like courts, have their juris-
dictions beyond which they are of no effect. Thus the statutes
of one State are not of force in another,! nor do those of the
United States bind in the States persons and things within the
exclusive sphere of State sovereignty. But, to the extent to
which they do not overstep their jurisdictions, —
Order of Precedence —How Chapter divided. — The laws, with
us, have their rules of precedence and comparative force. The
unwritten ones give place to the written. The order of the writ-
ten, in which also they will be discussed in this chapter, is as
follows: I. The Constitution of the United States; II. Treaties;
III. Acts of Congress ; IV. The Constitutions of the Several
States; V. State Statutes; VI. By-laws of Municipal Corpo-
rations.?
1 Succession of Bofenschen, 29 La. State. 5th. The Statutes of the State.
An. 711.
2 In a Georgia case, Lumpkin, J. ob-
served: “The laws of Georgia may be
thus graduated, with reference to their
obligation or authority: 1st. The Con-
stitution of the United States. 2d.
Treaties entered into by the Federal gov-.
ernment before or since the adoption of
the Constitution. 3d. Laws of the United
States made in pursuance of the Consti-
tution. 4th. The Constitution of the
6th. Provincial acts that were in force
and binding on the 14th day of May,
1776, so far as they are not contrary to
the constitution, laws, and form of gov-
ernment of the State. 7th. The common
law of England and such of the statute
laws as were usually in force before the
Revolution, with the foregoing limita-
tion.” Flint River Steamboat Co. v. Fos-
ter, 5 Ga. 194, 204.
§ 13
THE WRITTEN LAWS.
[BOOK I.
§ 11a. an are “Laws.”— All these are, in legal language,
“laws.”2 Thus, —
Constitution. — A written constitution of the State or United
States is a “law.”2 And—
Treaty. — So also is, under the Constitution of the United
States, a treaty.2 Likewise —
Statute. — A statute, whether of a State or of the United States,
isalaw.t And —
By-law — Ordinance. — A municipal by-law, otherwise termed
a city or town ordinance, is, as the name imports, a law.®
I. The Constitution of the United States.
§ 12. Supreme.— The Constitution of the United States is,
within its sphere, to use its own term, “supreme.” ®
While it
remains unaltered, it is subject to no power above it, for there is
none.
within its jurisdiction.’
It binds the people who made it, equally with all else
All laws, in whatever form or from
whatever source proceeding, contrary to it, are void.®
II. Treaties.
§ 13. Complications and Distinctions. — Treaties are, in some
respects, as to their nature and the jurisdiction to interpret them,
distinguishable from the other laws.
Therefore, on the subject
of their precedence, there are peculiarities and complications of
doctrine, admonishing us to caution.
1 Crim. Law, I. § 1-3.
2 Railroad v. McClure, 10 Wal. 511;
Board of Public Schools v. Patten, 62
Misso. 444; Pacific Railroad v. Maguire,
20 Wal. 86; Farmers’ Bank v. Gunnell, 26
Grat. 131; Medical College v. Muldon, 46
Ala. 603; Daily v. Swope, 47 Missis. 867;
The State v. Weston, 4 Neb. 216; Lehigh
Valley Railroad v. McFarlan, 4 Stew. Ch.
706. See Cox v. The State, 8 Texas Ap.
254. Effect.— There are constitutional
provisions which, from the special nature
of the case, cannot have practical effect
until legislation has lent its aid. The State
v. Dubuclet, 28 La. An- 698; post, § 14.
8 Const. U.S. art.6; The Cherokee To-
bacco, 11 Wal. 616; Hauenstein v. Lyn-
ham, 100 U.S. 483; Taylor v. Morton, 2
Curt. C. C. 454.
8
4 Wells v. Buffalo, 14 Hun, 438; La-
cey v. Waples, 28 La. An. 158; Albrecht
v. The State, 8 Texas Ap. 216 ; Monroe v.
The State, 8 Texas Ap. 343; The State
v. Moore, 13 Vroom, 208; Jones v. Perry,
10 Yerg. 59.
5 Jones v. Fireman’s Fund Ins. Co. 2
Daly, 307 ; The State v. Williams, 11 S.C.
288.
6 Const. U. S. art. 6.
7 Dodge v. Woolsey, 18 How. U. 8.
831, 8347; Vanhorne ec. Dorrance, 2 Dall.
804, 308.
8 Ib.; Calder v. Bull, 8 Dall. 386, 399;
Dartmouth College v. Woodward, 4,
Wheat. 618, 625; Livingston x. Moore, 7
Pet. 469; Craig v. Missouri, 4 Pet, 410,
464; Green ». Biddle, 8 Wheat. 1.
CHAP. Ir. ] DIFFERENT SORTS OF WRITTEN LAWS.
Nature — Constitutional Provisions. — By the law of nations, a
treaty is a mutual pledge of faith between sovereign powers.!
Such, therefore, we must deem it to be in our governmental sys-
tem ; and, under the Constitution of the United States, it is also
law.2, The words are, that, among other things, ‘all treaties
made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges in
every State? shall be bound thereby, any thing in the constitu-
tion or laws of any State to the contrary notwithstanding.” 4
The President has the “‘ power, by and with the advice and con-
sent of the Senate, to make treaties, provided two-thirds of the
senators present concur.” Thereupon “the judicial power shall
extend to all cases in law and equity arising under . . . treaties
made or which shall be made.”’® The States are forbidden to
enter into treaties.’ One plain deduction is, that —
Superior to State Laws. — A treaty is superior both to the con-
stitution and to the statutes of a State; and to it, in a case of
conflict, they must yield. Of course, a treaty, to have this effect,
§ 13
must be within the treaty-making power.$
1 Vattel Law of Nations, b. 2, c. 12;
Story Const. § 1818.
2 Ante, § lla.
* Blandford v. The State, 10 Texas Ap.
627.
* Const. U. S. art. 6.
5 Const. U. S. art. 2, § 2.
§ Const. U. S. art. 3, § 2.
T Const. U.S. art. 1, § 2.
8 Ware rv. Hylton, 3 Dall. 199; Baker
v. Portland, 5 Saw. 566; Gordon v. Kerr,
1 Wash. C. C. 322; Fisher v. Harnden, 1
Paine, 55; Succession of Mager, 12 Rob.
La. 584, 588; Succession of Dufour, 10
La. An. 391; Succession of Prevost, 12
La. An. 577; People v. Gerke, 5 Cal. 381;
Fellows v. Blacksmith, 19 How. U. S. 366;
Orr v. Hodgson, 4 Wheat. 453. It is
believed that the doctrine of the text is
correct, both in reason and authority,
beyond controversy. Still the late Wil-
liam Beach Lawrence said in a brochure
on “Foreign Treaties of the United States,
in Conflict with State Laws relative to
the Transmission of Real Estate to
Aliens,” published in 1871: “ Whether
the treaty-making power of the general
government is competent to enter into
But —
stipulation with foreign powers, affect-
ing the transmission of real estate and
other matters generally considered to be
of State cognizance, has been made a
question in the Supreme Court of the
United States. Though that tribunal
had previously recognized as the su-
preme law of the land the treaty of 1794
with England, by which, according to
Attorney-General Cushing, ‘all impedi-
ment of alienage was absolutely levelled
to the ground despite the States,’ Fair-
fax v. Hunter, 7 Cranch, 603, yet in the
case of Frederickson v. The State, 23
How. U. 8S. 445, it abstained, even though
the question before it referred merely to
personal property, from expressing an
opinion as to the competency of the gov-
ernment of the United States to regulate,
by treaty, testamentary dispositions or
laws of inheritance within the States.”
p. 45-47. Now, the Constitution of the
United States declares treaties to be su-
preme over State laws and constitutions
in just the same words as it declares
itself to be. How, then, can there be
doubt? And, in point of authority, in
the last case before me on the subject,
“?
§ 14 THE WRITTEN LAWS. [BOOK ‘I.
§ 13a. By whom Expounded and Enforced — (Distinguished from
Statute). — A treaty differs greatly in some respects from a stat-
ute. If parties, under the latter, acquire rights, they go to. the
courts to obtain them, and from their determination thereon there
is no appeal to any other department of the government. Hence
the courts are necessarily the exclusive expounders of the statute,
and, so: far as its validity is a question of constitutional law, of
the Constitution also. But, if another nation claims of ours a
right under a treaty, it does not ordinarily undertake the enforce-
ment thereof in our courts, it makes application to the executive
department of our government. Hence, to the extent to which
this doctrine is applicable, the ultimate interpretation of the
treaty is beyond the judicial jurisdiction. So likewise the power
which makes and conducts war may refuse to fulfil a treaty, and
the courts must follow the lead. But, in the absence of any lead
by the treaty-making or the war power, the courts must construe
and enforce a treaty as they would any other law. So in reason
the question stands, and the adjudications are not widely different.
Now, —
14. Treaty and Statute in conflict. — Congress, by the Consti-
tution, has the power to declare war.1 As a measure of war,
therefore, it can abrogate, hence it can violate, a treaty. But,
aside from this power, as it cannot make a treaty, so therefore it
cannot annul one. Such plainly is the view which should gov-
the Supreme Court of the United States
held that our treaty with the Swiss Con-
federation superseded ‘the Virginia State
laws of inheritance. Said Swayne, J. in
delivering the opinion: “In Chirac v,
Chirac, 2 Wheat. 259, it was held by this
court, that a treaty with France gave to
her citizens the right to purchase and
hold land in the United States, removed
the incapacity of alienage, and placed
them in precisely the same situation as if
they had been citizens of this country.
The State law was hardly adverted to,
and seems not to have been considered a
factor of any importance in this view of
the case. The same doctrine was reaf-
firmed touching this treaty in Carneal v.
Banks, 10 Wheat. 181, and with respect
to the British treaty of 1794, in Hughes
v. Edwards, 9 Wheat. 489. A treaty stip-
ulation may be effectual to protect the
land of an alien from forfeiture by es-
10
cheat under the laws of a State. Orr v.
Hodgson, 4 Wheat. 453. By the British
treaty of 1794, ‘all impediment of alien-
age was absolutely levelled with the
ground despite the laws of the States.
It is the direct constitutional question in
its fullest conditions. Yet the Supreme
Court held that the stipulation was within
the constitutional powers of the Union.
Fairfax v. Hunter, 7 Cranch, 608, 627.
See Ware v. Hylton, 3 Dall. 199, 242;
8 Opin. Att.-Gen. 417. Mr. Calhoun, after
laying down certain exceptions and quali-
fications which do not affect this case,
says: ‘Within these limits all questions
which may arise between us and other
powers, be the subject-matter what itmay,
fall within the treaty-making power and
may be adjusted by it.’ Treat. on the
Const. and Gov. of the U. 8. 204.” Hauen-
stein v. Lynham, 100 U. S. 488, 489, 490.
1 Const. U. S. art. 1, § 8.
CHAP. Il.] DIFFERENT SORTS OF WRITTEN LAWS. § 14
ern the legislative body, and from which it cannot without a
dereliction of duty depart. The result of which is, that, in gen-
eral, a treaty takes precedence of a statute. But, if Congress,
having power to override a treaty as an act of war, in disregard
of its constitutional duty herein trenches upon it from other
motives, can the courts look into the motives! and hold the stat-
ute to be therefore void? The judicial doctrine appears to be
established that they cannot, so that practically an act of Con-
gress is superior to a prior treaty, while also a treaty may super-
sede an act of Congress.”
1 Post, § 38.
2 The Cherokee Tobacco, 11 Wal. 616;
United States v. Tobacco Factory, 1 Dil.
264; Webster v. Reid, Morris, 467; Ropes
v. Clinch, 8 Blatch. 304; Langford v.
United States, 12 Ct. of Cl. 338. In an
able argument, now before me, by Hon.
William Lawrence, he says: “It is so
well settled that Congress can by law dis-
pose of the public lands, that no one con-
troverts it. It is equally certain, and will
not be denied, that this power is superior
to and controls all prior attempts by treaty
to dispose of them. Every treaty with
foreign nations or dependent tribes of
Indians yields to a later act of Congress
in relation to a subject-matter within its
jurisdiction. Congress has passed many
such acts, and the courts yield ‘to the will
of the legislature’ always.” He refers to
“ Act July 17, 1798, 1 Stat. 578; 2 Curt.
C. C. 460; 3 Opin. Att-Gen. 737; act
March 26, 1804; Foster v. Neilson, 2 Pet.
253, 303, 307; joint resolution, April 10,
1869, 16 Stat. 55; Osage Treaty, 1865, 14
Stat. 687 ; act July 15, 1870, § 12, 16 Stat.
362; same treaty, art. 1,2, and 17; act
Feb. 21, 1863, 12 Stat. 658-1101; act Feb.
16, 1863, 12 Stat. 652; act Jan. 29, 1861,
erected State of Kansas; art. 5, Cherokee
Treaty, Dec. 1835, and other treaties ;
[United States v. Lynde], 11 Wal. 632;
Taylor c. Morton, 2 Curt. C. C. 454,
458; The Clinton Bridge, 1 Woolw. 150,
155; Mitchell v. United States, 9 Pet. 711,
712; act June 80, 1834, 4 Stat. 729; act
March 30, 1802, 2 Stat. 141.” The reader
perceives that the question is here put in
not quite the same form as in my text,
though the effect of the doctrine is not
different. So, in the Supreme Court of
the United States, Swayne, J., in deliver-
ing the opinion, said: “The effect of
treaties and acts of Congress, when in
conflict, is not settled by the Constitution.
The question is not involved in any doubt
as to its proper solution. A treaty may
supersede a prior act of Congress, Foster
uv. Neilson, 2 Pet. 253, 314, and an act of
Congress may supersede a prior treaty,
Taylor v. Morton, 2 Curt. C. C. 454; The
Clinton Bridge, 1 Woolw. 150, 155.... The
consequences, in all such cases, give rise
to questions which must be met by the
political department of the government.
They are beyond the sphere of judicial cog-
nizance.” The Cherokee Tobacco, supra,
at p. 621. Another learned judge said:
“Government is certainly under the
strongest moral obligation to preserve in-
violate the faith of all treaties; but if
the legislative power, which in such mat-
ters is sovereign, sees proper to violate
this duty, there is no power in the judi-
ciary to prevent it. True, a treaty is by
the Constitution declared to be a supreme
law of the land, but so is an act of Con-
gress. The latter may repeal the former
in the same manner that one statute may
repealanother. It is an act of sovereign-
ty, which, if the judiciary could arrest,
they might paralyze all the energies of
the war itself, on the ground that the
declaration of war was a violation of
treaties.” Mason, C. J., in Webster ve.
Reid, supra, at p. 477, 478. The fact
that the Constitution does not in words
declare the order of precedence between
a statute and a treaty should, it is be-
lieved, have no weight in the argument.
It does not say whether itself or a statute
shall be of the greater effect; and the
11
[BOOK 1.
§ 14 THE WRITTEN LAWS.
Judicial Effect — Interpretation. — In the absence of any action
of the political department binding the courts, they take judicial
notice of a treaty, and give it effect, precisely as they do the Con-
stitution and acts of Congress.! Hence they must and do inter-
pret the treaty ;? yet, where the political department has spoken,
they follow its interpretation,? deeming themselves to be, in the
words of Eyre, C. J., in an English case, “ not even the expound-
ers of treaties.”4 When a statute and a treaty have been made
with reference to each other, to carry out a common object, they
are to be construed together.6 And no statute will be so con-
strued as to violate a treaty, when any other interpretation is
reasonably permissible.®
Treaty requiring Legislation. — A treaty, like a clause of the
Constitution,’ requires in some circumstances a statute to give it
practical effect, and in others it does not. Without legislation it
may annul a conflicting State law.’ If, for example, it declares
the subjects of the foreign power entitled to hold or inherit lands
in our States the same as though they were citizens of the United
States, it overrides at once every conflicting State law and
becomes law in each State. In the nature of things, no act of
result that a statute is void which violates
it, is a mere deduction of construction.
By a like construction it results, “that,”
in the words of Swayne, J., in the above
case of The Cherokee ‘Tobacco, “a treaty
cannot change the Constitution, or be
held valid if it be in violation of that in-
strument.” p. 620. Under the Constitu-
tion, the treaty-making power is not in
Congress, but in the President and Sen-
ate. Congress can declare war. In any
exercise of the war power, it may violate
a treaty. But, by construction, since it
cannot make one, it cannot otherwise
than as a measure of war unmake one.
Still the courts do, doubtless properly,
decline jurisdiction to rectify a wrong of
this sort. :
1 Martin v. Hunter, 1 Wheat. 304;
Clark v. Braden, 16 How. U. S. 635.
2 Crim. Proced. I. § 224; Holden ».
Joy, 17 Wal. 211; Gray v. Coffman, 3
Dil. 898; Hicks v. Butrick, 8 Dil. 413;
Oliver v. Forbes, 17 Kan. 113; Fox v.
Southack, 12 Mass. 143; Commonwealth
v. Bristow, 6 Call, 60; Fellows v. Black-
12
smith, 19 How. U.S. 366; Wilson v. Wall,
84 Ala. 288.
3 United States v. Arredondo, 6 Pet.
691, 711; Foster v. Neilson, 2 Pet. 253,
3809; Gracia v. Lee, 12 Pet. 511; United
States v. Reynes, 9 How. U. S. 127, 153,
154; Williams v. Suffolk Ins. Co. 13 Pet.
415, 420.
4 Marryat v. Wilson, 1 B. & P. 480, 483.
5 Reg. v. Wilson, 3 Q. B. D. 42.
6 Leavenworth, &c. Railroad v. United
States, 92 U. S. 733, 742.
1 Ante, § 11a, note; post, § 92); Green
v. Aker, 11 Ind. 223; Commonwealth ».
Collis, 10 Philad. 480; Commonwealth »v.
Harding, 6 Norris, Pa. 348.
8 Fisher v. Harnden, 1 Paine, 55;
Opinion of Justices, 68 Maine, 589.
® Chirac v. Chirac, 2 Wheat. 259;
Orr v. Hodgson, 4 Wheat. 453; Hughes
v. Edwards, 9 Wheat. 489; Carneal v.
Banks, 10 Wheat. 181; People v. Gerke,
5 Cal. 881; Succession of Prevost, 12 La.
An. 577; Succession of Dufour, 10 La.
An, 391; Succession of Mager, 12 Rob.
La. 584; Droit d’Aubaine, 8 Opin. Att-
Gen. 411.
CHAP. Il.] DIFFERENT SORTS OF WRITTEN LAWS. § 16
Congress is required to give effect to such a treaty. But one
which provides for the surrendering, to the foreign power, of
certain classes of offenders against its laws would seem not to
confer, without legislation, on any particular officer a jurisdiction
to carry the stipulation into effect; hence, to render it effectual,
an act of Congress is required.' Still there are distinctions on
this subject not best to be entered into here.? Marshall, C. J.
once stated in the Supreme Court of the United States the doc-
trine as follows: ‘“ Our Constitution declares a treaty to be the
law of the land. It is, consequently, to be regarded in courts of
justice as equivalent to an act of the legislature, whenever it
operates of itself, without the aid of any legislative provision.
But when the terms of the stipulation import a contract, when
either of the parties engages to perform a particular act, the
treaty addresses itself to the political, not the judicial depart-
ment; and the legislature must execute the contract before it
can become a rule for the court.” 8
III. Acts of Congress.
§ 15. In General. — Whether we deem an act of Congress su-
perior or inferior to a treaty, or equal with it, the national Consti-
tution places it, like this instrument itself,t above every sort of
State law, written or unwritten, constitutional or statutory.> To
have this effect it must, of course, be within the powers con-
ferred on Congress.®
IV. The Constitutions of the Several States.
§ 16. I General. — Though, as just explained, the constitution
of a State must give way to the Constitution of the United
States, and to national treaties and statutes made in pursuance
thereof, in all other particulars it is the supreme law of the par-
! In re Metzger, 1 Barb. 248. As con-
firming this principle, see Turner v.
American Baptist Missionary Union, 5
McLean, 345; Taylor v. Morton, 2 Curt.
C. C. 454. See In re Metzger, 5 How.
U.S. 176.
2 Consult British Prisoners, 1 Woodb.
& M. 66; Ex parte Metzger, 5 N. Y. Leg.
Obs. 83; In re Kaine, 10 N. Y. Leg. Obs.
257; Robbins’s Case, Whart. St. Tr. 392;
8. c. nom. United States e. Nash, Bee,
266.
8 Foster v. Neilson, 2 Pet. 253, 314.
And see Taylor v. Morton, 2 Curt. C. C.
454; Jones v. Walker, 2 Paine, 688.
4 Ante, § 12.
5 Const. U. S. art. 6.
6 Ante, § 13; Story Const. § 1837.
18
§ 17a THE WRITTEN LAWS. [Book 1.
ticular State, and to it all conflicting statutes and other laws must
yield.!
V. State Statutes.
§ 17. In General. — Practically, in most things, the statutes of
the State are the highest authorities known to the court; because
only of comparatively a few questions do the superior laws above
mentioned have jurisdiction. A statute is superior alike to the,
unwritten law, which it supersedes in a case of conflict, and to a
municipal by-law.2 Even —
Colonial Statute. — A colonial. statute appears. to have the same
effect as any other?
VI. By-laws of Municipal Corporations.
§ 17a. In General. — By-laws of municipal corporations are
subject to be controlled by statutes, and in the main by the
unwritten law, giving way when in conflict with either. We
shall now devote to them a separate chapter.
1 In re Goode, 3 Misso. Ap. 226; Loftin
v. Watson, 32 Ark. 414; Sovereign v. The
State, 7 Neb. 409; Indiana v. Agricultural
Society, 4 Norris, Pa. 857; Pierce v.
Pierce, 46 Ind. 86; The State v. Lancas- °
ter, 6 Neb. 474; Frye v. Partridge, 82
Ill. 267; Haley v. Philadelphia, 18 Smith,
Pa, 45.
2 Field v. Des Moines, 39 Iowa, 575,
and other cases cited to the next section.
14
8 Brice v. The State, 2 Tenn. 254.
* Field v. Des Moines, 39 Iowa, 575;
Vestry v. Mathews, 4 Des. 578; The
State. v. Curtis, 9 Nev. 825; Thomas v.
‘Richmond, 12 Wal. 349; Lisbon v. Clark,
18 N. H. 234; Canton v. Nist, 9 Ohio State,
439; Thompson v. Mt. Vernon, 11 Ohio
State, 688; The State ». Crummey, 17
Minn. 72; The State v. Lindsay, 34 Ark.
372.
CHAP. ILI.]
MUNICIPAL BY-LAWS.
§ 18
CHAPTER III.
MUNICIPAL BY-LAWS.
§ 18. By-law definea.— A by-law of a corporation is a regula-
tion which itself has established for the government of its own
internal affairs.
Blackstone terms it a “‘ private statute ;”1 and
it has the force of a statute within its narrow sphere.?
Municipal By-law — Ordinance. — A municipal by-law, there-
fore, is a by-law of a municipal corporation.
And the by-laws of cities are in most
practically synonymous.’
Ordinance is a word
localities commonly called city ordinances; even they are popu-
larly so where the more appropriate legal word is. by-law.
How Municipal Corporation created. — Municipal corporations,
such as cities and towns, are, in England, created either by act
of Parliament or by charter from the crown; usually by the lat-
ter,* regulated, in modern times, more or less by statute.* With
us, they exist only by statute.
Legislative Power over Charter.— The legislature can amend or
repeal an act of incorporation at pleasure,® or can force such act
on the corporators against their will,’ except as or unless restrained
1 He mentions, among the powers of
a corporation: “ To make by-laws or pri-
vate statutes for the better government
of the corporation; which are binding
upon themselves, unless contrary to the
law of the land, and then they are void.
This is also included by law in the very
act of incorporation ; for, as natural rea-
son is given to the natural body for the
governing it, so by-laws or statutes are a
sort of political reason to govern the body
politic.” 1 Bl. Com. 476.
2 Hopkins v. Swansea, 4 M. & W. 621,
641; The State v. Williams, 11 S. C. 288.
3 Jones v. Sanford, 66 Maine, 585, 588;
The State v. Jersey City, 8 Vroom, 348.
* Willcock Corp. 25.
5 As, see 40 & 41 Vict. c. 69.
6 Sloan cv. The State, 8 Blackf. 361;
The State v. Branin, 3 Zab. 484; Martin
v. Dix, 52 Missis. 53; New Orleans v.
Cazelar, 27 La. An. 156; Stilz v. Indian-
apolis, 55 Ind. 515; Giboney v. Cape
Girardeau, 58 Misso. 141; Philadelphia
v. Fox, 14 Smith, Pa. 169; Layton v. New
Orleans, 12 La. An. 515; Annapolis v.
The State, 30 Md. 112; The State ».
Union, 4 Vroom, 350. And see The State
v. Person, 3 Vroom, 134; Brackett v.
People, 72 Ill. 593. .
7 Paterson v. Society, 4 Zab. 385; San
Francisco rv. Canavan, 42 Cal. 541; The
State v. Jennings, 27 Ark. 419; City ».
Sheilds, 52 Misso. 851. See People v.
Bennett, 29 Mich. 451; Manly v. Raleigh,
4 Jones Eq. 370; People v. Chicago, 51
15
§ 19 THE WRITTEN LAWS. [BOOK I.
by the constitution. But not unfrequently an act incorporating
a municipality is passed to be accepted or rejected by those to
be affected thereby as they may choose, and such proceeding is
always permissible,” while still it is not necessary.
Incidental Power to make By-laws. — An incident of every such
corporation, even where its charter or incorporating act is silent
on the subject, is the power to make by-laws.*| Commonly the
authority is conferred in express words, and it is competent for
legislation to do this; but the general power results equally
from the very existence of the corporation.®
§ 19. Extent of Incidental Power. — Neither a general statutory
power to make by-laws, “‘ nor,” in the words of an English au-
thor, ‘a general custom to make by-laws, will give an ordinance
any greater claim to validity than if it had been made under the
incidental power in every corporation.” 7? But it is difficult to
say exactly how far this general power extends; because, in most
instances, our incorporating acts define the powers,® so that the
decisions under them do not help us on this question.® And, as
further complicating the authorities, there are in England pre-
scriptive corporations, having local customs,” among which are
rights founded on ancient and long usage to establish by-laws not
within the general authority; but there are no corporations of
this sort in the United States!
Ill. 17, 58; Harward v. St. Clair, &c.
Drainage Co. 51 Ill. 180; Lovingston v.
Wider, 53 Ill. 302. :
1.The State v. McFadden, 23 Minn.
40; Milner v. Pensacola, 2 Woods, 632;
Bank of State v. Bank of Cape Fear, 18
Tre. 75; The State v. Canaday, 73 N. C.
198; Mosher v. Independent School Dis-
trict, 44 Iowa, 122.
2 Post, § 36; Lammert v. Lidwell, 62
Misso. 188; St. Louis v. Russell, 9 Misso.
507.
2 Blessing v. Galveston, 42 Texas, 641.
* Blackstone, ut sup. ; Willcock Corp.
99, 100; Rex v. Westwood, 2 Dow & C.
21, 4 Bligh, n.s. 218, 7 Bing. 1,4 B. & C.
781; Commonwealth v. Stodder, 2 Cush.
562, 569; Angell & Ames Corp. § 110, 825.
5 The State v, Noyes, 10 Fost. N. H.
279; The State v. Simonds, 3 Misso. 414.
6 “Though power to make laws is
given by special clause in all incorpora-
tions, yet it is needless; for I hold it to
16
Still we have authorities ena-
be included, by law, in the very act of
incorporating, as is also the power to sue,
to purchase, and the like. For, as reason
is given to the natural body for the gov-
erning of it, so the body corporate must
have laws, as a politic reason, to govern
it; but those laws must ever be subject
to the general law of the realm, as sub-
ordinate to it. And therefore, though
there be no proviso for that purpose, the
law supplies it.” Norris v. Staps, Hob.
210 b, 211 a.
7 Willcock Corp. 159.
8 Kyle v. Malin, 8 Ind. 34. Generally
the express legislative power is to be
deemed simply an addition to the im-
plied. The State v. Morristown, 4 Vroom,
67. See Parker v. Baker, Clark, 223.
9 Commonwealth v. Stodder, 2 Cush.
562.
10 Willcock Corp. 74.
11 Commonwealth v. Stodder, 2 Cush.
562, 569.
.
CHAP. I11.] § 20
MUNICIPAL BY-LAWS.
bling us to say, that a by-law made under the general power
must, to be good, not contravene the other laws or their policy,!
or exceed the proper local or other jurisdiction of the cor-
poration,? or be otherwise oppressive or unjust. To particu-
larize : —
§ 20. Express Authority — Constitutional. — Any proper by-
law made under express authority from the legislature is good,
provided the authorizing act did not exceed the constitutional
power. But such act may be unconstitutional, therefore void,
and therefore the by-law be void. Or, if the by-law does not
follow, or if it exceeds, the power, it will be void. Again, —
Notice. — As, under the unwritten rule, one cannot lawfully |
be proceeded against without notice,® it is plain that a legislative
power to impose forfeitures does not authorize a by-law providing
for a forfeiture without notice to the party.’
1 Levy v. The State, 6 Ind. 281; Waldo
v. Wallace, 12 Ind. 569, 584; Greenwood
v. The State, 6 Baxter, 567; Hamilton v.
The State, 3 Texas Ap. 643; The State
v. Bergman, 6 Oregon, 341; The State v.
Williams, 11 8. C. 288.
2 Waldo v. Wallace, supra, p. 584.
See also Gardner v. People, 20 Ill. 480;
Robbins v. People, 95 IIL. 175.
3 Ante, § 22.
4 Mobile v. Yuille, 8 Ala. 137. Or-
mond, J. observed: “ What would be
a reasonable penalty cannot, from the
nature of the thing, admit of «a general
rule applicable to all cases, but must in
every case be determined by the nature
of the offence intended to be prohibited.
Some general rules, however, may be laid
down as applicable to all cases. The
penalty must be a sum certain, and can-
not be left to the arbitrary assessment of
the corporation court, to be determined
according to the nature of the offence.
It is also said, that, although the utmost
22
limit of the penalty be fixed beyond
which the fine cannot extend, it does not
remove the objection. The reason as-
signed is, that it permits the corporation
to be a judge in its own cause. Nor, it
is said, can the penalty of a by-law ex-
tend to the forfeiture of goods, unless
such power be expressly given by the
charter.” Again: “We also incline to
doubt the propricty of that portion of the
by-law which forfeits such bread as is not
of the weight required by the ordinance;
as also that portion which requires twen-
ty dollars to be paid by the baker as a
license, unless the latter can be supported
under the taxing power of the corpora-
tion. Though doubtless the corporation
could require a fee for the issuance and
registration of the license.” p. 144.
> The Statev. Jersey City,8 Vroom, 348.
6 Post, § 141; Bishop First Book, § 24;
The State v. Newark, 1 Dutcher, 399;
Corliss v. Corliss, 8 Vt. 878, 389.
7 Rosebaugh v. Saffin, 10 Ohio, 31.
CHAP. III. ] MUNICIPAL BY-LAWS. § 26
§ 26. Holding By-law void. — Whenever a corporation under-
takes to establish an unauthorized by-law, the courts hold it to
be void.! But a by-law may be good in part, and void as to the
rest.2 We have seen,’ that, if a by-law is, for example, unrea-
sonable, it is void; and the question whether it is reasonable or
not is to be decided, not by the jury, but by the court.*
And see Columbus v. Arnold, 30 Ga. 517; Keokuk v. Dressell, 47 Iowa, 597; Har-
Lesterjelle v. Columbus, 30 Ga. 936; The. baugh v. Monmouth, 74 Ill. 367.
State v. Morristown, 5 Vroom, 445. 3 Ante, § 22.
1 Commonwealth v. Robertson, 5 Cush. 4 Commonwealth v. Worcester, 3 Pick.
438; Austin v. Murray, 16 Pick. 121,127. 462, 473; The State v. Jersey City, 8
2 Post, § 34; Rogers v. Jones, 1 Wend. Vroom, 348.
237, 260 ; The State v. Lincoln, 7 Neb. 377;
23
§ 28 THE ‘WRITTEN LAWS. [BooK' I.
CHAPTER IV.
AT WHAT TIME STATUTES TAKE EFFECT.
§ 27. Doctrine defined. —In the absence of any express pro-
vision, a statute has effect through the entire country from the
first moment of the day on which it is enacted, reckoning from
twelve o’clock of the preceding night; except that, when a con-
stitutional or other like right would thereby be impaired, the
actual hour and minute of its receiving the executive approval
may be inquired into, and it will date from the instant thus ascer-
tained. To particularize and explain : —
§ 28. Ancient Rule — (Changed in England). — Formerly, in
England, the rolls of Parliament were made up by the judges
after its adjournment; no dates were given to the several acts,
but all, says Dwarris, were “strung together” as one statute.
The only date appearing in the rolls was that of the assembling
of Parliament ;1 therefore, the record being the sole guide to the
courts, they held every statute to have gone into operation on
that day.2, Nor was it otherwise with an act which itself pro-
vided that it should take effect “from and after its passage.” ?
Upon this, the statute of 83 Geo. 3, c. 18, provided, that, after
1798, the parliamentary clerk should indorse on every act, imme-
diately after its title, the day on which it received the royal
assent; “and such indorsement shall be taken to be a part of
such act, and to be the date of its commencement where no other
commencement shall be therein provided.” And by construc-
tion, the act takes effect from the first moment of such day.‘
With us.—In North Carolina, the majority of the court fol-
lowed the letter of the old English rule, and held that acts of
1 Dwar. Stat, 2d ed. 16, 31, 84, 86, 87, let v. Taylor, 6 Jones, N. C. 36. See Peo-
460. ple v. Clark, 1 Cal. 406.
2 The Ann, 1 Gallis. 62; Panter v. At- * Tomlinson v. Bullock, 4 Q. B. D. 230,
torney-General, 6 Bro. P. C. 553. 282.
8 Latless v. Holmes, 4T. R. 660; Ham-
24
CHAP. Iv.] WHEN STATUTES TAKE EFFECT.
Assembly go into operation from the first day of the session.!
But generally in our States the day — not the hour —on which
was taken the last step in the making of a statute appears in the
record thereof; and the rule, subject to exceptions to be presently
considered, is, that no divisions of a day are allowable, and it
goes into operation from the first moment of the day on which it
receives the executive sanction.?
§ 29. Fractions of Day.—- Doubtless if the record showed the
hour and minute at which a statute was enacted, the courts
would give it effect only from such minute. Still this conclu-
sion would in some cases be open to question. The rule prevails
§ 29
widely, that the law does not regard fractions of a day.*
But this rule is not unyielding; it
day begins at midnight.®
And a
bends, permitting the real fact to be shown and prevail, where
justice requires.®
1 Smith v. Smith, Mart. N. C. 26;
Hamlet v. Taylor, supra.
2 In re Welman, 20 Vt. 653; United
States v. Williams, 1 Paine, 261; In re
Howes, 6 Law Reporter, 297; 1 Kent
Com. 454, 455; Matthews v. Zane, 7
Wheat. 164, 211; Heard v. Heard, 8 Ga.
380; The State v. Click, 2 Ala. 26; Smets
v. Weathersbee, R. M. Charl. 537; Rath-
bone v. Bradford, 1 Ala. 312; Goodsell
v. Boynton, 1 Scam. 555; Temple v. Hays,
Morris, 9; Taylor v. The State, 51 Ala.
383; The State v. Bank of South Caro-
lina, 12 Rich. 609; Wood ». Fort, 42 Ala.
641; Lapeyre v. United States, 17 Wal.
191, 198. See In re Richardson, 6 Law
Reporter, 392, 2 Story, 571. In Johnson
v. Merchandise, 2 Paine, 601, it was said
that u statute takes effect from its pas-
sage; « private executive instruction,
from the time of being communicated to
the person. In. Tennessee, “it is,” said
Turley, J., “provided by the eighteenth
section of the 11th article of the Consti-
tution of the State of Tennessee, that
‘no bill shall become a law until it shall
be read and passed on three different days
in each house, and be signed by the re-
spective speakers.’ But when this has
been done, we. think the law takes effect
from the date of its passage by relation.
The duties [duty] to be performed by the
speakers in signing the statutes is not of
a legislative, but ministerial character.
Thus, when a deed was delivered at a certain
And to cause the operation of a law to
depend upon the period of time when this
duty is performed would introduce too
great uncertainty in the administration
of justice, as there would be nothing but
the memory of man to resort to for the
purpose of ascertaining it,—the signa-
ture not being dated, and there being no
record of the time kept.” Consequently
it was held that a repealing statute avoids
an act done by authority of the repealed
law, in the interval between its passage
and the signatures. Dyer v. The State,
Meigs, 237, 255. In Process of Enact-
ment.— A statute has no greater effect
on transactions executed during the pro-
cess of its enactment, or while it was
awaiting the executive sanction, than on
things done before it was in agitation.
Wartman v. Philadelphia, 9 Casey, Pa.
202.
3 See Westbrook Manuf. Co. v. Grant,
60 Maine, 88.
4 Bishop Con. § 261, 749; Portland
Bank v. Maine Bank, 11 Mass. 204; Reg.
v. Edwards, 9 Exch. 32, 23 Law J. n. s.
Exch. 42; Edwards v. Reg. 9 Exch. 628;
Reg. v. St. Mary, Warwick, 1 Ellis & B.
816; Commercial Steamship Co. v. Boul-
ton, Law Rep. 10 Q. B. 346; Duffy v.
Ogden, 14 Smith, Pa. 240; Lester x. Gar-
land, 15 Ves. 248.
5 Bishop Con. § 261, 749.
§ Chick v. Smith, 8 DowlL P. C. 387;
25
[BOOK I.
§ 29 THE WRITTEN LAWS.
hour to the register, who immediately commenced the registra-
tion of it, but without indorsing on it the time of its delivery,
and two hours later an execution was levied on the property it
conveyed, the court permitted the hour of delivery for registra-
tion to be proved by parol, to give it precedence over the levy.
And, in general, the priority of acts may be shown when mate-
rial.2 Now, —
Ex post Facto. — Plainly, in reason, if a man does a thing at
five o’clock in the morning, and it is then lawful, he cannot be
punished for it under a statute passed at five o’clock in the even-
ing of the same day, without violating the constitutional inhibi-
tion of ex post facto laws.? If the act were performed at five
o’clock in the evening, and the statute passed at the same hour
the next morning, all would admit that it could not be applied
to the transaction; while still it is not easy to see how the one
case could differ in principle from the other. Hence, —
Time of Day provable, and when. — In these cases, and in cases
less strong, including civil ones where justice imperatively de-
mands, the doctrine, at least the better doctrine, of the present
day permits proof, even by parol, of the exact hour when a stat-
ute became a law, giving effect to it only from such hour.
Accordingly, when a petition in bankruptcy was filed in court
about noon, and late in the evening of the same day a bill passed
Congress and was approved by the President repealing the bank-
rupt act, but saving cases ‘* commenced before the passage of this
act,” Story, J. held that the proceeding could go on to its conclu-
sion. In a general way it has been adjudged, that the time when
an act is passed and signed can appear only in itself or by the
record ;® but, in reason, a rule of this sort, while convenient in
practice, cannot overturn a principle of natural justice, much less
control a provision in the Constitution. In accordance with this
Campbell v. Strangeways, 3C.P. D.105;
Lockett v. Hill, 1 Woods, 552; Combe v.
Pitt, 3 Bur. 1423, 1434; Johnson v. Pen-
nington, 3 Green, N. J. 188.
1 Metts v. Bright, 4 Dev. & Bat. 173.
2 Lang v. Phillips, 27 Ala. 311; Cin-
cinnati Bank v. Burkhardt, 100 U. S.
686.
3 Crim. Law, I. § 279 et seq.
4 Salmon v. Burgess, 1 Hughes, 356;
In re Wynne, Chase Dec. 227, 251.
6 In re Richardson, 2 Story, 671.
26
And see, to the like effect, 3 Opin. Att-
Gen. 82.
6 In re Welman, 20 Vt. 653; Latless
v. Holmes, 4 T. R. 660. And see United
States v. Williams, 1 Paine, 261. In Peo-
ple v. Clark, 1 Cal. 406, the majority of
the court held the day to be divisible, as
respects the time when «a statute goes
into operation, being the moment of its
passage. See also United States v. Ar-
nold, 1 Gallis. 348; Lang v. Phillips, 27
Ala. 311; Kimm v. Osgood, 19 Misso. 60.
CHAP. Iv.] WHEN STATUTES TAKE EFFECT. § 31
view, it has been held that a court is not forbidden to inform
itself of the real date of the President’s approval of an act.
Therefore, where the date on its face was simply “‘ December 4,”
it was adjudged competent, in order to ascertain the year, to
resort to the records in the Secretary of State’s office, and to
the journals of Congress.! Again, —
Precedence.— When the order in which were passed two or
more statutes bearing the same date becomes important, the
chapter numbers may be looked into,? as doubtless any thing else
calculated to inform the judicial mind.
§ 30. Knowledge of Statute impossible. — The rule, where a
knowledge of the statute could not have reached the person
charged with violating it, is considered in another connection.®
§ 81. Modifications of foregoing Rules. — To avoid practical
hardships from the foregoing rules, there are in some of the States
special provisions of law postponing the taking effect of statutes
! Gardner v. The Collector, 6 Wal.
499. And see Kennedy v. Palmer, 6
Gray, 316; Turley v. Logan, 17 Ill. 151;
Prescott v. Illinois and Michigan Canal,
19 Ill. 824; McCulloch v. The State, 11
Ind. 424; Southwark Bank v. Common-
wealth, 2 Casey, Pa. 446; post, § 387.
The above case of Gardner v. The Col-
lector, and the reasoning of Miller, J. in
the opinion, seem in effect to sustain the
following just propositions; namely, 1. It
being the duty of the judges to take ju-
dicial notice of the contents of public
statutes, which need not be proved before
them as facts, they must also determine
the dates of their enactment. 2. In as-
certaining these, they should look at
whatever is adapted to inform their
minds. The date attached to the Presi-
dent’s signature, if full, will ordinarily
suffice. If not full, resort may be had to
the journals, the time of the publication
of the statute, and other sources, to sup-
ply the deficiency. If the ends of justice
require the precise moment to be ascer-
tained, this may be done in any way sat-
isfactory to the minds of the judges. It
may even be shown that the date which
the President attached to his signature
is an error. The learned judge con-
densed the doctrine thus: “ We are
of opinion, on principle as well as au-
thority, that, whenever a question arises
in a court of law of the existence of a
statute, or of the time when a statute
took effect, or of the precise terms of a
statute, the judges, who are called upon
to decide it, have a right to resort to any
source of information which in its nature
is capable of conveying to the judicial
mind a clear and satisfactory answer to
such question; always seeking first for
that which in its nature is most appropri-
ate, unless the positive law has enacted
a different rule.” p. 511. Consult, as
perhaps contra, The State v. Young, 3
Vroom, 29. President’s Proclamation.
— The President’s proclamation of June
13, 1865, annulling restrictions upon in-
ternal trade in the late insurgent States,
was held to take effect on the beginning of
theday. United States v. Norton, 97 U.S.
164, decided on United States v. Lapeyre,
17 Wal. 191. And, it is believed, any
executive act carrying clemency to the
subject, and not impairing the rights of
other subjects, would be so construed.
2 Metropolitan Board of Health v.
Schmades, 8 Daly, 282, 10 Abb. Pr. n. 8.
205. And see St. Martin v. New Orleans,
14 La. An. 118.
8 Crim. Law, I. § 296.
27
THE WRITTEN LAWS.
§3la [BooK IL.
until a specified time after their enactment, or until they are
published.2 Or the statute itself may, and it often does, fix.a
time different from the general one, when no constitutional inhi-
bition prevents. But to work this result, its words must be
direct and unequivocal.’ No legislative act can bind future legis-
lation ;‘ therefore, if, while there is a general statutory provision
postponing the taking effect of statutes until a specified number
of days after their publication or enactment, a statute is passed
on its face to go into operation immediately, or at a different time
from the general one, it does so; this later expression of the legis-
lative will prevailing over the earlier...
Effect of postponing Statute. — A statute which is to become law
at a future day is a nullity in the mean time. It does not even
operate as notice to persons to be affected by it,® nor does a re-
pealing clause in it put an end to the law to be repealed? One
cannot be punished under it for what he does before the day of
its taking effect.$ ,
§ 81a. “From and after.” —If a statute is to take effect “from
and after”’.a day named, there is believed to be no certain rule
either that it shall be on such day or on the next following one,
but the entire provision and the special nature of the case will
determine.®
1 Cooper v. Curtis, 80 Maine, 488;
Chapman v. The State, 2 Head, 36;
West Feliciana Railroad v. Johnson, 5
How. Missis. 278; Files v. Robinson, 30
Ark. 487; The State v. Little Rock, &c.
Railway, 31 Ark. 701; Whitehead v.
Wells, 29 Ark. 99; Johnson v. The State,
3 Lea, 469; Barry v. Viall, 12 R. I. 18.
2 Tredway v. Gapin, 1 Blackf. 299;
The State v. Donehey, 8 Iowa, 396;
Calkin v. The State, 1 Greene, Iowa, 68;
The State v. Stevenson, 2 Pike, 260; The
State v. Superior District Court, 29 La.
An. 223; Stine v. Bennett, 138 Minn. 153;
Smith v. Hoyt, 14 Wis. 252. See Parkin-
son v. The State, 14 Md. 184; The State
v. Barrow, 80 La. An. 657; Thomas v:
Scott, 23 La. An. 689; Scott v. Clark, 1
Iowa, 70; Pilkey v. Gleason, 1 Iowa, 522.
§ Wheeler v. Chubbuck, 16 III. 361.
* The State v. Oskins, 28 Ind. 364.
5 Hunt v. Murray, 17 Iowa, 318; Or-
leans v. Holmes, 13 La. An. 502.
28
Where the words were “ from and after the passage
6 Price v. Hopkin, 18 Mich. 318. See
Graves v. The State, 6 Texas Ap. 228;
Paddon v. Bartlett, 8 A. & E. 884, 896;
Wood v. Riley, Law Rep. 8 C. P. 26.
7 McArthur v. Franklin, 16 Ohio State,
193; Spaulding v. Alford, 1 Pick. 83.
8 The State v. Bond, 4 Jones, N.C. 9.
® Bishop Con. § 749; Lester v. Gar-
land, 15 Ves. 248; Pugh v. Leeds, Cowp.
714; Wilkinson v. Gaston, 9 Q. B. 187;
Isaacs v. Royal Ins. Co. Law Rep. 5 Ex.
296 ; Wilcox v. Wood, 9 Wend. 346; Deyo
v. Bleakley, 24 Barb. 9; Sheets v. Selden,
2 Wal. 177; Peables v. Hannaford, 18
Maine, 106. “ Where time is computed
from an act done, the general rule is to
include the day. Where it is computed
from the day of the act done, the day is
excluded. ... It has been adopted by this
court, and must be regarded as settled in
this commonwealth.” Chapman, J. in At«
kins v. Sleeper, 7 Allen, 487, 488. Contra,
Bemis v. Leonard, 118 Mass. 502, 508. «-
\
CHAP. Iv.] WHEN STATUTES TAKE EFFECT. § 82
of this act,” the day of its enactment was held to be included;
Story, J. observing, that, by the general rule, “where the com-
putation is to be made from an act done, the day on which the
act is done is to be included.” ! But, where the words were,
“from and after” a specified future date, the enactment was held
not to go into operation until the day next succeeding such date
And probably many courts will hold to the distinction indicated
by these two cases.®
§ 32. Treaties. —In international law, and as a contract be-
tween nations, a treaty takes effect from the time it is signed;
its subsequent ratification relating back to such time. And this
is held of our treaties with other nations. They are not, in this
respect, affected by the special terms of our Constitution. Ina
general way, the same rule governs a treaty ceding territory to
us. ‘It is true,” said Wayne, J., “that ... its national char-
acter continues for all commercial purposes; but full sovereignty,
for the exercise of it, does not pass to the nation to which it is
transferred until actual delivery. But it is also true, that the
exercise of sovereignty by the ceding country ceases, except for
strictly municipal purposes, especially for granting lands. And
for the same reason in both cases; because, after the treaty is
made, there is not in either the union of possession and the right
to the territory which must concur to give plenum dominium et
utile.” > Yet, as a “law” under our constitution,® and affecting
private rights, it, like a statute which is fully enacted only on
receiving the executive sanction, dates simply from the rati-
fication.’
1 Arnold v. United States, 9 Cranch,
104. s. Pp. United States v. Williams, 1
Paine, 261; People v. Clark, 1 Cal. 406.
And see Hamlet v. Taylor, 5 Jones, N.C.
36; In re Welman, 20 Vt. 653. Contra,
Rex v. Moore, Jefferson, 9.
2 Koltenbrock v. Cracraft, 36 Ohio
State, 584. See The State v. Perrysburg,
14 Ohio State, 472.
3 See the first note to this section;
Watson v. Pears, 2 Camp. 294.
* Haver v. Yaker, 9 Wal. 32; Hylton
v. Brown, 1 Wash. C. C. 343, and cases in
the next note. See Succession of Schaf-
fer, 13 La. An. 1138.
5 Davis v. Concordia, 9 How. U. S. 280,
289; United States v. Reynes, 9 How.
U. S. 127, 148. And see Montault »v.
United States, 12 How. U.S. 47; United
States v. Pillerin, 13 How. U. S.9; United
States v. Rillieux, 14 How. U. S. 189;
United States v. Ducros, 15 How. U. S.
88; Innerarity v. Mims, 1 Ala. 660; Mims
v. Huggins, 1 Ala. 676.
8 Ante, § 11, 18, 14.
7 Haver v. Yaker, supra; United States
v. Arredondo, 6 Pet. 691. And see United
States v. Percheman, 7 Pet. 51; Yeaker
v. Yeaker, 4 Met. Ky. 33.
29
§ 33 THE WRITTEN LAWS. [BooK I.
CHAPTER V.
THE ENACTMENT AND VALIDITY OF STATUTES.
§ 32 a. Introduction.
83, 34. Constitutional Validity.
85-35 b. Interpreters of Constitution.
36-37 a. Constitutional Formalities at Enactment.
38-41. Defects other than Constitutional.
§ 82 a. How Chapter divided. — We shall consider, I. The
Constitutional Validity of Statutes enacted in due Form;
II. The Interpreters of the Constitution ; III. Constitutional
Formalities at the Enactment; IV. Defects other than Con-
stitutional.
I. The Constitutional Validity of Statutes enacted in due Form.
§ 83. People Sovereign — Legislative Bodies. —It is the theory
of our State and national governments, that sovereignty dwells
primarily with the people. For the orderly exercise of it, they
have delegated so much as they chose, and no more, to the vari-
ous official bodies and persons. Legislative powers have thus
been conferred on our State legislatures and on Congress, the
limits whereof, beyond which all attempted acts are nullities, are
defined in the constitutions of the several States and the United
States.1 Hence, —
Unconstitutional Statutes. — A statute, State or national, thus
in excess of constitutional powcr, is deemed simply void, having
no effect, direct or collateral, for any purpose whatever.2 Not
1 And see Tennessee v. Davis, 100 v. Clark, 26 Ala. 439; Strong v. Daniel,
U. 8S. 257, 275. 5 Ind. 348; Cincinnati, &c. Railroad v.
21 Kent Com. 448-465; Marbury v. Clinton, 1 Ohio State, 77; Frye v. Par-
Madison, 1 Cranch, 137; The State v. tridge, 82 Ill. 267; National Bank »v.
Fleming, 7 Humph. 152; Bliss v. Com- Southern Porcelain Manuf. Co. 55 Ga. 36;
monwealth, 2 Litt. 90; Bank of St. The State v. Osawkee, 14 Kan. 418.
Mary’s v. The State, 12 Ga. 475; Haley
380
,
CHAP. V.] ENACTMENT AND VALIDITY. § 34
even, like an erroneous judgment rendered by a competent tribu-
nal on a valid law,! will it protect an officer in performing any of
its requirements, or obeying process founded upon it.2 In Eng-
land, no superior law of the realm exists to override an act of
Parliament.2 What is called constitutional law there is declared
by the Parliament itself. Still, —
§ 84. Unconstitutional in Part.— A statute may be in conflict
with the constitution in part, and the rest of it be free from
objection. In which case, if the parts are properly separable,
the courts will sustain what is sound, and reject the unsound.
This may be so even where the sound and the unsound are in
one section together.* But if the unconstitutional parts are
essential to the constitutional, all must fail. “And, beyond what
thus comes from necessity, the doctrine has been laid down, and
it seems to be just, that, if the parts are so mutually related as
to make it evident the legislature intended them to constitute
one whole, so that if all could not be carried into effect none would
have received the legislative sanction, the case is within the same
rule.®
On the other hand, absolute independence of the pro-
visions is not a prerequisite to letting a part stand while the rest
fall.’
In By-laws. — As already seen,® the like doctrine applies to
1 The State v. Weed, 1 Fost. N. H. 262;
Rex v. Dyer, 6 Mod. 41.
2 Astrom v. Hammond, 8 McLean, 107;
Fisher v. McGirr, 1 Gray, 1.
3 Dwar. Stat. 2d ed. 523.
4 Bank of Hamilton v. Dudley, 2 Pet.
492, 526; Clark v. Ellis, 2 Blackf. 8;
Fisher v. McGirr, 1 Gray, 1; Steele v.
The State, 5 Blackf. 110; McCulloch v.
The State, 11 Ind. 424; The State v.
Allen, 2 McCord, 55; Yarmouth v. North
Yarmouth, 34 Maine, 411; Myers v. Peo-
ple, 67 Il. 503; Hagerstown v. Dechert,
82 Md. 869; McCready v. Sexton, 29
Iowa, 356; Christy v. Sacramento, 39
Cal. 3; The State v. Clarke, 54 Misso. 17;
Rood v. McCargar, 49 Cal. 117; Bucky
v. Willard, 16 Fla. 330; The State v.
Newton, 59 Ind. 173; In re Jilz, 3 Misso.
Ap. 243; The State v. Clinton, 28 La.
An. 201; Berlin v. New Britain, 9 Conn.
175; Robinson v. Bidwell, 22 Cal. 879,
The State v. Swift, 11 Nev. 128; Gamble
v. McCrady, 75 N. C. 509; Darby v. Wil-
mington, 76 N. C. 133; Lea v. Bumm, 2
Norris, Pa. 237; The State v. Amery, 12
R. I. 64; Lathrop v. Mills, 19 Cal. 513;
Maize v. The State, 4 Ind. 342; Santo v.
The State, 2 Iowa, 165; Mobile and Ohio
Railroad v. The State, 29 Ala. 573.
6 Exchange Bank v. Hines, 3 Ohio
State, 1, 34; Hinze v. People, 92 Ill. 406;
People v. Cooper, 83 Ill. 585; Ex parte
Towles, 48 Texas, 413; People v. Maha-
ney, 13 Mich. 481 ; Campau ». Detroit, 14
Mich. 276; Reed v. Omnibus Railroad,
83 Cal. 212; The State v. Perry, 5 Ohio
State, 497, 506.
6 Neely v. The State, 4 Baxter, 174;
The State v. Dousman, 28 Wis. 541; Eck-
hart v. The State, 5 W. Va. 515; Warren
v. Charlestown, 2 Gray, 84; Common-
wealth v. Clapp, 5 Gray, 97; Common-
wealth v. Hitchings, 5 Gray, 482; Com-
monwealth v. Pomeroy, 5 Gray, 486,
note.
1 And see People v. Hill, 7 Cal. 97.
§ Ante, § 26.
31
§ 35 [BooK-1.
THE WRITTEN LAWS.
municipal by-laws. “A by-law,” said Lord Kenyon, C. J., “may
be good in part and bad in part, yet it can be so only where the
two parts are entire and distinct from each other.” !
Repeals in Statutes. — An act consisting of affirmative pro-
visions and a repealing clause may be void as to the former and
good as to the latter.2. Yet practically this would not be so com-
monly ; because, in most instances, the new provision is the
motive for repealing the old, so that where the new cannot stand
the repeal should not. It was in one case even held, that the
clause, ‘All acts and parts of acts inconsistent with the pro-
visions of this act are hereby repealed,” was effectual, though the
rest of the statute was unconstitutional. But not only the rea-
son just suggested shows that this doctrine cannot be sound in
principle; it is also unsound, and it has been so adjudged, be-
cause, as observed in the Alabama court, “if the new law is void,
the provisions of the former law cannot with propriety be said to
be in conflict, or contravention of it.” 4
II. The Interpreters of the Constitution.
§ 35. The Courts. — It is a popular idea, not altogether absent
from judicial opinions, that the courts are both specially and
exclusively the interpreters of our constitutions. But nothing
of this sort appears in the instruments themselves. The judges
are indeed sworn to observe them; so equally are all the other
officers of the government.. Their function is to decide judicial '
causes ; and, when a cause is presented to them involving a con-
stitutional question, they must interpret the constitution as to it,
and no appeal lies to any other department of the government.
Thus far, therefore, the courts are the interpreters ; nor can the
legislature, for example, interfere in any way with this function®
But —
1 Rex v. Faversham, 8 T. R. 352, 356.
See also Commonwealth v. Dow, 10 Met.
882; Austin v. Murray, 16 Pick. 121, 126,
Fitzacherly v. Wiltshire, 11 Mod. 352, 354 ;
s. c. nom. Fazakerly v. Wiltshire, 1 Stra.
462, 469; Lee v. Wallis, 1 Keny. 292, 295;
Cincinnati v. Rice, 16 Ohio, 225; The State
v. Snow, 3 R.I. 64; The State v. Copeland,
3 R. I. 33.
2 Ely v. Thompson, 3 A. K. Mar. 70.
32
8 Meshmeier v. The State, 11 Ind. 482.
4 Tims v. The State, 26 Ala. 165, 170;
People v. Tiphaine, 3 Parker C. C. 241;
The State v. La Crosse, 11 Wis. 50; Shep-
ardson v. Milwaukee, &c. Railroad, 6 Wis.
605. And see The State v. Hallock, 14
Nev. 202; Childs v. Shower, 18 Iowa, 261.
5 And see Ex parte Blanchard, 9 Nev.
101; Barnett v. Woods, 5 Jones Eq. 428,
434, :
CHAP. V.] ENACTMENT AND VALIDITY. § 358
Other Governmental Departments.— The other departments of
the government, being bound equally with the judicial to obey
the constitution, are under equal obligations to interpret it for
themselves.!' Indeed there are doubtless circumstances in which
the courts would feel obliged to place reliance upon, and give
effect to, the interpretation made by another branch of the gov-
ernment.2, There are, moreover, many constitutional questions
arising only in such forms that they can never be taken before
the courts ; so that, if the other departments before which they
present themselves could not interpret the constitution to decide
them, this ‘supreme law” would be as to them of no practical
effect.
§ 85 a. Purther of Courts interpreting. — Except in the one in-
stance about to be mentioned, courts will not take jurisdiction of
a cause simply on the ground that it involves an interpretation
of the constitution.? Some, on the other hand, and perhaps in a
degree all, avoid the consideration of constitutional questions
except when forced on them in forms of procedure permitting of
due argument and deliberation. The interpretation of the high-
est tribunal is binding on the inferior ones, the same as are its
decisions on other questions of law.?
§ 35 b. As between States and United States. — The courts of a
State are the highest judicial interpreters of its constitution.
And when a question of the meaning of a State constitution
comes before the Supreme Court of the United States, it is bound
But where no such wrong is done, it is
supposed that acts of the executive with-
2 See this topic discussed, Bishop First
Book, § 114-123.
2 We are perhaps wanting in author-
ity on this precise point; but in United
States v. Lytle, 5 McLean, 9, 17, 18, the
court refused to interfere with the inter-
pretation of a statute by the executive
department ; observing, that the execu-
tive is bound to give effect to laws regu-
lating its duties, in doing which it must
necessarily interpret them. ‘“ And, where
such construction has been acted on for
a great number of years, under the sanc-
tions of the lawmaking power, it becomes
a serious question how far the judicial
power can or should interfere. . . .
Where, under an executive construction
of the law, a wrong is done to an indi-
vidual, the courts will give him redress.
3
in the general scope of its powers, and
by virtue of law, cannot be reviewed ;
though, to some extent, the letter of the
law may not have been followed.” Mc-
Lean, J. Of a like sort is Mathews »v.
Shores, 24 Il]. 27. And see post, § 104.
8 Jones v. Black, 48 Ala. 540; Hoover
v. Wood, 9 Ind. 286; Lopez v. The State,
42 Texas, 298; Padelford v. Savannah,
14 Ga. 438.
4 Parker v. The State, 5 Texas Ap.
579; Taylor v. Flint, 35 Ga. 124; Hoover
v. Wood, supra; People v. Mahaney, 13
Mich. 481; Shelden v. Miller, 9 La. An.
187.
5 Wheeler v. Rice, 4 Brews. 129; Pierce
v. Pierce, 46 Ind. 86. :
383
§ 36 THE WRITTEN LAWS. [BOOK 1.
by such State interpretation.!_ In like manner, the interpretations
of the courts of the United States are controlling over the State
tribunals as to the Constitution of the United States? And an
appeal, by writ of error, lies from a final judgment of a State
court to the Supreme Court of the United States, in certain cases
involving the construction of the national constitution. The
State courts are bound by the constitution of the United States
to the extent of permitting those of one State to pass upon the
validity, under it, of the legislation of another State.*
III. Constitutional Formalities at Enactment.
§ 36. In General.— A statute, to be valid, must be enacted by
the body and in the manner prescribed by the constitution.
Thus, —
Legislative Body — People. — The people,® having by the con-
stitution transferred their law-making power to a legislative
body, can no longer, without a recall of some portion of the
power thus granted, exercise it directly. This proposition is
universally conceded. But there are differences as to some of
its applications. To explain, —
Statute to take Effect on Popular Approval — Municipal Corpora-
tion.— Whether an individual entrusted with an authority can
delegate it to another depends on its nature. An agency with a
discretion cannot be delegated, but a mere ministerial one may.®
Therefore, quite conclusively, a body of official persons, endowed
with the discretionary power of making laws, cannot transfer it
to other hands. But it is consistent with the nature of a law
that it authorize associations of men to govern themselves in
their own affairs; therefore, as already seen,’ a statute may
1 Aicardi v. The State, 19 Wal. 635;
Cass v. Johnston, 95 U. S. 860; Bank
of North Bennington v. Bennington, 16
Blatch. 63.
2 Bank of United States v. Norton, 3 A.
K. Mar. 423; Ex parte Bushnell, 9 Ohio
State, 77.
8 R.S. of U.S. § 709; Bridge Propri-
etors v. Hoboken Co. 1 Wal. 116; The
Binghampton Bridge, 3 Wal. 61; Winn
v. Jackson, 12 Wheat. 135.
* Stoddart v. Smith, 6 Binn. 358; Bray-
34
nard v. Marshall, 8 Pick. 194. See Kean
v. Rice, 12 8. & R. 208.
5 Ante, § 33.
& Bishop Con. § 350. As to powers
More analogous to the law-making, see
The State v. Bell, 34 Ohio State, 194;
Matthews v. Alexandria, 68 Misso. 115;
‘The State v. Fiske, 9 R. I. 94; Springer
v. McSpadden, 49 Misso. 299.
7 Ante, § 18; Covington v. East St.
Louis, 78 Ill. 548 ; Lothrop v. Stedman, 42
Conn. 583. And see People v. Nally, 49
Cal. 478.
CHAP. V.] ENACTMENT AND VALIDITY.
§ 86
establish a municipal corporation, with power to enact reasonable
by-laws.! And it was never doubted that such a statute may be
submitted, for acceptance or rejection, to the people dwelling in
the locality to be affected thereby. Yet considerable numbers of
courts have held, that an ordinary act of legislation is void, if, by
its terms, its going into effect depends on a popular vote.? In-
deed, a count would probably show a greater number of cases in
favor of this doctrine than against it. Wemay doubt whether
these cases have proceeded on a right view of the question. It
is beyond dispute, in general, that the going into effect of a legis-
lative act may be made to depend on the happening of a future
event,’ or a contingency; and that, for example, one expired may
be revived on the transpiring of a fact to be established by procla-
mation.* The legislature, in exercising its judgment on the
advisability of a measure, may well be governed by the yet unas-
certained fact of the popular approval or disapproval of it ; be-
cause, as is well known, laws which do violence to public opinion
are not enforced, and often tend to evil, while, if such opinion
' Taxes, &c.— And to levy taxes, and
the like. United States v. New Orleans,
98 U.S. 381.
2 Barto v. Himrod, 4 Seld. 483; Thorne
v. Cramer, 15 Barb. 112; The State v.
Parker, 26 Vt. 857; People v. Collins, 3
Mich. 343; The State v. Copeland, 3
R. I. 33; Parker v. Commonwealth, 6
Barr, 507; The State v. Scott, 17 Misso.
521; The State v. Field, 17 Misso. 529;
Louisville v. Baird, 15 B. Monr. 246; Pat-
erson v. Society, 4 Zab. 385; Maize v.
The State, 4 Ind. 342; Meshmeier v. The
State, 11 Ind. 482; Santo v. The State,
2 Iowa, 165; The State v. Swisher, 17
Texas, 441; Grant v. Courter, 24 Barb.
232; Clarke v. Rochester, 24 Barb. 446;
People v. Stout, 23 Barb. 349; Louisville
and Nashville Railroad v. Davidson, 1
Sneed, 637; Morford v. Unger, 8 Iowa,
82; Geebrick v. The State, 5 Iowa, 491;
Bank of Rome v. Rome, 18 N. Y. 38;
Peck v. Weddell, 17 Ohio State, 271; Rice
v, Foster, 4 Harring. Del. 479; Corning v.
Greene, 23 Barb. 83; Johnson v. Rich. 9
Barb. 680; Morgan v. Monmouth Plank
Road, 2 Dutcher, 99; People v. Salomon,
46 Ill. 415; The State v. Weir, 33 Iowa,
184; Ex parte Wall, 48 Cal. 279, 313;
Brown v. Fleischner, 4 Oregon, 182.
3 Lothrop v. Stedman, 42 Conn. 683;
Smith v. Janesville, 26 Wis. 291; The
State v. New Haven, &c. Co. 43 Conn.
851; Fredericton v. Reg. 3 Canada, S. C.
605.
4 The Aurora, 7 Cranch, 382. In a
Texas case, Lipscomb, J. said: “ There
is no analogy between the act of our
legislature, and the various acts of Con-
gress depending upon a future contin-
gency-of a rebellion, insurrection, foreign
war, a treaty, or the acts of a foreign
power. These do not depend upon the
vote of the constituency of Congress, but
on a contingency over which they have
no control.” The State v. Swisher, 17
Texas, 441, 448. On the other hand, in
Virginia, where the validity of statutes
depending on a vote of the people was
sustained, Lee, J. delivering the opinion
of the court, said: “Now, if the legisla-
ture may make .the operation of its act
depend on some contingency thereafter
to happen, or may prescribe conditions,
it must be for them to judge in what con-
tingency, or upon what condition, the act
shall take effect. They must have the
power to prescribe any they may think
proper.” Bull v. Read, 18 Grat. 78, 90,
91.
385
[BOOK I.
§ 864 THE WRITTEN LAWS.
favored them, their results might be good. Therefore to provide
for ascertaining the popular opinion by a vote of the people, and
to make the going into effect of a statute dependent on the fact
thus arrived at, would seem but a legitimate form of contingent
legislation, in the highest degree just in all cases where the legis-
lative body doubts concerning such fact and deems it essential.
This is not a transferring, by this body, of any part of the legis-
lative power to the people, but intelligently exercising its own.
How generally the full doctrine thus stated is, in recent times,
held by the courts it would be difficult to ascertain ; but, where
the submission is of a local statute to the people of the locality,
or of a general one to be accepted or rejected in particular places
where the vote is taken, popularly termed in some of its forms a
local option law, the constitutional validity of the proceeding is
almost universally conceded.2- By some opinions, at least, it
makes no difference that the law affects equally the entire people
of the State. In Rhode Island, where this sort of general legis-
lation has been deemed unconstitutional, the courts sustained an
act which provided for a popular vote on the question of its
repeal, and, if a majority decide for repeal, it shall have no
effect after the tenth day from and after the rising of the
session of the General Assembly at, which the votes are to be
counted.
§ 36 a. One Subject, expressed in Title. — The constitutions of
some of the States provide, that no statute shall embrace more
than one subject, and it shall be expressed in the title.6 There
are States wherein this provision is deemed directory only, so
1 Consult, for the affirmative side of
this proposition, Locke's Appeal, 22 Smith,
Pa. 491; for the negative, Ex parte Wall,
48 Cal. 279, 313.
2 Locke’s Appeal, supra; Smith »v.
McCarthy, 6 Smith, Pa. 359; The State
v. O’Neill, 24 Wis. 149; Monroe v. The
State, 8 Texas Ap. 843; Anderson v.
Commonwealth, 13 Bush, 485; The State
v. Morris Common Pleas, 7 Vroom, 72;
People v. Reynolds, 5 Gilman, 1; People
v. Salomon, 51 Ill. 37; Erlinger v. Boneau,
61 Ill. 94; Commonwealth ce. Dean, 110
Mass. 357; Guild v. Chicago, 82 Ill. 472;
The State v. Wilcox, 42 Conn. 364; The
State v. Cooke, 24 Minn. 247; Common-
wealth v. Weller, 14 Bush, 218; Common-
36
wealth v. Hoke, 14 Bush, 668; Frederic-
ton v. Reg. 3 Canada S.C. 605. See
English v. The State, 7 Texas Ap. 171;
The State v. St. Joseph, 37 Misso. 270;
Holcomb v. Davis, 56 Ill. 418. Contra,
Ex parte Wall, 48 Cal. 279, 313 (compare
with Robinson v. Bidwell, 22 Cal. 379);
Parker v. Commonwealth, 4 Pa. Law
Jour. Rep. 163; Lammert v. Lidwell, 62
Misso. 188.
3 Smith cv. Janesville, 26 Wis. 291.
And see People r. Collins, 8 Mich. 343;
Blanding v. Burr, 13 Cal. 343. os
* The State v. Copeland, 3 R. L 33,
And see Williams v. Cammack, 27 Missis.
209.
5 Parkinson v. The State, 14 Md. 184.
CHAP. V.] ENACTMENT AND VALIDITY. § 36.4
that a statute enacted in violation of it is good But generally
it is regarded as mandatory, rendering the contravening enact-
ment void.? Still, by the common doctrine, as a statute may be
good in part and ill for the residue,’ if the title specifies one sub-
ject and no more, and the parts relating to it are separable from
the rest, they will be held valid while the residue is adjudged
void.t The title need indicate the subject only in a general way,
without entering into details; and all auxiliary provisions prop-
erly attaching to it, and constituting with it one whole, may be
embraced within the enactment.*
1 In re Boston Mining, &c. Co. 51 Cal.
624; The State v. Covington, 29 Ohio
State, 102; Pim v. Nicholson, 6 Ohio State,
176, 180; Washington v. Page, 4 Cal. 388;
Cooley Const. Lim. 81, 82, 150.
2 Cannon v. Hemphill, 7 Texas, 184 ;
Weaver v. Lapsley, 43 Ala. 224; The
State v. Miller, 45 Misso. 495 ; Cannon v.
Mathes, 8 Heisk. 504; San Antonio v.
Gould, 34 Texas, 49; Gifford vr. New Jer-
sey Railroad, 2 Stockton, 171; Parkinson
v. The State, supra; Hill v. Decatur, 22
Ga. 203; Phillips v. New York, 1 Hilton,
483 ; Madison, &c. Railroad v. Whiteneck,
8 Ind. 217; Bright v. McCullough, 27 Ind.
223: Keller v. The State, 11 Md. 525;
Cooley Const. Lim. 141 et seq.
8 Ante, § 34.
# Jones v. Thompson, 12 Bush, 394;
Allegheny County Home’s Case, 27 Smith,
Pa. 77; Walker v. The State, 49 Ala.
329; People v. Briggs, 50 N. Y. 553; Ex
parte Moore, 62 Ala. 471; In re Sackett,
&c. Streets, 74 N. Y.95; Fuqua v. Mullen,
13 Bush, 467; Rader v. Union, 10 Vroom,
509. And see Shields rv. Bennett, 8 W.
Va. 74.
5 Alabama.— Miles v. The State, 40
Ala. 39; Weaver v. Lapsley, 43 Ala.
224; Walker v. The State, 49 Ala. 329;
Lowndes v. Hunter, 49 Ala. 507; Tal-
lassee Manuf. Co. v. Glenn, 50 Ala. 489;
The State « Price, 50 Ala. 568; Moses
e. Mobile, 52 Ala. 198; Key v. Jones, 52
Ala. 238; Boyd v. The State, 53 Ala. 601;
Adler v. The State, 55 Ala. 16; Watson
v. The State, 55 Ala. 158.
Arkansas. — Fletcher v. Oliver, 25 Ark.
289; Worthen v. Badgett, 382 Ark. 496.
Georgia. — Bibb County Loan Assoc.
v. Richards, 21 Ga. 592; Allen v. Tison, 50
Ga. 374; Ex parte Conner, 51 Ga. 571;
Ayeridge v. Social Circle, 60 Ga. 404.
Illinois. —Neifing v. Pontiac, 56 Il.
172; People v. Wallace, 70 Ill. 680; Burke
v. Monroe, 77 Ill. 610; Guild v. Chicago,
82 Ill. 472; Fuller v. People, 92 IN. 182.
Indiana. — Hatwood v. The State, 18
Ind. 492; Gabbert v. Jeffersonville Rail-
road, 11 Ind. 365; Igoe v. The State, 14
Ind. 239; The State v. Adamson, 14 Ind.
296; Thomasson v. The State, 15 Ind.
449 ; The State v. Young, 47 Ind. 150,
154; Williams v. The State, 48 Ind. 306;
Henderson v. The State, 50 Ind. 234.
Iowa, — Williamson v. Keokuk, 44
Towa, 88; Farmers’ Ins. Co. v. Highsmith,
44 Towa, 330.
Kansgs. — Division of Howard, 15
Kan. 194; The State v. Bankers, &c. Ben-
efit Assoc. 23 Kan. 499.
Kentucky. — Gibson v. Belcher, 1 Bush,
145; Hind v. Rice, 10 Bush, 528; Collins
v. Henderson, 11 Bush, 74; Fuqua e.
Mallen, 13 Bush, 467 ; Howland Coal, &c.
Works v. Brown, 13 Bush, 681; Allen v.
Hall, 14 Bush, 85.
Louisiana. — City Nat. Bank v. Mahan,
21 La. An. 751; The State v. Daniel, 28
La. An. 38; Police Jury of Plaquemines
v. Packard, 28 La. An. 199; New Orleans
v. Dunbar, 28 La. An. 722; The State v.
Garrett, 29 La. An. 637.
Maryland. — Washington v. Franklin
Railroad, 34 Md. 159; McGrath v. The
State, 46 Md. 631.
Michigan. — People v. Wands, 23 Mich.
385; People v. Hurlbut, 24 Mich. 44, 55,
57; People «. Bradley, 36 Mich. 447;
People v. Young Men’s, &c. Soc. 41 Mich.
67.
Minnesota. — Stuart v.
37
Kinsella, 14
§ 87
THE WRITTEN LAWS.
[Book 1.
§ 36 5. Other like Provisions. — There are other like provisions
in the constitutions of some of the States, but discussions of them
are not desirable here.
§ 87. Judicial Knowledge and Proof.— The public statutes are
parts of the law of the land, whereof the courts take judicial
notice ; and, to some extent, by-laws and classes of. statutes not
public are made such by legislative mandate.?
Minn. 524; The State v. Cassidy, 22
Minn. 312, 323.
Missouri. — The State v. Miller, 45
Misso. 495; The State v. Bank of the
State, 45 Misso. 528; In re Goode, 3
Misso. Ap. 226; Murdock v. Woodson,
2 Dil. 188.
Nebraska. —Smails v. White, 4 Neb.
353; The State v. Lancaster, 6 Neb. 474.
Nevada. — The State v. Silver, 9 Nev.
227.
New Jersey. — The State v. Union, 4
Vroom, 350; Rader v. Union, 10 Vroom,
509.
New York.— Gloversville v. Howell, 7
Hun, 345; People v. O’Brien, 38 N. Y.
193; People v. Lawrence, 41 N. Y. 137;
Gaskin v. Meek, 42 N. Y. 186; People v.
Rochester, 50 N. Y. 525; People v. Briggs,
50 N. Y. 553; Harris v. People, 59 N. Y.
599; People v. Willsea, 60 N. Y. 507;
People v. Banks, 67 N. Y. 568; People v.
Brinkerhoff, 68 N. Y¥. 259; Kerrigan v.
Force, 68 N. Y. 381; Billings v. New
York, 68 N. Y. 413; Gloversville v. How-
ell, 70 N. Y. 287; Sharp v. New York, 31
Barb. 572; Gaskin v. Anderson, 55 Barb.
259; Gaskin v. Meek, 8 Abb. Pr. n. 8.
312; Central Cross-town Railroad v.
Twenty-third Street Railroad, 54 How.
Pr. 168; Hardenbergh v. Van Keuren, 4
Abb. N. Cas. 43; Neuendorff v. Duryea,
6 Daly, 276.
Pennsylvania. — Allegheny County
Home’s Case, 27 Smith, Pa. 77; State
Line, &c. Railroad’s Appeal, 27 Smith,
Pa. 429; City Sewage Utilization Co. v.
Tavis, 8 Philad. 625; West Philadelphia
Passenger Railroad v. Union Passenger
Railroad, 9 Philad. 495 ; Commonwealth
v. Dickinson, 9 Philad. 561.
South Carolina. — Morton v. Comptrol-
ler-General, 4 S. C. 430.
Tennessee. — Cannon v. Mathes, 8
Heisk. 504.
88
Private statutes
Texas. ~ The State v. Deitz, 30 Texas,
511; The State v. Shadle, 41 Texas, 404;
The State v. McCracken, 42 Texas, 383;
Giddings v. San Antonio, 47 Texas, 548;
Peck v. San Antonio, 51 Texas, 490;
Albrecht v. The State, 8 Texas Ap. 216;
Cox v. The State, 8 Texas Ap. 254.
West Virginia. — Shields v. Bennett, 8
W. Va. 74.
Wisconsin. — Mills v. Charleton, 29
Wis. 400; Evans v. Sharp, 29 Wis. 564.
1 For example, as to Amendatory
Statutes. — Armstrong v. Berreman, 13
Ind. 422; Greencastle Southern Turnp.
v. The State, 28 Ind. 382; Jones v. Davis,
6 Neb. 33; Sovereign v. The State, 7
Neb. 409; The State v. Parsons, 11
Vroom, 123; The State v. Liedtke, 9
Neb. 490; Plummer v. People, 74 Ill. 361;
Blakemore v. Dolan, 50 Ind. 194; The
State v. Cain, 8 W. Va. 720; Shields ».
Bennett, 8 W. Va. 74. As to Special
Laws. — Devine v. Cook, 84 Ill. 590;
Brown v. The State, 23 Md. 503; Hart
v. People, 89 Ill. 407; Welker v. Potter,
18 Ohio State, 85; In re Clinton Street, 2
Brews. 599; The State v. Cape Girardeau,
&c. Railroad, 48 Misso. 468; The State
v. Thileneus, 48 Misso. 479. Uniform. —
Brooks v. Hyde, 37 Cal. 366. Style of
Enacting Clause.— A clause of the con-
stitution specifying the style of the enact-
ing clause is held by some courts to be
only directory, Cape Girardeau r. Riley,
52 Misso. 424; St. Louis v. Foster, 52
Misso. 513; by others, mandatory, The
State v. Rogers, 10 Nev. 250.
2 Post, § 395, 406; 1 Greenl. Ev. § 5,
6, 480; Lane v. Harris, 16 Ga. 217; Sims
v. Marryat, 17 Q. B. 281, 288, 292; For-
man v. Dawes, Car. & M. 127; The State
v. Bailey, 16 Ind. 46; Berliner v. Water-
loo, 14 Wis. 878; Clare v. The State, 5
Towa, 509.
CHAP. V.] ENACTMENT AND VALIDITY. § 37
always, under the common-law rules, require to be proved to the
judge! With us, the ordinary prima-facie proof of statutory laws
is by the production, in court, of a copy purporting to be printed
by public authority.2, Now, —
Looking into Records.— If a public statute is in question, and
there is a suggestion that it is not correctly printed, the court
will inform itself of the true reading by referring to the original
in the office of the Secretary of State.2 And the public record
of it, kept by the proper officer, is by all opinions prima-facie cor-
rect and the statute valid, and by a part of the opinions abso-
lutely conclusive.* Still the legislative journals are records ;5
and some of our courts will look into them and into the engrossed
bills,.to learn whether an act received the constitutional major-
ity,® and otherwise conformed to requirements which were vital,
and not merely directory ;* holding it void when thus affirma-
tively shown not to have been duly enacted.
1 Tb.; 1 Bishop Mar. & Div. § 421;
Brett v. Beales, Moody & M. 416, 421, 425;
Allegheny v. Nelson, 1 Casey, Pa. 332.
2 1 Greenl. Ev. § 480; Bound «. Wis-
consin Central Railroad, 45 Wis. 543;
Clark v. Janesville, 10 Wis. 136. See
Needham v. Thresher, 49 Cal. 393.
3 Clare v. The State, 5 Iowa, 509;
Evans v. Browne, 30 Ind. 514; Paine v.
Lake Erie, &c. Railroad, 31 Ind. 283.
And see ante, § 29; The State v. Lee, 37
Iowa, 402; Goldsmith v. Augusta, &c.
Railroad, 62 Ga. 468.
¢ Annapolis v. Harwood, 32 Md. 471;
The State v. Fagan, 22 La. An. 545;
Larrison v. Peoria, &c. Railroad, 77 Ill. 11;
Louisiana State Lottery Co. v. Richoux,
23 La. An. 743; The State v. Swift,
10 Nev. 176; The State v. Rogers, 10
Nev. 250; English v. Oliver, 28 Ark.
317; Brodnax v. Groom, 64 N. C. 244;
People v. Marlborough, 54 N. Y. 276;
The State v. Liedtke, 9 Neb. 462; Usener
v. The State, 8 Texas Ap. 177; Bender
v. The State, 53 Ind. 254; Kilgore v. Ma-
gee, 4 Norris, Pa. 401; Blessing v. Gal-
veston, 42 Texas, 641; Miller v. The
State, 3 Ohio State, 475; The State v.
Septon, 3 R. I. 119; Erie and North East
Railroad v. Casey, 2 Casey, Pa. 287; Me-
Culloch v. The State, 11 Ind. 424: People
v. Devlin, 33 N. Y. 269.
5 The State v. Smalls, 11 S. C. 262;
Moody v. The State, 48 Ala. 115.
6 Sedgwick on Statutes, 68, 69, refer-
ring to Purdy v. People, 4 Hill, N. Y. 384;
De Bow uv. People, 1 Denio, 9; Commer-
cial Bank v. Sparrow, 2 Denio, 97; Jones
v. Hutchinson, 43 Ala. 721; Common-
wealth v. Jackson, 5 Bush, 680.
7 Ramsey v. Heenan, 2 Minn. 330;
Dew v. Cunningham, 28 Ala. 466; The
State cv. McBride, 4 Misso. 803; South
Ottawa v. Perkins, 94 U. S. 260; Worthen
v. Badgett, 32 Ark. 496; Brady v. West,
50 Missis. 68 (overruling Green v. Weller,
82 Missis. 650); Legg v. Annapolis, 42
Md. 203; Ryan v. Lynch, 68 Ill. 160;
Opinion of Justices, 52 N. H. 622; People
v. Lewenthal, 93 Ill. 191; Perry v. Selma,
&e. Railroad, 58 Ala. 546; Berry v. Bal-
timore, &c. Railroad, 41 Md. 446; People
v. Hurlbut, 24 Mich. 44, 53. And see
Blake v. National Banks, 23 Wal. 307,
821. For various questions relating ta
the manner of passing and approving
bills, see Harpending v. Haight, 39 Cal.
189; The State v. Fagan, 22 La. An. 545;
Solomon v. Cartersville, 41 Ga. 157;
Danielly v. Cabaniss, 52 Ga. 211; The
State v. Buckley, 54 Ala. 599, Hardee v.
Gibbs, 50 Missis. 802; Division of How-
ard, 15 Kan. 194; Hull v. Miller, 4 Neb.
503. See also St. Louis v. Shields, 62
39
§ 39 THE WRITTEN LAWS. [BOOK I.
§ 37 a. Estoppel — Admissions. — As private persons cannot
make laws, they are not estopped,! or otherwise bound by their
admissions? on the question whether or not a statute has been
constitutionally passed.
IV. Defects other than Constitutional.
§ 38. Motives — (By-law).— Evil motives and bad faith are
never to be imputed by a court to the legislative body; so that
no statute, public or private, is held void on these grounds.? It
is the same also of a city by-law.4| And, —
Fraud. — In general, though not without some doubt as to
purely private statutes,® a legislative enactment will not, it
seems, be held void for fraud practised on the legislature in pro-
curing its passage.6 If this is so, we have doubtless here the
only exception to the rule, that fraud vitiates the transactions
into which it enters.
§ 39. Mistake. -— It has been held that a statutory provision,
inserted through pure inadvertence and mistake, will, on this fact
clearly appearing, be disregarded.’ In Illinois, by mistake, the
Governor signed a bill; and his private secretary, finding it on
his table signed, sent, in the usual routine of business, a message
to the House announcing his approval. Within twenty minutes,
the Governor discovering the error transmitted to the Speaker a
notice of the facts, and it was read aloud. He then returned the
bill to the proper branch of the legislature with his signature
erased, and with his objections thereto, it never having been out
of his possession. It was held not to become a law. The court
considered, that, as it had not passed out of his custody, the
Misso. 247 ; O’Hanlon v. Myers, 10 Rich.
128.
1 South Ottawa v. Perkins, 94 U.S.
260; Boyd v. Alabama, 94 U. S. 645. See
Burrows v. Bashford, 22 Wis. 103; Green
v. Green, 14 La. An. 389.
2 Happel v. Brethauer, 70 Ill. 166.
And see Jones v. Perry, 10 Yerg. 59.
3 Kountze v. Omaha, 5 Dil. 443; The
State v. Eau Claire, 40 Wis. 533; The
State v. Fagan, 22 La. An. 545; Wright
uv. Nefrees, 8 Ind. 298; People v. Shepard,
36 N. Y. 285, 289. And see The State v.
King, 12 La. An. 593.
40
4 Freeport v. Marks, 9 Smith, Pa. 253.
5 1 Bishop Mar. & Div. § 687, 690-692,
and places there referred to; 2 Bl. Com.
846; Commonwealth v. Breed, 4 Pick.
460; Waterford, &c. Railway v. Logan,
14 Q. B. 672, 680.
6 Broom Leg. Max. 2d ed. 42, referring
to Stead v. Carey, 1 C. B. 496, 516, 522.
See Charles River Bridge v. Warren
Bridge, 7 Pick. 344; Jersey City, &c. Rail-
road v. Jersey City, &c. Railroad, 5 C. E.
Green, 61.
7 Pond v. Maddox, 38 Cal. 572.
CHAP. V.] ENACTMENT AND VALIDITY. § 40
writing of his name did not constitute final action upon it.
“While within such control and custody, the right to reconsider
is a necessary incident to the power to act.” }
§ 89 a. Acts not within Legislative Function. — We have seen,
that, with us, all power is in the people, who by written con-
stitutions have given to the legislative bodies whatever they
chose.? But, in fact, our State legislatures, unlike Congress,
have thus been endowed with all legislative power, subject
merely to specified exceptions and limitations.’ Still it results
that the legislature cannot exercise a function not in its nature
legislative ; and, though a thing of this sort should be attempted
in the form of a statute, it will be null. Now, —
§ 40. Statutes against Fundamental Justice. — While it would
not be a legislative function to change the orbit of the earth, and
statutes attempting it would be void, is it otherwise where the
legislative endeavor is to subvert the fundamental principles of
right and justice? In point of abstract theory the two cases are
identical, and acts of the latter sort — that is, subversive of fun-
damental right and justice —are equally void with the former.
Able judges in all ages have so declared.* But, while astrono-
mers agree as to what is the orbit of the earth, the professors of
moral science differ more or less concerning the fundamental
principles of justice. Legislators are to judge of the right and
expediency of the laws they frame, and plainly the courts have
not in general any jurisdiction to reverse their decision.5 There-
fore, as a practical question, rarely, if ever, will a considerate
court so set its opinion against the legislative judgment on a
point of morals as to hold a statute void on the ground now under
consideration. But —
1 People v. Hatch, 19 Ill. 288, 288, 5 Davis v. The State, 2 Texas Ap.
opinion by Caton, C. J.
2 Ante, § 33.
3 Commonwealth v. Drewry, 15 Grat.
1; People v. Flagg, 46 N. Y. 401; Page
v, Allen, 8 Smith, Pa. 338.
1 Day v. Savadge, Hob. 85, 87; Bon-
ham’s Case, 8 Co. 114a, 118 a; Crom-
well’s Case, 4 Co. 12 a, 13a; London v.
Wood, 12 Mod. 669, 687, 688; Baltimore
v. The State, 15 Md. 376, 469; Ham »v.
McClaws, 1 Bay, 93; Bowman v. Middle-
ton, 1 Bay, 252; Morrison v. Barksdale,
Harper, 101.
425; Stapp v. The State, 3 Texas Ap.
138, 140; Leonard v. Wiseman, 31 Md.
201. And see Ex parte Delaney, 43 Cal.
478.
8 Bishop First Book, § 88-91, where the
authorities are more fully collected, and
the question is discussed more at large;
Dorman v. The State, 34 Ala. 216, 235;
People v. Gallagher, 4 Mich. 224, 253;
Flint, &c. Plank-road v. Woodhull, 25
Mich. 99; Jewell v. Weed, 18 Minn. 272;
In re Lower Chatham, 6 Vroom, 497;
People v. Hayden, 50 N. Y. 525; People
41
§ 41 [BOOK 1.
THE WRITTEN LAWS.
Granting Private Property. —It has been held, for example, that
a State, like an individual, cannot convey what it does not own;
so that, independently of constitutional inhibitions, an act is void
which attempts to transfer to one private person the vested prop-
erty of another.1 Again, —
§ 41. Impossible. —If the legislature enacts an impossibility,
no court will undertake to carry it into effect.?
case of —
Of this sort is a
Repugnance. — Provisions in irreconcilable repugnance cannot
stand together.
may require, will be held void.?
is —
Either all or a part, as the particular instance
Of a somewhat different nature
Ambiguity. — Where the statutory terms are of such uncertain
meaning, or so confused, that the courts cannot discern with
reasonable certainty what is intended, they will pronounce the
enactment void.*
slight inaccuracy of expression.5
v. Briggs, 50 N. Y. 553; People v. Flagg,
46 N. Y. 401; People v. Mahaney, 18
Mich. 481; Lee v. Bude, &c. Railway,
Law Rep. 6 C."P. 576, 582.
1 Hoye v. Swan, 5 Md. 237,244; Bow-
man v. Middleton, 1 Bay, 252. And see
Williams v. Register, Cooke, Tenn. 214;
Hoke v, Henderson, 4 Dev. 1; Owens v.
Rain, 5 Hayw. 106; Austin v. Trustees,
1 Yeates, 260; Ten Eyck v. Frost, 5Cow.
346; Wilkinson v. Leland, 2 Pet. 627,
658.
2 Van Alstine v. People, 37 Mich. 523;
The State v. Douglass, 5 Sneed, 608.
8 Post, § 65; United States v. Cantril,
4 Cranch, 167; Gillespie v. The State, 9
Ind. 380; Albertson v. The State, 9 Neb.
42
Yet they will not do this on account of a mere
429; Sullivan v. Adams, 3 Gray, 476.
-And see Scrinegrour v. The State; 1
Chand. 48.
* McConvill v. Jersey City, 10 Vroom,
38; The State v. Boon, Taylor, 246;
Cheezem v. The State, 2 Ind. 149; King
v. The State, 2 Ind. 523. See Huntsville
v. Phelps, 27 Ala. 55; Sullivan v. Adams,
3 Gray, 476; Ex parte George, T. U. P.
Charl. 80; The State v. Liedtke, 9 Neb.
468 ; The State v. Craig, 23 Ind. 185.
5 Evans v. Commonwealth, 3 Met.
453; Haynes v. The State, 5 Humph.
120; The State v. Cooper, 5 Day, 250;
People v. Shepard, 36 N. Y. 285; The
State v. Nichols, 12 Rich. 672. See post,
§ 79, 81, 145, 146.
CHAP. VI.] CLASSES OF STATUTES. § 426
CHAPTER VI.
THE SEVERAL CLASSES OF STATUTES DISTINGUISHED.
§ 42. In General. — Statutes are divided into a considerable
number of classes; and some of the divisions are important, oth-
ers are of little consequence. Not to enter minutely into this
subject, we shall find the following helpful : —
Ancient and Modern. — In England, the statutes prior to Edward
II. are sometimes termed ancient, while the later ones are called
modern.’ But this is a distinction of no practical value with us.
A division everywhere important is into —
§ 42 a, Public and Private — General and Special — These cor-
relate terms are, in practical use, nearly synonymous.”
Public or General, definea.— A public or general statute is one
which affects either all the people of the State; ’ or all ofa particular
condition, class, or locality therein, in distinction from individuals
designated by name or description. More specifically, —
Explained. — The distinction between public and private stat-
utes is, in the old books, somewhat obscure, and considerable
numbers of the cases are contradictory. Nor are perfect harmony
and precision established in the modern law. But the later ten-
dency of the courts, especially in our own country, is to enlarge,
rather than restrict, the class of statutes deemed public;* and, on
the whole, our definition above indicates, as nearly as general
language can, the better modern doctrine. To illustrate, —
§ 42 6. Local.— A local statute, whereof the precise bounds are
not well defined, but it is one limited in its operation to some minor
locality within the State,° may be either public or private." Now, —
1 Dwar. Stat. 2d ed.460 ; Wilb. Stat. 213. 6 Kerrigan v. Force, 68 N. Y. 381;
2? Wilb. Stat. 218; Jacob Dict. Statute; People v. O’Brien, 38 N. Y. 193, 195;
Clark v. Janesville, 10 Wis. 136. Gaskin v. Anderson, 55 Barb. 259; The
3 Barrington’s Case, 8 Co. 1361, 1386. State c. Common Pleas, 21 Ohio State,
* Brooks v. Hyde, 37 Cal. 366; Cox v. 1; People v. Allen, 1 Lans. 248; Troy v.
The State, 8 Texas Ap. 254, 287-289; Bacon, 2 Abb. Ap. 127; People v. Harper,
The State c. Baltimore, 29 Md. 516; 91 Ill. 357; Healey v. Dudley, 5 Lans.
Jones v. Axen, 1 Ld. Raym. 119, 120, 115; People ve. Hills, 35 N. Y. 449, 451;
Samuel v. Evans, 2 T. R. 569; Wheeler Gaskin rv. Meek, 42 N. Y. 186 See Cox
v. Philadelphia, 27 Smith, Pa. 338. v. The State, 8 Texas Ap. 254, 257.
5 Winooski v. Gokey, 49 Vt. 282. 7 Yellow River Imp. Co. v. Arnold, 46
43
§ 426
THE WRITTEN LAWS.
[BOOK I.
Municipal Charter.— By the prevailing modern authority in
this country, perhaps contrary to the old rule,! a statutory
charter of a municipal corporation is a public or general law.?
And —
Other Local Statutes. — The broad doctrine may now be laid
down, that, if otherwise a statute is public, it is so notwithstand-
ing it has effect only in a particular locality or place.’
So —
§ 42 ¢. Classes of Persons. —It has been sometimes deemed
that statutes operating only on particular classes of persons are
private ;4 but now, where they concern the class, in distinction
from the individuals, they are treated as public.5
Hence —
§ 42 d. Private or Special.— A private or special statute is one
which affects only particular persons or things.®
Thus, —
Charters of Private Corporations — are private or special laws.’
§ 42 e. Common-law modifications — Same under Constitutions. —
With these general distinctions, this chapter will close.
The
books disclose some modifications of common-law doctrines not
necessary to be stated here.
there are still further modifications and distinctions.
And, under our State constitutions,
But to dis-
cuss them would take us too far away from the principal object
of this volume.
Wis. 214, 222; Kerrigan v. Force, supra;
Orr v. Rhine, 45 Texas, 345; People »v.
Davis, 61 Barb. 456.
1 The State v. Bergen, 5 Vroom, 438.
See, as to the general nature of this sort of
statute, Dwar. Stat. 2d ed. 464, 465; The
State v. Parsons, 11 Vroom, 1, 123; The
State v. Newark, 11 Vroom, 297; People
v. Wallace, 70 Ill. 680; Brackett v. Peo-
ple, 72 Ill. 593; Kilgore v. Magee, 4
Norris, Pa. 401; People v. Cooper, 83 IIl.
585.
"2 Winooski v. Gokey, 49 Vt. 282; Dil.
Mun. Corp. 2d ed. § 50; Fauntleroy v.
Hannibal, 1 Dil. 118; Belmont v. Mor-
rill, 69 Maine, 314, 317.
3 Levey v. The State, 6 Ind. 281; In
re Wakker, Edm. Sel. Cas. 575; Raw-
lings v. The State, 2 Md. 201; Kerrigan
v. Force, 9 Hun, 185; The State »v.
44
Rauscher, 1 Lea, 96; McCuen v. The
State, 19 Ark. 630; People v. Davis, 61
Barb. 456; McLain v. New York, 3 Daly,
32.
4 Ingram v. Foot, 1 Ld. Raym. 708,
709, 12 Mod. 611, 613; Dive v. Maning-
ham, 1 Plow. 60, 65.
5 Wheeler v. Philadelphia, 27 Smith,
Pa. 338. See the old distinctions in pee
land’s Case, 4 Co. 75 a.
® Wheeler v Philadelphia, supra; The
State v. Cleland, 68 Maine, 258; Estep
v. Hutchman, 14 S. & R. 485; Wright v.
Ware, 50 Ala. 549,
7 Mandere v. Bonsignore, 28 Ia. An.
415; Burhop v. Milwaukee, 21 Wis. 258;
Perry v. New Orleans, &c. Railroad, 55
Ala. 413. See Clark v. Janesville, 10
Wis. 136; The State v. Camden Common
Pleas, 12 Vroom, 4965.
CHAP. VII.] THE PARTS OF A STATUTE. § 44
CHAPTER VII.
THE SEVERAL PARTS OF A STATUTE CONSIDERED.
§ 43. Introduction.
44-47. The Title.
48-51. The Preamble.
52-61. Purview and its Subdiyisions.
62-65. Precedence of Provisions.
66, 67. Division into Sections.
§ 43. How Chapter divided. — We shall consider, I. The Title;
II. The Preamble; III. The Purview and its Subdivisions ;
IV. The Precedence of Provisions; V. The Division of a Stat-
ute into Sections.
I. The Title.
§ 44. Different Sources of Title and Manner of making it. — The
effect of the title, on the construction of a statute, must, in rea-
son, be greater or less according to the manner of making it, by
whom made, and its connection with the bill during its passage
through the legislative body. In England, the ancient methods
of enacting laws were not uniform, and they seem to have varied
with the different dates, nor were they at any time the same as
now.! “ Formerly,” it is said in Bacon’s Abridgment, describing
one of the old methods, “ the bill was in the nature of a petition”
from the Commons to the King. “ These petitions were entered
upon the Lords’ Rolls, and upon these rolls the royal assent was
likewise entered. And upon this, as a groundwork, the judges
used, at the end of the Parliament, to draw up the act of Parlia-
ment into the form of a statute, which was afterwards entered
upon the rolls called the Statute Rolls, which was different
from those called the Lords’ Rolls, or the Rolls of Parliament.
Upon which Statute Rolls, neither the bill, nor petition from the
Commons, nor the answer of the Lords, nor the royal assent, was
entered, but only the statuté, as it was drawn up and penned by
1 See Pref. to Ruffhead’s Statutes.
45
§ 46 THE WRITTEN LAWS. [BOOK 1,
the judges.”1 If the act, as it appeared on the Statute Rolls,
had a title, it was the work of the judges, not of Parliament.?
When afterward the statutes came to be drawn up in due form
before being enacted, which was perhaps during the reign of
Hen. VII.,? the title, though one was prefixed, did not “ pass the
same form as the rest of the act; only the speaker, after the act
is passed, mentions the title, and puts the question upon it.”
Then it is changed if the members choose.* With us, the title
appears in the bill, subject to the same formalities as any other
part of it, during its entire progress through the legislative body.
Probably no serious consequences come from this difference, but
it is properly to be borne in mind.
§ 45. No Part of Act.— Equally in ancient and modern times,
in England and in this country, the title is regarded as not a part
of the act, being likened to the title of a book, which is not a
part of the book;* occupying, indeed, a position not unlike
that of the caption of an indictment, explained in another con-
nection.6 Still, —
§ 46. Weight to be given Title.—In construing a statute, we
do not look upon the title as in all circumstances a mere nullity.
Perhaps, in England, where it “is usually framed only by the
clerk of that house in which the bill first passes, and is seldom
read more than once,”’? and the other peculiarities above de-
scribed exist, it should have less weight in questions of construc-
tion than in this country. The doctrine seems indeed to have
been there held, that it cannot be taken at all into the consid-
eration.2 Yet by the better opinion there, certainly here, it may
be referred to in a doubtful case in aid of the inquiry into the
legislative intent;® and, since such intent may sometimes be
! Bac. Abr. Court of Parl. E.
2 Attorney-General v. Weymouth,
Amb. 20, 23; Dwar. Stat. 2d ed. 500.
8 The date is stated by Dwarris, as
above, to be about the eleventh year of
Henry VII. But it seems, that the new
practice came gradually into use, begin-
ning at a still earlier period. And see
16 Howell. St. Tr. 743, note; 1 Bl. Com.
183,
£ Attorney-General v. Weymouth, su-
pra, at p. 23; Dwar. Stat. 2d ed. 322,
828.
5 Bac. Abr. Statute, A; Mills v. Wil-
46
kins, 6 Mod. 62; Chance v. Adams, 1 Ld.
Raym. 77; Rex v. Williams, 1 W. Bl. 93,
95; Bradford v. Jones, 1 Md. 851; Ogden
v. Strong, 2 Paine, 584; The State »v.
Welsh, 3 Hawks, 404; Cohen v. Barrett,
6 Cal. 195; Plummer v. People, 74 Ill.
361; Commonwealth v. Slifer, 3 Smith,
Pa. 71.
6 Crim. Proced. I. § 653 et seq.
7 Dwar. Stat. 2d ed. 501.
8. Attorney-General v.
Amb. 20, 22.
® Rex ec. Cartwright, 4 T. R. 490;
Stradling v. Morgan, 1 Plow. 199, 203;
Weymouth,
CHAP. VII. | THE PARTS OF A STATUTE, § 48
controlling in the interpretation, the title may thus restrict the
purview.! But the cases in which it so operates are exceptional ;
for commonly it will not extend or restrain any provision in the
body of an act.2. Further than as manifesting the legislative
intent, it can have no force; therefore ordinarily, if the words
of the enacting clause are larger in, meaning than those of
the title, they will prevail, even in a penal statute? Where
there is no ambiguity in the statute itself, the title is not to be
regarded.!
Chapter Headings, &c.— The chapter headings and the like, in
the revisions of statutes and in codes, are deemed to be of some-
what greater effect than the ordinary titles to legislative acts.
§ 47. Constitutional Effect.— We have already seen, that, in
some of the States, a special effect is given to the title under a
constitutional provision.®
II. The Preamble.
§ 48. Compared with Title. — The preamble is similar to the
title in its effect on the interpretation, yet of influence some-
what greater. Thus, —
No Part of Statute. — Though enacted with the statute, as the
title is in our American legislation, like the latter it is deemed
‘not to constitute of it a part.’
Rex v. Gwenop, 3 T. R. 133, 137; Dwar.
Stat. 2d ed. 501, 502; The State vo. Ste-
phenson, 2 Bailey, 334; Burgett v. Bur-
gett, 1 Ohio, 469; Chesapeake and Ohio
Canal v. Baltimore and Ohio Railroad, 4
Gill & J. 1, 90, 91; United States v.
Fisher, 2 Cranch, 358, 386; The State
v. Fields, 2 Bailey, 554; The State v.
Smith, Cheves, 157; Bradford v. Jones,
1 Md. 351; Ogden v. Strong, 2 Paine,
584; Cohen v. Barrett, 5 Cal. 195; Gar-
rigus v. Parke, 39 Ind. 66; Connecticut
Mutual Life Ins. Co. v. Albert, 39 Misso.
181; Nazro v. Merchants’ Mutual Ins.
Co. 14 Wis. 295; United States v. Union
Pacific Railroad, 91 U. S. 72, 82.
1 United States v. Palmer, 3 Wheat.
610, 631; The State v. Stephenson, 2
Bailey, 334; Field v. Gooding, 106 Mass.
310.
Still, —
2 Hadden v. The Collector, 5 Wal. 107;
People v. Abbott, 16 Cal. 358.
3 United States v. Briggs, 9 How. U.S.
351; Bartlett v. Morris, 9 Port. 266; Blue
v. McDuffie, Busbee, 131.
4 Eastman v. McAlpin, 1 Kelly, 157;
In re Boston Mining, &c. Co. 51 Cal. 624;
Commonwealth v. Slifer, 3 Smith, Pa. 71;
United States v. McArdle, 2 Saw. 367.
5 Barnes v. Jones, 51 Cal. 303; People
v. Molyneux, 40 N. Y. 113; Huff v.
Alsup, 64 Misso. 51; Griffith r. Carter, 8
Kan. 565; Battle v. Shivers, 39 Ga. 405 ;
The State v. Popp, 45 Md. 4382; United
States v. Fehrenback, 2 Woods, 175;
Nicholson v. Mobile, &c. Railroad, 49 Ala.
206. And see post, § 61.
5 Ante, § 36a.
7 Mills v. Wilkins, 6 Mod. 62; Bac.
Abr. Statute, A.
AT
§ 49 [BooK 1
THE WRITTEN LAWS.
Weight. — As showing the inducements to the act, it may have
a decisive weight in a doubtful case.1 But where the body of
the statute is distinct, it will prevail over a more restricted pre-
amble.? More particularly, —
§ 49. Intent and Reasons. — We look to this introductory mat-
ter for the general intent of the legislature, —the reasons and
principles on which the law proceeds.’ So that, to the extent to
which these can influence the interpretation, the preamble be-
comes important. Hence, —
Not control, but explain. —It may, for example, explain an
equivocal expression in the enacting clause.* It will seldom, at
least, extend this clause;* in a doubtful case it may restrain
it,® — propositions not in their nature absolute.’ In the words
of Ellenborough, C. J.: “In a vast number of acts of Parliament,
although a particular mischief is recited in the preamble, yet the
legislative provisions extend far beyond the mischief recited.
And whether the words shall be restrained or not must depend
on a fair exposition of the particular statute in each particular
case, and not upon any universal rule of construction.”® And,
on the other hand, if the preamble should be found broader than
the act itself, while of its own force it would not enlarge the
meaning, it may do in this direction whatever can be accomplished -
1 Mills v. Wilkins, supra; Mason v.
Armitage, 13 Ves. 25, 36; Crespigny v.
Wittenoom, 4 T. R. 790, 793; Gray v.
Soanes, 2 Jur. 1040; The Salters’ Com-
pany v. Jay, 3 Q. B. 109; Fellowes vu.
Clay, 4 Q. B. 313, 339.
2 Pattison v. Bankes, Cowp. 540, 543;
Lees v. Summersgill, 17 Ves. 508; Mace
v. Cammel, Lofft, 782; The State v. But-
ler, 3 McCord, 383; Rex v. Marks, 3
East, 157; Rex v. Athos, 8 Mod. 136,
144; Holbrook v. Holbrook, 1 Pick. 248,
251; Laidler v. Young, 2 Har. & J. 69;
The State v. Findley, 1 Brev. 107; Blue
v. McDuffie, Busbee, 151; United States
v. Briggs, 9 How. U.S. 351; Sussex Peer-
age Case, 11 Cl. & F. 85, 143 ; Caledonian
Railway v. North British Railway, 6 Ap.
Cas. 114, 122, 124.
3 United States v. Webster, Daveis,
1D. C. 88; Fowler v. The State, 5 Day,
81; Gray v. Soanes, 2 Jur. 1040; Pray v.
Edie, 1 T. R. 318; Rex v. Corry, 5 East,
48
372. And see, as to both title and pre+
amble, 1 Kent Com. 460; Salkeld e.
Johnston, 1 Hare, 196, 207; Rex v. Sut-
ton, 4 M. & S. 532; Halton v. Cove, 1 B.
& Ad. 538, 558.
4 Clark x. Bynum, 3 McCord, 298;
Woodruff v. Gilchrist, 15 Johns. 89; Nash
uv. Allen, 4 Q. B. 784.
5 Ib.; Dwar. Stat. 2d ed. 660, referring
to Wilson v. Knubley, 7 East, 128.
® Dwar. Stat. 2d ed. 661; Ryall v.
Rolle, 1 Atk. 165, 174, 182. Contra,
Copeman v. Gallant, 1 P. Wms. 314, 320;
Tlughes v. Chester, &c. Railway, 1 Drew.
& 8. 524.
7 Kearns v. Cordwainers, 6 C. B. n. 8.
388; Pattison v. Bankes, Cowp. 540, 543;
Wilmot v. Rose, 3 Ellis & B. 563; Mason
v. Armitage, 13 Ves. 25, 36.
8 In Rex v. Pierce, 3 M. & S. 62, 66.
And see Trueman ». Lambert, 4 M. & S.
234, 239.
CHAP. VII.] THE PARTS OF A STATUTE. § 51
by a consideration of the reasons which impelled the legislative
mind.!
§ 50. Recitations of Facts. — Commonly a preamble contains
recitations of facts. In the interpretation of statutes, as of con-
tracts,? the surroundings are taken into the account. And the
recitations in the preamble must be accepted as, at least, prima
facie, and perhaps conclusively, correct.2 In a private act, they
are evidence only as between the State and the private party.!
When viewed as a key to the interpretation, they should in rea-
son be deemed conclusive of the recited facts; because, whether
really true or not, they explain the legislative perspective in
enacting the statute, and only this is in any case gained by the
interpreter in looking at the surroundings. Therefore, also, such
matter is to have no other weight than is given it in other
cases of construction, when it comes to the knowledge of the
judge through other means.
‘
§ 51. In-General.— Dwarris® observes: ‘Lord Coke consid-
ered the rehearsal, or preamble, a key to open the understanding
of the statute; and it is properly considered ® a good mean for
collecting the intent, and showing the mischiefs which the makers
of the act intended to remedy. The civilians say Cessante legis
proemio, cessat et ipsa lex; but English lawyers are aware how
seldom the key will unlock the casket; how rarely the preamble
is found to’state, besides the primary occasion of the law, the
full views of the proposer of it.
A particular mischief is often
alluded to; but that is soon lost sight of (cessat proemium),
wider objects are embraced, and a general remedy is provided.
‘It is nothing unusual in acts of Parliament,’ says Lawrence, J.,
‘for the enacting part to go beyond the preamble; the remedy
often extends beyond the particular act or mischief which first
suggested the necessity of the law.’* ‘It certainly does appear,
1 And see Bywater v. Brandling, 7 B.
& C. 643.
2 Bishop Con. § 576.
8 Sedgw. Stat. Law, 56; Rex v. Sut-
ton, 4 M. & S. 532; Elmondorff v. Car-
michael, 3 Litt. 472 ;° McReynolds ».
Smallhouse, 8 Bush, 447, 456; Allison v.
Louisville, &c. Railroad, 10 Bush, 1; Bran-
son v. Wirth, 17 Wal. 32,44. See Reg. v.
Haughton, 1 Ellis & B. 501; United States
v. Claflin, 97 U. S. 546. Resolutions of
4
Legislature. — As to resolutions of the
legislature, see Commissioners v. The
State, 9 Gill, 379.
4 The State v. Beard, Smith, Ind. 276,
1 Ind. 460; Branson v. Wirth, supra.
See Edinburgh, &c..Railway v. Linlith-
gow, 8 Macq. H. L. Cas. 691, 704.
5 Dwar. Stat. 2d ed. 504.
6 4 Inst. 330.
7 Rex v. Marks, 3 East, 157, 165.
49
§ 53 THE WRITTEN LAWS. [BooK 1.
from the preamble of the act,’ said Lord Ellenborough, in the
same case, ‘as if it were mainly directed against combinations
for purposes of mutiny and sedition ; but there are words suffi-
cient in the enacting part to satisfy the preamble, and, after deal-
ing with offences of that description, the act goes on in more
extensive terms, and embraces other more general objects; and,
as there is no word of reference in the latter part (as such), I
see no reason for restraining the common import of the words
used.’ * Sometimes’ — it is well expressed in another report!—
‘the legislature having a particular mischief in view, which was
the primary object of the statute, merely state that in the pre-
amble, and then go on in the body of the act to provide a remedy
for general mischiefs of the same nature, but of different species,
neither expressed in the preamble, nor perhaps then in imme-
diate contemplation.’ ”
Ill. The Purview and its Subdivisions.
§ 52. Elsewhere.— Something of the subject of this sub-title
appears in “ Criminal Procedure,” where the indictment on stat-
utes is explained? Yet we shall substantially avoid repetition.
Purview defined. — The purview is “that part of an act of the
legislature which begins with the words ‘ Be it enacted,’ &c. and
ends with the repealing clause.” Such is the full meaning; but
the term is sometimes employed in a narrower sense,‘ as exclud-
ing provisos, exceptions, and the like. Thus Dwarris says:
“The parts of statutes are—in a popular, though not legal,
sense — the title, the preamble, the purview or body of the act,
clauses, provisos, exceptions.”’®
The Parts —are chiefly designated as follows: —
§ 53. Clause.— This is a word depending largely for its mean-
ing on the connection in which it is employed.’ It signifies less
than “ purview,” yet not necessarily less than a sentence viewed
grammatically. As, in grammar, the word ‘“ clause” denotes a
part of a sentence, and qualifiying words are required to show
the particular part, and how much; so, in legal language, it is
7 1 Mace »v. Cammel, Lofft, 788. And * Crim. Proced. I. § 634.
see Fellowes v. Clay, 4 Q. B. 313, 389. 5 Dwar. Stat. 2d ed. 500.
2 Crim. Proced. I. § 634.et seq. ' 6 Crim. Proced. I. § 684.
8 Bouv. Law Dict. tit. Purview, refer-
ring to Cooke, Tenn. 330; 3 Bibb, 181.
50
CHAP. VII. | THE PARTS OF A STATUTE. § 50
believed to indicate a part of a statutory provision, the particular
part, and how much, to appear from the context. And, though
the term “clause” almost always contemplates some portion of
the purview, no reason appears why it may not refer also to a
member of the preamble.
§ 54. Interpretation Clause. — Not all statutes have an inter-
pretation clause. But of late such a clause has become common,
especially in England. Ordinarily it occupies one section, some-
times more; in some it is placed at the beginning, in others at
the end. Its effect may be to require a different interpretation
from what otherwise would be given the statute,! or even to im-
part a novel signification to particular words ;? and whatever in
this respect it provides, the courts, as a general proposition, to
which there are possibly exceptions, are bound to accept.
§ 55, Interpreting this Clause. — This clause is not always meant
to render the meaning plainer. If commonly it is, it often fails
in its object; for, first, it must itself be interpreted; and, sec-
ondly, the difficulty of interpreting the main provisions may be
greater with the rule it furnishes than without.2 In general, this
sort of clause, like other provisions in derogation of the common
law,‘ is to be construed strictly ;5 though, on the other hand, it
is said not always to be so.6 Thus, —
Gaming — (Lottery Tickets).— While the general doctrine re-
quires criminal statutes to be subjected to a strict interpretation,
it is provided in Tennessee,’ Mississippi,® Virginia,® and probably
in some other States, that those against gaming be remedially
construed. But the acts which have thus changed the rule for
this class of offences appear themselves to be taken strictly ; for
they are not applied to subsequent statutes making designated
kinds of gaming felony, all others having before been misde-
meanor,” nor are they extended to statutes for the suppression of
the sale of lottery tickets.4
1 Smith v. The State, 28 Ind. 321; 7 McGowan v. The State, 9 Yerg. 184,
People v. Soto, 49 Cal. 67. 197; Howlett v.The State, 5 Yerg. 144,152.
2 Crim. Proced. I. § 358. 8 Cain v. The State, 18 Sm. & M. 456;
3 And see Dwar. Stat. 2d ed. 509; Seal v. The State, 13 Sm. & M. 286.
Denman, C. J. in Reg. v. Cambridgeshire, 9 Commonwealth v. Chubb, 5 Rand.
7A.&E.480; Meux v. Jacobs, Law Rep. 715.
74H. L. 481. 10 McGowan »v. The State, 9 Yerg. 184.
* Post, § 119. 11 Commonwealth v. Chubb, 5 Rand.
5 Sedew. Stat. Law, 59. 715, 722. See Cain v. The State, supra;
6 Dwar. Stat. 2d ed. 509. Seal v. The State, supra.
51
[BOOK I.
§ 59 THE WRITTEN LAWS.
§ 56. Enacting Clause. — The words “enacting clause” are not
often employed in discussions on the interpretation of statutes.
In those relating to the indictment or declaration they are com-
mon, and in this view they are considered by the author in
another connection.! Most frequently they refer to the main
body of a statute or some leading provision, excluding its pro-
visos; they may or not include an exception?
§ 57. Proviso.— ‘A proviso? is something engrafted upon a
preceding enactment,” * generally ® introduced by the word * pro-
vided.” Itis commonly, in the absence of any contrary indication,
construed to affect merely the one paragraph to which it isattached.®
How it is regarded in pleading we saw in another connection.’
§ 58. Exception. — An exception is a clause similar to a pro-
viso, and of a like effect on the pleadings,® ordinarily introduced
by the word “except.” It “can only operate where, but for the
exception, that which is excepted would have been included in
the prior enactment.” ®
§ 59. Saving Clause. —‘“ A saving in a statute is only an
exemption of a special thing out of the general things men-
tioned.” 9 There is no particular rule for its location, or its
verbal form; but it is generally near or at the end, commencing,
‘* Nothing in this act shall,” &c. Nice questions of interpretation
sometimes grow out of this clause,!! but in pleading it is seldom
or never regarded.
1 Crim. Proced. I. § 634, 685, and in
subsequent sections.
2 If we should seek an exact defini-
tion, it would be by following the lan-
guage of learned courts in treating of
indictments and declarations on statutes.
A good illustration would be the opinion
in Blasdell v. The State, 5 Texas Ap.
263. An abundance of this sort of matter
is referred to in Crim. Proced. as above.
3 Dwar. Stat. 2d ed. 514.
- # Gregory’s Case, 6 Co. 198; Foster’s
Case, 11 Co. 56 b; Rex v. Taunton Saint
James, 9 B. & C. 831, 836.
5 Carroll v. The State, 58 Ala. 396.
6 Spring v. Olney, 78 Ill. 101; Pearce
v. Bank of Mobile, 33 Ala. 693; Ex parte
Partington, 6 Q. B. 649, 653; Rex v.
Newark-upon-Trent, 3 B. & C. 59, 71;
Cushing v. Worrick, 9 Gray, 882. Other
Questions.— Further as to the proviso,
52
see Farmers’ Bank v. Hale, 59 N. Y. 53;
Bank for Savings v. The Collector, 3 Wal.
495; Roberts v. SABES, 41 Texas, 449;
Lastro v. The State, 3 Texas Ap. 363;
Waters v. Campbell, 4 Saw. 121.
7 Crim. Proced. I. § 635, 637-639.
8 Crim. Proced. I. § 635-639; Blasdell
v. The State, 5 Texas Ap. 263; Wood-
ward v. The State, 56 Texas Ap. 296;
Smith v. The State, 5 Texas Ap. 318,
® Dwar. Stat. 2d ed. 516, referring to
Zouch v. Moor, 2 Rol. 274, 280; 14 Vin.
Abr. Grants, H. 13, pl. 61. Denied by
Campbell, A. G. arguendo, 8 B. & A.
641.
10 Dwar. Stat. 2d ed. 513, referring to
Halliswell v. Bridgewater, 2 Anderson,
190, 192.
11 See People v. Gill, 7 Cal. 356; Coch-
ran v. Taylor, 13 Ohio State, 382; Downs
v. Huntington, 35 Conn. 588.
CHAP. VIL.] THE PARTS OF A STATUTE. § 63
§ 60. Other Clauses.— There are occasionally other clauses,
not necessary to be dwelt upon in this connection; as, “an
appeal clause, a clause showing to what places the operation of
the act shall extend, a clause showing from what date the opera-
tion of the act is to commence and how long it shall continue in
force.” }
§ 61. Marginal Notes. — The marginal notes to the sections,
when abstracts of their contents, introduced to facilitate refer-
ence, are, in principle, and reasonably also in authority, of no
weight in the interpretation if the mere work of an editor?
But where they are parts of the authentic record of the statute,
and especially where they were in any way attached to the bill
during its passage through the legislative body, they may be
regarded similarly to the title? And, beyond this, what is in
form a marginal note may be a part of the statute itself.
IV. The Precedence of Provisions.
§ 62. Construed together. — In another connection we shall see,
that, though there are on a subject various statutes passed at dif-
ferent dates, all should be construed together as parts of one
whole.’ A fortiori, therefore, should all the clauses and sections
of each separate statute. And,—
Purview to prevail. — We have already seen, that, in a case of
conflict between the purview and the title or preamble, the for-
mer is to prevail. But how is it where the parts of the purview
cannot be reconciled ?
§ 63. Conflicts in Purview, on Principle. — When all the stat-
utes of a given Parliament appeared in the rolls without dates,
and all were referred to the day of its original assembling,’ the
fact was still known that they were enacted at different times.
And the presumption was, and it was reasonable, that each suc-
cessive clause came subsequently to the one next preceding it;
so that, in a case of irreconcilable conflict, the later took prece-
dence of the earlier. With us, and in England in modern times,
1 Dwar. Stat. 2d ed. 511. 3 In re Venour’s Settled Estates, 2 Ch.
2 Claydon v. Green, Law Rep.3C. P. D. 522, 525.
511, 521, 522. See Attorney-General v. 4 Rex v. Milverton, 5 A. & E. 841, 854.
Great Eastern Railway, 11 Ch. D. 449, 5 Post, § 82, 86 et seq.
465; Birtwhistle v. Vardill, 7 Cl. & F. 6 Ante, § 46, 48, 49.
895,920. 7 Ante, § 44. And see ante, § 28.
53
§ 65 THE WRITTEN LAWS. [Book I.
‘the several parts of each particular statute are enacted simulta-
neously, and they appear so by the legislative records. So, in
reason, there is no room for the former presumption; and the
rule now ought to be, that the location of a clause in the purview
is immaterial; and, if two clauses are irreconcilably repugnant,
this may vitiate the whole, or the part to which the clauses
relate,! or the one or the other may be made to give way, accord-
ing to the nature of the case; the particular locality of the clauses
not being an element in the account. Let us, however, look a
little at what has been laid down.
§ 64. Parts controlling One Another. — It is common doctrine,
never questioned, that, for the purpose of interpretation, all the
parts of a statute are to be looked. at together, and one part
may control another. I£ possible, they are to be reconciled.?
Thus, — . .
General and Particular.— Where there are words expressive of
a general intention, and then of a particular intention incom-
patible with it, the particular must be taken as an exception to
the general, and so all the parts of the act will stand.2 And, as
a broad proposition, general words in one clause may be re-
strained by the particular words in a subsequent clause of the
same statute. This doctrine applies even to statutes enacted
at different dates, and it will be more fully illustrated in other
connections.» Again, —
In Harmony with other Laws.— If still conflicting clauses are
reconcilable, the one will be preferred which best harmonizes
with the other laws and with the justice of the case.®
§ 65. Inreconcilable.— There are assumed to be cases which
will baffle all attempts at reconciling the repugnant parts. For
such the doctrine is laid down, ‘that what is last in the order of
the words shall nullify the irreconcilable matter before.? Further
as to which, —
Proviso and Saving Clause. — A proviso directly contrary to the
1 Ante, § 41. 5 See post, § 112 a, 112 b, 126, 181, 152,
2 Ebbs v. Boulnois, Law Rep. 10 Ch. 156.
Ap. 479, 484; Gye v. Felton, 4 Taunt. 6 Kansas Pacific Railway v. Wyan-
876; Scott v. The State, 22 Ark. 369. dotte, 16 Kan. 587.
8 Stockett v. Bird, 18 Md. 484; 7 Packer v. Sunbury and Erie Rail-
Churchill v. Crease, 5 Bing. 177, 180. road, 7 Harris, Pa. 211, 219; Ryan ».
4 Covington v. MecNickle, 18 B. Monr. The State, 5 Neb. 276; Gibbons »v. Brit-
262; Long v. Culp, 14 Kan. 412. tenum, 56 Missis. 232.
54
CHAP. VII. ] THE PARTS OF A STATUTE. § 66
purview has, on this distinction, been permitted to stand to the
overturning of the purview; “because it speaks the later inten-
tion of the legislature.”! We have seen? that this reason, how-
ever good at one time in England, is not so now; consequently
the result derived from it is not good. Generally a saving clause
‘is located after the main purview,’ so in this sense is the last
expression of the legislative will, but it has been adjudged to
give way to the purview in a case of irreconcilable conflict.
Kent points out that the distinction between the saving clause
and the proviso has no just foundation, and observes: ‘“ The true
principle undoubtedly is, that the sound interpretation and mean-
ing of the statute, on a view of the enacting clause, saving clause,
and proviso, taken and construed together, are to prevail.’’®
Now, following these views, and considering the particular natures
of saving clauses and provisos, we shall practically find that,
since a saving clause “is only an exemption of a special thing
out of the general things mentioned” in the purview,? if it stands,
and the purview is rejected, the whole statute is destroyed, not
even the saving clause itself being of any effect. Hence necessa-
rily it must yield to the purview. But a proviso is somewhat
different ;7 and, under various circumstances, it may prevail over
the purview without working the destruction of the entire enact-
ment. When this is so, the question of precedence cannot be
one of rule, but it must depend on considerations special to the
individual case.
V. The Division of a Statute into Sections.
§ 66. Origin of Sections.— There are no sections in the par-
liamentary rolls either of the ancient or of the comparatively
modern English enactments.® But it is provided by 13 & 14
Vict. c. 21, § 2, “that all acts shall be divided into sections,”
&c. Before this, the English sectioning seems to have been sim-
ply the work of editors. Generally with us, bills of sufficient
1 Townsend v. Brown, 4 Zab. 80, 86; Wood’s Case, 1 Co. 40a, 47a. See Yar-
Attorney-General v. Chelesa Water-works, mouth v. Simmons, 10 Ch. D. 518.
Fitzg. 195; Farmers’ Bank v. Hale, 59 5 1 Kent Com. 463 and note.
N. Y. 53. 6 Ante, § 59.
2 Ante, § 63. 7 Ante, § 57.
3 Ante, § 59. 8 Wells v. Iggulden, 3 B. & C. 186,
4 Washingham’s Case, 2 Plow. 565; 189; Rex v. Threlkeld, 4 B. & Ad. 229,
235, 236.
55
§ 67 THE WRITTEN LAWS. [Book 1.
length have been drawn in sections, and in this form enacted.
Still, —
§ 67. Effect.— While plainly, where the division is only made
by an editor, it can have no effect on the interpretation,! it is
believed not to be greatly different where it is the work of the
draughtsman, and is retained in the statute as passed. In other
connections? and from various cases? we see, that, while our
courts sometimes speak of the sections as though the distinction
had something to do with the interpretation, at other times noth-
ing is perceptible from which such inference could be drawn.
On the whole, little depends on this matter, beyond mere con-
venience of citation.
1 Rex v. Threlkeld, 4 B. & Ad. 229, Thompson v. Bulson, 78 Ill. 277; The
235, 236; Rex v. Newark-upon-Trent, 3 State v. Williams, 8 Texas, 255, Gibbons
B. & C. 59, 63. v. Brittenum, 56 Missis. 282; The State
2 Post, § 251; Crim. Proced. I. § 689 v. Walters, 64 Ind. 226; Fowler v. Pirkins,
and note. 77 Ill. 271.
% As, see Long v. Culp, 14 Kan. 412;
56
CHAP. VIII. ] PURPOSE AND MEANS. § 70
BOOK II.
THE INTERPRETATION OF WRITTEN LAWS ABSOLUTE AND
WITH THE UNWRITTEN.
CHAPTER VIII.
THE PURPOSE AND MEANS OF INTERPRETATION.
§ 68, 69. Introduction.
70-73. What Interpretation seeks.
74-77. Into what Interpreter looks.
§ 68. Scope of this Series of Chapters. — In the chapters consti-
tuting the present Book, we shall call to mind those universal
doctrines of interpretation which it is necessary for every lawyer
to understand, whatever may be his special department. If some
of them appear more particularly applicable to civil causes and
others to criminal, still all to be here given of each class are
essential to a proper apprehension of those of the other class.
§ 69. How this Chapter divided. — We shall consider, I. What
it is that Interpretation seeks; II. Into what, besides the Writ-
ten Words, the Interpreter looks.
I. What it is that Interpretation seeks,
§ 70. Meaning of Maker. — Laws are expounded and enforced,
not made, by the courts. The makers are entitled to have their
real meaning, if it can be ascertained, carried out. Hence the
primary object of all rules for interpreting statutes is to ascertain
the legislative intent; or, exactly, the meaning which the sub-
1 Wilkinson v. Leland, 2 Pet. 627,662; Peerage, 11 Cl. & F. 85, 143; Bidwell v.
Brown v. Thorndike, 15 Pick. 388, 402; Whitaker, 1 Mich. 469; Ogden »v. Strong,
Winslow v. Kimball, 25 Maine, 493; Rid- 2 Paine, 584; Crocker v. Crane, 21 Wend.
dick v. The Governor, 1 Misso. 147; Beall 211; Kilby Bank, Petitioner, 23 Pick.
v. Harwood, 2 Har. & J. 167; The Sussex 93; Opinion of the Justices, 22 Pick. 571;
oT
§ 72 INTERPRETATION. [Book II.
ject is authorized to understand the legislature intended.! Hence,
also, —
Personal Views of Judges. —If the courts can ascertain the
legislative meaning, their duty is to give it effect, whatever may
be the personal opinions of the incumbents of the bench on the
policy of the law.?
§ 71. Interpretation indispensable. — Were the courts not to
interpret the laws, they could not administer them. For, in the
words of Lord Chief Justice Eyre, “let the proposition in an act
of Parliament be what it may, more or less distinct, it is always
a question of law what is the meaning and the true import of
that act of Parliament, and whether any case of fact that can be
stated is a case that comes within the meaning of that act of Par-
liament. . . . No distinction can be taken in this case, because
it happens that the description of the offence in the statute ...
is comprised in two or three words; the law may be clearer upon
that account; but the rule of construction, with reference to the
question whether it should be taken to be the construction of law,
a mere matter of fact, is exactly the same.’’? Still, —
§ 72. Limit of Interpretation — (Meaning plain). — Like every
thing else, interpretation has its limits, beyond which it cannot
legitimately go. Where the legislative meaning is plain, there
is, not only no occasion for rules to aid the interpretation, but it
is contrary to the rules toemploy them. The judges have simply
to enforce the statute according to its obvious terms.6 Yet —
Simonds v. Powers, 28 Vt. 354; McIntyre
v. Ingraham, 35 Missis. 25; Riddick v.
‘Walsh, 15 Misso. 519 ; Ingraham »v. Speed,
30 Missis. 410; People v. Dana, 22 Cal.
11; Parkinson v. The State, 14 Md. 184;
People v. Potter, 47 N. Y. 375; Smith v.
People, 47 N. Y. 330; People v. Weston,
3 Neb. 312; Jones v. The State, 1 Kan.
273: United States v. Athens Armory, 2
Abb. U. S. 129, 187; Albrecht v. The
State, 8 Texas Ap. 313; The State v.
Blair, 32 Ind. 318; George v. Board of
Education, 33 Ga. 344; Emporia v. Nor-
ton, 16 Kan. 286; Dwar. Stat. 2d ed. 556.
1 And see Manuel v. Manuel, 13 Ohio
State, 458 ; Johnson v. Hudson River Rail-
road, 49 N. Y. 455; People v. Schoon-
maker, 63 Barb. 44, 49; Barker v. Esty,
19 Vt. 131; The State v. King, 44 Misso.
283; Cearfoss v. The State, 42 Md. 403;
58
Maxwell v. The State, 40 Md. 273; Hor-
ton v. Mobile, 43 Ala. 598, 604.
2 Post, § 235; 1 Bishop Mar. & Div.
§ 45, 46; The State v. Clarke, 54 Misso.
17; Horton v. Mobile, 43 Ala. 598, 604.
In Pray v. Edie, 1 T. R. 313, 314, Lord
Mansfield said: ‘“ Whatever doubts I
may have in my own breast with respect
to the policy and expedience of this law,
yet, as long as it continues in force, Iam
bound to see it executed according to its
meaning.”
8 Horne Tooke’s Case, 25 Howell St.
Tr. 1, 726; post, § 116.
4 Post, § 81.
5 Douglass v. Chosen Freeholders, 9
Vroom, 214; Hyatt v. Taylor, 42 N. Y.
258, 260; Sussex Peerage Case, 11 Cl. &
F. 85, 148; Benton v. Wickwire, 54 N. Y.
226 ; Rosenplaenter v. Roessle, 54 N. Y.
CHAP. VIII.]} PURPOSE AND MEANS. § 75
§ 73. Importance of Rules. — There are large classes of cases
dependent even upon technical rules of interpretation. And
there are others, not quite like these, wherein still the rules are
very helpful. Every statute is presumed to have been penned
and enacted by persons familiar with them ;! so that, without a
knowledge of these rules, no one can intelligently practise or
administer the laws.
II. Into what, besides the Written Words, the Interpreter looks.
§ T4. Judicial Cognizance. — Obviously, in reason, a court in
construing a statute is not required to stultify itself; but it may
take into the account any pertinent matter whereof it has judicial
cognizance. Hence, among other things, —
Rules of Interpretation. —- Knowing the rules of interpretation,
it presumes that the legislature also understood them; and,
omitting to prescribe other rules, intended the courts should fol-
low them. Then, —
§ 75. In Position of Legislature. — The court should put itself
in the position of the legislature, — stand, in contemplating the
statute, where the maker of it stood, — the better to discern the
reason and scope of the provision. They who voted for the meas-
ure must have had in mind a meaning for the enacted words;
and the meaning, thus perceived, must be given them by the
court.6 Thus, —
Time, — If the statute is old, or if it is modern, the court should
transport itself back to the time when it was framed, consider
the condition of things then existing, and give it the meanings
which the language as then used, and the other considerations,
require.® Again, —
262; Woodbury v. Berry, 18 Ohio State, maker, 63 Barb. 44. For a synopsis of
456; Burgett v. Burgett, 1 Ohio, 469, 477 ;
Procureur v. Bruneau, Law Rep. 1 P. C.
169, 191; Bosley v. Mattingly, 14 B.
Monr. 89; Ezekiel v. Dixon, 3 Kelly,
+ 146; Farrel Foundry v. Dart, 26 Conn.
376; Swift v. Luce, 27 Maine, 285; United
States v. Ragsdale, Hemp. 497.
1 Post, § 74.
2 See The State v. Nicholls, 30 La. An.
980; Fretwell v. Troy, 18 Kan. 271 ; Key-
port, &c. Steamboat Co. v. Farmers’ Trans.
Co. 8 C. E. Green, 13; People v. Schoon-
what a court takes judicial notice of, see
1 Greenl. Ev. § 4-6.
3 Commonwealth v. Churchill, 2 Met.
118, 124; The State v. Brooks, 4 Conn.
446.
4 Ante, § 50.
5 Ante, § 70.
6 McWilliam v. Adams, 1 Macq. Ap.
Cas. 120; Montrose Peerage, 1 Macq.
Ap. Cas. 401; Keyport, &. Steamboat Co.
v. Farmers’ Trans. Co. 3.C. E. Green, 13;
United States v. Union Pacific Railroad,
59
§ 76 INTERPRETATION. [Book u.
Prior Law. — The court, knowing the present law, knows also
its history, and the prior law. Such prior law the legislature,
being presumed to know it, must have had in mind in enacting
the statute, therefore in the construction the court should take
it into the account.! And this is, in general, specially essential.?
§ 76. Motives and Intent.— The individual motives and putr-
poses of the legislators are not judicially known, nor is the court
permitted to ascertain them from any private source, nor are they
to be regarded in the interpretation. But the court may and
should look into so much of the intent of the act as is discoverable
from its words, and from the permissible surroundings.? Among
the surroundings are —
Legislative Opinions. — How far opinions promulgated in con-
nection with the making of a statute are to be regarded in its
interpretation is an inquiry more easily answered on principle
than on authority. Practical obscurities arise from the fact, that
commonly there are two dissimilar aspects from which such
opinions are to be viewed. Courts properly look into legal
treatises, whose only weight consists in their citation of author-
ities and the learning of their authors. In like manner, they
sometimes give attention to opinions of learned lawyers in the
various other ways expressed.6 In this aspect, it is evidently
proper for them to look, if they choose, into discussions by law-
yers in the legislative body, the views of the draughtsman of a
bill, of the revisers of statutes, and of the legislature passing an
act. As authority, this sort of matter is not admissible. As
opinion to persuade, it varies with the particular circumstances.®
A fortiori, the opinion of a subsequent legislature is entitled to
91 U.S. 72, 79; Logan v. Courtown, 13
Beav. 22.
Cal. 634; The State v. King, 12 La. An.
693; People v. Schoonmaker, 63 Barb.
1 Reg. v. Watford, 9 Q. B. 626, 635;
Jones v. Brown, 2 Exch. 329, 332; Kel-
lock’s Case, Law Rep. 3 Ch. Ap. 769, 781;
O’Byrnes v. The State, 51 Ala. 25; Cota
v. Ross, 66 Maine, 161; The State v.
Brewer, 22 La. An. 273; Converse v.
United States, 21 How. U. S. 463; Noble
v. The State, 1 Greene, Iowa, 325.
2 2 Inst. 308, 309; Fellowes v. Clay, 4
Q. B. 318, 326.
3 Ante, § 38; Barker v. Esty, 19 Vt.
131; United States v. Union Pacific Rail-
road, 91 U. S. 72,79; The State v. Pater-
son, 6 Vroom, 196; Tynan v. Walker, 35
60
44; Parkinson v. The State, 14 Md. 184;
People v. Essex, 70 N. Y. 228; Gas Co. v.
Wheeling, 8 W. Va. 320; Jones v. The
State, 1 Kan. 273; United States v.
Athens Armory, 2 Abb. U. S. 129, 137.
* Bishop First Book, § 202-205.
5 Ib. § 449; People v. Liscomb, 60 °
N. Y. 559, 580.
6 Keyport, &c. Steamboat Co. v. Far-
mers’ Trans. Co. 3 C. E. Green, 13;
Leese v. Clark, 20 Cal. 387; The State v.
Nicholls, 30 La. An. 980. And see cases
cited to the next section.
CHAP. VIII. | PURPOSE AND MEANS. § 77
no more consideration than that of any other men of equal num-
bers and intelligence.!
§ TT. Compared with Private Writings — (Contract). — The doc-
trine as to private writings — for example, contracts — seems
applicable also to this question of the statutes. Evidence of
parol declarations, made by the parties at the time when a con-
tract was entered into, is not admissible in explanation of its
meaning.” Therefore the like declarations, uttered in the legis-
lative body, are not, except as explained in the last paragraph,
receivable on a question of the interpretation of a statute.
Now, —
Doctrine Summarized — (Legislative Doings, Journals, &e.). _
Excepting as thus explained, and inquiring for what may control
the interpretation, the rule of law is distinct, that the courts
cannot resort to the opinions of the individual legislators, the
legislative journals, the reports of committees, or the speeches
made at the time an act was passed ;% their sole guide being the
language,‘ illumined simply as already shown.’ They do not
close their eyes to what they know of the history of the country
and of the law, of the condition of the law at the particular time,
of the public necessities felt, and other like things. For a sum-
mary of the doctrine as held in England,’ the reader is referred
1 Bingham v. Winona, 8 Minn. 441.
2 Bishop Con. § 58; 1 Greenl. Ev.
§ 275.
3 Reg. v. Whittaker, 2 Car. & K. 636,
640; Bank of Pennsylvania v. Common-
wealth, 7 Harris, Pa. 144; Southwark
Bank v. Commonwealth, 2 Casey, Pa.
446; Aldridge v. Williams, 3 How. U. 8S.
9, 24; Ratcliff v. Ratcliff, 1 Swab. & T.
467,470; Coleman v. Dobbins, 8 Ind. 156.
4 “Intention of the legislature appar-
ent upon its face,” that is, face of the
act. Wilkinson v. Leland, 2 Pet. 627,
662; People v. Utica Ins. Co. 15 Johns.
858, 880; Barnes v. Mobile, 19 Ala. 707;
The Paulina v. United States, 7 Cranch,
52.
5 Story Const. § 406; Horton v. Mo-
bile, 43 Ala. 598, 604.
6 Rex v. Hodnett, 1 T. R. 96; Sibley
v. Smith, 2 Mich. 486; Henry v. Tilson,
17 Vt. 479; United States v. Union Pacific
Railroad, 91 U. S. 72, 79; Greer v. The
State, 54 Missis. 378.
7 Wilberforce (Stat. Law, 105-107)
«says: ‘If a statute is pot clearly worded,
its Parliamentary history is ‘ wisely inad-
missible’ to explain it. Reg. v. Hertford
College, 3 Q. B. D. 693, 707. The court
cannot consider what was the intention
_ of the member of Parliament by whom
any measure was introduced. See Mc-
Master v. Lomax, 2 My]. & K. 32; Cam-
eron v. Cameron, 2 Myl. & K. 289. It
cannot look at the reports of commissions
which preceded the passing of statutes,
and upon which those statutes were
founded. Thus it was held that the
reports and recommendations of the Real
Property Commissioners, Salkeld v. John-
son, 2 C. B. 749, 756, per Tindal, C. J.;
Farley v. Bonham, 2 Johns. & H. 177, 30
Law J. Ch. 289, of the Ecclesiastical
Commissioners, In re Dean of York, 2
Q. B. 1, 34, of the Common Law, Martin
v. Hemming, 24 Law J. Exch. 3, 5, 18
Jur. 1002, 1004; Arding v. Bonner, 2 Jur.
n. 8. 768, 764, and of the Chancery, Ewart
61
§ 17
to the note.
as with us.
v. Williams, 3 Drewry, 21, 24, Commis-
sioners, were not legitimate guides to
the construction of statutes. So, too,
the plans and sections of intended lines
of railway, or of other’ works which are
exhibited during the passage of bills
through Parliament, are not, unless they
are incorporated by reference in the acts
when passed, to be regarded in their con-
struction. North British Railway v. Tod,
12 Cl. & F. 722; Reg. v. Caledonian Rail-
way, 16 Q. B. 19; Beardmer v. London,
&c. Railway, 1 Macn. & G. 112, 1 Hall &
T. 161; Attorney-General v. Great East-
ern Railway, Law Rep. 7 Ch. Ap. 475, Law
Rep. 6 H. L. 867; Edinburgh Street
Tramways v. Black, Law Rep. 2 Sc. Ap.
336; Ware v. Regent’s Canal, 3 De G. &
62
INTERPRETATION.
[Book IL.
It would seem to be, at least, equally strict there
J. Ch. 212, 28 Law J. Ch. 153; Reg. v.
Wycombe Railway, Law Rep. 2 Q. B.
310, 321, 822. The court cannot look at
the history of a clause, or of the intro-
duction of a proviso, Barbat v. Allen, 7
Exch. 609, 616; Reg. 7. Capel, 12 A.& E.
882, 411, nor at debates in Parliament,
Reg. v. Whittaker, 2 Car. & K. 636, 640;
Gorham v. Bishop of Exeter, 5 Exch.
630, 667, nor at amendments and altera-
tions made in committee, Donegall »v.
Layard, 8 H. L. Cas. 460, 465, 472, 473;
Attorney-General v. Sillem, 2 H. & C. 431,
621, 522, nor at the principles which gov-
ern Houses of Parliament in passing pri-
vate bills, Rex v. London Dock, 5 A. & E.
163, 175.”
CHAP. IX.] EPITOMIZED RULES, § 79
CHAPTER IX.
SOME LEADING RULES OF INTERPRETATION EPITOMIZED.
§ 78. Here — Elsewhere. — For the convenience of the reader,
the more common rules of interpretation will be collected into
this chapter in a condensed form. Such of them as require, not
all, will be further explained in subsequent chapters. And various
rules, not mentioned here, will be brought to view further on.
Punctuation. — The statutes in England are not punctuated in
the original rolls ;1 but more or less marks of punctuation appear
in them as printed by authority. With us, the punctuation is
the work of the draftsman, the engrosser, or the printer. In the
legislative body, the bill is read ; so that the ear, not the eye,
takes cognizance of it. Therefore the punctuation is not, in
either country, of controlling effect in the interpretation? Still
a judge cannot avoid seeing the marks, and they seem to have
been permitted to turn the scale in an evenly balanced case.?
§ 79. Clerical Errors. — As in an indictment,‘ so in a statute,
clerical errors do not avoid what to the common understanding
is plain. If the true reading is evident, and the meaning is, not-
withstanding the errors, certain, the statute stands, and is to be
interpreted as though they were corrected.® Still this doctrine
cannot be carried to all lengths; but, —
1 Barrow v. Wadkin, 24 Beav. 827. |
2 Barrow v. Wadkin, supra; Shriedley
v. The State, 23 Ohio State, 130, 140;
Cushing v. Worrick, 9 Gray, 382, 385;
United States v. Isham, 17 Wal. 496, 502.
So Quotation Marks, —in an indict-
ment, used in setting out the copy of an
instrument relied on, were held not to
show that the tenor, rather than the pur-
port, was intended. Forbes, J. observed :
“The practice in arraignments is to read
the indictment to the prisoner, and then
to receive his plea. His knowledge of
the charge against him is derived ordi-
narily from hearing the indictment read,
and not from the inspection of it. But
these indications of the meaning of the
pleader are addressed to the eye: they
are not perceptible to the ear,” &c. Com-
monwealth v. Wright, 1 Cush. 46, 65.
8 Cummings ». Akron Cement, &c. Co.
6 Blatch. 509, 511; United States v. Three
Railroad Cars, 1 Abb. U. S. 196; Ran-
dolph v. Bayue, 44 Cal. 366 ; Morrill v.
The State, 38 Wis. 428.
4 Crim. Proced. I. § 357.
5 See, and compare, Moody r. Stephen-
son, 1 Minn. 401; Stoneman v. Whaley,
63
§ 81 INTERPRETATION. [Book 1.
§ 80. To be accepted as enacted. — Except as thus pointed out,
a statute must be takén to be what the authoritative record makes
it1 We cannot, to bring it to our views, import into it words
not used by the law-makers ;? or control it, when unambiguous,
though we think it is not what it should be ;? and, in those cases
in which we may bend the meaning of particular words and
phrases to the general intent or the like, there is a degree beyond
which the process cannot be carried. The degree differs. with
the circumstances; and to ascertain both is a leading object of '
these chapters on interpretation. Again, —
§ 81. False Grammar. — Like an indictment,® a statute is not
rendered inoperative by false grammar,’ and inelegancies and
impurities of expression. For example, —
Disjunctive and Conjunctive.— Conjunctive sentences, describ-
ing different branches of the same offence, will be construed as
conjunctive or disjunctive according to the evident meaning of
the law-makers.?’ And—
Inaccurate. — Words and expressions inaccurately used will be
given the sense intended, where it appears on the whole face of
the act.3 Even in opposition to the strict letter, the clear purpose
of the legislature, as apparent on inspection of the statute itself,
will be carried out2 But—
Limit.— This doctrine applies only where the true intent is
9 Iowa, 390; Bostick v. The State, 34
Ala. 266; Gardner v. The State, 25 Md.
146; Nazro v. Merchants’ Mutual Insur-
ance Co. 14 Wis. 295; Sparrow v. David-
son College, 77 N. C. 35; Tollett v.
Thomas, Law Rep. 6 Q. B. 514, 518;
Graham v. Charlotte, &c. Railroad, 64
N. C. 681; Rolland v. Commonwealth, 1
Norris, Pa. 306, 326; Angell v. Angell, 9
Q. B. 328, 360; Haney v. The State, 34
Ark. 263; Turner v. The State, 40 Ala.
21; Lindsley v. Williams, 5 C. E. Green,
93.
1 Ante, § 72; post, § 145, 146.
2 Dwar. Stat. 2d ed. 579; King v.
Burrell, 12 A. & E. 460, 468; Lamond
v. Eiffe, 3 Q. B. 910; Rex v. Vandeleer,
1 Stra. 69; Rex v. Pereira, 2 A. & E.
375, 380; Bloxam ». Elsee, 6 B. & C. 169,
176.
3 Bidwell v. Whitaker, 1 Mich. 469;
Bartlett v. Morris, 9 Port. 266; Sibley v.
64
Smith, 2 Mich. 486; Green v. Cheek, 5
Ind. 105.
4 Putnam v. Longley, 11 Pick. 487,
490; Pitman v. Flint, 10 Pick. 504, 506;
Reg. v. Simpson, 10 Mod. 341, 344; Rex
v. The Poor Law Commissioners, 6 A. &
E. 1,7; Rex v. Stoke Damerel, 7 B. & C.
563; Dwar. Stat. 2d ed. 583 et seq. 595,
598 ; United States v. Warner,4 McLean,
463.
5 Crim. Proced. I. § 348-355.
§ Garrigus v. Parke, 39 Ind. 66.
7 Post, § 248; The State v. Myers, 10
Iowa, 448.
8 Rex v. Bullock, 1 Taunt. 71; Crocker
v. Crane, 21 Wend. 211; Alexander v.
Worthington, 5 Md. 471; Erwin v. Moore,
15 Ga. 361. See People v. Clute, 12 Abb.
Pr. n. 3. 399; Thorp v. Schooling, 7 Nev.
15; Nichols v. Halliday, 27 Wis. 406.
® Ingraham v. Speed, 30 Missis. 410.
CHAP. IX. ] EPITOMIZED RULES. § 82
‘ manifest in the act itself, or in it compared with other acts on the
same subject.1 Now, —
§ 82. Group of Doctrines. — Bearing in mind the cardinal pur-
pose of all interpretation, — namely, to ascertain the true legis-
lative intent,2 — and remembering that each particular rule stands
in subordination to this purpose, and is to be followed only when
and so far as it contributes to this result, let us arrange around
it, as in a cluster, some of the subordinate rules. Thus, —
Harmony with Intent. — The statute should, if possible, be con-
strued in a way to render each separate provision harmonious
with its general intent.’
Every Word and Clause a Meaning. — Every word and clause
should, if possible, have assigned to it a meaning, leaving no use-
less words. And, —
Giving Effect to Whole. — A fortiori, the construction should be
such as will not leave the entire enactment without effect.®
Repugnancy. — Nor should an interpretation be admitted, if
avoidable, which will render one clause repugnant to another,
but all should stand.®
Absurdity — Injustice — Inconvenience. — The interpretation
should lean strongly to avoid absurd consequences,’ injustice,°
1 Ante, § 72; Ezekiel v. Dixon, 3 Kel-
ly, 146; Swift v. Luce, 27 Maine, 285;
Riddick v. Walsh, 15 Misso. 519.
2 Ante, § 70; Mardre v. Felton, Phil-
lips, N. C. 279; Leoni v. Taylor, 20 Mich.
148; Encking v. Simmons, 28 Wis. 272,
276; Frye v. Chicago, &c. Railroad, 73
Ill. 899; Sussex Peerage, 11 Cl. & F. 85.
3 Dwar. Stat. 2d ed. 582, 597; Arthur
v. Bokenham, 11 Mod. 148, 161; Mendon
v. Worcester, 10 Pick. 235, 242; Com-
monwealth v. Cambridge, 20 Pick. 267,
271; United States v. Fisher, 2 Cranch,
358, 399; The State v. Stinson, 17 Maine,
154; Holbrook v. Holbrook, 1 Pick.-248;
Livingston v. Indianapolis Insurance Co.
6 Blackf. 183 ; Scofield v. Collins, 3 Cow.
89, 96; The State v. Smith, Cheves, 157;
Commonwealth v. Slack, 19 Pick. 304;
Wilson v. Biscoe, 6 Eng. 44; George v.
Board of Education, 38 Ga. 344.
4 Bac. Abr. Statute I. 2; Powlter’s
Case, 11 Co. 29 a, 84a; Rawson v. The
State, 19 Conn. 292; Wilson v. Biscoe, 6
Eng. 44; United States v. Warner, 4
5
McLean, 463; Opinion of the Justices,
22 Pick. 571, 578; Attorney-General v.
Detroit and Erin Plank Road, 2 Mich.
188; James v. Dubois, 1 Harrison, 285;
Hutchen v. Niblo, 4 Blackf. 148; Green
v. Cheek, 5 Ind. 105; Gates ». Salmon, 35
Cal. 576; Hagenbuck v. Reed, 3 Neb. 17;
People v. Burns, 5 Mich. 114; Lacy v.
Moore, 6 Coldw. 348; People v. King, 28
Cal. 265.
5 Nichols v. Halliday, 27 Wis. 406;
Bailey v. Commonwealth, 11 Bush, 688;
Manis 7. The State, 3 Heisk. 315, 316.
§ Dwar. Stat. 2d ed. 568, 577, 578, 594;
1 Bl. Com. 89; San Francisco v. Hazen,
5 Cal. 169; Brooks v. Mobile, 31 Ala. 227.
* 1 Bl. Com. 91; Dwar. Stat. 2d ed.
587; Bailey v. Commonwealth, 11 Bush,
688; Rex v. Banbury, 1 A. & E. 136, 142;
Commonwealth v. Loring, 8 Pick. 370;
Jeffersonville v. Weems, 5 Ind. 547; Henry
v. Tilson, 17 Vt. 479; The State v. Clark,
5 Dutcher, 96. é
8 Magdalen College Case, 11 Co. 66 4,
73b; Co. Lit. 360; Commonwealth 2.
65
§ 82 INTERPRETATION. [BOOK II.
and even great inconvenience; for the legislative meaning is
to be carried out, and it cannot be supposed to be any of these.
So, —
Doubtful Power. — The exercise even of a doubtful power will
not be attributed to the legislature; therefore construction will
lean against it.2 And, —
Expressed Intent — Implied. — If the legislature has expressed
its intent in the act, it will be carried out, though to the over-
riding of the ordinary rules of interpretation ;# as, in like manner,
will its intent in any other way sufficiently appearing.’
Litigation. — An interpretation not opening the door to litiga-
tion will be preferred.®
Also, —
Retrospective. — Though statutes are often applied retrospec-
tively, they are not so in general, and in most circumstances
construction will lean against it.
On the other hand, —
Eluded — Defeated. — The courts will endeavor so to shape the
meaning of a statute that it can neither be eluded’ nor its pur-
poses defeated.®
The Parts, and other Laws and Acts, together. — All its parts,?
Slack, 19 Pick. 304; Meade v. Deputy
Marshal, 1 Brock. 324; Murray v. Gib-
son, 15 How. U. 8. 421; Ham v. McClaws,
1 Bay, 93, 98; Robinson v. Varnell, 16
Texas, 382; The Ohio v. Stunt, 10 Ohio
State, 582.
1 United States v. Fisher, 2 Cranch,
858, 886; Hughes v. Hughes, Carter, 125,
136; Ayers v. Knox, 7 Mass. 306, 310;
Putnam v. Longley, 11 Pick. 487, 490;
Associates of Jersey v. Davison, 5 Dutch-
er, 415.
2 Mardre v. Felton, Phillips, N. C. 279.
8 Farmers’ Bank v. Hale, 59 N. Y. 53;
Chapin v. Crusen, 31 Wis. 209.
* Ante, § 70, 72, 81; Stowel v. Zouch,
1 Plow. 353, 865; Arthur v. Bokenham,
11 Mod. 148, 161 ; McDermut v. Lorillard,
1 Edw. Ch. 278, 276; Ayers v. Knox, 7
Mass. 306; Dwar. Stat. 2d ed. 593; The
State v. Harkness, 1 Brev. 276; Castner
v. Walrod, 83 Ill. 171, 179; Smith v. Peo-
ple, 47 N. Y. 880; The State v. King, 44
Misso. 283.
5 Gale v. Tanrie, 5 B. & C. 156, 164.
® Post, § 83-85 6; Thompson v. Lack,
3 C. B. 540, 551; 1 Bishop Mar. & Div.
§ 99-103; Moon v. Durden, 2 Exch. 22;
s.c.nom. Moore v. Durden, 12 Jur. 138;
66
Plumb v. Sawyer, 21 Conn. 351; Hooker
v. Hooker, 10 Sm. & M. 599; Bruce v.
Schuyler, 4 Gilman, 221; Barnes v. Mo-
bile, 19 Ala. 707; Torrey v. Corliss, 33
Maine, 333; Murray v. Gibson, 15 How.
U.S. 421, 423; Pritchard v. Spencer, 2
Ind. 486; Garrett v. Wiggins, 1 Scam.
835 ; Quackenbush c. Danks, 1 Denio,
128; Hastings v. Lane, 15 Maine, 134;
Forsyth v. Marbury, R. M. Charl. 324;
Guard v. Rowan, 2 Scam. 499; Dash »v.
Van Kleeck, 7 Johns. 477; Von Schmidt
v. Huntington, 1 Cal. 55; Mason ». Finch,
2 Scam. 223; Alexander v. Worthington,
5 Md. 471; Belleville Railroad v. Greg-
ory, 15 Ill. 20; Stewart v. The State, 13
Ark. 720; Buckner v. Street, 1 Dil. 248;
Ryan v. Hoffman, 26 Ohio State, 109;
White v. Blum, 4 Neb. 555; People v.
Strack, 8 Thomp. & C. 165, 1 Hun, 96;
Morgan v. Perry, 61 N. H. 559.
1 2 Rol. 127; Dwar. Stat. 2d ed. 568;
Moore v. Hussey, Hob. 93, 97; Magdalen
College Case, 11 Co. 66, 73); Powlter’s .
Case. 11 Co. 29, 84a; Winter v. Jones,
10 Ga. 190; Anonymous, 12 Co. 89.
8 Thompson v. The State, 20 Ala. 54;
Cook v. Hamilton, 6 McLean, 112.
9 Post, § 86; Bac. Abr. Statute, I. 2;
CHAP. Ix. ] EPITOMIZED RULES. § 82
and all acts,! “though made at different times or even expired”?
or repealed,® and the entire system of Jaws,* and the common
law,® touching the same matter, must be taken together ;° and,
if one part standing by itself is obscure, it may be aided by
another which is clear.’
Prior Law — Mischief — Remedy. — The interpreter should con-
sider and take into the account what was the law before,’ which
Coke says is “the very lock and key to set open the windows of
the statute ;”® the mischief against which the law did not pro-
vide ; the nature of the remedy proposed, and the true reason
of the remedy.!° It has been said that we may learn the mischief
‘from our knowledge of the state of the law at the time, and of
the practical grievances generally complained of.” 4
Public and Private Interests. — Great public interests will not
Adams v. Woods, 2 Cranch, 3386, 341;
Commonwealth v. Robertson, 5 Cush. 438;
Magruder v. Carroll, 4 Md. 335; Tor-
rance v. McDougald, 12 Ga. 526; Ogden
v, Strong, 2 Paine, 584; Brown v. Wright,
1 Green, N. J. 240; In re Murphy, 3 Zab.
180; Van Riper v. Essex Public Road, 9
Vroom, 23; Albrecht v. The State, 8
Texas Ap. 313. In reference to this rule
it was observed in Massachusetts, that
the Revised Statutes were all passed at
one time, and so constitute one act. Com-
monwealth v. Goding, 3 Met. 130. Such
is said also to be the rule respecting stat-
utes passed at one session. Peyton v.
Moseley, 3 T. B. Monr. 77.
1 Le Roy v. Chabolla, 2 Abb. U. S.
448; The State v. Stewart, 47 Misso. 382 ;
People v. Weston, 3 Neb. 312.
2 Lord Mansfield in Rex v. Loxdale, 1
Bur. 445, 447; Coleman v. Davidson Acad-
emy, Cooke, Tenn. 258.
8 Church v. Crocker, 3 Mass. 17, 21;
Bank for Savings v. The Collector, 3 Wal.
495.
* McDougald v. Dougherty, 14 Ga.
674; ante, § 7, 62, 64; The State v. Jack-
son, 36 Ohio State, 281.
5 Post, § 86, 88.
6 1 Bac. Abr. Statute, I. 3; Dwar.
Stat. 2d ed. 569; Duck v. Addington, 4
T. R. 447, 450; Ex parte Drydon, 5 T. R.
417, 419; Ailesbury v. Pattison, 1 Doug.
28, 80; Mendon v. Worcester, 10 Pick.
235, 242; Goddard v. Boston, 20 Pick.
407, 409; Wilde v. Commonwealth, 2
Met. 408; Howlett v. The State, 5 Yerg.
144; Holland v. Makepeace, 8 Mass. 418,
423; Holbrook v. Holbrook, 1 Pick. 248,
254; The State v. Baldwin, 2 Bailey, 541;
The State v. Fields, 2 Bailey, 554; Thayer
v. Bond, 3 Mass. 296; White v. Johnson,
23 Missis. 68; Rex v. Morris, 1 B. & Ad.
441; The State v. Wilbor, 1 R. I. 199;
De Ormas Case, 10 Mart. La. 158, 172;
People v. Hart, 1 Mich. 467; The State
v. Garthwaite, 3 Zab. 143; The Harriet,
1 Story, 251; Scott v. Searles, 1 Sm. &
M. 590; The State v. Mister, 5 Md. 11;
United States v. Freeman, 8 How. U S.
556; Hayes v. Hanson, 12 N. H. 284;
Berry v. The State, 10 Texas Ap. 315;
Goodrich v. Russell, 42 N. Y. 177.
7 Rex v. Palmer, 1 Leach, 4th ed.
352, 355; Commonwealth v. Slack, 19
Pick. 304; Crespigny v. Wittenoom, 4
T. R. 790.
8 Ante, §6; Bac. Abr. Statutes, I. 4;
Dwar. Stat. 2d ed. 568, 564.
9 2 Inst. 308. ;
.10 Heydon’s Case, 8 Co. 7; Winslow v.
Kimball, 25 Maine, 493; Pray v. Edie, 1
T. R. 318; Rex v. Hodnett, 1 T. R. 96,
100; 1 Bl. Com. 87; Jortin v. Southeast-
ern Railway, 3 Eq. Rep. 281, 1 Jur. n. s.
433, 31 Eng. L. & Eq. 320; People v.
Greer, 43 Ill. 213; Huffman v. The State,
29 Ala. 40; Parkinson v. The State, 14
Md. 184.
ll Lyde v. Barnard, 1 M. & W. 101,
114. And see The State v. Smith, Cheves,
157.
67
+ § 82
INTERPRETATION.
[BOOK II.
needlessly be put at hazard by the interpretation;! and even
private hardships will, when they may, be avoided.?
And —
Public Policy. — Considerations of public policy are always per-
tinent in the interpretation.?
Title — Preamble — Outside of Statute. — For these several pur-
poses, we may take into view, as already seen,* what is said in
the title and preamble; and may consult any other source® of a
nature proper for the cognizance of the courts.
1 People v. Illinois, &c. Canal, 3 Scam.
153; Burbank v. Fay, 65 N. Y.57; Van
Loon v. Lyon, 4 Daly, 149.
2, Collins v. Carman, 5 Md. 503; Broad-
bent v. The State, 7 Md. 416; Metropoli-
tan Asylum Dist. v. Hill, 6 Ap. Cas. 193;
People v. Hodgdon, 55 Cal. 72; Keeran
v. Griffith, 84 Cal. 580. And see The
State v. Bank of the State, 1 S. C. 63;
Chapin v. Persse, &c. Paper Works, 30
Conn. 461; Pittsburg, &c. Railroad v.
68
South West Pa. Railway, 27 Smith, Pa.
173; Randolph v. Middleton, 11 C. E.’
Green, 543. : :
% Baxter v. Tripp, 12 R. 1.310; Mobile
v. Stein, 54 Ala. 23; Probasco v. Mounds-
ville, 11 W. Va. 501. And see The State
v. Clarke, 54 Misso. 17.
4 Ante, § 44-51.
5 United States v. Webster, Daveis,
D. C. 38.
8 Ante, § 74-77; 1 Greenl. Ev. § 4-6.
CHAP. X.] PROSPECTIVE AND RETROSPECTIVE. § 834
CHAPTER X.
PROSPECTIVE AND RETROSPECTIVE LEGISLATION AND INTER-
PRETATION.
8 83. All Legislation, in a Sense, Prospective. — There is a sense
in which, in the nature of things, no legislation is or can be other
than prospective. The records of the past cannot be reversed ;
the present can in no way deal otherwise than with itself and the
future. But this is not the sort of view of things with reference
to which we speak of prospective and retrospective legislation.
In the practical sense, —
Prospective and Retrospective, defined. — As the terms are com-
monly used in the law, prospective legislation is such as provides
tules for facts thereafter to transpire; retrospective, for those
which have partly or fully occurred. Prospective interpretation
restricts the application of the new law to facts arising after its
enactment ; retrospective, applies it to the past and present facts
as well as the future.
§ 83 a. Distinctions — (Constitutional — Politic and Probable —
And the Reverse). — Under our written constitutions, some forms
of retrospective legislation are by their terms or construction for-
bidden ;! and then a statute embodying it will be, to this extent,
inoperative, and no question can arise as to what the legislature
intended.? To be distinguished from these cases are those wherein,
while a retrospective construction is not prohibited, it is a ques-
tion whether or not the legislature meant its act to be so ap-
' Crim. Law, I. § 279; post, § 85.
2 Strong v. Clem, 12 Ind. 37; Logan
ce. Walton, 12 Ind. 639; Frantz v. Har-
row, 13 Ind. 507; Strong v. Dennis, 13 Ind.
514; Douglass v. Pike, 101 U. S 677;
Hoagland v. Sacramento, 52 Cal. 142;
Dequindre v. Williams, 31 Ind. 444;
Lathrop v. Brown, 1 Woods, 474; Hart
v. The State, 40 Ala. 32; Finn v. Haynes,
37 Mich. 63; Jordan v. Wimer, 45 Iowa,
65; Brothers v. The State, 2 Coldw. 201;
Cook v. Mutual Ins. Co. 53 Ala. 37;
The State v. Doherty, 60 Maine, 504;
Dubois v. McLean, 4 McLean, 486; Gram-
mar School v. Burt, 11 Vt. 632; Dash v.
Van Kleeck, 7 Johns. 477; Gunn v. Barry,
15 Wal. 610; Union Iron Co. v. Pierce, 4
Bis. 327; Houston v. Bogle, 10 Ire. 496;
Lambertson v. Hogan, 2 Barr, 22; Ahl v.
Rhoads, 3 Norris, Pa. 319.
69
§ 84 INTERPRETATION. [BooK I.
plied ;1 and whether such application would accord with sound
policy, and with the other rules of interpretation? Then it will
be construed the one way or the other as these considerations
require.
§ 84. Rule for Interpretation, in General. — In the absence of any
special indication or reason, and as the common rule, a statute
will not be applied retrospectively, even where there is no con-
stitutional impediment.? Some of the cases appear to hold, that,
to work an exception to this rule, the retrospective intent must
affirmatively appear in the words themselves.t But, at least by
the better doctrine, —
Exceptions. — Some statutes extend to past transactions, even
where their words are not direct to this effect.®
Thus, —
Procedure — (including Remedy). — Enactments regulating the
procedure in the courts and the remedy are commonly applied to
1 Sturgis v. Hull, 48 Vt. 302; Bald-
win v. Newark, 9 Vroom, 158; Wilson v.
Red Wing School Dist. 22 Minn. 488;
Ballard v. Ward, 8 Norris, Pa. 358.
2 Reg. v. Vine, Law Rep. 10 Q. B. 195;
Reed v. Rawson, 2 Litt. 189; Wilder v.
Lumpkin, 4 Ga. 208; Cook v. Sexton, 79
N.C. 805; Austin v. Stevens, 24 Maine,
520; Miller v. Moore, 1 E. D. Smith,
739; Bronson v. Newberry, 2 Doug. Mich.
88; Smith v. Kibbee, 9 Ohio State, 563;
Johnson v. Johnson, 26 Ind. 441; Annable
v. Patch, 3 Pick. 360, 363; Miller v. Miller,
16 Mass. 59; The State v. Wolfarth, 42
Conn. 155; The State v. Wilmington,
&c. Railroad, 74 N. C. 143; The State v.
Smith, 38 Conn. 397; Perry v. Common-
wealth, 3 Grat. 632; Bensley v. Ellis, 39
Cal. 309.
3 Cases cited ante, § 82, 83a; also
Eakin v. Raub, 12 S. & R. 330; Saunders
v. Carroll, 12 La. An. 793; Brown v. Wil-
cox, 14 Sm. & M. 127; Briggs ». Hubbard,
19 Vt. 86; The State v. Bradford, 36 Ga.
422; Dewart v. Purdy, 5 Casey, Pa. 113;
Hopkins v. Jones, 22 Ind 310; Seamans
v. Carter, 15 Wis. 548; People v. San
Francisco, 21 Cal. 668; Jarvis ». Jarvis,
38 Edw. Ch. 462; Head v. Ward, 1 J. J.
Mar. 280; United States v. Starr, Hemp.
469; Aurora and Laughery Turnpike v.
Holthouse, 7 Ind. 59; The State v. At-
wood, 11 Wis. 422; Reynolds v. The
State, 1 Kelly, 222; People v. San Fran-
10
cisco, 4 Cal. 127; Whitman v. Hapgood,
10 Mass. 437, 489; Somerset v. Dighton,
12 Mass. 383, 385; Medford ev. Learned,
16 Mass. 215; Van Rensselaer v. Liv-
ingston, 12 Wend. 490; Ex parte Graham,
13 Rich. 277; The State v. Scudder, 3
Vroom, 203; Taylor u. Mitchell, 7 Smith,
Pa. 209; Moon v. Durden, 2 Exch. 22;
Reg. v. Ipswich Union, 2 Q. B. D. 269;
In re Suche, 1 Ch. D. 48, 50; Western
Union Railroad v. Fulton, 64 It. 271;
Reg. v. Gratrex, 12 Cox C. C. 157, 2 Eng.
Rep. 210; Reis v. Graff, 51 Cal. 86; Peo-
ple v. O’Neil, 51 Cal. 91; People v. Kins-
man, 51 Cal. 92; People v. McCain, 51
Cal. 360; People v. Peacock, 98 IIl. 172;
Gardner v. Lucas, 3 Ap. Cas. 582, 600,
601, 603.
4 The State v. Hays, 52 Misso. 578;
The State v. Newark, 11 Vroom, 92; The
State v. Thompson, 41 Misso. 25; Smith
v. Humphrey, 20 Mich. 398; People v. Co-
lumbia, 43 N. Y. 130; La Salle v. Blanch-
ard, 1 Bradw. 635; Finney v. Ackerman,
21 Wis. 268; The State v. Ferguson, 62
Misso. 77.
5 See Watkins v. Haight, 18 Johns.
1388; People ». Carnal, 2 Seld. 463; Peo-
ple v. Clark, 3 Seld. 885; Von Schmidt v.
Huntington, 1 Cal. 55; Adams v. Chap-
lin, 1 Hill Ch. 265; Baldwin v. Newark,
9 Vroom, 158; Sturgis v. Hull, 48 Vt.
302.
CHAP. X.]| PROSPECTIVE AND RETROSPECTIVE. § 8ia
the enforcement of rights already accrued,! and even to causes
actually in progress But, in special circumstances, and espe-
cially as to causes in progress, this exception, which is the rule for
the litigation within it, gives way to the other and general rule.?
Again, —
§ 84a. Reason of the Law — (Divorce). — The doctrine — at
least, the better doctrine — is believed to be general, that, when-
ever the reason of the new law includes alike past transactions
and future ones, and no injustice will result, and no constitutional
restriction interposes, general words will be construed both retro-
spectively and prospectively.*
are divorce laws.5 And —
1 Post, § 175; Gardner 2. Lucas, 3 Ap.
Cas. 582, 601, 603; Rockwell v. Hubbell,
2 Doug. Mich. 197; People v. Peacock,
98 Ill. 172; Edmonds v. Lawley, 6 M. &
W. 288. ;
2 Mercer v. The State, 17 Ga. 146;
Jacquifis v. Commonwealth, 9 Cush. 279;
Sampeyreac v. United States, 7 Pet. 222
(but see People v. Carnal, 2 Seld. 463, and
People v. Clark, 3 Seld. 385); Blair v.
Cary, 9 Wis. 543; McNamara v. Minne-
sota Cent. Railway, 12 Minn. 388; Com-
monwealth v. Bradley, 16 Gray, 241;
Henschall v. Schmidtz, 50 Misso. 454;
Walston v. Commonwealth, 16 B. Monr.
15; Rivers v. Cole, 38 Iowa, 677; Brock
v. Parker, 5 Ind. 538; Indianapolis ve.
_ Imberry, 17 Ind. 175. “ When the effect
of an enactment is to take away a right,
prima facie it does not apply to existing
rights ; but, where it deals with pro-
cedure only, prima facie it applies to all
actions pending as well as future.” Kim-
bray v. Draper, Law Rep. 3 Q. B. 160,
163, by Blackburn, J. on the authority
of Wright v. Hale, 6 H. & N. 227.
8 Bradford v. Barclay, 42 Ala. 375;
Mann v. McAtee, 37 Cal. 11; Merwin v.
Ballard, 66 N. C. 398; The State »v.
Smith, 88 Conn. 397; Simco v. The State,
8 Texas Ap. 406; Lee «. Cook, 1 Wy.
Ter. 418; Chaney v. The State, 31 Ala.
342; Mabry v. Baxter, 11 Heisk. 682.
Wagers. — Statutes restrictive of suits
on wagers are prospective only, not af-
fecting transactions prior to their pas-
sage. Doolubdass v. Ramloll, 7 Moore
Of this sort, by the better opinion,
P. C. 239, 15 Jur. 257, 8 Eng. L. & Eq.
89. And; generally of Rights of Ac-
tion. — No statute, however broad its
words, will be construed to interfere with
existing rights of action, unless this in-
tent is expressly stated. Berley v. Ram-
pacher, 5 Duer, 183; Rutherford v.
Greene, 2 Wheat. 196. Qualifications
of Jurors. — A statute regulating the
qualifications of jurors is applied as well
to past as to subsequent offences: Reid
v. The State, 20 Ga. 681. But, Costs. —
In Missouri, a statute providing that, if
the jury fail to declare by which party
in a prosecution of a county the costs
shail be paid, the court shall render judg-
ment for them against the prosecutor, is
held not to apply to a prosecution begun
before its passage. The State v. Berry,
25 Misso. 355. Transfer of Jurisdic-
tion.— Where, after the commission of
a felony, the jurisdiction to punish it is
transferred from one court to another,
the offender, if afterward arrested, should
be sent for trial to the latter court.
Ewing’s Case, 5 Grat. 701. And see The
State v. Solomons, 3 Hill, S. C. 96.
4 And see Tilton v. Swift, 40 Iowa,
78; Riggins v. The State, 4 Kan. 173.
Indeed, under some circumstances, it is
required by the mere behests of justice
to give the statute a retrospective opera-
tion; then, by construction, it will have
such an operation if the words permit.
Miller v. Graham, 17 Ohio State, 1.
5 1 Bishop Mar. & Div. § 99-103, 696-
699.
71
§ 85a INTERPRETATION. | [Book IL:
Liquor Laws. — A statute prohibiting the unlicensed sale of
intoxicating liquors extends as well to those owned when it is
enacted as to subsequent purchases! And one disqualifying
‘“‘every person convicted of felony” to be a retailer, includes
alike past and future convictions.2, So—
Fencing Railroad.— A statutory mandate to railroads to fence
lands’ taken for their track extends as well to existing as to sub-
sequently chartered ones.3 .
§ 85. Ex post Facto. — A statute which is ex post facto is ren-
dered null by two clauses of the United States Constitution, the
one referring to the national and the other to the State legisla-
tive power.t But —
Simply Retrospective. — A statute may be retrospective without
being ex post facto ; and, when it is, if it does not impair the obli-
gation of contracts,® it does not violate the Constitution of the
United States. In some of the State constitutions there are pro-
visions directly forbidding it, but in most there are not ;® or, it
is valid-in some circumstances,’ and invalid in others.2 In accord
with what has been said,® where'such a statute is not constitu-
tionally prohibited, the courts will give effect to its express
terms ;!° where it is, they will hold it void.
tinctions are that, —
Some of the dis-.
§ 85.a. Rights vested — not vested. — According to the terms
1 Commonwealth v. Logan, 12 Gray,
136. ‘
2 Reg. v. Vine, Law Rep. 10 Q. B. 195.
8 Wilder v. Maine Central Railroad, 65
Maine, 832. And see Gorman v. Pacific
Railroad, 26 Misso. 441; Bank of Toledo
v. Toledo, 1 Ohio State, 622.
4 Crim. Law, I. § 279; Const. U.S.
art. 1, § 9,10; Calder v. Bull, 3 Dall. 386,
389; Watson v. Mercer, 8 Pet. 88, 110;
Bennett v. Boggs, Bald. 60, 74.
5 Reed v. Beall, 42 Missis. 274; Lane
v. ‘Nelson, 29 Smith, Pa. 407.
6 1 Bishop Mar. & Div. § 670; The
State .v. Squires, 26 Iowa, 340; Smith v.
Van Gilder, 26 Ark. 527.
7 Crim. Law, I. § 279; Sedgwick v.
Bunker, 16 Kan. 498; Kunkle v. Frank-
lin, 18 Minn. 127; Comer v. Folsom, 18
Minn.'219; Wilson v, Buckman, 13 Minn.
441; Tilton v. Swift, 40 Iowa, 78; The
72
State v. Newark, 3 Dutcher, 185; The
State rv. Scudder, 3 Vroom, 203; Hess
v. Johnson, 3 W. Va. 645; Stine v.
Bennett, 18 Minn. 153; United States v.
Samperyac, Hemp. 118; Stokes v. Rod-
man, 5 R. I. 405.
8 Bruce v. Schuyler, 4 Gilman, 221;
Gordon v. Inghram, 1 Grant, Pa. 152;
West Branch Broom Co. v. Dodge, 7
Casey, Pa. 285; Dillon v. Dougherty, 2
Grant, Pa. 99; The State v. Atwood, 11
Wis. 422; Kennett’s Petition, 4 Fost.
N. H. 189; McManning v. Farrar, 46
Misso. 376.
® Ante, § 83 a.
10 Barton ». Morris, 15 Ohio, 408; New
Orleans v. Clark, 95 U. S. 644; People
v. Ulster, 63 Barb. 83; Hagerstown v.
Sehner, 37 Md. 180.
11 Bank of the State v. Cooper, 2 Yerg.
699.
CHAP. X.] PROSPECTIVE AND RETROSPECTIVE. § 856
or effect of most or all of our constitutions, a statute cannot
divest vested rights ;! yet can take away such as are not vested?
And, —
Remedy. — At the legislative pleasure, it can change the rem-
‘edy,? yet not to the denial of all remedy,‘ or even to such a
reduction of it as will leave any essential part of the right practi-
cally unavailable.
§ 85 6. Directing Construction of Statute. — The legislature can-
not direct the courts how to construe a statute, so as to affect
past transactions; for such construction is a judicial, not a legis-
lative, question. But the direction, if in adequate terms, will
operate as an amendment of the statute for cases on future
facts.§
1 Crim. Law, I. § 279; post, § 178;
Burch v. Newbury, 6 Seld. 374; Peters
v. Goulden, 27 Mich. 171. In England,
where there are no written constitutions,
a statute is not commonly construed to
divest vested rights. Couch v. Jeffries,
4 Bur. 2460, 2462; Moore v. Phillips, 7 M.
& W. 536; Gilmore v. Shuter, T. Jones,
108; s.c. nom. Helmore v. Shuter, 2
Show. 16.
2 Harris v. Glenn, 56 Ga. 94; Rotten-
berry v. Pipes, 53 Ala. 447; Leib v. Wil-
son, 51 Ind. 550; Ware v. Owens, 42 Ala.
212; Coffin v. The State, 7 Ind. 157;
Noel v. Ewing, 9 Ind. 37; Bachman v.
Chrisman, 11 Harris, Pa. 162; People »v.
Frisbie, 26 Cal. 135; Languille v. The
State, 4 Texas Ap. 312; Norfolk v. Cham-
berlaine, 29 Grat. 534; Sparks v. Clapper,
30 Ind. 204.
3 Templeton v. Horne, 82 Ill. 491; Pe-
tition of Penniman, 11 R. I. 333; Caper-
ton v. Martin, 4 W. Va. 138; Fullerton v.
McArthur, 1 Grant, Pa. 232; The State v.
Shumpert, 1 S. C. 85; Brown v. Gilmor,
8 Md. 322; Carnes v. Red River Parish,
29 La. An. 608; Young v. Ledrick, 14
Kan. 92; Smith v. Judge, 17 Cal. 547;
Tennessee c. Sneed, 96 U. S. 69; Harde-
man v. Downer, 39 Ga. 425; Fearing v.
Irwin, 55 N. Y. 486; Bacon v. Howard,
20 How. U. 8. 22; The State v. Union, 4
Vroom, 350; Leggett v. Hunter, 19 N. Y.
445; Mills 2. Charleton, 29 Wis. 400;
Barton v. School Commissioners, Meigs,
585.
4 Post, § 178; Seibert v. Copp, 62
Misso. 182; Fisher v. Cockerill, 5 T. B.
Monr. 129.
5 Post, § 178; Holland v. Dickerson,
41 Iowa, 367; Josephine v. The State, 39
Missis. 613; Smith v. Morse, 2 Cal. 524;
Musgrove v. Vicksburg, &c. Railroad, 50
Missis. 677; Morton v. Valentine, 15 La.
An. 150; Smith v. Packard, 12 Wis. 371;
Edwards v. Kearzey, 96 U. S. 595.
6 Dequindre v. Williams, 31 Ind. 444;
Union Iron Co. v. Pierce, 4 Bis. 827;
Haley v. Philadelphia, 18 Smith, Pa. 45;
The Governor v. Porter, 5 Humph. 165;
Kelsey v. Kendall, 48 Vt. 24; People v.
New York, 16 N. Y. 424; Cambridge v.
Boston, 180 Mass. 857; United States v.
Gilmore, 8 Wal. 330.
73
§ 86 INTERPRETATION. [BooK IL.
CHAPTER XI.
CONSTRUING THE VARIOUS LAWS TOGETHER.
§ 86. Here — Elsewhere — (Importance of Doctrine). —_ Having
already called to mind the doctrine, in its general terms, that all
laws are to be construed together as parts of one whole,! we shall
in this chapter descend a little into detail; presenting the chief
fragmentary forms of the doctrine, and drawing its bounds. In
a chapter further on,? we shall see, through the help of lines of
decisions projected through the legal field, something of the
immensity of the conservative force of this doctrine in our juris-
prudence, and its overwhelming importance in interpretation.
Full Doctrine defined. — The completed doctrine, resulting from
a bringing together of its parts, is, that all laws, written and
unwritten, of whatever sorts and at whatever different dates
established, are to be construed together, contracting, expanding,
limiting, and extending one another into one system of jurispru-
dence, as nearly harmonious and rounded as it can be made with-
out violating unyielding written or unwritten terms.
Some of the Parts. — The emergencies of particular cases do
not, in the majority of instances, call for a consideration of the
full doctrine, as thus defined. Sometimes it is only necessary to
bear in mind, that all the parts of the one statute, or the enact-
ing part and the preamble, or some two or more sections or
clauses, are to be read and construed together ;? sometimes, that
the original act and its amendments are to be interpreted as one,
no portion of either being left inoperative, if without violence to
1 Ante, § 5-10, 82.
2 Post, § 122 et seq.
8 Ante, § 82; Rex v. Palmer, 1 Lenchy
4th ed. 352, 355; Holbrook v. Holbrook,
1 Pick. 248 ; Burke v. Monroe, 77 II. 610;
St. Peter’s Church v. Scott, 12 Minn. 395;
Crone v. The State, 49 Ind. 538, More
broadly expressed.— The true rule for
the construction of a statute has been
74
said to be, to look into the whole and
every part of it, the apparent intention
derived from the whole, the subject-mat-
ter, the effects'and consequences, and its
reason and spirit; and the meaning of
the legislature thus ascertained will pre-
vail, though in conflict with the literal
sense of the words. Ryegate v. Wards-
boro, 30 Vt. 746.
CHAP. X1.] CONSTRUING LAWS TOGETHER.
§ 87
the words effect can be given to the whole ;} sometimes, that a
subsequent statute may be looked into for help in discovering
the true intent of an earlier one,2—Aa doctrine to be received
with caution, and limited in its application ; sometimes, that all
acts passed at the same session will be construed as one ;? or that
all passed on the same day will be;# or, that, when a statute is
made in addition to another on the same subject, without repeal-
ing any part of it, both are to be considered together.?> But the
cases equally admit of wider forms of expression; as, that all
acts on the same subject, termed in pari materia, including even
those which are repealed, are to be interpreted together, and, as
far as may be, in harmony with one another.’ It would not ordi-
narily be relevant to the question in hand to take into view
enactments on other subjects ; yet, should a case occur in which
the relevancy was manifest, plainly this would be permissible.
Illustrations of interpreting statutes souetner might be multiplied
without end. Thus, —
§ 87. Term of Office. — The term of an office newly created
may be derivable from the prior general law. So, —
Appeal. — If a new jurisdiction is given a court from which the
law provides an appeal, the right of appeal attaches to the new
case.2 And, —
Powers recited, then conferred. — Where an act confers powers
! Harrell v. Harrell, 8 Fla. 46; Rob-
bins v. Omnibus Railroad, 32 Cal. 472;
Griffin’s Case, Chase Dec. 364.
2 McAfee v. Southern Railroad, 36
Missis. 669. ;
3 Cain cv. The State, 20 Texas, 355;
The State v. Rackley, 2 Blackf. 249.
And see Attorney-General v. Brown, 1
Wis. 513.
* People «. Jackson, 30 Cal. 427. And
see Fouke v. Fleming, 13 Md. 392; Plant-
ers’ Bank v. Black, 11 Sm. & M. 43.
5 Pearce v. Atwood, 13 Mass. 324, 344.
6 Ante, § 82; post, § 124; The State
v. Commissioner of Railroad Taxation,
8 Vroom, 228 ; Merrill v. Gorham, 6 Cal.
41; United States v. Collier, 3 Blatch.
525: Bryan v. Dennis, 4 Fla. 445; Wake-
field v. Phelps, 87 N. H. 295; Harrison
v. Walker, 1 Kelly, 32; Billingslea v.
Baldwin, 23 Md. 85; McLaughlin ».
Hoover, 1 Oregon, 31; Reg. v. St. Giles,
8 Ellis & E. 224; Mitchell v. Duncan, 7
Fla. 13; Bruce v. Schuyler, 4 Gilman,
221; Isham v. Bennington Iron Co. 19
Vt. 230; Smith ev. People, 47 N. Y. 330;
Forqueran v. Donnally, 7 W. Va. 114;
Bryant v. Livermore, 20 Minn. 313; Rex
v. Palmer, supra, at p. 395; Ex parte
Copeland, 2 De G., M. & G. 914; McWil-
liam v. Adams, 1 Macq. Ap. Cas. 120;
Tennyson v. Yarborough, 7 Moore, 258, 1
Bing. 24; Bradshaw v. United States, 14
Ct. of Cl. 145; Mobile, &c. Railroad v.
Malone, 46 Ala. 391; Commonwealth ev.
Brennan, 103 Mass. 70; The State wv.
Lisles, 58 Misso. 859; The State v. Currie,
35 Texas, 17; Commonwealth v. Desmond,
123 Mass. 407.
7 People vc. Colton, 6 Cal. 84.
8 Commonwealth v. Messenger, 4 Mass.
462, 468. And see Stewart v. Walters, 9
Vroom, 274.
75
§ 88 INTERPRETATION. [BOOK I
recited in another act, the former is to be construed as thoug
the latter were a part of it.) Again, —
Limitations. — A statute of limitations may be applied to a
offence created by a subsequent statute”
Intent from Prior Laws. — If the intent of the legislature can b
gathered from prior laws, and from the prevailing tone of othe
sections of the same act, conflicting words may be bent fror
their literal meanings to harmonize with those more explicit, c
so restricted or enlarged as to carry out such intent.?
Notice. — Where by one section a certain notice is to be put
lished for ten days in succession, and by another all notices ar
to be published daily, Sundays excepted, the two sections shoul
be read together; meaning, that the Sundays be included fo
enumeration, but not for publication. Moreover, —
Restraining Provision. — As the several parts of.a statute are t
be made harmonious with each other and with the object of th
whole,’ particular provisions are not to be extended beyond th
general scope, unless manifestly intended.
§ 88. Common Law with Statute. — The common law, as pre
vailing at the time when a statute is passed, is as much to b
taken into the account in the construction of the latter as is ;
prior enactment.’ Numerous illustrations of this proposition wil
appear in other connections.’ For present illustration, —
Aiders in Poaching. — An English statute, 9 Geo. 4, c. 69, § 9
against night poaching, made it punishable “if any persons, tc
the number of three or more together, shall by night unlawfully
enter or be in any land, whether open or inclosed, for the pur.
pose,” &c. And, by the common law, one who is constructively
_ or actively present encouraging another while committing a crime
is himself a principal offender. Applying this common-law doc-
trine to the statute, the result was, that, if one of a party o/
poachers was found actually within the particular grounds, and
the rest were upon adjoining land co-operating with this one.
“tall,” in the language of Gurney, B. “ may be said to be found
1 Turney v. Wilton, 36 Ill. 385. And 4 Taylor am Palmer, 31 Cal. 240.
see Canastota, &c. Road v. Parkill, 60 5 Ante, § 86; Ellison v. Mobile anc
Barb. 601. Ohio Railroad, 36 Missis. 572.
2 Johnson v. United States, 3 McLean, ® Ticknor’s Estate, 13 Mich. 44; post
89. : § 151.
3 Noble v. The State, 1 Greene, Iowa, 7 Ante, § 5-7, 82.
325. 8 See post, § 131-144.
76
CHAP. XI.] CONSTRUING LAWS TOGETHER. § 90
in the clover field, within the meaning of the statute,” !— a con-
clusion impossible but for the help of the common law. And —
Acting by Deputy — (Constable). —It was held in California,
that, as by the common law officers who exercise only minis-
terial functions may act by deputy, constables, being such officers,
have this power.2 It is believed that not in all the States are
the statutes in terms to admit of this conclusion.
§ 89. Statute with Constitution. — Our written constitutions
are, as already seen,’ laws ; and not the less so because they are
supreme over the statutes. For the same reason, therefore, that
statutes are to be construed with statutes and with the unwrit-
ten law, they are also to be construed with the constitution.*
Thus, to repeat an illustration from “ Criminal Procedure,” —
Giving Appeal. — A system of statutory law having provided
for appeals from justices of the peace to courts sitting with juries
(they being without juries), a new enactment conferred on them
jurisdiction over an offence of a sort entitling the accused to a jury
trial. And the court held, that, to secure the jury trial, the consti-
tution, operating with the statute, gave the right of appeal.2 But—
§ 90. Partial Conflict. — The flexibility with which statutes, in
partial conflict, will sometimes yield to one another without much
regard to the comparative dates of their enactment, does not ex-
tend to the like conflicts between a statute and a written consti-
tution. The constitution will never give way; while, on the
other hand, if there are two possible constructions of the statute,
‘the one harmonious with the constitution and the other opposed,
the harmonious must be adopted.6 And —
1 Rex v. Andrews, 2 Moody & R. 37,
88; Rex v. Lockett, 7 Car. & P. 300; Rex
uv. Passey, 7 Car. & P. 282.
2 Jobson v. Fennell, 35 Cal. 711. I
do not mean to express any opinion as to
the correctness of this doctrine in general
American law. It is, I presume, beyond
real question, that, by the English com-
mon law, a constable can appoint a dep-
uty. Toml. & Jacob’s Law Dict. “Con-
stable,” “Deputy;” Burn Just. “ Con-
stable ;” Midhurst v. Waite, 3 Bur. 1259,
1262; Rex v. Hope Mansell, Cald. 252.
And the reason commonly assigned is,
that the office is ministerial. But, in
Coke’s Reports, this sort of doctrine is
put as follows: “ When an officer has
power to make assignees, he may implicite
make deputies ; for cut licet quod majus est,
non debet quod minus est non licere. And,
by consequence, when an office is granted
to one and his heirs, thereby he may
make an assignee, and by consequence a
deputy.” Shrewsbury’s Case, 9 Co. 464,
48 5. These are only suggestions toward
the investigation of the question. It is
familiar doctrine that, in this country,
offices are not assignable.
8 Ante, § 11 u, 12, 16.
* Eskridge v. The State, 25 Ala. 30.
Crim. Proced. I. § 894.
5 Crim. Proced. I. § 894; Johnson’s
Case, 1 Greenl. 230.
6 Duncombe v. Pringle, 12 Iowa, 1;
17
§ 90
INTERPRETATION.
[BOOK Il.
Presumed Legislative Purpose.— The courts will presume the
legislature intended its acts to be reasonable, constitutional, and
just ; and, when possible, consistently with any fair rendering of
the words, will so construe them as not to make them otherwise.!
But this rule will not be carried to the extent of giving the
enactment a meaning plainly repugnant to its terms.?
Roosevelt v. Godard, 52 Barb. 533; Col-
well v. May’s Landing Water Power Co.
4 C. E. Green, 245; New Orleans v. Sala-
mander Co. 25 La. An. 650; Slack v.
Jacob, 8 W. Va. 612; Camp »v. Rogers, 44
Conn. 291; People v. Peacock, 98 Ill. 172;
Sutherland v. De Leon, 1 Texas, 250.
1 United States v. Coombs, 12 Pet. 72;
Parsons v. Bedford, 8 Pet. 433; Ham v.
McClaws, 1 Bay, 93, 98; Murray v. Gib-
- son, 15 How. U. S. 421; Commonwealth
v. Getchell, 16 Pick. 452; McMullen v.
Hodge, 5 Texas, 34; Scott v. Smart, 1
Mich. 295; Commonwealth v. Edwards,
78
9 Dana, 447; Eason v. The State, 6 Eng.
481; Hogg v. Zanesville Canal and Manu-
facturing Co. 5 Ohio, 410, 417; Iowa
Homestead Co. v. Webster, 21 Iowa, 221;
Newland ‘v. Marsh, 19 Ill. 376; United
States v. Benecke, 98 U. S. 447; New
York, &c. Railroad v. Van Horn, 57 N. Y.
473; Lucas v. Tippecanoe, 44 Ind. 524;
Broom Leg. Max. 2d ed. 28.
2 French v. Teschemaker, 24 Cal. 518;
Bailey v. Philadelphia, &c. Railroad, 4
Harring. Del. 389 ; Attorney-General v.
Fau Claire, 37 Wis. 400. See post, § 145,
146. . j
gg
CHAP. XII.] INTERPRETATION OF CONSTITUTIONS. § 91
CHAPTER XII.
THE INTERPRETATION OF WRITTEN CONSTITUTIONS.
§ 91. Elsewhere.— We have just seen that a statute will, when -
possible, be so interpreted as to harmonize with the written con-
stitution.'_ And in other connections the doctrine of pronouncing
a statute void, in whole or in part, when in conflict with the con-
stitution, is explained.?- Thus we saw that, —
Duty of Courts. — When a statute is void, as in conflict with
a constitutional inhibition, the courts should pronounce it so.3
But —
Duty of Legislature. — The members of the legislature are,
equally with the judges, sworn to support the constitution ; if
not so uniformly learned in the law, many of them are; and it is
no more permissible for the one body to pass an unconstitutional
enactment, than for the other to enforce it. So that—
Legislative Decision. — The decision of the legislature on the
meaning and effect of the constitution, necessarily involved in
the making of a statute, should be respected by the courts when
afterward they are required to determine whether or not it is
constitutional. Practically, judges differ on this question; some
manifesting little or no regard for the opinions of the law-makers.
Greater numbers, with a higher respect for a co-ordinate branch
of the government, refuse to annul a statute as unconstitutional
until, after giving full weight to the legislative decision, they
discern distinctly and affirmatively that it is wrong. And such
is plainly, in reason, and overwhelmingly in weight of authority,
the true rule. Said a learned judge: ‘+ Instances are not lacking
to show, that the judiciary, in essaying to shield the constitution
against the presumed aggressions of the legislature, has itself
1 Ante, § 90. versity v. Williams, 9 Gill & J. 365, 384;-
2 Ante, § 12, 16, 33, 37. 1 Kent Com. 448; Bailey v. Philadelphia,
8 Fletcher v. Peck, 6 Cranch, 87; Uni- &c. Railroad, 4 Harring. Del. 389.
19
§ 92 INTERPRETATION. [Book IL.
become the greater aggressor.” And he added: “If there exist
upon the mind of the court a reasonable doubt, that doubt must
be given in favor of the law.” 1 Again, — ,
§ 91 a. Particular Provision. — No mere general considerations
will authorize a court to nullify a statute as unconstitutional.?
Therefore he who asks such judgment should point out the par-
ticular provision or clause violated.2 “It will not do,” said Wal-
lace, J. ‘to talk about the ‘spirit of the Constitution ’ as impos-
ing a limitation upon the legislative power.’’ +
§ 92. Interpreted similarly to Statutes. — Our constitutions,
being, like statutes, written instruments and laws,® are, in the
main, similarly interpreted.®
times recognized ;7 as, —
There are minor differences some-
. Less Technical. — Partaking more of the nature of popular
writings, it is not unfrequently observed that meanings less tech-
nical may be given to their words and phrases.® ;
1 Cotten v. Leon, 6 Fla. 610, 613,
opinion by Dupont, J.; Cheney v. Jones,
14 Fla. 587; Cutts v. Hardee, 38 Ga. 350;
People v. San Francisco, &c. Railroad, 35
Cal. 606; Lafayette v. Jenners, 10 Ind.
70; Gillespie v. The State, 9 Ind. 380;
The State v. Cooper, 5 Blackf. 258; Santo
v. The State, 2 Iowa, 165; Baltimore v.
The State, 15 Md. 376; : Tyler v. People,
8 Mich. 320; Rich v. Flanders, 39 N. H.
804; Boston v. Cummins, 16 Ga. 102;
Inkster v. Carver, 16 Mich. 484; Astor v.
New York, 62 N. Y. 567, 575; Kerrigan
v. Force, 68 N. Y. 381; Pennsylvania
Railroad v. Riblet, 16 Smith, Pa. 164;
Territory: v. Lee, 2 Mon. Ter. 124; Chi-
cago, &c. Railroad v. Smith, 62 Ill. 268;
Gutman v. Virginia Iron Co. 5 W. Va.
22; Osburn v. Staley, 5 W. Va. 85;
Smithee v. Garth, 83 Ark. 17; In re Clin-
ton Street, 2 Brews. 599; Coyne v.
Weaver, 84 N. Y. 386. In a California
case Sanderson, J. observed: “It is well
settled that every act deliberately passed
by the legislature must be regarded by
the courts as valid, unless it is clearly
and manifestly repugnant to some pro-
vision of the constitution.” People »v.
Sassovich, 29 Cal. 480, 482. Said Frazer,
J. in Indiana: “The courts should never
strike down wa statute, unless its conflict
with the constitution is clear. Then, too,
the judiciary ought to accord to the legis-
80
lature as much purity of purpose as it
would claim for itself; as honest a desire
to obey the constitution, and, also, a high
capacity to judge of its meaning. Hence,
its action is entitled to a respect which
should beget caution in attempting to set
it aside.” Brown v. Buzan, 24 Ind. 194,
197.
2 Ante, § 38-41.
® Davis v. The State, 3 Lea, 376, 378;
Stockton, &c. Railroad v. Stockton, 41
Cal. 147; Beyman v. Black, 47 Texas,
558; Brown v. Fifield, 4 Mich. 322.
4 Stockton, &c. Railroad v. Stockton,
supra, p. 162.
5 Ante, § 4, 11 a, 89.
6 People v. Potter, 47 N. Y. 375;
Springfield v. Edwards, 84 Ill. 626, 643;
People v. Fancher, 50 N. Y. 288, 291;
Daily v. Swope, 47 Missis. 367 ; Hess v.
Pegg, 7 Nev. 23; Leavenworth v. Miller,
7 Kan. 479; Walker v. Cincinnati, 21
Ohio State, ee Brown v. Fifield, 4 Mich.
322; People v. Wall, 88 Ill. 75; People v.
Gardner, 45 N. Y. 812.
7 Carroll v. The State, 58 Ala. 396.
See Wolcott v. Wigton, 7 Ind. 44.
8 Manly v. The State, 7 Md. 135;
Greencastle Township v. Black, 5 Ind.
557; The State v. Mace, 5 Md. 337;
People v. Fancher, supra; Cronise v
Cronise, 4 Smith, Pa. 255.
INTERPRETATION OF CONSTITUTIONS.
CHAP. XII.] § 924
State and United States, contrasted. — The Constitution of the
United States consists chiefly in a grant of enumerated powers ;
hence, in interpreting it, the courts presume the existence of no
power not expressly or impliedly conferred. On the other hand,
a State constitution proceeds on the idea that all legislative func-
tions are in the legislature; therefore, in its interpretation, the
powers not taken away by the United States Constitution are
presumed, except as expressly or by implication denied.! In rea-
son, these propositions require, at least, the limitation that, where
the power in controversy relates to international intercourse, to
jurisdiction on the high seas, or to any other thing beyond the
State territory, its existence among the functions of the United
States, and non-existence among those of the State, should be
the prima-facie presumption.
§ 92 a. Instances of same Rules as for Statutes. — Some in-
stances of interpreting a constitution by the same rules as a
statute are —
Retrospective. — Commonly a constitutional provision is not
applied to annul what a prior statute, valid when enacted, had
established, however contrary to its newly-ordained rule.2? Yet
often — doubtless more frequently than with statutes —a retro-
spective application will be required to carry out the evident
intention of the makers, or the obvious reason for a clause, and
then such application will be made.? And —
Intent of Makers — History, &c.— The rule that the intent of
the makers, as appearing on the face of the particular provision
and the entire instrument, illumined by pertinent historical facts
and surroundings‘ yet not by individual declarations, such as
the debates in the convention which framed it,° shall prevail
over the latent meanings of words and phrases, but not to the
1 People v. Flagg, 46 N. Y.401; Page ris, Pa. 357; Herman v. Phalen, 14 How.
v. Allen, 8 Smith, Pa. 338; Bushnell v.
Beloit, 10 Wis. 195; People v. Coleman,
4 Cal. 46; McMillen v. Lee, 6 Iowa, 391 ;
In re Clinton Street, 2 Brews. 599; La-
fayette, &c. Railroad v. Geiger, 34 Ind.
185; Leavenworth v. Miller, 7 Kan. 479 ;
Walker v. Cincinnati, 21 Ohio State, 14;
Cotten v. Leon, 6 Fla. 610, 619; Woods’s
Appeal, 25 Smith, Pa. 59.
2 Indiana v. Agricultural Soc. 4 Nor-
. 6
U.S. 79; League v. De Young, 11 How.
U. S. 185. And see Commonwealth v.
Collis, 10 Philad. 480; Doddridge v. Stout,
9 W. Va. 703.
3 In re Lee & Co.’s Bank, 21 N. Y. 9.
4 People v. Gies, 25 Mich. 83; People
v. Fancher, 50 N. Y. 288.
5 Beardstown v. Virginia, 76 Ill. 34;
Taylor v. Taylor, 10 Minn. 107.
81
§ 92¢ INTERPRETATION. [BOOK Il.
disregard of the true import of what is plain,! is applied to
constitutions the same as to statutes.?
§ 92 6. Requiring legislation or not.— As already seen,’ some
constitutional provisions bind only the legislative conscience until
statutes to carry them out are enacted, and others operate at once
as laws. The question depends on their terms and the sub-
ject. A plain instance is a declaration that ‘“‘the privilege of
the debtor to enjoy the necessary comforts of life shall be recog-
nized by wholesome laws:” the courts, that enforce laws, not
make them, cannot give effect to this provision without legisla-
tive aid. On the other hand, it is equally plain that no legisla-
tion is necessary to enable the Supreme Court of the United
States to take original jurisdiction of a suit between two States,
under the clause of the Constitution that the judicial power shall
extend “to controversies between two or more States.”® If
some other cases are less clear, still the principle which controls
these will determine how the result should be.®
§ 92 ¢, Other Doctrines, — applicable to the interpretation alike
of statutes and constitutions, — appear in the discussions in other
chapters. The foregoing are sufficient here, as explaining the
similarities and differences.
1 Hills v. Chicago, 60 Ill. 86; Spring-
field v. Edwards, 84 Ill. 626, 643.
2 People v. Potter, 47 N. Y. 375; The
State v. Parsons, 11 Vroom, 1; The State
v. Newark, 11 Vroom, 71, 550.
% Ante, § 11 a, note, 14.
4 Green v. Aker, 11 Ind. 223.
5 Const. U.S. art. 3, § 2; Kentucky v.
Ohio, 24 How. U. S. 66,
82
6 Jackson v. Collins, 16 B. Monr. 214;
The State v. Weston, 6 Neb. 16; Com-
monwealth v. Harding, 6 Norris, Pa, 343;
Ex parte The State, 52 Ala. 231; Com-
monwealth v. Collis, 10 Philad. 430; Dod-
dridge v. Stout, 9 W. Va. 703, 705. See,
as illustrative, ante, § 14; Gilbert v.
United States, 8 Wal. 858; Parish v.
United States, 8 Wal. 489.
CHAP. XIII.] MEANINGS OF LANGUAGE. § 93
CHAPTER XII.
THE MEANINGS OF THE LANGUAGE.
§ 92d. Flexibility of Language.— The possible forms of thought
are, like the Source whence the thinking mind proceeds, or the
Universe it is fashioned to mirror, infinite. If hitherto the
actual in thought has had its limit, the reason is simply that
the end of the progress of the mind through eternity is not
reached. Language is the offspring of the past, but its life is
in and for the ever opening and progressive future. Its princi-
paul mission is to convey, from one mind to another, the new
thoughts as they arise; for the old is continually dying, while
the new is being born. If each word had a single fixed and
unchanging meaning, and if there were simply certain established
collocations of words, each with its one signification, the powers
of language would be very limited, and it could never express a
new idea. It would be completely unadapted to human use.
As things are, it is one of the most marvellous of the mysteries
attendant on human life. ‘There is,” said a learned judge, “no
word in the English language which does not admit of various
interpretations.” 1 And no bound can be set to the ever varying
combinations of words, conveying both the old thoughts and the
new, — thoughts which the inventors of the words had, and those
which they had not. Thus wonderfully flexible is language!
Hence, —
§ 93. Statute as Words in Combination. — In interpreting a
statute, we do not contemplate it as a series of words, each with
its particular signification, but as words combined to convey
what they could not singly. While we do not shut our eyes to
the letter, we look most of all for the spirit—the effect of the
combination in the circumstances and connections wherein it was
made. “The letter killeth, but the spirit giveth life.”? Says
an old maxim, Qui heret in litera heret in cortice, if we adhere to
1 Pollock, C. B. in Reg. v. Skeen, Bell C. C. 97, 134.
2 2 Cor. iii. 6.
83
§ 93 INTERPRETATION. [Book Il.
the letter, we go only skin-deep into the meaning.! One minor
form of this doctrine is, that —
Intent gathered from Whole. — The intention of a statute, gath-
ered from the whole of it, will prevail over the strict sense of its
terms, when such construction will not work injustice or involve
an absurdity.2. And —
Reasonable. — ‘‘ All laws,” said Field, J., speaking for the Su
preme Court of the United States, “should receive a sensible
construction. General terms should be so limited in their appli-
cation as not to lead to injustice, oppression, or an absurd con-
sequence. It will always, therefore, be presumed that the
legislature intended exceptions to its language which would
avoid results of this character. The reason of the law in such
cases should prevail over its letter.’® Still, —
Meanings of Words. — The meanings of the words are not to be
lost sight of. They will vary with the subject, context, and
other circumstances ;* yet the legislature will be presumed to
have intended what it said, and to have understood the signifi-
cance of language.6 And such presumed intent will be carried
out in the construction unless another, in some legitimate way,
affirmatively appears.®
1 Broom Leg. Max. 2d ed. 534; Sco-
field’ v. Collins, 3 Cow. 89, 96; People v.
Utica Ins. Co. 15 Johns. 358; Minor v.
Mechanics’ Bank, 1 Pet. 46, 64; Bac.
Abr. Statute, I. 5,6; 1 Bl. Com. 61; The
State v. Savage, 32 Maine, 583; 1 Domat,
Cush. Ed. p. 84; Eyston v. Studd, 2
Plow. 459, 465, where it is said: “It is
not the words of the law, but the internal
sense of it, that makes the law; and our
law, like all others, consists of two parts,
namely, of body and soul. The letter of
the law is the body of the law, and the
sense and reason of the law is the soul of
the law; ... and it often happens that
when you know the letter you know not
the sense, for sometimes the sense is more
confined and contracted than the letter,
and sometimes it is more large and exten-
sive;” Dwar. Stat. 2d ed. 552; Holbrook
v. Holbrook, 1 Pick. 248, 254; Church v,
Crocker, 3 Mass. 17, 21; The State v.
Lane, 8 Ire. 256;. New Orleans, &c. Rail-
road v. Hemphill, 85 Missis. 17; Direct
U.S. Cable Co. ». Anglo-American Tel.
Co. 2 Ap, Cas: 304, 412; Murray v. New
84
York Central Railroad, 3 Abb. Ap. 839;
Bailey v. Commonwealth, 11 Bush, 688.
2 Ex parte Ellis, 11 Cal. 222; San
José v. San José, &c. Railroad, 58 Cal.
475.
3 United States v. Kirby, 7 Wal. 482,
486, 487 ; Matthews v. Caldwell, 2 Disney,
279; People v. Admire, 39 Ill. 251.
4 McIntyre v. Ingraham, 85 Missis. 25;
Simonds v. Powers, 28 Vt. 354; Smith v.
Randall, 6 Cal. 47; People v. Hoffman,
387 N. Y. 9; Whitney v. Whitney, 14
Mass. 88, 92; Holbrook v. Holbrook, 1
Pick. 248; Somerset v. Dighton, 12 Mass.
383; The State v. Judge of Ninth Judi-
cial District, 12 La. An. 777; Caledonian
Railway v. North British Railway, 6 Ap.
Cas. 114, 122. ;
5 Ante, § 72, 80; Woodbury v. Berry,
18 Ohio State, 456; Direct U. S. Cable
Co. v. Anglo-American Tel. Co. 2 Ap. Cas.
894, 412; Thurman ». The State, 18 Ala.
276; The Sam Slick, 2 Curt. C. C. 480.
6 Lane v. Schomp, 5:C. E. Green, 82;
Garrigus v. Parke, 39 Ind. 66.
CHAP. XII. ] MEANINGS OF LANGUAGE. § 95
§ 94. Unity of Meaning. —In a book not strictly of the legal
class we read: ‘*No sentence or form of words can have more
than one ‘true sense ;’ and this only one we have to inquire for.
This is the very basis of all interpretation. . . . Every man or
body of persons, making use of words, does so in ‘onder to convey
a certain meaning ; and to find this precise meaning is the object
of all interpretation. To have two meanings in view is equiva-
lent to having no meaning, and amounts to absurdity. .
The fictitious law case, composed by Pope and Fortescue, as hav-
ing ensued in consequence of Sir John Swale having bequeathed
to his friend Mr. Straggling * all my- black and white horses,’
when there were found six black horses, six white ones, and six.
that were black and white, or pied horses, is certainly entertain-
ing. Yet the question ought never to have arisen ‘ whether the
pied horses were included in the legacy,’ as was assumed by
those gentlemen. As there can be but one meaning attached to
any sentence, the testator could not have meant by his words all
black and all white horses, and, at the same time, all black and
white horses. The only difficulty arising from this will could be
this: whether the testator meant to bequeath to Mr. Straggling
all black .and all white horses, or all black and white horses.’’!
So, applying this doctrine to a statute, —
§ 95. Illustrations. — If the legislature should direct the officers
of a court in a particular emergency to sit or stand, the meaning
could not be, that a part might sit: while the rest stood; because
this ‘interpretation would give a duplicate sense to the simple
expression. Or if the provision was, that no fees be taken for
executing a mandamus or a capias, the meaning could not be to
forbid fees for one, to be elected, not for the other; since here
also, to work this result, a duplicate signification must be drawn
from one compact form of language. There can be no doubt of
the soundness of this doctrine when applied to such a writing as
a statute. And,— /
Further of Doctrine. — If one says that his time and money are
valuable, he cannot mean that his money is valuable in a serious
sense, and his time ironically so; though he may intend to be
understood either as serious or as ironical in the entire expres-
sion. Still there are writings, — as, for example, compositions
1 Lieber Legal and Political Herme- Layman, 8 Blackf. 330; Reg. v. Hamil-
neutics, p. 86-88.' And see The State v. ton, 1 Car. & K. 212.
85
§ 954 INTERPRETATION. [Book I.
in poetry or prose intended to instruct or amuse by way of sug-
gestion rather than exact delineation or precept, — the efficacy
of which consists in giving various and perhaps conflicting mean-
ings to a single sentence, or even a single word, where the reader
is to accept all the meanings, or as many of them as he has
capacity for, or to choose between them.
§ 95 a: Same Word in same Statute, &c. — In a sort of general
way it is sometimes worth considering, that, if a particular word
occurs repeatedly in a statute, or in different statutes on the same
subject, the meaning may, prima facie, be deemed identical in
all the places. This doctrine is occasionally expressed in even
stronger terms. The presumption is in no form held to be con-
clusive,? and the fact is sometimes very palpably otherwise.?
Even the same word in a single sentence creating an offence has
been adjudged to have different meanings in different parts of the
sentence. Of course, the rule is not applicable to statutes on
different subjects; the subjects will govern the meanings, and
they may be very different.© Vattel, writing of treaties, states
what is believed to be equally sound in statutory interpretation.
“Tf,” he says, ‘‘any one of those expressions which are sus-
ceptible of different significations occurs more than once in
the same piece, we cannot make it a rule to take it every where
in the same signification. For we must take such expression,
in each article, according as the subject requires, — pro substrata
materia, as the masters of the art say. The word day, for in-
stance, has two significations, If therefore it be said in a con-
vention, that there shall be a truce of fifty days, on condition
that commissioners from both parties shall, during eight succes-
sive days, jointly endeavor to adjust the dispute, — the fifty days
of the truce are civil days of twenty-four hours ; but it would be
absurd to understand them in the same sense in the second
1 Courtauld v. Legh, Law Rep. 4 Ex.
126, 180 ; James v. Dubois, 1 Harrison,
285; Commonwealth v. Morrison, 2 A.
K. Mar. 75, 82; Pitte v. Shipley, 46 Cal.
154. Subsequent on same Subject. —
Where, in a subsequent statute on the
same subject, the legislature uses differ-
ent language in the same connection, an
intended change of the law may be pre-
sumed. Lehman v. Robinson, 59 Ala.
219; Rich v. Keyser, 4 Smith, Pa. 86.
86
2 Texas v. White, 7 Wal. 700; Feagin
v. Comptroller, 42 Ala. 516, 522; Rupp
v. Swineford, 40 Wis. 28; Reg. v. Kent, 2
Q. B. 686, 692.
3 Angell v. Angell, 9 Q. B. 328, 356.
4 Reg. v. Allen, Law Rep. 1 C. C. 867,
871, 378.
5 Post, § 98a; East India Interest, 3
Bing. 193, 196; River Wear Commission-
ers v. Adamson, 2 Ap. Cas. 743, 763;
Jolliffe v. Rice, 6 C. B. 1, 9; Rupp »v.
'
CHAP. XIII. ] MEANINGS OF LANGUAGE. § 97
article, and to pretend that the commissioners should labor eight
days and nights without intermission.” !
§ 96. Legal Meaning. — A statute being a law,? words in it
which have acquired a particular legal meaning are, in the ab-
sence of circumstances otherwise controlling them,’ given this
meaning in the interpretation Frequent illustrations of this
doctrine occur in cases of —
§ 97. Re-enacted Statutes, Phrases, and Words. — If, therefore,
a statute employs terms or modes of expression which had
acquired a definite signification in previous enactments on the
same or some analogous subject, the established interpretation
will, in the absence of any special indication to the contrary,
prevail. And it is the same where an entire statute, having
received a judicial interpretation, expires or is repealed, and is
afterward re-enacted in the same language: here the legislature,
being presumed to know the prior law,® is presumed to have
adopted the meaning already given it by the courts.’ But, —
Adopted from other State or Country.— Where the adopted pro-
vision is, with its construction, foreign, one of the elements of
the problem is different. The courts do not know the laws of
other States and countries except when proved to them ;&
neither, a fortiori, does the legislature. Yet they know the laws
of Engiand prior to the settlement of this country, and perhaps
to some extent the later ones ; and under statutes those of sister
Swineford, supra; Feagin v. Comptroller,
supra; Caldwell’s Case, 19 Wal. 264;
Jones v. Dexter, 8 Fla. 276.
1 Vattel Law of Nations, b. 2, c. 17,
§ 281.
2 Ante, § 7, lla.
3 Post, § 204.
4 Apple v. Apple, 1 Head, 348; Ste-
phenson v. Higginson, 3 H. L. Cas. 638;
The State v. Mace, 5 Md. 837; Mer-
chants’ Bank v. Cook, 4 Pick. 405; Adams
v. Turrentine, 8 Ire. 147; United States
v. Magill, 1 Wash. C. C. 463; Ex parte
Vincent, 26 Ala. 145; post, § 242.
5 The Abbotsford, 98 U. S. 440;
United States v. Gilmore, 8 Wal. 330;
Williams v. Lear, Law Rep. 7 Q. B. 285;
Whitcomb v. Rood, 20 Vt. 49; United
States x. Wilson, Bald. 78, 95; Sheppard
v. Gosnold, Vaugh. 159; McKee v. Mc-
Kee, 17 Md. 852; Ruckmaboye v. Mot-
tichund, 8 Moore P. C. 4, 32 Eng. L. &
Eq. 84; County Seat of Linn, 15 Kan.
500; The State v. Brewer, 22 La. An. 273;
Woolsey v. Cade, 54 Ala. 378.
6 Ante, § 74, 75.
7 Myrick v. Hasey, 27 Maine, 9; Ruck-
maboye v. Mottichund, supra; Mansell
v. Reg. 8 Ellis & B. 54, 73; Bank of
Mobile v. Meagher, 83 Ala. 622; La
Selle v. Whitfield, 12 La. An. 81; Ex
parte Matthews, 52 Ala. 51; Tuxbury’s
Appeal, 67 Maine, 267; O’Byrnes v. The
State, 51 Ala. 25; Cota v. Ross, 66 Maine,
161. Said Woodbury, J. in the Supreme
Court of the United States: “ With the
knowledge of our construction, like words
being again repeated by Congress, it may
be considered that a like construction
was intended, and was expected to be
given to those words.” Mason v. Fear-
son, 9 How. U. S. 248, 288.
8 1 Bishop Mar. & Div. § 413, 415,
418.
87
§ 98
INTERPRETATION.
[BOOK II.
States are generally provable by simple methods.!. When, there-
fore, a statutory provision is adopted from another State or coun-
try, the following of the foreign construction may, in reason, be
presumably intended in some circumstances, not so absolutely in
others.
In the adjudications on this question, no nice distine-
tions have been drawn; but, in a general way, it is held that a
word, phrase, or statutory provision, adopted from the laws of an-
other State,? or from England,’ or even from the civil law,’ will
ordinarily receive the construction it had in the law whence it was
taken.>
Yet it is deemed also that the foreign exposition is not
conclusive,® or in so high a degree controlling as the domestic.’
Thus, for example, a prior interpretation from another State will
not be followed when antagonistic to,’ or further than harmonious
with,® our own laws and judicial usages.
In like manner, —
Constitution. — In pursuance of the presumed intent of the
makers, a constitutional provision, adopted ftom another State
after it had been judicially interpreted, will, in the absence
-of any contrary indication, retain the meaning thus previously
ascertained.
§ 98. Revisions and Codifications. — Where statutes are “ re-
vised,” as is common in our States, to render them more con-
venient and plain, the Revision
is to receive the interpretation
which had been given to the old laws, except where the contrary
intention affirmatively appears.
1 Th. § 414-417, 422, 423-425.
® Rigg v. Wilton, 13 Ill. 15; The State
v. Rowley, 12 Conn. 101; McKenzie »v.
The State, 6 Eng. 594; Cambell v. Quin-
lin, 3 Scam. 288; Draper v. Emerson, 22
Wis. 147; Drennan v People, 10 Mich.
169; Bemis v. Becker, 1 Kan. 226; The
State v. Swope, 7 Ind. 91; The State »v.
Macon County Court, 41 Misso. 453;
Westcott v. Miller, 42 Wis. 454; Kilkelly
v. The State, 43 Wis. 604.
3 McCartee v. Orphan Asylum Soci-
ety, 9 Cow. 487; Kennedy v. Kennedy,
2 Ala. 571; McKenzie v. The State, 6
Eng. 594; Commonwealth v. Hartnett, 3
Gray, 450; Pennock v. Dialogue, 2 Pet.
1; Tyler v. Tyler, 19 Ill. 151; Adams v.
Field, 21 Vt. 256; Marqueze v. Caldwell,
48 Missis. 23; McCool v. Smith, 1 Black,
459.
4 United States v. Jones, 3 Wash. C. C.
209, 216.
88
One of the objects having been
5 Fisher v. Deering, 60 Ill. 114; Clark
v. Jeffersonville, &c. Railroad, 44 Ind. 248;
Fall v. Hazelrigg, 45 Ind. 576; Pangborn
v. Westlake, 36 Iowa, 546; Harrison v.
Sager, 27 Mich. 476; Greiner v. Klein, 28
Mich. 12, 22; Daniels v. Clegg, 28 Mich.
82; Pocrtner v. Russel, 33 Wis. 193;
Hobbs v. Memphis, &c. Railroad, 9 Heisk.
873; Anderson v. May, 10 Heisk. 84.
6 Snoddy v. Cage, 5 Texas, 106.
7 Rigg v. Wilton, 13 Il]. 15; Ingraham
v. Regan, 23 Missis. 213.
8 Cole v. People, 84 Ill. 216.
® Jamison v. Burton, 43 Iowa, 282;
Freese v. Tripp, 70 Ill. 496; Gage v.
Smith, 79 Il. 219,
10 People v. Coleman, 4 Cal. 46; Attor-
ney-General v. Brunst, 3 Wis. 787; Hess
v, Pegg, 7 Nev. 23; Leavenworth v. Mil-
ler, 7 Kan. 479; Walker v. Cincinnati, 21
Ohio State, 14; Daily v. Swope, 47 Missis.
367,
CHAP. xu. ] MEANINGS OF LANGUAGE.
§ 99
to improve and make uniform the phraseology, slight changes of
language will not work changes of meaning.’ Still, where the
language in its new forms is distinct, it will be given its due effect.
The old, which it supersedes, cannot vary it; though, in a doubt-
ful case, it may help in opening its import.2. So likewise a pas-
sage in the revision will alter the law if otherwise it would be
inoperative.2 And where for any other reason this consequence
was plainly meant, the courts will depart from the old inter-
pretation.*
§ 98 a. The Subject.—In the course of the foregoing illus-
trations, the leading rule whence chiefly proceed the results is
stated; namely, that the meanings will vary with the subject.
This is a canon also in the interpretation of contracts: the sub-
ject of which they speak must be taken into the account.® It
applies likewise to treaties,‘ and to all other forms of written and
spoken language. Those who in any way use words mean one
thing or another according to the subject in contemplation.
Now, —
§ 99. Technical, but not Legal.
1 Hughes v. Farrar, 45 Maine, 72 ;
Parramore v. Taylor, 11 Grat. 220, 242;
Duramus v. Harrison, 26 Ala. 326;
Mooers v. Bunker, 9 Fost. N. H. 420;
Conger v. Barker, 11 Ohio State, 1; Peo-
ple rv. Deming, 1 Hilton, 271; Overfield
v. Sutton, 1 Met. Ky. 621; Allen x. Ram-
sey, 1 Met. Ky. 635; Theriat v. Hart, 2
Hill, N. Y. 380; In re Brown, 21 Wend.
316; Lee v. Forman, 3 Met. Ky. 114;
Anthony vr. The State, 29 Ala. 27: Glass
t. The State, 30 Ala. 529, 531; Fosdick
v. Perrysburg, 14 Ohio State, 472; Cros-
well v. Crane, 7 Barb. 191; Dominick r.
Michael, 4 Sandf. 374; Smith v. Smith,
19 Wis. 522; Douglas v. Douglas, 5 Hun,
140.
2 Ante, § 82; United States v. Bowen,
100 U. S. 508; Coffin v. Rich, 45 Maine,
507.
® Burnham vr. Stevens, 33 N. H. 247.
And see The Magellan Pirates, 18 Jur.
18, 25 Eng. L. & Eq. 595.
4 Rich v. Keyser, 4 Smith, Pa. 86;
Douglas v. Douglas, 5 Hun, 140; Lehman
v. Robinson, 59 Ala. 219; The State «.
Clark, 57 Misso. 25. Particular Re-
— Looking to the subject for the
visions. — For decisions on particular re-
visions and codes and their construction,
see United States v. Bowen, 100 U.S.
508; In re Oregon Bulletin Printing, &.
Co. 14 Bankr. Reg. 405, 8 Saw. 614; Ex
parte Ray, 45 Ala. 15; O’Neal v. Robin-
son, 45 Ala. 526; Barker v. Bell, 46 Ala.
216; Mobile, &c. Railroad v. Malone, 46
Ala. 391; Vinsant v. Knox, 27 Ark. 266;
Whitehead v. Wells, 29 Ark. 99; Battle v.
Shivers, 39 Ga. 405; Inman v. The State,
54 Ga. 219; Ballin v. Ferst, 55 Ga. 546;
Gray v. Mount, 45 Iowa, 591; Burgess
v. Memphis, &c. Railroad, 18 Kan. 53;
Broaddus v. Broaddus, 10 Bush, 299;
Sellers v. Commonwealth, 13 Bush, 331;
The State v. Popp, 45 Md. 452; St. Louis
v. Foster, 52 Misso. 513; Middleton v. New
Jersey West Line Railroad, 11 C. E.
Green, 269; Scheftels vr. Tabert, 46 Wis.
439. And see post, § 160, note.
5 Ante, § 93, 95a; Rex v. Hall, 1 B.
& C. 123, 186; The Lion, Law Rep. 2
P. C. 525, 530.
6 Bishop Con. § 586.
“ Vattel Law of Nations, b. 2, c. 17,
§ 280, 295.
89
§ 100 [BOOK IL.
INTERPRETATION.
meaning,! if a statute employs a word which, though not legal, is
technical to its subject, we give-it the technical sense, — not the
general sense, not one technical to another subject, — unless
something appears indicating a different intent of the legislature.?
Thus, —
Commercial Meaning — Revenue Laws, &c. — An act relating to
commerce is interpreted by the vocabulary of merchants, not of
mechanics. And words in revenue laws are construed accord-
ing to the usages of trade ;* as, if ‘ bohea tea” is mentioned, it
means the article known in trade as such, not in science ;° and
“loaf sugar” in these laws signifies sugar in loaves, not crushed
sugar; such being the use of the words in trade and commerce.
But —
§ 100. Exceptions. — The technical sense will not be applied
to defeat the purpose of a statute, or violate its obvious signifi-
cation. Thus, —
Credit to Student.— A statute in Connecticut forbade the giv-
ing of credit, except on certain conditions, to ‘any student of
Yale College, being a minor.” And the word “student” was
held to include’ one not matriculated, or admitted to regular
membership ; matriculation taking place only after a residence
of six months, and evidence of unblemished moral character.’
Whether this had occurred in a particular instance could not
ordinarily be known to persons asked for credit; making it plain
that the popular meaning, which takes cognizance simply of the
apparent relation of the student to the college, was intended.
Moreover, this statute was penal; yet —
In Penal Statute. —It has been deemed that, where technical
1 Ante, § 98 a.
2 The State v. Smith, 5 Humph. 394;
159. ‘* Tenpins”? — And sce, as to the
word “tenpins,” The State v. Gupton, 8
Burton v. Reevell, 16 M. & W. 307, 309.
And see Caldwell’s Case, 19 Wal. 264.
8 United States v. Sarchet, Gilpin, 273.
4 Elliott v. Swartwout, 20 Pet. 187,
151; Lee v. Lincoln, 1 Story, 610; United
States v. One Hundred and Twelve Casks
of Sugar, 8 Pet. 277; Bacon v. Bancroft,
1 Story, 841; Lawrence v. Allen, 7 How.
U.S. 785; Curtis v. Martin, 8 How. U.S.
106.
6 Two Hundred Chests of Tea, 9
Wheat. 430.
6 United States v. Breed, 1 Sumner,
90
‘Ire. 271.
7 Morse v. The State, 6 Conn. 9. See
also United States v. Gooding, 12 Wheat.
460, 467; United States v. Twenty-Four
Coils of Cordage, Bald. 602, 505; Jesson
v. Wright, 2 Bligh, 1, 57; Winter v. Per-
ratt, 6 Man. & G. 314, 379; Common-
wealth v. Buzzell, 16 Pick. 153, 161;
Waring v. Clarke, 5 How. U. 8. 441;
post, § 2424. ‘ Purporting.’ — As to
the word “ purporting,” see The State v.
Harris, 5 Ire. 287; The State v. Page, 19
Misso. 213.
CHAP. XIII. ] MEANINGS OF LANGUAGE. § 102
words are sought to be expanded into the larger popular signifi-
cation in a penal statute, such intent of the legislature must
plainly appear.!
§ 101. Not Technical — Popular Meanings.— The language of our’
statutes is, in the greater part, not technical in either sense above
explained, but popular; to be understood, therefore, in its com-
mon, popular meanings.” In the absence of any other legislative
purpose appearing,’ it should be read as written,‘ and all its
words should be contemplated together with reference to the
connection in which they stand, and the subject to which they
telate.6 Yet, —
Local Meaning.— As a general statute speaks the language of
the entire people, it cannot have a local meaning, or vary in par-
ticular places with the special usages there prevailing.
§ 102. Larger or Restricted Meanings. —— Within the differing
limits recognized by common usage, the words of statutes may be
extended or contracted in their meanings, like those of any other
writings, according as the various expanding and compressing
forces of the particular rules of interpretation applicable to the
individual instance, and its special reasons and circumstances,
indicate. Thus, — :
Language general, Reason special. — Kent mentions, that, “ when
the expression in a statute is special or particular, but the reason
is general, the expression should be deemed general.”’? On the
other hand, —
“au.” — The word “all” is often restrained in meaning by its
context, or by the general object of the provision.® And—
1 Stephenson v. Higginson, 3 H. L.
Cas. 638, 18 Eng. L. & Eq. 50.
2 Dwar. Stat. 2d ed. 573; The State v.
Blythe, 3 McCord, 363; Macy v. Ray-
mond, 9 Pick. 285; Allen v. Harford In-
surance Co. 2 Md. 111; Rex rv. Wool-
dridge, 1 Leach, 4th ed. 307; Barker o.
The State, 12 Texas, 273; The State v.
Clarksville and R. T. P. Co. 2 Sneed, 88;
Favers v. Glass, 22 Ala. 621; Gross ~.
Fowler, 21 Cal. 392; Green vr. Weller, 32
Missis. 650; Quigley v. Gorham, 5 Cal.
418; Wetumpka v. Winter, 29 Ala. 651;
Schriefer rv. Wood, 5 Blatch. 215; Phila-
delphia and Erie Railroad v. Catawissa
Railroad, 3 Smith, Pa. 20; Enckeling v.
Von Wamel, 26 Texas, 469; McGregor
v. The State, 4 Texas Ap. 599; Philpott
v. St. George’s Hospital, 6 H. L. Cas.
338.
3 Ante, § 70, 82.
* Ante, § 80.
5 Ex parte Hall, 1 Pick. 261; Opinion
of the Justices, 7 Mass. 523.
6 Rex rv. Hogg, 1 T. R. 721, 728. See
post, § 104.
71 Kent Com. 462, referring to Be-
awfage’s Case, 10 Co. 99d, 101 4.. See
also Williams v. McDonal, 4 Chand. 65.
8 Phillips v. The State, 15 Ga. 518;
People v. Gies, 25 Mich. 83; Dano v.
M. O. and R. R. Railroad, 27 Ark.
564.
91
§ 103 INTERPRETATION. [Book IL.
“ Property.” — The word “ property ” may extend to real estate,
the same as to personal.) Yet in various connections it does
not2 But— ;
Common Meaning. — Ordinarily the language is to be understood
in its common signification ; as, for instance, general terms are to
_Teceive their general, not restricted, sense.?
§ 108. Including or excluding State.— A government, making
laws for its subjects, will not be presumed to be binding itself by
them, unless this intent affirmatively appears. Therefore, in
England, while an act of Parliament may by express words or
even by distinct implication include the Crown, general terms in
it, such as bind the subject, will not alone have this effect;
except in special cases, wherein the reason and policy of the law
extend equally to both. Such is believed to be the exact Eng-
lish rule, yet it is not in every particular quite palpable on the
mere face of the adjudications.t So, with us, the State is not
bound by general statutory provisions whereby any of its preroga-
tives, rights, titles, or interests would be impaired, unless by
express words.’ For example, — :
Discharge in Bankruptey.— A discharge in bankruptcy under
a statute which authorizes the government to prove its demands
against the bankrupt, and declares the discharge to be a release
“from all debts, claims, liabilities and demands which were or
might have been proved,” and ‘‘a full and complete bar to all
suits brought on any such debts, claims, liabilities, or demands,”
is of no avail against a suit by the government.®
1 DeWitt v. San Francisco, 2 Cal. 289;
2 Bishop Mar. Women, § 75.
2 People v. New York, &c. Railway,
84 N. Y. 565. And see 2 Bishop Mar.
Women, § 75-77; Palfrey v. Boston, 101
Mass. 829.
3 Jones v. Jones, 18 Maine, 808. And
see Alexander ». Worthington, 5 Md. 471;
Bartlett v. Morris, 9 Port. 266..
4 Attorney-General v. Donaldson, 10
M. & W. 117, 128, 124; Ex parte Exeter,
10 C. B. 102; Willion v. Berkley, 1 Plow.
223, 235-238, 240, 248; Magdalen College
Case, 11 Co. 66 6, 73 a, 74, 75a; Case
of Non Obstante, 12 Co.’18; Case of
Fine, 7 Co. 82a; Reg. v. Tuchin, 2 Ld.
Raym. 1061; Crooke’s Case, 1 Show. 208;
Rex v. Wright, 1 A. & E. 434, 437, 447;
De Bode v. Reg. 18 Q. B. 364, 878; Moore
92
Again, —
v. Smith, 5 Jur. n. s. 892; Mersey Docks,
vy. Cameron, 11 Il. L. Cas. 443; Reg. v.
York, 14 Q. B. 81; Reg. v. St. Martins,
Law Rep. 2 Q. B. 493; Reg. 7. McCann,
Law Rep. 3 Q. B. 141, 677; Greig v. Uni-
versity of Edinburgh, Law Rep. 1 H. L.
Se. 348, 850; Rex v. Cook, 3 T. R. 519,
521; Commonwealth v. Boston and Maine
Railroad, 3 Cush. 25; United States v.
Weise, 2 Wal. Jr. 72; Public Schools «.
Trenton, 3 Stew. Ch. 667, 683.
5 The State v. Kinne, 41 N. H. 238;
Bennett v. McWhorter, 2 W. Va. 441;
Cole v. White, 32 Ark. 45; Gilman ec.
Sheboygan, 2 Black, 510; Alexander v.
The State, 56 Ga. 478.
5 United States x. Herron, 20 Wal. 251;
8. P. Public Schools v. Trenton, 3 Stew.
Ch. 667, 685, referring to Anonymous,
CHAP. xu. ] MEANINGS OF LANGUAGE.
§ 104
Statutes of Limitations — do not run against the State or United
States, unless by express words.! And —
Presumption of Payment. — Lapse of time does not create the
presumption of the payment of a debt due to the government.?
On the other hand, —
Government bound. — Statutes establishing general rules of pro-
cedure in civil actions,? or providing for the promotion of learn-
ing, the advancement of religion, and the support of the poor,*
bind the State though not named.
Suing State.— A State cannot be sued in its own courts except
by its consent.® Statutes giving consent, being in derogation of
a sovereign right, are to be strictly construed§ And,—
Limitations. — In a suit of this sort, the State may plead the
statute of limitations.’
§ 103 a. Municipal Corporations.— The reasons of the rule of
construction, that statutes in general words do not bind the State,
would seem not in general to extend it to municipal corporations.
And commonly with us it is not so extended;*® but in some
States it is.2 There are various considerations connected with
different aspects of this question, not best to be entered into here.”
§ 104.. Contemporaneous Interpretation. — An interpretation
given by the sages of the law, when a statute was passed, or
soon after, is much regarded by the courts... They are specially
1 Atk. 262; United States v. Wilson, 8
Wheat. 253 ; Glenn v. Humphreys, 4 Wash.
C. C. 424; People v. Rossiter, 4 Cow. 143.
1 Lambert v. Taylor, 4 B. & C. 138,
152; Lindsey v. Miller, 6 Pet. 666, 673;
People v. Gilbert, 18 Johns. 227; The
State v. Kinne, 41 N. H. 238; The State
v. Garland, 7 Ire. 48; United States v.
Williams, 5 McLean, 133; The State v.
Fleming, 19 Misso. 607; Brinsfield v.
Carter, 2 Kelly, 148; McKeehan v. Com-
monwealth, 3 Barr, 151; United States
v. Davis, 8 McLean, 483; United States
v. Hoar, 2 Mason, 311; Ware v. Greene,
37 Ala. 494; Walls v. McGee, 4 Harring.
Del. 108; United States v. White, 2 Hill,
N. Y. 59; post, § 142, note.
2 United States «. Williams, 5 McLean,
183. Laches of Agent.— The rights of
a State are not lost by the laches of its
agents. Haehnlen v. Commonwealth, 1
Harris, Pa. 617.
3 Green v. United States, 9 Wal. 655.
4 Gladney v. Deavars, 11Ga.79. And
see Commonwealth v. Boston, &c. Rail-
road, 3 Cush. 28.
5 Troy, &c. Railroad v. Commonwealth,
127 Mass. 43.
§ Rose v. The Governor, 24 Texas, 496.
But see The State v. Curran, 7 Eng. 321.
As to Nebraska, see The State v. Stout, 7
Neb. 89.
7 Baxter v. The State, 10 Wis. 454.
8 Wheeling v. Campbell, 12 W. Va.
36; Cincinnati v. First Presbyterian
Church, 8 Ohio, 298; Lane zv. Kennedy,
13 Ohio State, 42; Cincinnati v. Evans, 5
Ohio State, 494; St. Charles v. Powell,
22 Misso. 525. ,
® Cole v. White, 32 Ark. 45.
10 And see Kellogg v. Decatur, 38 Iowa,
524; Brown v. Painter, 44 Iowa, 568.
11 Sedgw. Stat. Law, 251; Reg. v. Cut-
bush, Law Rep. 2 Q. B. 379; Fall v.
Hazelrigg, 45 Ind. 576. But compare
with ante, § 74-77.
93
§ 104 INTERPRETATION. [BooK I.
inclined to follow it where rights of property have been acquired
in reliance thereon.1 Even, under limitations explained in pre-
vious discussions,” a contemporaneous exposition by the legisla-
ture has weight, and it is sometimes high evidence of the sense
intended. Nothing of the sort just recited has, like a decision
from the highest court authorized to construe the statute, the
force which is technically termed authority.* Again, —
Extrajudicial Usage.-— The usage of the departments and officers
of the government under a statute within their special cognizance,
-especially when long, and uniformly acquiesced in, has almost
controlling force with the courts. So, — ;
Judicial Usage — (Constitutionality of Statute). — In the absence
of express adjudication, the usage of the courts will have weight.®
For “though,” said Lord Kenyon, C. J., ‘‘ where the words of an
act of Parliament are plain, it cannot be repealed by non-user,
yet, where there has been a series of practice, without any excep-
tion, it goes a great way-to explain them where there is any
ambiguity.”"? Therefore, also, if for a long time a statute has
been acted on by the courts, a strong presumption of its consti-
1 In re Warfield, 22 Cal. 51. Where
an old statute has received an early prac-
Wis. 663; Hahn v. United States, 14 Ct.
of Cl. 305; Swift Courtney, &c. Co. »v.
tical construction, which, if the question
were res integra, it might be difficult to
maintain, it will be adhered to, particu-
larly when great mischief would follow a
contrary interpretation. Rogers v. Good-
win, 2 Mass. 475; Packard v. Richardson,
17 Mass. 122, 144; Opinion of the Jus-
tices, 3 Pick. 517. If the true construc-
tion is doubtful, one long acted upon by
the inferior courts will be regarded by
the superior. Plummer v. Plummer, 37
Missis. 185. But where it is not doubtful,
it cannot be aided in this way. Bailey v.
Rolfe, 16 N. H. 247.
2 Ante, § 75-77.
8 Philadelphia and Erie Railroad v.
Catawissa Railroad, 8 Smith, Pa.20. See
United States v. Gilmore, 8 Wal. 330;
Byrd v. The State, 57 Missis. 243; United
States v. Freeman, 3 How. U. S. 556.
4 Aikin v. Western Railroad, 20 N. Y.
370; Dunbar v. Roxburghe, 3 Cl. & F.
335; ante, § 76.
5 Ante, § 35, note; United States v.
Gilmore, supra; Scanlan v. Childs, 33
94
United States, 14 Ct. of Cl. 481; Union
Ins. Co. v. Hoge, 21 How. U.S. 35; United
States v. Lytle, 5 McLean, 9; Chesnut v.
Shane, 16 Ohio, 599, 607. And see The
State v. Severance, 49 Misso. 401.
8 McKeen v. Delancy, 5 Cranch, 22;
Morrison v. Barksdale, Harper, 101;
Rogers v. Goodwin, 2 Mass. 475; Pack-
ard v. Richardson, 17 Mass. 122, 144; At-
torney-General v. Bank of Cape Fear, 5
Ire. Eq. 71; Bailey v. Rolfe, 16 N. H. 247;
Kernion v. Hills, 1 La. An. 419; Plum-
mer v. Plummer, 37 Missis. 185; Wetmore
v. The State, 55 Ala. 198.
7 Leigh v. Kent, 3 T. R. 862, 864; see
ante, §91. Proving Professional Usage.
— One is not entitled to examine, before
the judge, lawyers to prove what has
been the professional usage under a stat-
ute. “The judge might, had he chosen,”
said Carpenter, J., “have called to his
aid the wisdom and experience of emi-
nent counsel, but he was not bound to do
it, and his refusal to do so is not errone-
ous.” Gaylor’s Appeal, 43 Conn. 82, 84.
CHAP. XIII] MEANINGS OF LANGUAGE. § l0ia
tutionality arises,!— not conclusive, for still they may adjudge it
void.?
Expounding'by Usage. — Though the words in a general statute
cannot have a local meaning,’ they may, when doubtful, be
expounded with reference to a general usage; and words in a
statute applicable to a particular place only, may be construed by
the usage there.*
§ 104 a. Stare Decisis. — The doctrine of stare decisis prevails
in the interpretation of statutes® as in the other departments of
the law.6 A single decision should be followed unless clearly
wrong. And a series of decisions not just in themselves may
bind where one would not.’ The courts will be particularly dis-
inclined to reverse a construction which has established a rule of
property, thus endangering vested rights. And a practice which
has grown out of the construction of a statute will be somewhat
tenaciously adhered to. But, where no reasons like those which
control these cases interpose, former adjudications will be more
readily overruled.
1 The State v. Bosworth, 13 Vt. 402.
2 Baltimore v. The State, 15 Md. 376.
8 Ante, § 101.
4 Love v. Hinckley, 1 Abb. Adm. 436.
See Delaplane v. Crenshaw, 15 Grat. 457.
5 Reg. v. Chantrell, Law Rep. 10 Q. B.
587, 589, 590; Kentucky v. Ohio, 24 How.
U. S. 66, 98; The State v. Thompson, 10
La. An. 122; New Orleans v. Poutz, 14
La. An. 853; Waldo v. Bell, 13 La. An.
329. «
6 Crim. Law, I. § 93-98.
7 Commonwealth v. Miller, 5 Dana,
320; Reg. v. Chantrell, supra; People v.
Albertson, 55 N. Y. 50, 64. And see Van
Loon v. Lyon, 4 Daly; 149; Kentucky v.
Ohio, 24 How. U. S. 66.
8 In re Warfield, 22 Cal. 51; Day v.
Munson, 14 Ohio State, 488; Aicard v.
Daly, 7 La. An. 612; Farmer v. Fletcher,
11 La. An. 142.
9 Succession of Lauve, 6 La. An. 529.
And see Wolf v. Lowry, 10 La. An. 272.
10 Crim. Law, ut sup. And see Green-
castle Southern Turnpike, 28 Ind. 382;
Miller v. Marigny, 10 La. An. 338.
95
INTERPRETATION.
§ 105 [BOOK IL.
CHAPTER XIV.
THE, COMPUTATION OF TIME IN STATUTES.
§ 104 6. Compared with other Writings. — As ‘in other respects,}
so in the computation of time, statutes and other writings are
expounded by similar rules. The universal rule, requiring all
utterances, whether written or oral, to be interpreted by the sub-
ject which the speaker was contemplating,” produces some appar-
ent differences, and not impossibly there may be others more
nearly real. But in.the main, and in essence, time is computed
alike in the several departments of the law.
§ 105. Month.— A calendar month is reckoned by the calen-
dar, and differs in the number of days according to the particular
month in question. A lunar month in the law is, not the scien-
tific, but the popular one, of twenty-eight days;* the fractions of
a day not being taken into the account.6 In a statute, the word
“month” will be interpreted either as the one or the other, ac-
cording to the circumstances, or the opinions of the particular
tribunal. In the old English law, established when the calendar
was not as well settled as now, and computations by lunar months
were not unknown in actual affairs,® it became established that
ordinarily, and prima facie, the word “month” in a statute sig-
nified the lunar one of twenty-eight days.7? And this rule re-
mained unchanged’ down to 1850, when for future cases it was
1 Ante, § 4.
2 Ante, § 98 a.
8 Bishop Con. § 748.
4 Tb.; Co. Lit. 185; Peterborough v.
Catesby, Cro. Jac. 166; Barksdale »v.
Morgan, 4 Mod. 185, 186; Tomlins Law
Dict. tit. Month; Chit. Con. 780; Bouy.
Law Dict. tit. Month.
5 Ante, § 29, 80; post, § 108.
® As to which, see Jocelyn v. Hawkins,
96
1 Stra. 446; Titus vo. Preston, 1 Stra.
652. °
7 Such was the general rule in the
common law, but the ecclesiastical month
was reckoned by the calendar. Tullet v.
Linfield, 3 Bur. 1455. And see Simpson
v. Margitson, 11 Q. B. 23; Hart v. Mid-
dleton, 2 Car. & K. 9; Hipwell v. Knight,
1 Y. & Col. Ex. 401; Turner v. Barlow,
3 Fost & F. 946.
8 Lacon v. Hooper, infra.
CHAP. XIV. ] COMPUTATION OF TIME. § 105
provided that “in all acts” this word should “ mean calendar
month unless words be added showing lunar month to be in-
tended.” Even before this statute, “a twelve month”! meant
twelve calendar months, and the term “six months ” was some-
times — always in ecclesiastical affairs — construed to signify a
half year.2 “I confess,” said Lord Kenyon, C. J. in 1795, “I
wish that, when the rule was first established, it had been decided
that ‘ months’ should be understood to mean calendar and not
lunar months; but the contrary has been determined so long and
so frequently that it ought not again to be brought in question.
In the instance, indeed, of a quare impedit, the computation of
time is by calendar months, but that depends on the words of an
act of Parliament, tempus semestre. But for all other purposes,
and in’all‘acts of Parliament where ‘ months’ are spoken of with-
out the word ‘ calendar,’ and nothing is added from which a clear
inference can be drawn that the legislature intended calendar
months, it is understood to mean lunar months.”’? Some of the
American courts have adopted this rule of the English common
law,! but always with the inclination to depart from it and hold
the month to be calendar whenever special circumstances would
permit.’ Largely, in our States, statutes, like the modern Eng-
1 “Twelve months” signified twelve
lunar months severally of twenty-eight
days. Dormer v. Smith, Cro. Eliz.
835.
2 Catesby’s Case, 6 Co. 61; s. c. nom.
Peterborough v. Catesby, Cro. Jac. 166;
Reg. «. Chawton, 1 Q. B. 247; Sharp v.
Hubbard, 2 Mod. 58; Barksdale v. Mor-
gan, 4 Mod. 185, 186; Burton v. Wood-
ward, 4 Mod. 95; Woodward v. Hamers-
ly, Skin. 313. And see In re Swinford,
6M. &S. 226.
3 Lacon v. Hooper, 6 T. R. 224, 226.
And see Ryalls v. Reg. 13 Jur. 259, 18
Law J. n.s. M. C. 69.
* Stackhouse v. Halsey, 3 Johns. Ch.
74; The State v. Jacobs, 2 Harring. Del.
548; Rives v. Guthrie, 1 Jones, N. C. 84;
Loring v. Halling, 15 Johns. 119; Red-
mond wv. Glover, Dudley, Ga. 107.
5 In Parsons v. Chamberlin, 4 Wend.
512, the words “six months,” employed
in a statute, were under the particular
circumstances held to be calendar months.
And Savage, C. J. observed: “The gen-
7
eral rule as to the computation of time
is, that, when months are mentioned in
a statute, lunar months are intended.
Loring v. Halling, 15 Johns. 119, 120.
It was there held that the six months
mentioned in relation to the foreclosure
of mortgages are lunar months; but
months in relation to promissory notes
or bills of exchange are calendar and
not lunar.” p. 518. And see Vanderwall
v. Commonwealth, 2 Va. Cas. 275. The
term “month,” in bills and notes, uni-
formly means a calendar month. Thom-
as v. Shoemaker, 6 Watts & S. 179. So
the law has always been; while, in con-
tracts and deeds, the old rule was that
the month should be presumed to be lu-
nar unless the contrary intent appeared
(Chit. Con. ut sup.), but, on the whole,
the question was to be decided much
upon the instrumentitself. Lang v. Gale,
1M.&S.111. Yet it may be deemed to
be the American doctrine, that, in the
absence of a statutory provision govern-
ing the question, and of all intimation in
97
§ 107 INTERPRETATION. [BOOK U1.
lish ones, have interfered and made the month calendar. And,
without statutory aid, it has been said that the “ current of au-
thority ” with us presumes the month to be calendar, contrary to
the old English rule.! So that, in one way and another, such has
become the almost universal doctrine in our States at the present
day.2 It is believed there never was a time in this country when,
in common speech, the word “month,” unqualified, ordinarily
meant a lunar month; therefore, in reason, there is no pro-
priety in our adhering to the old rule of the English common
law.
§ 106.. Year.— A year, mentioned in a legislative or judicial
proceeding, is presumptively to be computed by the Christian
calendar.? It embraces 365 days, or 866, according as the par-
ticular year in question happens to be leap year or not.* Still
_ the meaning of this term may vary with the subject and the evi-
dent intent.
§ 107. Rule for computing Numbers of Days, Weeks, &c.—
In reason, when a statute specifies a particular number of
days, weeks, or years, the computation should be made by add-
ing, for instance, to the ascertained number of the day in the
month, the statutory number. Thus, an enactment passed on
the fifth day of the month, to take effect in ten days, will go
into operation on the fifteenth day of the month; because
the sum of five and ten is fifteen. The rule of reason, there-
fore, may be stated to be, that, of the two extreme days, the
one shall be included and the other excluded in the reckon-
ing. And in a sort of general way the authorities are so;° as,
the contract or deed, the word “month”
shall in such an instrument be taken to
mean a calendar month. Sheets v. Sel-
den, 2 Wal. 177; Bishop Con. § 748;
Hardin v. Major, 4 Bibb, 104; Shapley
v. Garey, 6S. & R. 539.
| Bartol v. Calvert, 21 Ala. 42, 47.
2 Hunt v. Holden, 2 Mass. 168, 170;
Avery v. Pixley, 4 Mass. 460; Williamson
v. Farrow 1 Bailey, 611; Commonwealth
v. Chambre, 4 Dall. 143; Pyle v. Maul-
ding, 7J. J. Mar. 202; Kimball v. Lamson,
2 Vt. 138; Commonwealth v. Shortridge,
3 J. J. Mar. 638; Strong 'v. Birchard, 5
Conn. 357; Alston v. Alston, 3 Brev. 469;
Churchill v. Merchants’ Bank, 19 Pick.
532, 585; Gross v. Fowler, 21 Cal. 392;
98
Sprague v. Norway, 31 Cal. 173; Glenn
v. Hebb, 17 Md. 260.
8 Engleman v. The State, 2 Ind. 91.
4 Dwar. Stat. 2d ed. 693; Rex vw.
Wormingall, 6 M. & S. 350; Gibson ».
Barton, Law Rep. 10 Q. B. 329; Hopkins
v. Chambers, 7 T. B. Monr. 257.
5 Paris v. Hiram, 12 Mass. 262 ; Thorn-
ton v. Boyd, 25 Missis. 598; Bartlett v.
Kirkwood, 2 Ellis & B. 771.
6 This may be deemed the prima-facie
method, applicable alike to statutes, to
contracts, to rules of court, and to all
other legal things. Bishop Con. § 749;
Thomas v. Afflick, 4 Harris, Pa. 14; Iron -
Mountain Co. v. Haight, 89 Cal. 540;
Corwin v. Comptroller-General, 6 S. C.
CHAP. XIV. ] COMPUTATION OF TIME. § 108
for example, where the statutory words are “ ten days’ notice.” }
But — ;
§ 108. Limits and Modifications. — This rule is variously limited
and modified ; as, —
No Fractions of Day. — It is sometimes seriously broken in upon
by the doctrine that, prima facie, the law recognizes no fractions
of aday.2. It commonly counts the fraction as an entire day, yet
it may be compelled to reject it altogether? Uniting this com-
mon mode of estimating the fractions to the rule stated in the last
section, we may have a result almost nullifying the statute.
Thus, reducing the “ten days’ notice,” just mentioned, to its
constituent elements, we may have the following. Suppose the
statutory requirement to be “one day’s” notice, then, if given on
the last moment of the fifth day of the month, it is out .on the
first moment of the sixth, consequently the party has only two
moments’ notice, equivalent to none, while the statute says ‘one
day.” Next, we may suppose the required notice to be for two
days, still the interpretation cuts it down practically to one
day ; and the “ten days’ notice” becomes, by force of the inter-
pretation, in practical effect only nine. And, if the reader will
look through the reports of cases under this head, he will see,
that, in various instances‘ in which this result of the general
doctrine has been pressed upon the tribunals, they have sought
substantial justice by excluding from the computation both the
first and the last day ; as though, to continue the illustrative case
before mentioned, if ten days’ notice were required, and it has
been given on the fifth day of the month, the court should hold
it not to be out till the sixteenth day of the month. And,
uniting with this view of the justice of the case, we have —
390; Cann v. Warren, 1 Houston, 188;
Bird c. Baker, 1 Ellis &E. 12; Webb ce.
Fairmaner, 3 M. & W. 473; Watson v.
Pears, 2 Camp. 294; Judd v. Fulton, 10
Barb. 117; Garner v. Johnson, 22 Ala.
494,
’ 1 Rex v. West Riding of Yorkshire,
4B. & Ad. 685, 689. And see Reg. v.
Shropshire, 8 A. & E.173; Hyer v. Van
Valkenburgh, 8 Cow. 260; Homan v. Lis-
well, 6 Cow. 659; Ex parte Dean, 2 Cow.
605 ; ‘Bigelow v. Willson, 1 Pick. 485;
Portland Bank y. Maine Bank, 11 Mass.
204; Presbrey v. Williams, 15 Mass. 193;
Rex v. Moore, Jefferson, 8; White v.
Crutcher, 1 Bush, 472; Bowman v. Wood,
41 Tl. 203; The State v. Upchurch, 72
N.C. 146.
2 Ante, § 29.
2 Reg. v. St. Mary, Warwick, 1 Ellis
& B.816; Portland Bank rv. Maine Bank,
11 Mass. 204; Edwards v. Reg. 9 Exch.
628; Jones x. Planters’ Bank, 5 Humph.
619; In re Welman, 20 Vt. 653; Phelan
v. Douglass, 11 How. Pr. 193.
4 As, see Young v. Higgon, 6 M. & W.
49,54; Lester v. Garland, 15 Ves. 248;
Webb v. Fairmaner, 3 M. & W.473; Speer
v. The State, 2 Texas Ap. 246; Bemis v.
Leonard, 118 Mass. 502.
99
,
INTERPRETATION. [Book 1.
§ 110
Particular Words of Statutes. — The special language of a stat-
ute will sometimes, and particularly when considered in relation
to its subject, work a result different from the general one above
stated. Thus —
§ 108 a. “Entire Day” — “Day.” — The words ‘entire day,”’!
or even “day” alone, in some connections and as applied to some
subjects,? may include the whole twenty-four hours, from mid-
night to midnight. Again, —
'§ 109. “One Day previous.” — The Texas constitution having
required that bills, to become laws, should be presented to
the Governor “one day previous to the adjournment of the
legislature,” this was held to mean not less than twenty-four
hours.’
§ 110. “Clear” —If the statute requires a given number of
“ clear days,” — as,“ ten clear days,” — neither the first nor the
last is counted in the computation.*
rule, and there is believed to be nothing adverse to it in this
country. So—
“ At Least.’ The English courts hold, to regret, and still to
adhere to the holding, that the words “at least” have equal
effect with “clear;” as, where the expression was “fourteen
days at least,” “the court was of opinion that fourteen days
at least must mean fourteen clear days.”5 The contrary was
adjudged in Missouri, in a case where a forfeiture was thus
avoided, otherwise the English doctrine would have been fol-
Such is the settled English
lowed. And—
1 Haines v. The State, 7 Texas Ap.
80; Lawrence v. The State, 7 Texas Ap.
192.
2 Kane v. Commonwealth, 8 Norris,
Pa. 522. See The State vu. Holliday, 61
Misso. 229; The State v. Holliday, 61
Misso. 400. ;
38 Hyde v. White, 24 Texas, 127, Rob-
erts, J. observing: ‘“ Whether it be held
that the word ‘day’ is twenty-four hours
from the moment of adjournment, and
used as a measure of time, allowed the
Governor to consider of and act on the
bill, or is an entire day regarded as an
intervening point of time between the
day of presentation and the day of the ad-
journment, this case does not require us
to decide. One or the other construction
must be adopted.” p. 145.
100
* Rex v. Herefordshire, 3 B. & Ald.
581; Rex v. West Riding of Yorkshire, 4
B, & Ad. 685, 690.
5 Zouch v. Empsey, 4 B. & Ald. 522;
Reg. v. Shropshire, 8 A. & E. 173;
Mitchell v. Foster, 12 A. & E. 472; Reg.
v. Aberdare Canal, 14 Q. B. 854, 867, 888.
In Young v. Higgon, 6 M. & W. 49, the
statutory expression was “at least one cal-
endar month,” and the like construction
was put upon it, the court not even men-
tioning the words “at least,” though they
may have been in the judicial mind. See
also Reg. v. St. Mary, Warwick, 1 Ellis
& B. 816; Freeman v. Read, 4 B. & S.
174.
5 The State v. Gasconade, 33 Misso.
102.
CHAP. XIV.] . COMPUTATION OF TIME. § 110 a
“Before."—In Texas, the expression “five days before the
return day” was held to mean five “clear” days.1
“From and after.”— The effect of these words has already been
considered.?
§ 110 a. Months unequal in Length.—In computing time by
calendar months, which are of unequal length, the month in
which it begins, rather than that in which it ends, or any inter-
mediate one, ordinarily furnishes the rule; as, for example, from
the fifteenth day of March to the fifteenth day of April, a period
of thirty-one days, is one calendar month, and from the fifteenth
of April to the fifteenth of May, a period of thirty days, is one
calendar month.2 But while so much is reasonably plain, em-
barrassing questions, not in all particulars adjudicated, arise.
Assuming, as established, that a month beginning on the fifteenth
of January ends on the fifteenth of February, when does one end
which begins on the thirtieth of January? Where twenty-eight
days in February alone constitute a full calendar month, plainly,
in reason, the thirty-first of January and the first and second of
March need not all be added. Though this absurdity cannot be
involved in the true answer to the question, there is no possible
answer which does not present something not apparently quite
right. It is submitted, therefore, as the best solution attainable,
that, when February has twenty-eight days, a calendar month
beginning the twenty-ninth, the thirtieth, or the thirty-first of
January, ends, equally in each instance, on the twenty-eighth, or
last day, of February.*
1 O’Connor v. Towns, 1 Texas, 107.
2 Ante, § 31a; Goode v. Webb, 52
Ala. 452; Wood v. Commonwealth, 11
Bush, 220; Bemis v. Leonard, 118 Mass.
602; Menges v. Frick, 23 Smith, Pa. 137.
3 Freeman v. Read, 4 B. & S. 174;
People v. Ulrich, 2 Abb. Pr. 28; Webb v.
Fairmaner, 3 M. & W. 473; Migotti v.
_ Colvill, 4 C. P. D. 233, 235; s. c. nom.
Nigotti v. Colville, 14 Cox C. C. 305.
* Indeed, this may be deemed estab-
lished by analogy. “In the case of bills
of exchange, in which the word month is
held to mean ‘calendar month,’ it is laid
down by all the text writers that bills at
one month drawn on the 28th, 29th, 30th,
or 81st of January will fall due (exclud-
ing the days of grace) all on the same
day; namely, the 28th of February ; or,
in leap year, on the 29th. ... It is no
doubt true that the law applicable to
bills of exchange depends upon the usage
of merchants, and is not necessarily ap-
plicable to other cases; but, where the
question is what is the true meaning of
‘one calendar month 2?’ it is useful to con-
sider how such an expression is regarded
in any case in which it is constantly used
in familiar legal instruments.” Denman,
J. in Migotti v. Colvill, supra, at p. 236.
In this case it was held, that a sentence
on the 81st of October to one month’s
imprisonment expires on the last momeut
of the last day, being the 30th, of No-
vember.
101
[BOOK
§ 111 INTERPRETATION. s
§ 110 b. Hours. — Sometimes a statute employs the term
“hour” or “hours,” but there is nothing in its meaning requiring —
special consideration.1
§ 110 ¢. Sunday.— Whether or not Sunday is to be excluded
from a computation will depend largely on the nature of the sub-
ject, and in some degree on the statutory terms. As it is nota
day for judicial business,? it is excluded from computations re-
lating thereto, when consistent with the words. Where, in a
case of this sort, the law gives a certain number of hours for the
performance of an act, those even of an intervening Sunday are
to be left out from the count; the person being allowed hours
wherein it is lawful to do the act.2 And to some extent, and by
some opinions, this is so also where the time is given in days,
especially when the number is less than seven.* Nor is Sunday
counted among the days of a.term of court. But the rule gov-
erning most classes of cases is, that it is counted the same as-any
other day. The cases cited in the notes show some diversities
of views, not necessary to be entered into here.
§ 111. Differing Words — Subject.— We have already seen that
the differing words of statutes enter largely into the questions
discussed in this chapter, as do likewise their differing subjects.
And, when all is done, the unreconciled conflicts of judicial
opinion are numerous. It would be a happy thing if an author
could so present this topic as to render doubts or differences im-
possible hereafter. Since this cannot be, let us here close the
chapter with some further references to authorities, chiefly perti-
1 Franklin v. Holden, 7 R. I. 215;
Commonwealth v. Intoxicating Liquors,
97 Mass. 601; Ridgley v. The State, 7
Wis. 661; Meng v. Winkleman, 43 Wis.
41.
2 Crim. Proced. I. § 1001; Chapman
v. The State, 5 Blackf. 111; Langabier v.
Fairbury, &c. Railroad, 64 Ill. 243; True
v. Plumley, 36 Maine, 466; Harris v.
Morse, 49 Maine, 432; Watts v. Com-
monwealth, 5 Bush, 309.
3 Meng v. Winkleman, 43 Wis. 41;
Commonwealth v. Intoxicating Liquors,
97 Mass. 601; Ridgley v. The State, 7
Wis 661. But see Franklin v. Holden, 7
R. I. 215. And see The State v. Green,
66 Misso. 631.
* Chicago v. Vulcan Iron Works, 93
102
Ill. 222; The State v. Howard, 82 N.C.
623 ; National Bank v. Williams, 46 Misso.
17; Ridgley v. The State, 7 Wis. 661. But
see Peacock v. Reg. 4 C. B. n. 8. 264.
5 Michie v. Michie, 17 Grat. 109;
Read v. Commonwealth, 22 Grat. 924.
And see National Bank v. Williams, 46
Misso. 17; Burton v. Chicago, 53 IIl. 87;
Clerks’ Sav. Bank v. Thomas, 2 Misso.
Ap. 367.
6 Commissioners of Pilots v. Erie Rail-
way, 5 Rob. N. Y. 366; Peacock v. Reg. 4
C. B. n. 8. 264; Taylor v. Palmer, 31 Cal.
240; Miles v. McDermott, 31 Cal. 271;
‘Broome v. Wellington, 1 Sandf. 664; Ex
parte Dodge, 7 Cow. 147; Ex parte
Simpkin, 2 Ellis & E. 892. And see
Hughes v. Griffiths, 13 C. B. nw. s. 324.
CHAP. XIV. ]
COMPUTATION OF TIME.
§ 111
nent to the matter of this section, as showing the combined effect
of the particular subject and the
s
1 Sanborn v. Fireman’s Ins. Co. 16
Gray, 448 (“within”); Levert v. Read,
54 Ala. 529 (“within”); People v. Wayne
Cireuit Judge, 37 Mich. 287 (“ hereto-
fore”); People v. Walker, 17 N. Y. 502
(“until”); Annan v. Baker, 49 N. H.
161 (‘at the end of the year”); Simpson
v. Sutton, Phillips, 112 (“year and day ”) ;
Alger v. Curry, 40 Vt. 487; Swainson v.
Bishop, 52 Misso. 227 ; Northrop v. Coop-
er, 23 Kan. 482; The State v. McLendon,
special words.!
1 Stew. 195; Garner v. Johnson, 22 Ala.
494; Boyd v. Commonwealth, 1 Rob. Va.
691; Owen v. Slatter, 26 Ala. 547; The
State v. Schnierle, 5 Rich. 299; Burr «.
Lewis, 6 Texas, 76; Commonwealth v.
Jones, 2 Jones, Pa. 365; Abrahams v.
Commonwealth, 1 Rob. Va. 675; Kimm
v. Osgood, 19 Misso. 60; Peables v. Han-
naford, 18 Maine, 106; The State v. God-
frey, 3 Fairf. 361; Pulling v. People, 8
Barb. 384.
103
§ 112 INTERPRETATION. [BOOK II.
CHAPTER XV.
HOW THE SPECIAL MATTER OF A STATUTE INFLUENCES ITS
, INTERPRETATION.
§ 111 a, Doctrine defined.— The doctrine of this chapter is,
that the interpretation of a statute is influenced by the special
matter comprehended in its terms.
Distinctions. — This doctrine is similar to, yet diverse from,
various others prominent in these discussions; such as, that all
laws are to be interpreted together as modifying one another,!
and that every writing is to be construed with reference to its
subject.?
Illustrations — of the doctrine are such as the following: —
§ 112. “May” and “Shall” — The words “ may” and “shall”
— the one permissive and the other imperative, therefore in their
primary meanings quite different — are interpreted by the matter
of the provision in which they occur; so that practically “ may ”
is almost as often imperative as permissive, and the two admit of
being used, to a considerable extent, interchangeably.? Still the
cases are not numerous in which “shall” alone is held to be per-
missive like “may” in its primary sense, but they do occur.4
And the phrase “it shall be lawful,” or “it shall and may be
lawful,” is an equivalent for the latter word, both primarily, and
as admitting of either a permissive or an imperative rendering,
to accord with the matter of the statute.° The rules to deter-
1 Ante, § 86.
2 Ante, § 98 a.
8 Fowler v. Pirkins, 77 Ill. 271; Kane
v. Footh, 70 Til. 587; Steines v. Frank-
lin, 48 Misso. 167; Estate of Ballentine,
45 Cal. 696; People v Buffalo, 4 Neb.
150; People v. Otsego, 51 N. Y. 401;
Rockwell v. Clark, 44 Conn. 534; The
State v. Buffalo, 6 Neb. 454.
4 Railroad v. Hecht, 95 U S. 168;
Wheeler v. Chicago, 24 Ill,105. And see
104
Rex v. Flockwold Inclosure, 2 Chit. 251 ;
Hudd v. Ravenor, 2 Brod. & B. 662, 665.
5 Castelli v. Groom, 18 Q. B. 490, 495;
Cook v. Tower, 1 Taunt. 372, 377; Rex
v. Eye, 1 B. & C. 85, 86; Reg. v. Oxford,
4 Q.B. D. 245, 525; s. c. in H. of L. nom
Julius v. Oxford, 5 Ap. Cas. 214; Rex ».
Norfolk, 4 B. & Ad. 238; In re Neath,
&c. Railway, Law Rep. 9 Ch. Ap 263;
Reg. v. Caledonian Railway, 16 Q. B. 19,
28. :
CHAP. XV. ] SPECIAL MATTER OF STATUTE. § 112
mine when the permissive form is to be construed as imperative
are not in all particulars made distinct by the decisions; but, in
general, whenever a private party or the public claims a right or
interest under such a provision, the claim constitutes a sort of
election which makes the permissive terms imperative, and they
will be held to be so even without the formal claim.1 Conse-
quently, for example, a permission to a‘court is a command, if it
relates to the rights of suitors,” but otherwise if it concerns some-
thing in its nature discretionary. So far the doctrine is plain,
and is abundantly established by the decisions. It was once ob-
served, that ‘‘ may” is imperative “in all cases where the legis-
lature means to impose a positive and absolute duty, and not
merely to give a discretionary power. But no general rule can
be laid down upon this subject, further than that that exposition
ought to be adopted in this, as in other cases, which carries into
effect the true intent and object of the legislature.” * And, by all
opinions, it is the meaning of the legislature at which interpreta-
1 Rex v. Tithe Commissioners, 14 Q. B.
459, 474; New York »v. Furze, 3 Hill,
N. Y. 612; Seiple v. Elizabeth, 3 Dutcher,
407; Mitchell v. Duncan, 7 Fla. 13;
Schuyler v. Mercer, 4 Gilman, 20; Cutler
v. Howard, 9 Wis. 389; Blake v. Ports-
mouth and Concord Railroad, 39 N. H.
435; Nave v. Nave, 7 Ind. 122; Banse-
mer v. Mace, 18 Ind. 27; Supervisors v.
United States, 4 Wal. 485; Galena v.
Amy, 5 Wal. 705; People v. Otsego, 51
N. Y. 401; People. v. Buffalo, 4 Neb. 150;
Phelps v. Hawley, 52 N. Y. 23; Low v.
Dunham, 61 Maine, 566 ; Phillips v. Fad-
den, 125 Mass. 198; Steines v. Franklin,
' 48 Misso. 167; The State v. Saline Coun-
ty Court, 48 Misso. 390; Kane v. Footh,
70 Ill. 587; The State v. Board of State
Canvassers, 36 Wis. 498.
2 Reg. v. Adamson, 1 Q. B. D. 201;
Macdougall cv. Paterson, 11 C. B. 755;
Crake v. Powell, 2 Ellis & B. 210; Asplin
v. Blackman, 7 Exch. 386; Backwell’s
Case, 1 Vern. 152; Bowes v. Hope Life
Ins. &c. Co. 11 H. L. Cas. 389, 402 ; Marson_
v. Lund, 13 Q. B. 664; Morisse v. Royal
British Bank, 1 C. B. ny. s. 67; Reg. v.
Harwich, 8 A. & E. 919; Roles v. Ros-
well, 5 T. R. 588; Hardy v. Bern, 5 T. R.
636; Drage v. Brand, 2 Wils. 877; Reg.
v. Boteler, 4 B. & S. 959; Phelps v.
Hawley, 3 Lans. 160; Appleton v. War-
ner, 51 Barb. 270; Ticknor v. McClel-
land, 84 Ill. 471; Rumsey v. Lake, 55
How. Pr. 339; Estate of Walley, 11 Nev.
260; The State v. Buffalo, 6 Neb. 454;
Rockwell v. Clark, 44 Conn. 534; St.
Louis, &c. Railroad v. Teters, 68 Ill. 144.
8 Estate of Ballentine, 45 Cal. 696;
Barber v. Gamson, 4 B. & Ald. 281;
Cook v. Tower, 1 Taunt. 372; Girdleston
v. Allan, 1 B. & C. 61; In re Newport
Bridge, 2 Ellis & E. 377; Bell v. Crane,
Law Rep. 8 Q. B. 481; Castelli v. Groom,
18 Q. B. 490. Costs. —In Jones v. Har-
rison, 6 Exch. 328, 3 Eng. L. & Eq. 579,
and Palmer v. Richards, 6 Exch. 338, it
was held that costs to a party, in the cir-
cumstances contemplated in the text, are
discretionary with the court.. But in
Asplin v. Blackman, supra, the same
court, following Crake v. Powell and
Macdougall v. Paterson, supra, overruled
these decisions. And see Wood v. Brown,
6 Daly, 428.
4 Minor v. Mechanics’ Bank, 1 Pet. 46,
64. And see Ex parte Simonton, 9 Port.
390; Newburgh, &c. Turnpike v. Miller,
5 Johns. Ch. 101; Commonwealth v. Ga-
ble, 7S. & R. 423; Rex v. Flockwold In-
closure, 2 Chit. 251.
105
§ 1124 INTERPRETATION. [BOOK IL.
tion in these cases, as in all others,! should aim.2 Said Woodbury,
J. in the Supreme Court of the United States: ‘“« Whenever it is
provided that a corporation or officer ‘may’ act in a certain way,
or it ‘shall be lawful’ for them to act in a certain way, it may be
insisted on as a duty for- them to act so if the matter, as here, is
devolved on a public officer, and relates to the public or third
persons.” 8 Another judicial observation from the books is, that
“‘may”? is imperative only for sustaining or enforcing a right,
not for creating one; but quite likely the latter clause of this
dictum requires qualification. Certainly this permissive word is
often to have its primary meaning;> and probably it should
receive it in cases generally where nothing affirmatively appears
in the matter of the statute indicating the other construction.®
Thus, —
Jurisdiction — (Polygamy). — A mere permissive jurisdictional
statute will not take away the common-law jurisdiction. For
example, in Maine the act against polygamy provides, that the
indictment ‘‘may be found and tried in the county where the
offender resides ;”’ yet, in the words of Dickerson, J., ‘“ This
provision of the statute is permissive and not mandatory. It is
not in derogation of the common-law right of indictment and
trial in the county where the offence is committed, but rather an
enlargement of the jurisdiction of the court.’’7
§ 112 a. Particular and General. — Out of the special matter of
the statute grows also a doctrine, spoken of likewise in other con-
nections, whereby apparently conflicting provisions are recon-
ciled and made harmonious. It is applicable equally to the dif-
ferent clauses of the same enactment, to different statutes at
whatever different times passed, and to the common and statu-
tory laws when viewed in combination. It is, that the general
and specific in legal doctrine may mingle without antagonism,
the specific being construed simply to impose restrictions and
1 Ante, § 70. monwealth v. Haynes, 107 Mass. 194, 197.
2 Kelly v. Morse, 3 Neb. 224. And see Leigh v. Westervelt, 2 Duer, 618;
3. Mason v. Fearson, 9 How. U. 8. 248, Bowers v. Sonoma, 22 Cal. 66 ; People v.
259. Brooks, 1 Denio, 457.
4 The State v. Holt County Court, 89 8 Fowler v. Pirkins, 77 Ill. 271.
Misso. 521; Ix parte Banks, 28 Ala. 28. 7 The State v. Sweetser, 53 Maine, 438,
And see York, &c. Railway v. Reg., 1 440. And see Barnawell v. Threadgill, 5
Ellis & B. 858; Stead v. Carey, 1 C. B. Ire. Eq. 86; Crawford v. Childress, 1 Ala.
496. 482; post, § 164.
5 Ex parte Yeager, 11 Grat. 655; Com-
106
CHAP. Xv.] SPECIAL MATTER OF STATUTE. § 113
limitations on the general; so that general and specific pro-
visions in the laws, both written and unwritten, may stand to-
gether, the latter qualifying and limiting the former..! This
doctrine commonly extends also to—
§ 112 6. Acts local and special. — Ordinarily, if there are a
general statute and one local or special, on the same subject, in
conflicting terms, neither abrogates the other, but both stand
together; the latter furnishing the rule for the particular local-
ity or case, the former for the unexcepted places and instances.
And it is immaterial which is the later in date.2 But where from
anything cognizable by the judges they are satisfied that the gen-
eral law was meant by the legislature to supersede the local or
special, they will give it such effect.?
§ 118. Private Statutes,— “made for the accommodation of
particular citizens or corporations, ought not,” it has been said,
“to be construed to affect the rights or privileges of others, un-
less such construction results from express words, or from neces-
sary implication.” 4 To a considerable extent, they are regarded
as contracts, or guast contracts, between the public and the indi-
vidual.é
1 Ante, § 64; post, § 126, 131, 152,
156; The State v. Goetze, 22 Wis. 363;
Taylor v. Oldham, 4 Ch. D. 398, 410;
Lyn v. Wyn, O. Bridg. 122, 127; Attor-
ney-General v. Moore, 3 Ex D. 276; The
State v. Kelley, 5 Vroom, 75; McGavisk
v. The State, 5 Vroom, 509; Gloversville _
v. Howell, 70 N. Y. 287 ; Hedges v. Titus,
47 Ind. 145; Rounds v. Waymart, 31
Smith, Pa. 895; The State v. Trenton, 9
Vroom, 64; Thorpe v. Adams, Law Rep.
6 C. P. 125, 185; Pretty v. Solly, 26
Beay. 606; De Winton v. Brecon, 26
Beay. 533; Denton v. Manners, 4 Jur.
yn. s. 151, 714.
2 Post, § 156; People v. Quigg, 59
N. Y. 83; Rex v. St. Pancras, 6 A. & E.
1; Londtn, &c. Railway v. Limehouse, 3
Kay & J. 123, 128; Crane v. Reeder, 22
Mich. 322; The State v. Mills, 5 Vroom,
177; Fitzgerald v. Champneys, 2 Johns.
& H.31; Purnell v. Wolverhampton New
Water Works, 10 C. B. x. s. 576; Glov-
ersville v. Howell, 70 N. Y. 287; The State
v. Kelley, 5 Vroom, 75; McGavisk v. The
State, 5 Vroom, 509; The State v. Brady,
But, especially, being limited to the one individual
41 Conn. 588; Burke v. Jeffries, 20 Iowa,
145; Liverpool Library v. Liverpool, 5
H. & N. 526.
3 Bramston v. Colchester, 6 Ellis & B.
246; Daw v. Metropolitan Board, 12 C. B.
n. s. 161; Great Central, Gas Consumers’
Co. v. Clarke, 13 C. B. n. s. 888, 840; The
State v. Pearcy, 44 Misso. 159; People v.
Miner, 47 Ill. 33. Possibly there may be
cases not quite in accord with the doc-
trine of this section, but it is abundantly
sustained in general authority. See and
compare Commonwealth v. Pointer, 5
Bush, 301; The State v. Douglass, 4
Vroom, 363; Talcott v. Harbor Commis-
sioners, 53 Cal. 199; Howell v. Cassopolis,
85 Mich. 471.
4 Parsons, C. J. in Coolidge v. Wil-
liams, 4 Mass. 140, 145; Wales v. Stet-
son, 2 Mass. 143; Hood v. Dighton
Bridge, 3 Mass. 263; Perry v. Wilson,
7 Mass. 393; Sprague v. Birdsall, 2 Cow.
419.
5 Dwar. Stat. 2d ed. 650, 651; Lee »v.
Shankle, 6 Jones, N. C. 313; Thomas v.
Mahan, 4 Greenl. 513.
107
§ 1184 INTERPRETATION. [BOOK 11.
or corporation, they will not control the general laws in their
applications to other persons and things; neither, on the other
hand, will the general laws, or another private act, abrogate their
express terms as to the individual or corporation named.?_ This
proposition is subject to exceptions, as indicated in the last
section.
§ 113 a. In Conclusion, — a statute must be construed equally
by itself and by the rest of the law. The mind of the inter-
preter, if narrow, will stumble. There are no questions, in the
entire range of the law, on which views alike broad and minute
are more emphatically required of the expounder, than those
relating to statutory interpretation.
1 Birkenhead Docks v. Laird, 4 DeG., Shankle, supra; Campbell’s Case, 2 Bland,
M. & G. 732. 209; Williams v. Pritchard, 4 T, R.2; Ed-
2 Broadbent v. Tuskaloosa Scientific, dington v. Borman, 4 T. R.4; Abergaven-
&c. Association, 45 Ala. 170; Lee v. ny v. Brace, Law Rep. 7 Ex. 145, 160.
108
CHAP. XVI.] ALL LAWS ONE SYSTEM. § 115
CHAPTER XVI.
HOW THE DOCTRINE THAT ALL THE LAWS ARE TO BE INTER-
PRETED INTO ONE SYSTEM IS PRACTICALLY APPLIED TO THE
STATUTES. ;
§ 113 6. Elsewhere — we saw what this doctrine is.1
Here — we are to consider something of its practical forms and
methods.
§ 114. Ordinary Modes of Procedure. — A statute being, as we
have seen,” a fresh drop added to the yielding mass of the prior
law, to be mingled by interpretation with it, ‘“‘ where,” said
Kent, C. J., it ““admits of two constructions, it is advisable to
give it that which is consonant to the ordinary mode of proceed-
ing.” Therefore, in the case of an enactment defectively worded,
one part of it apparently providing a summary process for the
recovery of a penalty, and another indicating the ordinary method,
the court pronounced for the latter. Again, —
§ 115. Poreign Statutes. —In those circumstances in which
the tribunal acts for the occasion on foreign laws as its own,* and
generally where laws are adopted from a foreign country, no dis-
tinction is made between the written and the unwritten. Both
are looked upon as mingled into one mass. And,—
Interpreting Statutes of another Jurisdiction. — In thus acting on
or adopting foreign statutes® or those of a sister State,’ the court
receives with them the foreign interpretation, which is unwritten
1 Ante, § 86 et seq. Sequeville, 5 Exch. 275; Pemble v. Clif-
2 Ante, § 4-7, 86. ford, 2 McCord, 31; Drew v. Wakefield,
8 Bennett v. Ward, 3 Caines, 259. 54 Maine, 291; Scott v. Lunt, 7 Pet. 596;
And see Minet v. Leman, 20 Beav. 269. Plumleigh v. Cook, 13 Ill. 669.
#1 Bishop Mar. & Div. § 367, 421; 6 Hoyt v. Thompson, 3 Sandf. 416;
Caldwell v. Vanvlissengen, 9 Hare, 415. Bloodgood v. Grasey, 31 Ala. 575.
5 Huber v. Steiner, 2 Scott, 304, 2 7 Carlton v. Felder, 6 Rich. Eq. 58 ;
Bing. N. C. 202; Smith v. Bartram, 11 Hale v. Lawrence, 8 Zab. 590; Davis v.
Ohio State, 690; Ruckmaboye v. Mot- Robertson, 11 La. An. 752; Johnston vr.
tichund, 8 Moore P. C. 4; Alves v. South Western Railroad Bank, 3 Strob.
Hodgson, 7 T. R. 237, 241; Bristow v. Eq. 263. .
109
§ 117 INTERPRETATION. [BOOK I.
law, not distinguishing the written from the unwritten. So our
National tribunals follow, with the statutes. of the several States,
the meanings given them by the State courts, when either fur-
nishes the rule for their decision. And, as a broad propo--
sition, —
§ 116. Origin of Law immaterial in Interpretation. — In the
interpretation of the laws their origin is immaterial. The un-
written, in all their forms, and from whatever sources arising,
and all forms of the written, at whatever different dates ordained,
are by interpretation blended into one mass, as rounded and per-
fect as the several natures of the less flexible will permit. And,
as observed in part in a previous chapter,? —
All Laws require Interpretation. — There is no law, written or
unwritten, which does not require to be interpreted in its admin-
istration? A statute, recent and in general terms, presents
greater difficulties than an old and often-adjudicated doctrine of
the common law ; but neither the one nor the other can be prac-
tically available in litigation except as it is interpreted for the
particular instance. For no case can proceed to judgment with-
out compelling from the bench so much interpretation of the law,
whether written, unwritten, or both, as will determine whether
or not the proven or admitted facts are within its terms or opera-
tion. And no more than this is ever done in the interpretation
of any statute. Hence —
§ 117. Written and unwritten follow like Rules. — The written
law and the unwritten are interpreted by substantially the same
rules. For example, —
Minority.— The common law, for the protection of minors, dis-
ables them in general to bind themselves by contract, yet permits
it in exceptional circumstances, and with cautiously devised limita-
tions. Now, whatever their power of contract may be in a par-
1 Ante, § 355; De Wolf v. Rabaud,1 no need of interpretation.” ‘Vattel Law
Pet. 476; Bell v. Morrison, 1 Pet. 351;
Gardner v. Collins, 2 Pet. 58; Elmendorf
v. Taylor, 10 Wheat. 152; Harpending v.
Dutch Church, 16 Pet. 455; Porterfield v.
Clark, 2 How. U. S. 76.
2 Ante, § 71.
3 This proposition, properly under-
stood, is not in conflict with another,
which is, that, in the words of Vattel,
“It is not allowable to interpret what has
110
of Nations, b. 17, § 263. And see ante,
§ 72. The meaning of which is, that a
passage should not be bent from its obvi-
ous sense. But however plain a writing
may be, its application to facts in contro-
versy is always a question of interpreta-
tion, equally permissible and commend-
able. d
4 Bishop Con. § 260-280.
CHAP. XVI.] ALL LAWS ONE SYSTEM. § 118
ticular class of circumstances, it is precisely the same whether
the contract in question is under a statute or at the common law.
Again, —
Infantile Incapacity for Crime. — At the common law, a child
under seven years of age is incapable of crime.? Therefore, when
a statute creates a crime, its terms, however general, are no more
applied to such a child than are similar terms of the common
law. And —
§ 117 a. In General. — This sort of interpretation extends
through all our laws, the written and ‘the unwritten alike. The
books contain cases in which counsel and the courts forget it;
but none in which judicial persons, with their eyes open and
duly warned, deliberately reject it. We sometimes read, in judi-
cial opinions, that those pronouncing them deem it due to the
legislature to follow its directions, and not to make exceptions
where it has made none; but this sort of language should not be
taken as a denial of what every person familiar with our reports
knows; namely, that no judge ever deliberately undertook to
administer a statute without admitting those exceptions to it
which are recognized in the other parts of the legal system.
Nor did any legislative body ever proceed on the idea, that its
enactments are to be put in force by courts so ignorant of legal
affairs as to deem them meant for independent rules, to be lim-
ited by no others, and to override all laws antagonistic to their
general words. For legislatures and courts alike recognize the
fact, which common sense teaches to every thoughtful person,
that it is neither possible nor desirable, in any system of laws, to
attach to each particular law every qualification embraced in
every other. So voluminous would the laws thus become, and
so often would conflicts be found in them in spite of every legis-
lative caution, and so difficult would it be to explore their
immense masses, that their usefulness would be indefinitely
diminished.
§ 118. Ancient and Modern Interpretations, compared. — In
ancient times, in England, the statutes were commonly brief and
general in their terms. Afterward they became more minute
and complicated. And the American statutes follow more nearly
the later English models than the earlier. When, in England,
1 Ib. § 273. 8 Ante, § 7; post, § 131.
2 Crim. Law, I. § 368. 4 And see post, § 123.
111
§ 1183 INTERPRETATION. [BOOK II.
they were very brief and general, a good deal of bending, re-
straining, and enlarging of meanings was indispensable to their
having any just effect, therefore was permissible. But sometimes
interpretation was carried to the practical undoing of what was
plainly meant by the enacting power. This, of course, was never
justifiable! Modern courts in neither country do it.. But the
fact of its having been done has created some modern prejudice
against what is justifiable and necessary. So that in later days
the courts oftener interpret the statutes too little than too much.
§ 118 a. Two Methods — (Effect — Meaning).— The methods
by which interpretation brings the several statutes into harmony
with one another and with the rest of the law, and the rest of
the law into harmony with them, producing one jurisprudence,
are chiefly two. In appearance they are similar, and they are
often spoken of without distinction; but, in their natures, the
manner of their operating, and their consequences, they are
among the most absolutely distinct things in our legal system.
The one method consists of curtailing or extending — in other
words, cutting short or adding to—the effect of the particular
provision of statutory or common law in question, by bringing
another law of either sort into combination with it, so that the
two together will produce a result not within the terms of either
one alone; as two diverse propelling forces, applied to an inert
body, will send it to a point which neither one of itself would
do. The other method consists of expanding or contracting the
meaning of the law in question, by applying to it the various and
differing rules of interpretation; such as, that the legislative in-
tent shall be carried out,? or that the statute is of a sort requiring
a strict construction,’ or a liberal,* or some other.
§ 118 6. The BHect —of combining, as just said, diverse writ-
ten and unwritten laws, so as to produce results not competent
to any of them acting severally, will be fully explained in the
next chapter. And,—
The Meaning. — Further on, it will be shown in detail, how,
under the influence of differing rules of interpretation, variously
called into action by the dissimilar natures of the provisions and
their objects and circumstances, statutes are enlarged and con-
tracted in their meanings. But, before we proceed to those
! Ante, § 70. 8 Post, § 119, 191.
2 Ante, § 70. 4 Post, § 120, 191, 227.
112
CHAP. XVI. ] ALL LAWS ONE SYSTEM. § 119
fuller explanations, something further seems desirable to be said,
concerning the —
§ 119. Expansion and Contraction of Meanings : —
Keeping within Words. — There are classes of statutes the mean-
ings of which the courts restrict to their express terms, allowing
nothing by implication. Thus, —
Derogation of Common Right — (Private Property to Public
Use). — The taking away of rights is not favored by the law.
Therefore statutes in derogation of common right are in the con-
struction kept within their express provisions.!_ Of this sort, for
example, is a statute permitting the condemnation of private land
to public use.2 So, —
Derogation of Common Law. — A statute which on its face does
not profess to repeal any thing, being prima facie an addition to
the prior body of the law, will not be construed to change such
law further than its direct terms require. This rule is variously
expressed: a common form of the expression, covering the doc-
trine in part, is, that statutes in derogation of the common law
are to be construed strictly, as extending only to cases fairly
within the scope of their language. Again, —
Penal Statutes, — which deprive men of property and liberty,
and bring them into disgrace, are construed thus strictly. So
also —
New Powers to Magistrate. — A justice of the peace, given new
statutory powers, “‘must proceed in the mode prescribed by the
statute.’’5 But this is simply a branch of the general doctrine
that —
Statutory Authority or Right.— A purely statutory authority or
right must be pursued in strict compliance with the terms of the
statute.® So—
1 Indianapolis and Cincinnati Railroad
»v. Kinney, 8 Ind. 402.
2 Gilmer v. Lime Point, 19 Cal. 47; In
te Powers, 29 Mich. 504. And see In re
Washington Park, 52 N. Y. 131.
3 Dwelly v. Dwelly, 46 Maine, 377;
Burnside v. Whitney, 21 N. Y. 148; Gib-
son v. Commonwealth, 6 Norris, Pa. 253;
The Waverly, 7 Bis. 465; Indiana North
and South Railway v. Attica, 56 Ind.
476; Harrison v. Leach, 4 W. Va. 388;
Harrison v. Smith, 4 W. Va. 97; Pendle-
ton v. Barton, 4 W. Va. 496; Brown v.
8
Fifield, 4 Mich. 822; Barrett v. Long, 3
H. L. Cas. 395. And see post, § 158,.
189 a.
4 Post, § 193; Atlanta v. White, 33
Ga. 229; Steel v. The State, 26 Ind. 82;
The State v. Lovell, 23 Iowa, 304.
5 O’Brian v. The State, 12 Ind. 369.
6 Morris Aqueduct v. Jones, 7 Vroom,
206; Commonwealth v. Howes, 15 Pick.
231; Best v. Gholson, 89 Ill. 465; Lang
v. Scott, 1 Blackf. 405; Chicago and Al-
ton Railroad v. Smith, 78 Ill. 96; Garrigus
v. Parke, 39 Ind. 66; Banks v. Darden,
113
§ 121 INTERPRETATION. [Book U.
Proceeding by Motion — Restraint of Trade — Evidence — Con-
structive Notice — Special Privileges.— A statute authorizing an
aggrieved party to proceed against a public officer by motion, on
his official bond ; or in restraint of trade, or of the alienation of
property ;? or excluding one from giving evidence ;* or author-
izing constructive, instead of personal, service of process ;* or
giving to corporations or individuals special privileges,> — is, for
the reasons already explained, to be kept by construction within
its express terms. But, —
§ 120. Expanding the Meaning. — In cases governed by reasons
of a different sort, interpretation may expand the meaning beyond
the mere literal significance of the words. The degree of the
expansion will vary with the individual instance, and with the
particular rule of construction requiring it. No uniform standard
can be defined. This is called a liberal interpretation.
‘When — (Appeal — Redemption of Land — Arbitration). — It is
applied, for illustration, to a statute extending the right of ap-
peal,® allowing redemption of real estate after a tax sale,’ or pro-
viding for the settlement of disputes by arbitration.® And —
Remedial — Public Convenience. —- All other remedial statutes,®
and statutes to promote the public convenience,” are to be thus
liberally construed.
§ 121. In Conclusion, — while, as said by Perkins, J., “ the ap-
plication of the words of a single statute may be enlarged or
restrained to bring the operation of the act within the intention
of the legislature, when violence will not be done by such inter-
pretation to the language of the statute,” 4 this doctrine can have
its just effect only in combination with all the other rules of statu-
tory interpretation, and such skill in the interpreter as comes alone
from a thoughtful and intelligent study of the entire subject.
18 Ga. 318; Moody v. Nelson, 60 Ill. 5 Moran v. Miami, 2 Black, 722.
229; Matthews v. Skinker, 62 Misso. 829; 6 Pearson v. Lovejoy, 53 Barb. 407;
Erlinger v. Boneau, 51 Ill. 94; Ryan v. Converse v. Burrows, 2 Minn. 229.
The State, 32 Texas, 280; Hastings v. . 7 Jones v. Collins, 16 Wis. 594.
Cunningham, 3? Cal. 137. 8 Tuskaloosa Bridge v. Jennison, 33
1 Hearn v. Ewin, 3 Coldw. 399. Ala. 476.
2 Richardson v. Emswiler, 14 La. An. ® Hudler v. Golden, 36 N. Y. 446;
658. White v. Steam-Tug Mary Ann, 6 Cal.
8 Pelham v. Messenger, 16 La. An. 99; 462; Jackson v. Warren, 32 Ill. 331; Cul-
Esterley’s Appeal, 4 Smith, Pa. 192; Sul- lerton v. Mead, 22 Cal. 95.
livan v. La Crosse, &c. Steam Packet Co. 10 Marshall v. Vultee, 1 E. D. Smith,
10 Minn. 386. ° 294..
4 Stewart v. Stringer, 41 Misso. 400. 11 Maxwell v. Collins, 8 Ind. 38, 40.
114
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 123,
r \ :
CHAPTER XVII.
HOW THE EFFECT OF STATUTORY AND COMMON-LAW: PRO-
VISIONS IS CURTAILED AND EXTENDED BY INTERPRETING
EACH IN COMBINATION WITH THE OTHERS.
§ 122. Introduction.
123-125. The General Doctrine.
126-127. One Statute cutting short another.
128-130. One Statute extending another,
131-183. Common Law shortening Statute.
134-137. Common Law extending Statute.
138, 138 a. Statutes abridging and enlarging the Common Law.
139,140. Taking Qualities and Incidents from Common Law.
141-144. Otherwise construed by Common Law.
145, 146. Adhering to Terms of Statute.
§ 122. How Chapter divided. — We shall consider, I. The
General Doctrine; II. One Statute cutting short another;
III. One Statute extending another; IV. The Common Law
shortening a Statute; V. The Common Law extending a Stat-
ute; VI. Statutes abridging and enlarging the Common Law;
VII. Statutes taking their Qualities and Incidents from the
Common Law; VIII. The Statutes to be otherwise construed
harmoniously with the Common Law; IX. Adhering in the
Construction to the Terms of the Statutes.
I. The General Doctrine.
§ 123. Elsewhere and here.— We have already seen, that, in
interpreting any statute, we are to lay beside it the other rele-
vant statutes and provisions of the common law, and give it the
meaning and effect derived from a consideration of the combined
whole. We are here to carry into detail the applications of this
doctrine, not as to the meaning, but as to the effect.
1 Ante, § 82, 86, 113 a-118 b.
115
§ 125 INTERPRETATION. [Book U.
Doctrine defined. — The doctrine of this chapter is, that, having
ascertained the meaning of a statute, we are to lay beside it all
the other relevant provisions of statutory and common law, at
whatever several dates established, and lengthen out and shorten
it by them and them by it in their respective effects, until the
whole system thus constructed becomes ag harmonious in itself
and with the rest of the law as the particular terms of the inter-
preted provisions will permit.
§ 124. Necessity of this Doctrine. — We have already seen, in
some measure, why this sort of doctrine is a necessity in the law.!
Without it, no legislature could give to any court directions
which it would understand. A new law is made to control
future events. They cannot be foreseen in detail. The law is
the rule for whatever may occur. But no event stands alone;
each particular one is connected with, is influenced by, and influ-
ences other events. And the others are governed by their rules.
So that rule comes in conflict with rule. If, then, the rules were
not interpreted together, as limiting and extending one another,
where all, viewed in their full terms, are in conflict, a court could
not enforce any one; because, finding another rule commanding
otherwise, it would not know which to obey. The legislature
could not foresee the particular case, and by the form of its enact-
ment make a way through the difficulty. Even if this were not
strictly so, and, endowed with superhuman foresight, it could
lay for the tribunals paths no one of which should cross another,
and each should be unconnected with the rest, the folly of doing
it would be so steep as to constitute a practical impossibility.
§ 125. How Doctrine made to appear.— Necessity is one of the
elements of the law. Whatever, in jurisprudence, must be, is.?
Therefore, as practically the laws cannot be administered without
this doctrine, it is parcel of them. In matter of judicial author-
ity, legal doctrine is not, in general, established by direct adjudi-
cation. In large part, silently controlling the decisions, it is
learned from a comparison of decision with decision ; just as the
laws of nature are discerned in its operations, and from a com-
parison of instance with instance. To establish the doctrine of
this chapter, we are required to examine it, as we shall do in suc-
cessive sub-titles, in its several parts; and, when each part is
1 Ante, § 117 a.
2 Crim. Law, I. § 54, 346-355, 824; Crim. Proced. I. § 7, 264 7, 498 et seq.
116
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 126
shown to pertain to the adjudged law, the conclusion that so does
the whole will follow as of course.
II. One Statute cutting short another.
§ 126. Doctrine defined. — The doctrine of this sub-title is,
that, where the harmony of the law requires, one statute will be
construed as cutting short—that is, curtailing the effect of —
another. Thus, —
Provisions partly antagonistic. — There are not unfrequently
clauses in the same act or in different acts, which may well stand
together to a certain point; but, arrived there, one must give
way. To determine which one is often a nice question. It does
not depend solely on the priority of the acts, though this consid-
eration is sometimes important. One rule is, that, —
Specific and General — (Repeal). — As already mentioned,! the
more specific provision controls the general, without regard to
their comparative dates; the two acts operating together, and
neither one working a repeal of the other.2? An old form of the
1 Ante, § 64, 112 a, 112 b.
2 Dwar. Stat. 2d ed. 518, 668; McVey
v. McVey, 51 Misso. 406; Brown v. Com-
missioners, 9 Harris, Pa. 37, 43; Haywood
v. Savannah, 12 Ga. 404; Conley v. Cal-
houn, 2 W. Va. 416; Beridon v. Barbin,
13 La. An. 458; Mobile and Ohio Rail-
road v. The State, 29 Ala. 573; McFar-
land v. State Bank, 4 Pike, 410; Ellis v.
Batts, 26 Texas, 703; The State v. Macon
County Court, 41 Misso. 453. In a Flor-
ida case, which affirms this doctrine,
Thompson, J. observed: “ As a general
rule, it is true that every affirmative stat-
ute is a repeal, by implication, of a pre-
cedent affirmative statute, so far as it is
contrary thereto ; leges posteriores priores
contrarias abrogant — but to apply this
maxim of the law, it is necessary that
the two acts be in conflict with each
other, which is not the case here. The
last act is general; and, though it may
inflict a milder punishment than the pre-
ceding statute for the same offence, yet
the act which is claimed to be repealed
by this implication is special and particu-
lar.” Luke v. The State, 5 Fla. 185, 194.
Yet an act prescribing the mode of pun-
ishing an offence in a single county was,
in Pennsylvania, held to be repealed by
a later one regulating-the mode for the
entire State. Nusser »v. Commonwealth,
1 Casey, Pa. 126. See also Blevings v.
People, 1 Scam. 172. So, where a stat-
ute permitted an appeal from the judg-
ment of a justice of the peace, then
another was passed allowing an appeal
whenever the judgment exceeded five
dollars, the former was held to be by im-
plication repealed. Curtis v. Gill, 34
Conn. 49. But in Maine it was held that
the act of 1823, saving the right of appeal
from the sentence of the Common Pleas
in criminal cases, not mentioning any
condition, did not repeal the prior stat-
ute, which required a recognizance with
sureties to be given to prosecute such an
appeal. Dennison’s Case, 4 Greenl. 541.
A general law does not repeal a special
one passed at the same session. Ottawa
v. La Salle, 12 Ill. 3389. Again, a special
statute giving a bank a summary process
against its creditors is not affected by a
subsequent general one, unless such in-
tention is clear on the face of the latter.
Pearce v. Bank of Mobile, 33 Ala. 693.
117
§ 127 INTERPRETATION. {Book u.
expression is, that ‘a thing given in particular shall not be taken
away by general words.”! Thus, —
Limitation of Time — Place. — A statute prescribing the time
within which a class of offences must be prosecuted, or the place
of the trial, controls a general one, even subsequent in date,
creating an offence within the class, and providing for its pun-
ishment.2— And —
Selling Liquor in Town. — A local act, making finable the unli-
censed selling of spirituous liquors in a designated town, is not
affected by a subsequent general one regulating the sale of such
liquors in the State.2 So —
Jurisdiction to Magistrate. — A statute conferring on justices of
the peace jurisdiction over offences punishable by fine not exceed-
ing seven dollars, and another giving a like jurisdiction over
enumerated offences the fine for which is more than seven dol-
lars, may, the former being general and the latter specific, stand
together; what is said in general, in the one, being qualified by
what is enunciated in particular, in the other.!
§ 126 a. Different Provisions in one Statute. — As this doctrine
applies to different statutes, a fortiori it does to different pro-
visions in the same statute.®
§ 127. Other Classes of Cases. — There are other classes of cases
to which the doctrine of this sub-title applies.©6 For example, —
Provisions as to Punishment — (Larceny). — After a statute had
provided a punishment for the larceny of goods exceeding fifty
dollars in value, another was enacted ordaining a heavier punish-
ment for larceny where the goods are of value above two thou-
See also Zachary v. Chambers, 1 Oregon,
821; The State v. Bilansky, 8 Minn. 246;
St. Martin v. New Orleans, 14 La. An.
113; Pease v. Whitney, 5 Mass. 380;
Nichols v. Bertram, 3 Pick. 342; The
State v. Perrysburg, 14 Ohio State, 472 ;
Isham v. Bennington Iron Co. 19 Vt. 230;
London, &c. Railway «. Wandsworth
Board of Works, Law Rep. 8 C. P. 185,
189; post, § 156.
! Hutton, J. in Standen ». University
of Oxford, W. Jones, 17,26; McFarland
v. State Bank, 4 Pike, 410; Felt c. Felt,
19 Wis. 193.
2 Johnson v. United States, 3 McLean,
89; United States v. Ballard, 3 McLean,
469; Rex v. Wyndham, Russ. & Ry. 197;
118
8.c. nom. Rex v. Window, 3 Camp. 78;
Churchill v. Crease, 5 Bing. 177, 180;
Gregory’s Case, 6 Co. 19; Dwar. Stat.
2d ed. 514; Ottawa v. La Salle, 12 IIL.
839.
3 McRae v. Wessell, 6 Ire. 153.
4 Barnes v. The State, 19 Conn. 398.
As to the principle of this case, compare
it with Hill v, Hall, 1 Ex. D. 411.
5 3 Inst. 117; Rex v. Armagh, 8 Mod.
6,8; Clarence Railway v. Great North
of England, &c. Railway, 4 Q. B. 46;
Brown v. Clegg, 16 Q. B. 681.
6 And see Cincinnati v. Rice, 15 Ohio,
225; Tuttle v. Hills, 6 Wend. 213; An-
derson v. Anderson, 4 Wend. 474; Reg.
v. Thompson, 4 Eng. L. & Eq. 287.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 129
sand dollars, and repealing inconsistent acts. Thereupon the
later statute was held to apply only to the heavier larcenies,
while the earlier stood as to those of value between fifty and
‘two thousand dollars.!
TIT. One Statute extending another.
§ 128. Doctrine defined. — The doctrine of this sub-title is,
that, where the harmony of the law requires, one statute will be
construed as lengthening out — that is, extending the effect of —
another. Thus, —
Forbidding Clergy. When clergy was allowed, if a statute
took it away from offences of a designated class, all subsequently-
enacted offences within such class were held to be excluded ;?
the earlier statute by construction enlarging the later into the
forbidding of clergy to the offender. For —
Earlier qualifying later. — An earlier enactment may qualify a
later nor are express words required to give it this effect.*
Again, —
§ 129. Perjury.— The act of Congress of March 38, 1825, defin-
ing the crime of perjury against the United States, was held to
apply to false swearing under the statute of bankruptcy, subse-
quently passed ;° the two enactments operating upon and enlarg-
ing each other. On the same principle, —
Deputy Collector — (Administering Oath). — The act of Congress
-of March 38,1817, having conferred on every collector of customs
“authority, with the approbation of the Secretary of the Treas-
ury, to employ within his district such number of proper persons
as deputy collectors of the customs as he shall judge necessary,
who are hereby declared to be officers of the customs,” the con-
struction was, that, wherever in subsequent enactments any
authority — as, to administer an oath — was given the collector,
the same extended by exposition to his deputy.®
l The State v. Grady, 34 Conn. 118. 147, 1 Con. & L. 567; Williams v. Drewe,
2 1 East P.C. 186; Foster, 190. And Willes,392; Louisville v. Commonwealth,
see 1 East P. C. 129; Anonymous, T. 9 Dana, 70; The State v. Becton, 7 Bax-
Jones, 233. ter, 138.
3 Holmes v. Tutton, 5 Ellis & B. 65; 5 United States v. Nihols, 4 McLean,
Attorney-General v. Moore, 3 Ex. D.276; 23.
Barber v. Tilson, 8 M. & S. 429. 6 United States v. Barton, Gilpin, 439.
4 Reg. v. Smith, Law Rep. 1 C. C. 266, See also The State v. Raines, 8 McCord,
270; In re Perrin, 2 Drury & Warren, 6533; Doebler v. The State, 1 Swan,
119
§ 181 INTERPRETATION. [BOOK II.
§ 180. Salaries under Successive Statutes. — A statute in Ten-
nessee, after enlarging the duties and jurisdiction of a certain
county court, added, that “ the judge of said court . . . shall have
the same salary as the circuit judges of the State.” Afterward
another statute increased the salaries of the circuit judges, where-
upon the county judge was held entitled to the increased salary
also. In Alabama, the pay of the quartermaster-general having
been fixed by a statute at two hundred dollars a year, another,
repealing this one, placed it at four dollars a day while he should
be on duty. But the general appropriation act, passed later
during the same session, yet approved by the Governor the same
day, set apart for this officer two hundred dollars a year for two
years ; and this was held to postpone the operation of the act
making his compensation four dollars a day, until the two years
should expire.”
IV. The Common Law shortening a Statute.
§ 181. Doctrine definea.—- The doctrine of this sub-title is, that
a provision of the common law, like a statutory one,? may, when
the harmony of the legal system requires, cut short the effect of
a statute. For, —
Modify, not repeal. — When the unwriften and the written law,
the same as when two statutes, may stand together without con-
flict up to a given point, there is not properly a repeal; but, at
this point, the one or the other simply gives way. For example,—
Specific Common Law and General Statute.—- The rule as to
general and specific in statutes* prevails also in this case. A
statute general in its terms is construed as subject to any excep-
tions which the common law requires.6 Thus, —
Infants. — Though, as already seen, infants may be bound by a
statute in general terms, they are not always so. The particular
instance will be governed by its own reasons. Since the unwrit-
Tenn. 478; Campbell v. People, 8 Wend. 4 Ante, § 112 a, 112 b, 126.
636. 6 See Wilbur v. Crane, 13 Pick. 284;
1 Crozier v. The State, 2 Sneed, 410. United States v. Hart, Pet. C. C. 390;
2 Riggs v. Pfister, 21 Ala. 469. Com- Commonwealth v. Knox, 6 Mass. 76; The
pare with Kinsey v. Sherman, 46 Iowa, State v. Martindale, 1 Bailey, 163.
463. And see further, concerning the ® Ante, § 117; Beckford v. Wade, 17
doctrine of this section, Griswold v. At- Ves. 87; Warfield v. Fox, 8 Smith, Pa.
lantic Dock, 21 Barb. 225, 382; Bailey v. Whaley, 14 Rich. Eq. 81.
3 Ante, § 126.
120
CHAP. XVI.] CURTAILING AND EXTENDING EFFECT. § 132
ten law restricts or takes away the capacity for crime of those
who are below certain ages, the same limitation extends to and
qualifies statutes in general terms creating offences.! So, —
Insanity.— While insane persons: may enforce rights under
statutes as well as at the common law, and may be bound by
statutes,? they are not responsible to the common law for crime,
therefore they are also excepted by interpretation out of statutes
creating crimes. The common law thus limits and cuts short
their effects.2 Also, —
Coverture. — The common-law exemption of the wife from
responsibility for criminal acts committed in the presence of the
husband, is, by construction, carried equally into statutory of-
fences; thus cutting short the effect of the statutes. And a
statute in general terms creating a forfeiture is, in like manner,
restrained by the common law. It does not include women under
coverture.® Again, —
§ 182. Evil Intent. — A statute will not generally make an act
criminal, however broad may be its language, unless the offender’s
intent concurred with his act ;® because the common law does
not.’ Hence —
Necessity. — What is done from overwhelming necessity is con-
strued as not violating a statute, however contrary to its general
terms.$ And —
Mistake of Facts. — One who, while careful and circumspect, is
1 Crim. Law, I. § 367-378; ante, § 117;
Rex v. Groombridge, 7 Car. & P. 682.
And see Sydney v. The State, 3 Humph.
478.
2 2 Bishop Mar. & Div. § 304 a-308 a;
Jones v. Green, Law Rep. 5 Eq. 555.
8 Crim. Law, I. § 303 4, note, 374 et
seq.
4 Crim. Law, I. § 356 etseq. And see
Commonwealth v. Hadley, 11 Met. 66.
5 Martin v. Commonwealth, 1 Mass.
347. See also Cornwall v. Hoyt, 7 Conn.
420. But a_feme covert may be proceeded
against under a penal statute, without
joining her husband. Rex v. Crofts, 7
Mod. 397.
6 The William Gray, 1 Paine, 16;
Reg. v. Allday, 8 Car. & P. 1836, 189;
Anonymous, 2 East P. C. 765; Price v.
Thornton, 10 Misso. 185; Commonwealth
v. Stout, 7 B. Monr. 247; Duncan v. The
State, 7 Humph. 148; Commonwealth v.
Slack, 19 Pick. 304; Reg. v. Page, 8 Car.
& P. 122; Reg. v. Langford, Car. & M.
602; Reg. v. Caruthers, 3 Crawf. & Dix.
C. C. 391; Commonwealth v. Fourteen
Hogs, 10 S. & R. 893; Campbell v. Com-
monwealth, 2 Rob. Va. 791; Reg. v. Phil-
potts, 1 Car. & K. 112; Rex v. Speed, I
Ld. Raym. 583, 584. But see Reg. v.
Armstrong, 1 Crawf. & Dix. C. C. 110;
Reg. v. Woodrow, 2 New Sess. Cas. 346.
And see Reg. v. Tivey, 1 Den. C. C. 63;
The State v. Nicholas, 2 Strob. 278;
Hooper v. The State, 56 Ind. 153; Tay-
lor v. Newman, 4 B. & S. 89, 9 Cox C.C.
814.
7 Crim. Law, I., a series of chapters
extending from § 204 to § 429.
8 The Gertrude, 8 Story, 68; The
Josefa Segunda, 5 Wheat. 838; Stratton
v. Hague, 4 Call, 564.
121
§ 134 INTERPRETATION. [Book 11.
led into a mistake of facts, and, doing what would be in no way
reprehensible -were they what he supposes them to be, commits
what under the real facts is a violation of a criminal statute, is
guilty of no crime; because such is the rule of the common law,
and in construction it restricts the statute. Yet in some instances
of this sort he incurs a civil liability... So,—
Outlawed Plaintiff, — Where the old English doctrine of out-
lawry prevails, disqualifying the outlawed person to maintain an
action, one may defend an information qui tam by showing that
the plaintiff is outlawed, though the statute sued upon allows
“any person” to inform.2- And, —
-§ 133. In General, —all statutes, and more particularly crimi-
nal ones, are liable to be cut short in this way. Thus, —
False Pretences. — However unqualified the enactments against
cheating by false pretences may be in their terms, numerous lim-
itations, drawn from the reasons of the common law, as well as
from considerations of their objects and purposes, incumber their
practical application.®
V. The Common Law extending a Statute.
§ 184. Doctrine defined. — The doctrine of this sub-title is,
that, when the harmony of the legal system requires, statutes will
be construed as extended in their effects by the common law
beyond their terms. The prior common law operates in the same
way as a prior statute, explained in the sub-title before the last.
For, —
New Interest and Old Law.— As once observed: ‘“ When an act
of Parliament creates a new interest, it shall be governed by the
same law that like interests have been governed [by] before.’ *
And —
New Right or Duty. — Rights and duties newly created by stat-
ute are, in the same way, construed as extended by the common
law. Thus,—.
1 Crim. Law, =. § 301-310, and par-
ticularly the note to § 303a; Myers v.
The State, 1 Conn. 502; Reg. v. Grasseley,
2 Dy. 210 b, pl. 25; Preston v. Hunt,
7 Wend. 53; The Marianna Flora, 11
Wheat. 1; Etheridge v. Cromwell, 8
Wend. 629; United States v. Package of
Wood, Gilpin, 349. But see Reg. v.
122
Woodrow, 15 M. & W. 404; Attorney-
General v. Lockwood, 9 M. & W. 378;
Rex v. Marsh, 4 D. & R. 260.
2 Atkins v. Bayles, 2 Mod. 267.
8 See People v. Clough, 17 Wend. 351;
Reg. v. Johnston, 2 Moody, 254; Com-
monwealth v. Drew, 19 Pick. 179.
4 Lane v. Cotton, 12 Mod. 472, 486.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 185
Acting by Agent.— The act of a duly authorized agent being,
by the common law, the principal’s act,! if a statute commands
or forbids one to do a thing, and his agent, authorized thereto,
does or declines it, the case is within the statute; which, by con-
struction, receives for the occasion the appendage of this com-
mon-law rule.?, And the like doctrine prevails in all analogous
cases. For example, —
Trading with Slave. — Under the law of slavery, now abolished,
if a statute made it criminal to trade with a slave without a per-
mit from his master, a permit from the overseer, being the mas-
ter’s agent, was sufficient. But the rule was limited where the
common law limits the powers of agents, who cannot act for
themselves and their principals in the same transaction; there-
fore the overseer could not trade with the slave on a permit given
by himself.2 And, —
False Pretences. — Under the statutes against cheating by false
pretences, such pretence made to a clerk or salesman, and by
him communicated to the employer, is a false pretence to the
employer ;# interpretation, it is perceived, adding the common-
law rule to the statutory terms. Again, —
§ 185. Principals of Second Degree.— By the common law, all
persons present giving aid and comfort to another committing an
offence, even a felony, are regarded as principals; that is, as in
legal contemplation doing the deed. Therefore, if a statute
makes the doing of a thing criminal, it includes, with the actual
doer, persons who are present lending their countenance and aid.®
Thus, —
Malicious Shooting. — The English statute of 9 Geo. 1, c. 22,
§ 1, having made it felony for one to “ wilfully and maliciously
shoot at any person,” one who, using no fire-arms himself, stood
by encouraging his companion who shot, was held to be a prin-
cipal offender.® Likewise, —
1 Bishop Con. § 318; Crim. Proced. L * Commonwealth v. Harley, 7 Met.
§ 332. 462; Commonwealth v. Call, 21 Pick.
2 Hathaway v. Johnson, 55 N.Y. 93; 515.
Dorrity v. Rapp, 72 N. ¥. 307; Arm- 5 United States v. Wilson, Bald. 78,
strong v. Cooley, 5 Gilman, 609; United 103; Rex v. Tattersal, 1 Russ. Crimes,
States v. Voss, 1 Cranch C. C. 101; 8d Eng. ed. 27; Rex v. Manning, 2
United States v. Conner, 1 Cranch C.C. Comyns, 616; Reg. v. Simpson, Car. & M.
102. 669; Rex v. Bear, 2 Salk. 417, 418.
8 The State v. Chandler, 2 Strob. 266. 6 Granger’s Case, 1 East P. C. 413;
See Reg. v. Nickless, 8 Car. & P. 757. Rex v. Gibson, 1 East P. C. 413; Rex v.
123
§ 137 INTERPRETATION. [BOOK I.
Felonious Gaming. — Under the Tennessee act of 1820, not only
the person who deals the cards at faro is guilty as a principal
felon, but the owner of the funds and house, who receives the
profits, and is present assisting, incurs the same degree of guilt.
The like doctrine, of extending the statute by the common law,
is applied also to —
§ 186. Misdemeanors. — Where a statute makes the doing of a
thing misdemeanor, persons who procure it to be done, though
not present, are by construction treated as actually doing it, such
being the rule in common-law misdemeanors.? So, —
Treason — (Rescue — Escape). — In statutory treasons, says
East, writing of the English law, ‘he who rescues the traitor
from prison, or suffers him voluntarily to escape from his lawful
custody, though not expressly named in the statute, is yet a
traitor by a necessary construction of law upon the act itself,” ?—
a result which, as seen in another connection,‘ is probably differ-
ent under the special terms of’ our American constitutions and
statutes.
§ 137. Right carrying Remedy. — By the common law, Ubi jus,
bi remedium, there is for every right a remedy.’ Or, as Coke
expresses it: “In every case where a man is wronged, or endam-
aged, he shall have remedy.”’® Or, in the words of Holt, C.J.:
‘It is a vain thing to imagine a right without a remedy; for
want of right and want of remedy are reciprocal.””7 Hence, —
Statute effectual — (Collateral Right and Remedy).— When the
harmony of the law requires, the courts expand the statutes in
construction by adding to them this common-law principle; re-
sulting in the doctrine, that every enactment carries with it so
much of collateral right and remedy as will make its provisions
effectual. This doctrine is equally traceable to necessity, the
Wells, 1 East P. C. 414. And see Reg. * Crim Law, I. § 701-704,
v. Whittaker, 1 Den. C. C. 310; Rex v. 6 Broom Leg. Max. 2d ed. 146.
Franklyn, 1 Leach, 4th ed. 255. Andsee “There is no wrong without a remedy.”
Reg. v. Davis, 8 Car. & P. 759; Reg. v. Johnstone v. Sutton, 1 T. R. 511, 512.
Williams, Car. & M. 259. ® Co. Lit. 197 b.
1 McGowan v. The State, 9 Yerg. 184. 7 Ashby v. White, 2 Ld. Raym. 938,
2 United States v. Morrow, 4 Wash. 953.
C. C. 733; The State v. Berman, 8 Hill, 8 Bac. Abr. Statute, B; Oath before
S.C. 90; Commonwealth v. Nichols, 10 Justices, 12 Co. 130,131; Cookson v. Lee,
Met. 259; Schmidt v. The State, 14 23 Eng. L. & Eq. 400; The Protector ».
Misso. 187; The State v. Dow, 21 Vt. Ashfield, Hardr. 62; 2 Inst. 306; 1 Kent
484. Com. 464; The State v. Hawthorn, 9
3 1 East P. C. 96. Misso. 389; Stief v. Hart, 1 Comst. 20;
124
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 137
power whereof in our jurisprudence has already been explained
in this chapter.! In the words of Fletcher, J., following the
maxim Quando aliquid mandatur, mandatur et omne per quod
pervenitur ad illud,? “ when a general power is given, or duty
enjoined, every particular power, necessary for the exercise of
the one or the performance of the other, is given by implication.?
Thus, —
Contempt.— The authority to punish for contempt is necessa-
rily implied in the establishment of a judicial tribunal. So, —
Court taking Oaths. —— Where a statute gave the king’s justices
power “to take the oaths” of persons, it carried with it, by in-
tendment, authority to issue their precept, and bring the persons
before them to be sworn? And —
Witness before Grand Jury. — A grand-jury, authorized by stat-
ute to make inquiry and presentment of offences, may require
the officer in attendance to conduct before the court a witness
who is disrespectful and refuses to be sworn, that he may be pun-
ished for the contempt; because this is essential to the exercise
of the power expressly conferred.§
Limit of Doctrine. — The terms of this doctrine indicate its
limit. If an adequate remedy for the statutory right is provided
in the statute itself, there is no need for implication, and none
will be made;? if an inadequate, the deficiency will be supplied
Lockwood v. The State, 1 Ind. 161; Peo-
ple v. Hicks, 15 Barb. 153; Dewitt v. San
Francisco, 2 Cal. 289; Green v. New
York, 2 Hilton, 203; Stearns v. Atlantic,
&c. Railroad, 46 Maine, 95; The State v.
Rover, 13 Nev. 17; Wilbraham v. Hamp-
den, 11 Pick. 322; Chase v. Rutland, 47
Vt. 393, 401; Sturtevants v. Alton, 3 Mc-
Lean, 393; People v. Knapp, 42 Mich.
267.
1 Ante, § 124, 125.
2 Broom Leg. Max. 2d ed. 366; Fo-
liamb’s Case, 5 Co. 115 6. :
3 Heard v Pierce, 8 Cush. 338, 345,
referring also to Miller v. Knox, 4 Bing.
N. C. 574, 583; Pittstown v. Plattsburgh,
18 Johns. 407, 418; Field v. People, 2
Scam. 79; Witherspoon v. Dunlap, 1 Mc-
Cord, 546.
* United States v. New Bedford Bridge,
1 Woodb. & M. 401; The State v. John-
son, 1 Brev. 155; Crim. Law, II. § 248.
5 Oath before Justices, 12 Co. 180, 181;
Dwar. Stat. 2d ed. 671.
6 Heard v. Pierce, 8 Cush. 338. And
see The State v. Blocker, 14 Ala. 450;
Crim. Proced. I. § 868, 869.
7 Post, § 249-253; Payne v. Baldwin,
3 Sm. & M. 661; Butler v. The State, 6
Ind. 165; Commonwealth v. Howes, 15
Pick. 231; Weller v. Weyand, 2 Grant,
Pa. 10; Morris Aqueduct v. Jones, 7
Vroom, 206; Sudbury Meadows v. Mid-
dlesex Canal, 23 Pick. 36; Dodge v.
Essex, 3 Met. 380; Wiley v. Yale, 1 Met.
5538, 554; Elder v. Bemis, 2 Met. 599, 604;
Lang v. Scott, 1 Blackf. 405; Andover, &c.
Turnpike v. Gould, 6 Mass. 40; Franklin
Glass Co. v. White, 14 Mass. 286; Stur-
geon v. The State, 1 Blackf. 39; Journey
v. The State, 1 Misso. 428; Riddick v.
Governor, 1 Misso. 147; The State vu.
Cole, 2 McCord 117; Rising v. Dodge, 2
Duer, 42; Bosworth v. Brand, 1 Dana,
125
§ 138 INTERPRETATION. [Book I.
by implication.! What violates existing rights, or interferes with
established relations, will not be adopted as implied.? Nor will
implication be carried beyond what is fairly required; as, —
Arbitrators administering Oath.— A power conferred on a court
by statute to submit a case to arbitration, has been held not so
to descend to the arbitrators as to qualify them to administer an
oath.3
Constitution. — This doctrine is not limited to statutes: it is
applied equally to the interpretation of our written constitutions.
VI. Statutes abridging and enlarging the Common Law.
§ 138. Doctrine defined. — The doctrine of this sub-title is, that,
as by construction a statute will abridge or enlarge another stat-
ute in its effect, when the harmony of the legal system requires,
so also it will the common law. Thus, —
Breach of Statutory Duty.— As explained in another connec-
tion,® since the common law punishes every breach of public
duty, sufficient in magnitude for its notice, if a statute newly
creates a duty of this sort, yet prescribes no punishment for its
violation, the violator, while not indictable strictly under the
statute, is so at the common law.® . And, where the duty is private
and not public, the private party injured by a breach of it will
have his common-law action.’ So, —
Attempt.— A mere unsuccessful attempt to commit a substan-
tive crime being ordinarily indictable at the common law,® such
877; James v. Atlantic Delaine Co. 11
Bankr. Reg. 390; In re O’Connor, 48
Barb. 258. ‘
1 Johnston v. Louisville, 11 Bush, 527.
2 Commonwealth v. Downes, 24 Pick.
227.
4 Reg. v. Hallett, 2 Den. C. C. 287, 4
Eng. L. & Eq. 570.
4 Field v. People, 2 Scam. 79.
5 Crim. Law, I. § 237, 238.
6 Gearhart v. Dixon, 1 Barr, 224; Rex
v. Wiggot, Comb. 205, 372; Rex v. Rob-
inson, 2 Bur. 799, 803; United States ».
Coolidge, 1 Gallis. 488; The State v.
Fletcher, 5 N. H. 257; Rex v. Smith, 2
Doug. 441; Commonwealth v. Chapman,
13 Met. 68, 69; Rex v. De Beauvoir, 7
Car. & P.17; Commonwealth v. Silsbee
126
9 Mass. 417; The State v. Patton, 4 Ire.
16; Commonwealth v. Piper, 9 Leigh,
657; Reg. v. Price, 3 Per. & D. 421, 11 A.
& E. 727, 4 Jur. 291; The State v. Morris
Canal and Banking Co. 2 Zab. 537; Reg.
v. Wyat, 1 Salk. 380; 5. c. nom. Reg. v.
Wyatt, 2 Ld. Raym. 1189; Anonymous,
6 Mod. 96; Rex v. Sheffield Canal, 4 New
Sess. Cas. 25, 14 Jur. 170; Crouther’s
Case, Cro. Eliz. 654; The State v. Adams,
Walk. Miss. 868; Baker v. The State, 57
Ind. 255.
? Crim. Law, I. § 287, 238; Com. Dig.
Action upon Statute, A; 2 Inst. 118;
Tripp v. Grouner, 60 Ill.174; Case of the
Marshalsea, 10 Co. 63’8, 75 b.
= Crim. Law, I. § 485, 540, 604, 723
et seq.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 139
punishable. attempts increase with the statutes creating new
crimes... Again, —
§ 188 a. Agreements contrary to Law. — By the common law, a
promise to do what the law forbids, or what is contrary to its
policy, cannot be enforced as a contract.? Consequently, when
a statute creates a new offence, or renders violative of the legisla-
tive policy something which was not so before, it curtails, to the
extent of its provision, the power of contract at common law. A
contract made contrary thereto is void.3
VII. Statutes taking their Qualities and Incidents from the Com-
mon Law,
§ 139. Doctrine defined. — The doctrine of this sub-title is a sort
of condensation of foregoing propositions. It is, that whatever is
newly created by statute draws to itself the same qualities and
incidents as if it had existed at the common law.‘ In other
words, the statute is to be interpreted after the rules and inci-
dents of the common law. For example, —
Principals and Accessories in Felony.— When a statute creates
a new felony, whether out of what was before innocent, or was
a misdemeanor, those who are present aiding one who personally
commits it are principals, as already said; and the absent. who
counselled it, and those who afterward assist the felon to elude
justice, are accessories before or after the fact;* because such
1 Rex v. Roderick, 7 Car. & P. 795;
Rex v. Butler, 6 Car. & P. 368; Reg. v.
Meredith, 8 Car. & P. 589; Rex v Cart-
wright, Russ. & Ry. 106; post, § 189.
And see Reg. v. Williams, 1 Den. C. C.
39; The State v. Maner, 2 Hill, S. C. 453.
2 Bishop Con. § 456-472.
3 Ib. § 458, 464; post, § 1080; Rex v.
Hipswell, 8 B. & C. 466; Law v. Hodson,
11 East, 300; Hopkins v. Prescott, 4 C. B.
578, 595; Bartlett v. Vinor, Carth. 251,
252; Pangborn v. Westlake, 36 Iowa, 546;
Ritchie v. Smith, 6 C. B. 462; Fergusson
v. Norman, 5 Bing. N. C. 76; Graeme v.
Wroughton, 11 Exch. 146; Tyson v.
Thomas, McClel. & Y. 119; Cundell v.
Dawson, 4 C. B. 876; Little v. Poole, 9
B. & C. 192; Rex v. Gravesend, 3 B. &
Ad. 240; Solomon v. Dreschler, 4 Minn,
278.
4 The State v. Murdock, 9 Misso. 730;
Rex v. Wyer, 1 Leach, 4th ed. 480, 2 East
P. C. 753, 2 T.R.77; The State». Smith,
32 Maine, 369; The State v. Wright, 4
McCord, 358 ; Commonwealth v. Macom-
ber, 8 Mass. 254; Commonwealth v. Bar-
low, 4 Mass. 489; Rex v. Potts, Russ. &
Ry. 353; Troy’s Case, 1 Mod. 5,6; Rex
v. Gray, 7 Car. & P. 164; The State v.
Bosse, 8 Rich. 276.
5 2Inst. 801; Harbert’s Case, 3 Co. 11,
186; The William Gray, 1 Paine, 16.
6 Ante, § 135, 186.
. 11 East P.C. 161, 176, 446; 2 East
P. C. 511; Rex v. Soares, 2 East P. C.
974; Reg. v. Tracy, 6 Mod. 30, 32; Rex
v. Whistler, 2 Salk. 542, 11 Mod. 25, 29;
Hughes v. The State, 12 Ala. 458; Rex v.
Sadi, 1 Leach, 4th ed. 468,2 East P. C.
748; Rex v. Gaze, Russ. & Ry. 384; Rex
127
§ 141 INTERPRETATION.
[BOOK II.
are the relations of the like parties in felonies at the common law.
So, —
Like Parties in Treason — (Misprision of Treason).— If what
was felony is by statute made treason, a crime having no acces-
sories at common law, those who would have been such to the
felony will be principals in the treason.1’ And a statute creating
a new treason makes by implication the concealing of it mis-
prision of treason,? and the consenting to it treason,? — the rules
of the common law being in these several instances engrafted by
construction on the statutory crime. Again, —
§ 140. Incidents of Misdemeanor. — All the incidents of a com-
mon-law misdemeanor attach to a misdemeanor by statute.4
And—
Larceny and carrying into County.— The rule that a thief who,
stealing goods in one county, carries them into another, may be
indicted in either,’ applies as well in statutory as in common-law
larceny.6
VIII. The Statutes to be otherwise construed harmoniously with the
Common Law.
§ 141. Doctrine defined. — The doctrine of this sub-title is, that,
in all other respects, statutes should be construed as far as pos-
sible in harmony with their policy and with the common law.’
For example, —
Notice of Proceedings. —-The common law, the just spirit of all
laws, and “ the plainest principles of reason and justice,” ® forbid
v. Bear, 2 Salk. 417, 418; Reg. v. Smith,
Law Rep. 1 C. C. 266, 269,
1 Reg. v. Tracy, 6 Mod. 30, 32; Reg.
v. Whistler, 11 Mod. 25, 29; 1 East P. C.
93, 94, 96.
21 East P. C. 140.
8 Eden Penal Law, 3d ed. 125; ante,
§ 136.
4 Reg. v. Button, 11 Q. B. 929, 947,
12 Jur. 1017, 1021; Hull v. The State, 3
Kelly, 18; People v. Brown, 16 Wend. 561.
5 Crim. Proced. I. § 59, 60.
6 Commonwealth v. Simpson, 9 Met.
138.
1 See 1 Kent Com. 464; Rex v. Peel,
Russ. & Ry. 407; ante, § 123; People v.
Goshen, &c. Turnpike, 11 Wend. 597;
128
Rex v. John, 7 Car. & P. 324; Rex v.
Ellis, 8 D. & R. 173; Palmer v. Cuya-
hoga, 3 McLean, 226; Richardson v.
Broughton, 3 Strob. 1; Wood v. Smith,
23 Vt. 706; People v. Mather, 4 Wend.
229, 255; The State v. Doon, R. M. Charl.
1; Rex r». Shukard, Russ. & Ry. 200;
United States v. Pearce, 2 McLean, 14;
Bump ce. Commonwealth, 8 Met. 533;
Hanway »v. Boultbee, 4 Car. & P. 350, 1
Moody & R. 15; Reg. v. Hamilton, 1 Car.
& K. 212; The State v. Cheatwood, 2
Hill, S. C. 459; Murphy v. The State, 1
Ind. 366.
8 Swayne, J. in Lasere v. Rochereau,.
17 Wal. 437, 438, referring to McVeigle
v. United States, 11 Wal. 259, 267.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 141
the taking of judicial steps against a person without notice to
him, and the opportunity to be present and be heard.! There-
fore a statute will not be interpreted, unless its words are specific
requiring it, to authorize judicial proceedings without notice to
the party to be affected by them.2 So, —
Extra-territorial Force. — As, under the unwritten rule,? and in
the absence of special circumstances, the laws of a State are for
the government only of persons and things within it, statutes in
mere general terms will be construed as not intended to create
offences, or otherwise regulate the conduct of persons, beyond
‘its territorial limits. Even where legislation in one country may
properly bind its citizens in another,® express words are required,
or distinct implication, to give it this effect.6 And —
Express Words — (Law of Nations). — Statutes in terms binding
persons beyond the territorial jurisdiction are, in the construc-
tion, restricted where the law
! Bishop First Book, § 24; 2 Bishop
Mar. & Div. § 157, 159, 164, 165, 311; Hay-
wood v. Collins, 60 Ill. 328; Robinson v.
Reid, 50 Ala. 69; Garrott v. Jaffray, 10
Bush, 413. :
2 Ante, § 25; Meade v. Deputy Mar-
shal, 1 Brock. 324; Reg. v. Simpson, 10
Mod. 378, 880; The State v. Savannah,
T. U. P. Charl. 235; Chase v. Hathaway,
14 Mass. 222, 224; Arthur v. The State,
22 Ala. 61; Harper v. Carr, 7 T. R. 270,
275; Painter v. Liverpool Gas Light Co. 3
A..& E. 433. And see Innes v. Wylie, 1
Car. & K. 257, 263; Bigelow v. Stearns, 19
Johns. 39, 41; The State v. Stokes, Coxe,
392 ; Souter v. The Sea Witch, 1 Cal.
162; Selden v. Preston, 11 Bush, 191;
Wagener v. Tice, 36 Iowa, 599; Hyslop v.
Hoppock, 6 Bankr. Reg. 557; Kelly v.
Morse, 3 Neb. 224; Burnside v. Ennis, 43
Ind. 411; Mitchell v. Mitchell, 67 N. C.
807; Atkins v. Disintegrating Co. 18 Wal.
272; Campbell v. Campbell, 63 Ill. 462;
Lang v. Cox, 40 Ind. 142; Church ».
Fisher, 40 Ind. 195; Hiner v. Pavy, 40
Ind. 841; Heaton v. Butler, 41 Ind. 143;
Bash v. Evans, 41 Ind. 144; Keller v.
Bottman, 41 Ind. 277; Huston v. Roosa,
42 Ind. 886; Keiser v. Yandes, 42 Ind.
599 ; Barnhart v, Cissna, 42 Ind. 477;
Price v. Pollock, 42 Ind. 497; Rabb v.
Graham, 48 Ind. 1; Barger v. Manning,
43 Ind. 472. How long.— The notice
9
of nations limits the right,’ as
meant by a statute requiring it in express
terms, yet not saying how long, is a rea-
sonable notice. Burden v. Stein, 25 Ala.
455.
3 Crim. Law, I. § 109, 110.
4 Commonwealth v. Green, 17 Mass.
515, 540; United States v. Bevans, 3
Wheat. 336; People v. Cesar, 1 Parker
C. C. 645, 647. See Rex v. Sawyer, 2
Car. & K. 181; United States v. Wilt-
berger, 5 Wheat. 76; United States v.
Holmes, 5 Wheat. 412; Mitchell v. Tib-
bets, 17 Pick. 298; Vandeventer v. New
York and New Haven Railroad, 27 Barb.
244; Commonwealth v. Harris, 13 Allen,
534; Madrazo v. Willes, 3 B. & Ald. 353;
Bishop v. Barton, 5 Thomp. & C. 6, 2
Hun, 436; Hover v. Pennsylvania Co. 25
Ohio State, 667; Rosseter v. Cahlmann, 8
Exch. 361; Ex parte Blain, 12 Ch. D.
522; Bulkeley v. Schutz, Law Rep. 3
P. C. 764; McCarthy v. Chicago, &c.
Railroad, 18 Kan. 46; Hildreth v. Heath,
1 Bradw. 82. By-law.— For the doc-
trine applied to a municipal by-law, see
St. Louis Gas Light Co. v. St. Louis, 46
Misso. 121.
5 Crim. Law, I. § 121.
6 Jefferys v. Boosey, 4 H. L. Cas. 815,
939, 955; Clementi v. Walker, 2 B. & C.
861, 868.
7 Crim. Law, I. § 115 and note, 124.
129
[BooK 11.
§ 143 INTERPRETATION.
extending only to the subjects of the government legislating.!
But, —
Bind and protect all within Local Limits. —On the other hand,
statutes in mere general words are, in the absence of special cir-
cumstances, applied as well to foreigners and transient persons
as to citizens and permanent residents; binding and protecting
all? Again, —
§ 142. Sudicial Jurisdiction — (State and United States). — Fol-
lowing the rules of the common law, a statute will not be con-
strued, unless express words require, to confer jurisdiction on
courts established under another power ;, as, if it is a statute
of the United States, to give authority to State tribunals.? Like-
wise, —
Binding State. — Prima facie, as we have seen, it will be inter-
preted not to bind the sovereign,® or the sovereign State.°
And—
Common-law Distinctions — (Principal and Accessory). — It will
not be taken, by implication, to abrogate the common-law distinc-
tion between principal and accessory,’ or any other distinction
already known in the law.®
Again, —
§ 143. Provisions overlying One Another — (Distinct Inhibitions
of One Thing). — At common law, a particular act with its evil
1 The Apollon, 9 Wheat. 362; Crim.
Law, L § 121.
2 Crim. Law, I. § 124; Wooten ».
Miller, 7 Sm. & M. 380; Jefferys v.
Boosey, 4 H. L. Cas. 815; Low v. Rout-
ledge, Law Rep. 1 Ch. Ap. 42, Law Rep.
3 H. L. 100.
8 Houston v. Moore, 5 Wheat. 1, 42,
66; In re Bruni, 1 Barb. 187, 208.
4 Ante, § 103.
5 Ante, § 103; Vin. Abr. Statutes, E.
10; United States ». Hewes, Crabbe, 307;
Broom Leg. Max. 2d ed. 50.
6 The State v. Garland, 7 Ire. 48; The
State v. Milburn, 9 Gill, 105. Hence,
Limitations. — A statute of limitations
does not run against a State unless it is
expressly named. Ante, § 103; Broom
Leg. Max. 2d ed. 46; Lindsey v. Miller, 6
Pet. 666; The State v. Arledge, 2 Bailey,
401; Weatherhead v. Bledsoe, 2 Tenn.
352; People v. Gilbert, 18 Johns. 227;
State Treasurer v. Weeks, 4 Vt. 215;
Stoughton v. Baker, 4 Mass. 522, 528;
Nimmo v. Commonwealth, 4 Hen. & Munf.
130
57; Bagley v. Wallace, 16 S. & R. 245;
Munshower v. Patton, 10 S. & R. 334;
Commonwealth v. Baldwin, 1 Watts, 54;
Wallace v. Miner, 6 Ohio, 366, 369; Wal-
lace v. Minor, 7 Ohio, part I. 249, 252.
As to the construction of statutes adverse
to the State, see ante, § 103; The State
v..Curran, 7 Eng. 821, 346.
* The State v. Ricker, 29 Maine, 84;
Commonwealth v. Knapp, 9 Pick. 496;
Commonwealth v. Macomber, 8 Mass.
254; Commonwealth v. Barlow, 4 Mass.
439; ante, § 139.
8 Drew v. Commonwealth, 1 Whart.
279; United States v. Wilson, Bald. 78;
Rex v. Carlile, 3 B. & Ald. 161; Common-
wealth 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 wv. Pearce, 2 Leach,
4th ed. 1046.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 144
intent may constitute a part of several distinct offences.! Hence,
when a court construes a statute, 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. It is no objection that it is included under
numerous separate inhibitions or statutes, each having a separate
penalty of its own.2 Thus, —
Liquor Selling and Lord’s Day.— A sale of intoxicating liquor
may violate both a statute prohibiting labor on the Lord’s day,
and one against the unlicensed selling of the liquor, and the prose-
cuting officer may proceed for the one or the other offence at his
election.2 So, —
Liquor Selling and Peddling.— A statute against peddling, and
another against liquor selling, may be equally violated by one
sale. Nor is it material whether the inhibitions are in separate
acts or separate clauses of the same act.*
Proceedings barring one another. — Whether, in these cases, one
proceeding can be pleaded in bar of another is a question not
within the scope of these discussions. Again, —
§ 144. Declaratory Statutes. — An enactment in its nature
declaratory of the common law will be construed, as far as may
be, according to the common law.® In like manner, —
Common-law Remedy. — 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
brought in question.” On alike principle, —
Revisions — of statutes are to be interpreted as were the stat-
utes revised. So—
Local Jurisdiction of Crime. — As, at the common law, crimes
1 Crim. Law, I. § 775-784.
2 Monck ». Hilton, 2 Ex. D. 268, 277,
280; The State v. Williams, 11 8. C.
288 ; post, § 247.
8 Commonwealth v. Harrison, 11 Gray,
310; Commonwealth v. Trickey, 13 Allen,
559.
4 Commonwealth v. McConnell, 11
Gray, 204. Compare with United States
v. Morin, 4 Bis. 93.
5 Crim. Law I. § 978 et seq.; The
State v. Williams, supra; Commonwealth
*
v. Churchill, 5 Mass. 174; Commonwealth
v. Cheney, 6 Mass. 347.
8 Freeman v. People, 4 Denio, 9, 29;
Commonwealth v. Humphries, 7 Mass.
242 ; People v. Butler, 16 Johns. 203;
Baker v. Baker, 13 Cal. 87; Hewey v.
Nourse, 54 Maine, 256.
1 Byrd, J. in Hightower v. Fitzpatrick,
42 Ala. 597,600 See ante, § 114.
® Commonwealth v. Messenger, 4 Mass.
462; Ennis v. Crump, 6 Texas, 34; ante,
§ 98.
131
§ 145 INTERPRETATION. [Booxk 1.
are punishable only in the county where they occurred, if a
county is divided, those before committed will, equally with the
subsequent ones, be prosecuted each in its particular part of the
old county.!
IX. Adhering in the Construction to the Terms of the Statutes.
§ 145. Doctrine defined. — The doctrine of this sub-title is sim-
ply an expansion of what was laid down in a previous chapter.?
It is, that interpretation cannot, without a sufficient indication in
the words employed,’ aided by such surroundings as the law per-
mits the courts to look into,* import words into the statute. The
judge is only to expound what he finds. written. And there is
a degree beyond which the meanings. of the written words can-
not be bent, or the foregoing rules applied.6 Thus, —
“ Actually occupy.” — While, in general, one who assists another
in a crime is to be regarded as a joint doer with him,® the words
“actually occupy,” referring to the place of committing 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.” And —
Wature of Offence. — The nature of an offence may exclude the
idea of criminality in any but the individual personally doing the
act.8
1 Crim. Proced. I. § 49; The State v.
Jones, 3 Halst. 307, 357, 372. So, White
Person and Slave, formerly. — While,
during slavery, white persons and slaves
were punished differently, a white per-
son, accessory to an offence by a slave,
was dealt with the same as white persons
in other cases were, not as slaves. The
State v. McCarn, 12 Humph. 494; Lough-
ridge v. The State, 6 Misso. 594.
2 Ante, § 81. And see ante, § 90.
3 Ante, § 70-73, 78-81.
4 Ante, § 74-77.
5 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. 265;
Fletcher’s Case, 1 Leach, 4th ed. 342,
note, 2 Stra. 1166; Norton v. The State,
4 Misso. 461; Baxter v. People, 3 Gilman,
868 ; O’Blennis v. The State, 12 Misso.
132
311; Reynolds cv. Holland, 35 Ark. 56.
“Tt 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 con-
trary, and when no inconvenience will
thereupon follow ; and therefore in such
a case a verbis legis non est recedendum.”
Edrich’s Case, 5 Co. 118. And see ante,
§ 80, 81.
6 Ante, § 136, 136.
7 Commonwealth v. Dean, 1 Pick. 387.
8 Reg. uv. Wright, 9 Car. & P. 754; 1
Alison Crim. Law, 153, 158. See, as to
the English statutes against poaching,
Rex v. Dowsell, 6 Car. & P. 398; Rex v.
Nash, Russ. & Ry. 386; Reg. v. Whitta-
ker, 2 Car. & K. 636, 1 Den. C. C. 309;
8. c. nom. Reg. v. Whitaker, 8 Cox C. C.
60. And see Crim. Law, I. § 364 et seq.
CHAP. XVII.] CURTAILING AND EXTENDING EFFECT. § 146
§ 146. Casus Omissus.— When a court has 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.
1 See Rex v. Hill, Russ. & Ry. 483. 44, 52; Cobb v. Mid Wales Railway, Law
2 Broom Leg. Max. 2d ed. 87; Hallv. Rep. 1 Q. B. 342. See Kilpatrick v.
Jacobs, 4 Har. & J. 245. Byrne, 25 Missis. 571; New York v. Broad-
8 Pitman v. Flint, 10 Pick. 504, 506; way, &c. Railroad, 12 Hun, 671.
4 Bl. Com. 302; Jones v. Smart, 1 T. R.
188
§ 149 INTERPRETATION.
[Book IL, .
CHAPTER XVIII.
THE GENERAL DOCTRINE OF REPEAL.
§ 147,148. Introduction.
149,150. Whether by Non-user.
151-152 a. By Express Words.
153-162. By Implication.
163, 168 a. In Particular States.
§ 147. Power of Repeal. —It is a principle of legislative law
that one legislature cannot bind a subsequent one, or, beyond
the operation of its rules of procedure,! even itself as to future
acts. So that no statute can be made which may not afterward
be repealed, and no general statutory provision against repeals is
effectual.2 But, in discussions further on, we shall see that our
written constitutions indirectly, in some degree, restrain repeals ;
as, for example, where they would divest vested rights,’ or impair
the obligations of a contract.*
§ 148. How Chapter dividea.— We shall consider, I. Whether
Non-user works a Repeal; II. Repeals by Express Words;
III. Repeals by Implication ; IV. Repeals in Particular States.
I. Whether Non-user works a Repeal.
§ 149. Opinions that it does.—Some have deemed a long course
of forbearing to evoke the power under a statute, termed non-user,
1 Spencer ». The State, 5 Ind. 41;
Dwar. Stat. 2d ed. 580. The former
rules of the two houses of Parliament,
prohibitory of repeals during the session
in which an act was passed, were made
inoperative by 13 & 14 Vict. c. 21, § 1.
Wilb. Stat. Law, 309.
2 Ante, § 31; Crim. Law, I. § 35, note;
4 Inst. 42, 48; 1 Bl. Com. 90, 91; Jenk.
Cent. 2; Stone v. Mississippi, 101 U.S.
814; Musgrove v. Vicksburg, &c. Rail-
road, 50 Missis. 677; Oleson v. Green
Bay, &c. Railway, 36 Wis. 383; The
134
State v. Pilsbury, 31 La. An. 1; Freleigh
v. The State, 8 Misso. 606; Thomas ».
Daniel, 2 McCord, 354; Kellogg v. Osh-
kosh, 14 Wis. 623; Attorney-General v.
Brown, 1 Wis. 518; Wall v. The State,
23 Ind. 150; The State v. Craig, 23 Ind.
185; Hamrick v. Rouse, 17 Ga. 56; Shaw
v. Macon, 21 Ga. 280; Armstrong v. Dear-
born, 4 Blackf. 208; Brightman v. Kirner,
22 Wis. 54.
3 The State v. Pilsbury, supra.
4 Bloomer v. Stolley, 5 McLean, 158.
CHAP. XVIII. ] GENERAL DOCTRINE OF REPEAL.
to be a repeal of it! And in South Carolina it was observed:
“The court, in Watson v. Blaylock,? declared the act imposing
penalties 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 inopera-
tive from mere non-user.”® In a later case, this doctrine, that
a statute may become inoperative by non-user, appears to have
been recognized.4 But, —
That it does not.— In reason, and by most of the authorities,
the power alone which can make a law is competent to annul
one; so that no usage, either negative or positive, can grow into
a law adverse to a statute. Should the matter to which it relates
no longer exist, it will cease to have a practical operation ;° or,
should the reason for it have passed away,® its repeal by the legis-
lature might be judicious; but, by the better opinion, all unre-
pealed statutes must be enforced when the subject and occasion
call; they do not become void by non-user.’ Yet, —
Meaning — (Implied Legislative Repeal). — In determining the
meaning of a statute, contemporaneous usage may, we have seen,$
be resorted to.2 And, on this principle, non-usage under it may
help the implication of its repeal by inconsistent provisions in a
subsequent act. So, —
Discretionary Power — (Information). — Long disuse of a stat-
ute may be among the considerations influencing a court to
decline mere discretionary action under it; as, when asked to
grant an information.
§ 149
1 Hill v. Smith, Morris, 70,76. Dwar-
ris says: “ The Scotch lawyers hold, that
a statute loses its force by desuetude, if
it hath not been put in execution for
sixty years. Other writers have extended
this term to a century, and make a dis-
tinction between statutes half obsolete
and those in viridi observantia. A vague
notion seems, too, from the very frequent
renewal of some of our fundamental
laws, to have prevailed at different times
in England, that a statute might become
obsolete ; but such opinion is unfounded,
and has no warrant in our law.” Dwar.
Stat. 2d ed. 529.
2 Watson v. Blaylock, 2 Mill, 351.
2 Canady v. George, 6 Rich. Eq. 103,
106. ‘
4 O’Hanlon v. Myers, 10 Rich. 128.
5 Commonwealth v. Hoover, 1 Browne,
Pa. App. 25.
6 James v. Commonwealth, 12 8S. &
R. 220, 228; The State v. Tidwell, 5
Strob. 1.
17 White v. Boot, 2 T. R. 274; The
State v. Findlay, 2 Bay, 418; The State
v. Tidwell, supra; Commonwealth v.
Hoover, supra; Dwar. Stat. 2d ed. 529;
Snowden v. Snowden, 1 Bland, 550; The
India, Browning & L. 221. Contra, James
v. Commonwealth, supra.
8 Ante, § 104.
9 Chesnut v. Shane, 16 Ohio, 599;
Dwar. Stat. 2d ed. 530.
10 Leigh v. Kent, 3 T. R. 362, 364.
ll Rex v. Dodd, 9 East, 516.
185
§ 151 [BooK I.
INTERPRETATION.
§ 150. Custom — is a species of non-user. It does not differ
greatly from usage, and neither the one nor the other can over-
turn a positive rule of the common law or a statute.!_ Therefore
a custom to regard a statute as repealed can never ripen into a
repeal; there could never come a time when it would be a valid
custom. In partial contradiction or qualification of this doctrine,
it has been laid down in England that the common law, ora
statute merely declaratory of it, may be repealed by custom, but
doubts have been entertained of the latter part of this propo-
sition.2 Neither part of it would, it is‘believed, be accepted in
our country to the overturning of a positive rule either of the
common or the statutory law; for, with us, custom is admitted
simply to supplement, not to supersede, the prior law, whether
statutory or common.’
II. Repeal by Express Words.
§ 151. Designated Statute or Provision. — The common form. of
repeal is where an act says, in terms, that such a statute, clause
of a statute, or provision of the common law is repealed.‘ - If, on
the entire face of the repealing act, its intent is plainly less broad
than particular words in it, such intent will prevail in the con-
struction.» And, in all respects, a repealing clause, like any
other,® will be rendered by the courts in the sense evidently
meant by the repealing power.’ A provision, subjecting to a fine
any one vending merchandise not the product of the United
States, was, by a subsequent act in terms repealing so much of
1 Bishop Con. § 570-572; Crim. Law,
II. § 852; Greene v. Tyler, 8 Wright, Pa.
361; Holmes v. Johnson, 6 Wright, Pa.
159; Delaplane v. Crenshaw, 15 Grat.
457; Rex v. Gordon, 1 B. & Ald. 524,
527; Noble v. Durell, 3 T. R. 271, 273,
274; Reed v. Richardson, 98 Mass. 216,
218; Tremble v. Crowell, 17 Mich. 493;
Hinton v. Locke, 5 Hill, N. Y. 437; Cran-
well v. Fosdick, 15 La. An. 486; Dunham
v. Dey, 13 Johns. 40; Dunham »v. Gould,
16 Johns. 367 ; Bank of Utica v. Wager, 2
Cow. 712; Newbold v. Wright, 4 Rawle,
195; Harris v. Carson, 7 Leigh, 632;
Strong v. Bliss, 6 Met. 898; Stoever v.
136
Whitman, 6 Binn. 417. And see Bur-
bank v. Fay, 65 N. Y. 57.
2 Dwar. Stat. 2d ed. 475-477; Bac.
Abr. Statute, G.
8 See the note before the last.
4 Chambers v. The State, 25 Texas,
307; The State v. Beneke, 9 Iowa, 203.
And see Leard v. Leard, 30 Ind. 171.
5 Smith v. People, 47 N. Y. 330. See
ante, § 87.
6 Ante, § 70.
* Townsend Savings Bank v. Epping,
3 Woods, 390; Prince George’s Commis-
sioners v. Laurel, 51 Md 457; The State
v. Clay, 12 La. An. 431. And see Madison,
&c. Plank-road v. Reynolds, 3 Wis. 287.
»
CHAP. XVIII.] GENERAL DOCTRINE OF REPEAL. § 152
this one as required a license to vend coffee, tea, and sugar, held
to be repealed as to the enumerated articles.!
Repeal before Enactment complete. — The two houses of a legis-
lature passed an act, then repealed a clause in it before the Gov-
ernor’s signature was attached, then the Governor signed it.
And the repeal of the clause was adjudged to be effectual, on the
ground, that, since the legislature could abrogate a statute duly
signed, it could do the same of one before signing.2 So, —
Question of Validity in Suspense. — If, because of a. division of
opinion among the judges, or for any other reason, the validity
of a repealing statute remains however long in suspense, then
finally it is decided to be valid, the repealed act will be treated
as having had no force during the period of doubt.
§ 152. Within “Purview.” — Another form of direct repeal is by
inserting, in a statute, a clause declaring all acts within its “* pur-
view” repealed.4 The meaning of the word ‘“ purview,” when
indicating a particular part of a statute, is, we have seen, vari-
able ;5 and, in the present connection, its sense.is evidently still
different, denoting the scope or sphere of the statute.® So that
the effect of this expression is to repeal former statutes simply as
to cases provided for in the repealing acts.7 And it does not differ
essentially from a repeal of —
Inconsistent Provisions. — Not unfrequently a clause is in-
serted in a statute repealing all laws in conflict § or inconsistent
with it, “contravening” it, or the like.4
1 Taylor v. The State, 7 Blackf. 93.
2 Southwark Bank v. Commonwealth,
2 Casey, Pa. 446.
8 Ingersoll v. The State, 11 Ind. 464.
So, Repeal destroying Party’s Inter-
est.— A clause in the charter of a bridge
company having forbidden the erection
of any other bridge within a mile of the
one to be erected by the company, a re-
peal of this clause was held to place the
company in precisely the same position,
in reference to a second bridge, as if it
had never been in the charter. Fort
Plain Bridge v. Smith, 30 N. Y. 44.
* Ely v? Thompson, 3 A. K. Mar. 70;
Scott v. Commonwealth, 2 Va. Cas. 54;
Payne v. Conner, 3 Bibb, 180.
5 Ante, § 62.
§ Webster quotes, to support this
meaning of the word “purview”: “In
If the provisions of
determining the extent of information re-
quired in the exercise of a particular au-
thority, recourse must be had to the
objects within the purview of that author-
ity. Federalist, Madison.”
7 Payne v. Conner, 3 Bibb, 180; Peo-
ple v. Durick, 20 Cal. 94; Lewis v. Stout,
22 Wis. 234.
3 The State v. Barrow, 30 La. An.
657.
® Hale v. The State, 15 Conn. 242;
The State v. Taylor, 2 McCord, 483;
Jackson v. The State, 12 Ga. 1; People
v. Durick, 20 Cal. 94; Commonwealth v.
Costello, 118 Mass. 454.
10 Tims v. The State, 26 Ala. 165.
11 Same Subject Matter, &c.— See The
State v. Cunningham, 72 N.C. 469; Hodge
v. Hodge, 72N.C.616; The State v. King,
12 La. An. 593.
137
§ 1524 INTERPRETATION, [BooK II.
the former and present enactments are in direct contrariety, the
repeal takes place,! but only to the extent of the repugnance2
If, on the other hand, by any reasonable contracting, expanding,
cutting short, or extending of the old laws or the new, as ex-
plained in the foregoing chapter, they can be brought into har-
mony without repeal, the interpretation should be so, and all
suffered to stand together. Thus, —
General and Specific. — As already seen,? general and specific
provisions in apparent contrariety may subsist together without
working a repeal, the specific qualifying and supplying exceptions
to the general.*
“Inconsistent” Provisions in Unconstitutional Act.— The effect
of an express repeal in an unconstitutional act, of inconsistent
provisions, is considered in another connection. No prior law is
inconsistent with a void statute.®
§ 152 a. By Amendment.— An amendment of a statute, de-
claring that it shall read in a particular way, repeals all pro-
visions not retained in the altered form.’ The unaltered
provisions remain unaffected by the changes in the rest.3 The
repeal is not retroactive, but the new provisions are treated as
fresh enactments,? while yet, as to the future, the amended
statute operates as if it had always been in its present form.”
So —
“In Lieu.” — A provision “in lieu” of another repeals it.
1 Tierney v. Dodge, 9 Minn. 166; Peo-
ple v. Lytle, 1 Idaho, 161.
2 Elrod »v. Gilliland, 27 Ga. 467.
8 Ante, § 112 a, 126, and places there
referred to.
Mosby »v. St. Louis Mutual Ins. Co. 31
Grat. 629. And see Longlois v. Longlois,
48 Ind. 60; Breitung v. Lindauer, 37
Mich. 217.
8 Moore v. Mausert, 49 N. Y. 382, 5
4 Dolan v. Thomas, 12 Allen, 421.
And see Cain v. The State, 20 Texas,
355; The State v. Macon County Court,
41 Misso. 453.
5 Ante, § 34.
8 Sullivan v. Adams, 3 Gray, 476;
Harbeck v. New York, 10 Bosw. 366;
Childs v. Shower, 18 Iowa, 261; Devoy
v. New York, 35 Barb. 264.
7 Goodno v. Oshkosh, 31 Wis. 127;
The State ce. Andrews, 20 Texas, 230;
138
Lans. 173. And see Laude v. Chicago,
&c. Railroad, 33 Wis. 640; St. Louis »v.
Foster, 52 Misso. 513.
® Ely v. Holton, 15 N. Y. 595.
10 Holbrook v. Nichol, 36 Ill. 161; Me-
Kibben v. Lester, 9 Ohio State, 627. See
Tivey v. People, 8 Mich. 128; Grer »v.
The State, 22 Texas, 588; People v.
Montgomery, 67 N. Y. 109.
11 Gossler v. Goodrich, 3 Clif. 71.
CHAP. XVIII.] GENERAL DOCTRINE OF REPEAL. § 154
III. Repeats by Implication.
§ 153. Distinction of Express and Implied. — The forms equally
of express and implied repeal are numerous and varying. And’
there are those of each class so allied to the other that the dis-
tinction itself seems in a degree arbitrary. Accurately viewed, a
part of the repeals treated of in this sub-title are express, yet not
by express words. Thus, —
By Negative Statute — (Affirmative and Negative, distinguished ).
— An old division of statutes is into affirmative and negative ;
the former being such as are in affirmative, the latter in negative,
words.! A provision, for example, that it shall be lawful for a
tenant in fee-simple to make a lease for twenty-one years, or that
such lease shall be good, is affirmative ; one 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.2 A negative statute,
being in its terms a negation, or denial, of the prior law, repeals
it;® and obviously this repeal is express.
How interpreted. — Such a statute is, as to the repeal, strictly
construed ; that is, as abrogating the prior law no further than
its actual words require.* Herein it follows the same rule as a
repugnant affirmative statute, about to be considered.
§ 154. By Affirmative Statute.— An affirmative statute repeals
by implication so much of the prior law as, after the harmonizing
work of interpretation is fully done, remains repugnant to it;
for it is the last expression of the will of the law-making power.®
1 Bac. Abr. Statute, G.
2 Dwar. Stat. 2d ed. 475.
8 Bac. Abr. Statute, G.; Dwar. Stat. 2d
ed. 475; Gooch v. Stephenson, 13 Maine,
371.
4 Ely v. Cash, 15 M. & W. 617; Ely
o. Bliss, 2 De G., M. & G. 459; Marshall
v. Martin, Law Rep. 5 Q. B. 239 ; Evans
v. Rees, 9 C. B. yn. s. 391.
5 Broom Leg. Max. 2d ed. 23; Com-
monwealth v. Cromley, 1 Ashm. 179;
Harris v. Robinson, 2 C. B. 908, 910; Reg.
v. Salisbury, 2 Q. B. 72, 84; Byrne v.
Stewart, 3 Des. 185; Britton v. Common-
wealth, 1 Cush. 302; The State v. Mis-
kimmons, 2 Ind. 440 ;, United States v.
Irwin, 5 McLean, 178; Sullivan v. Peo-
ple, 15 Til. 233; Adams v. Ashby, 2 Bibb,
96; Moore v. Vance, 1 Ohio, 1; West v.
Pine, 4 Wash. C. C. 691; Morrison »v.
Barksdale, Harper, 101; Moore v. Moss,
14 Ill. 106; Ham v. The State, 7 Blackf.
314; McQuilkin v. Stoddard, 8 Blackf.
581; Johnston’s Estate, 9 Casey, Pa. 511;
Vermillion v. Potts, 10 Ind 286; The
State v. Wilson, 43 N. H. 415; The State
v. Maccuaig, 8 Neb. 215; Greeley v. Jack-
sonville, 17 Fla. 174; The State v. Cham-
bersburg, 8 Vroom, 258; Jersey City v.
Jersey City, &c. Railroad, 5 C. E. Green,
860; Union Iron Co. v. Pierce, 4 Bis. 327;
Swinney v. Fort Wayne, &c. Railroad, 59
Ind. 205; Grant v. Sels, 5 Oregon, 243;
Hurst v. Hawn, 5 Oregon, 275; Peet v,
189
§ 155 INTERPRETATION.
[Boox 11.
If two acts in seeming conflict can be reconciled by any fair con-
struction, so that both may stand, they must be; and then no
repeal will be held to take place.! And it is the same with a
provision of the common law and a statute. So that —
How interpreted. — The law does not favor repeals by implica-
tion,? and they will not be adjudged to occur except when they
are inevitable, or plainly the legislature means them.‘
legislative intent is never, prima facie, presumed.’
Such
Hence, in
restraint and limitation of repeals, the statutes are strictly con-
strued.6 Thus, —
§ 155. Derogation of Prior Law. — As already seen,‘ statutes in
‘Nalle, 80 La. An. 949; Hayden v. Carroll,
3 Ridgw. P..C. 545, 699; O’Flaherty vo.
McDowell, 6 H. L. Cas. 142; Davis ov.
The State, 2 Texas Ap. 425; Wells v.
The State, 3 Lea, 70.
1 Blain v. Bailey, 25 Ind. 165; The
State v. Bishop, 41 Misso. 16; Nixon v.
Piffet, 16 La. An. 379; De Pauw v. New
Albany, 22 Ind. 204; Mullen v. People,
81 Ill. 444; Elliott v. Locknane, 1 Kan.
126; Conner v. Southern Express Co. 87
Ga. 397; People v. Barr, 44 Ill. 198;
Desban v. Pickett, 16 La. An. 350; Mc-
Cool v. Smith, 1 Black, 459; McDonough
v. Campbell, 42 Ill. 490; Hume v. Gos-
sett, 43 Ill. 297; The State v. Young, 17
Kan. 414; Fowler v. Pirkins, 77 Ill. 271;
Chamberlain v. Chamberlain, 43 N. Y.
424; United States’ v. Barrels of Spirits,
2 Abb. U. S. 305; The State v. Draper,
47 Misso. 29; St. Louis v. Independent
Ins. Co. 47 Misso. 146; Cattarugus v.
Willey, 2 Lans. 427; In re Evergreens,
47 N. Y. 216; The State v. Smith, 69 Ind.
179; Forqueran v. Donnally, 7 W. Va.
114; Iverson v. The State, 52 Ala. 170;
The State v. Doherty, 25 La. An. 119;
Staats v. Hudson River Railroad, 4 Abb.
Ap. 287; The State v. Bishop, 41 Misso.
16; Powers v. Shepard, 48 N. Y. 540;
Gropp v. People, 67 Ill. 154; Gohen-v.
Texas Pacific Railway, 2 Woods, 346.:
2 To effect a repeal of the common
law, said Goldthwaite, J., “the right
which is given by the general law must
be plainly and obviously inconsistent
with the existing statutes; and if; upon
a just interpretation of the latter, the
two can exist together, the intention of
140
the legislature that they should both
exist is to be presumed.” Tannis ». St.
Cyre, 21 Ala. 449, 452.
8 Loker v. Brookline, 13 Pick. 348,
348; Haynes v. Jenks, 2 Pick. 172, 176;
Snell .v. Bridgewater Cotton Gin Man.
Co. 24 Pick. 296, 297; Goddard v. Boston,
20 Pick. 407; Bowen v. Lease, 6 Hill,
N. Y. 221; Wyman v. Campbell, 6 Port.
219; Dugan v. Gittings, 3 Gill, 188; Me-
Cartee v. Orphan Asylum Society, 9 Cow.
437 ; Lichtenstein v. The State, 5 Ind.
162; Erwin v. Moore, 15 Ga. 361; Asp-
den’s Estate, 2 Wal. Jr. 368, 431; Hocka-
day v. Wilson, 1 Head, 113; Robbins v.
The State, 8 Ohio State, 181; The State
v. Morrow, 26 Misso. 181; Swann vw
Buck, 40 Missis. 268; People v. San Fran-
cisco, &c. Railroad, 28 Cal. 254; Blain v.
Bailey, 25 Ind. 165; Buckingham ». Steu-
benville and Indiana Railroad, 10 Ohio
State, 25; The State v. Chambersburg, 8
Vroom, 258; Goodrich v. Milwaukee, 24
Wis. 422; Horton v. Mobile, 43 Ala. 598;
Gill v. The State, 30 Texas, 514; Kerl-
inger v. Barnes, 14 Minn. 526.
4 Water Works v. Burkhart, 41 Ind.
364 ; In re Evergreens, 47 N. Y. 216; For-
queran v. Donnally, 7 W. Va. 114; Iver-
son v. The State, 62 Ala. 170; Pacific Rail-
road v. Cass, 53 Misso. 17; The State v.
Severance, 55 Misso. 378 ; Ex parte War-
rington, 3 De G., M. & G. 159; Thames
v. Hall, Law Rep. 3 C. P. 415; Estate of
Walley, 11 Nev. 260.
6 Furman v. Nichol, 8 Coldw. 432.
6 Wilb. Stat. Law, 318.
7 Ante, § 119..
CHAP. XVIII.] GENERAL DOCTRINE OF REPEAL. § 156
derogation of the common law,} or of a prior statute,? are con-
strued 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 to the law, as it-does
in the enactment of an affirmative statute, we cannot assume for
it an intention also to subtract from it; while there is any admis-
sible rule of interpretation which, applied to the old, to the new,
or to both, will enable all to stand. For example, —
§ 156. Specific and General. — The rule. of specific and general,
already more than once mentioned,’ illustrates this. By inter-
preting the specific provisions as furnishing exceptions and quali-
fications for the general ones, without reference to their order
or dates, all are made to stand together, and repeal is avoided.t
Thus, —
“ All Property” and Specific Species. — An act exempting a cer-
tain class of property from municipal taxation is not repealed by
a subsequent one giving cities the power to tax ‘‘all property ”
within their limits. The two acts are construed together, the
one as creating an exception to the general terms of the other.
Again, —
Tribunal and its Incidents — (Liquor Licenses — Probate of Will).
— While the statutes required the applicant for a liquor license
1 Melody v. Reab, 4 Mass. 471; Gibson
v. Jenney, 15 Mass. 205; Commonwealth
v. Knapp, 9 Pick. 496, 514; Wilbur ze.
Crane, 13 Pick. 284; Lock v. Miller, 3
Stew. & P. 13; 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. C5; Young v. McKenzie,
8 Kelly, 831; Schuyler v. Mercer, 4 Gil-
man, 20; Dwelly v. Dwelly, 46 Maine,
377; Burnside v. Whitney, 21 N. Y. 148.
2 White v» Johnson, 28 Missis. 68;
Street v. Commonwealth, 6 Watts & S.
209; Morlot v. Lawrence, 1 Blatch. 608;
Clarke v. The State, 23 Missis. 261; Wil-
liams v. Potter,-2 Barb. 316. The doc-
trine 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
change or revolution in the mind of the
legislature ought not to be indulged.”
Peyton v. Moseley, 3 T. B. Monr. 77, 80.
3 Ante, § 112 a, 126, 152.
¢ Thames v. Hall, Law Rep. 3 C. P.
415, 421; Gregory’s Case, 6 Co. 19);
Ex parte Smith, 40 Cal. 419; Rounds v.
Waymart, 31 Smith, Pa. 895; Covington
v. East St. Louis, 78 Ill. 548; Cole v.
Jackson, 11 Iowa, 552; Mobile, &c. Rail-
road v. The State, 29 Ala. 573; Pearce v.
Bank of Mobile, 33 Ala. 693; McFar-
land v. Bank of The State, 4 Pike, 410;
Beridon v. Barbin, 13 La. An. 458; Ellis
v. Batts, 26 Texas, 703; Luke v. The
State, 5 Fla.185; Brown v. Commis-
sioners, 9 Harris, Pa. 87; Hill v. Hall, 1
Ex. D. 411; New Haven v. New Haven
Water Co. 44 Conn. 105; The State a
Smith, 8 S. C. 127; Commonwealth v.
Jessup, 13 Smith, Pa. 34.
5 Blain v. Bailey, 25 Ind. 165.
141
§ 156.4 INTERPRETATION. [Book 11.
to be recommended by a majority of the legal voters, &c., the
charter of a city was so amended as to confer on the mayor and
aldermen the exclusive right to grant licenses; and it was held
that the two provisions could stand together, and so the later did
not repeal the earlier! In like manner, a statute authorized a
proceeding by “ bill in chancery” for contesting wills, and gave
the defendant the right to open and close; then a subsequent
statute authorized a proceeding for the same purpose by “ peti-
tion to the Court of Common Pleas.” And it was held that the
two acts should stand together, entitling one made a defendant
under the latter statute to open and close. The maxim, leges
posteriores priores contrarias abrogant, it was observed, does not
apply, except where the inconsistency or repugnancy is such that
the two provisions cannot stand as cumulative or concurrent
rules of action.2 So, —
Porbidding Streets through Burial-ground, then authorizing gen-
erally. — A statute forbidding the opening of a road or street
through any burial-ground is in no part abrogated by a subse-
quent one extending the boundaries of a borough, and appointing
three persons commissioners, who shall have authority “to sur-
vey and lay out, and mark the lines of such streets, roads, lanes,
and alleys as they shall deem necessary within the said limits,”
§ 156 a. Other Forms. — Besides these cases of general and
special, the other forms in which earlier and later affirmative
statutes may stand together without repeal are numberless. To
illustrate, —
Successive Appropriations. — In Missouri, a sum out of a cer-
tain fund was by statute appropriated to pay some designated
1 House v. The State, 41 Missis. 737.
2 Raudebaugh v. Shelley, 6 Ohio State,
307. ‘And see The State v. Vernon, 53
Misso. 128.
3 Egypt Street, 2 Grant, Pa. 455.
Other Illustrations. — Illustrations of
this principle might be multiplied indefi-
nitely. Indictment, then Civil Action.
— Where a statute prohibits an act, un-
der a penalty enforceable by indictment,
and subsequently another gives a qui tam
action, the latter is cumulative of, and
does not repeal, the remedy under the
former. Bush v. The Republic, 1 Texas,
455. Compare with Towle v. Smith, 2
Rob. N. Y. 489. Malicious Mischief. —
142
An act, making it indictable “ wilfully,
unlawfully, and maliciously” to “cut,
shoot,” &c., “any horse,” &c., was ad-
judged not repealed by one declaring
“every wilful trespass” to be a misde-
meanor. The State v. Alexander, 14 Rich.
247. Nuisance.—A statute which im-
poses 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. In General.— Multitudes of other
illustrations occur in the cases cited to
the opening part of this section and the
other sections there referred to.
CHAP, XVII] GENERAL DOCTRINE OF REPEAL. § 158
¥
bonds. Then a subsequent act appropriated, out of the same
fund, a sum so large as to interfere with the payment of the
bonds. It was thereupon held, that the latter enactment did in
no measure repeal the former; but the appropriation it made
should take effect only out of what was left after the bonds were
paid But—
Change of Salary. — A subsequent statute fixing a salary differ-
ent from a former one repeals the former;? because, in the
nature of things, these statutes cannot subsist together ; the sal-
ary must be either the one sum or the other, it cannot be both.
§ 157, Partial Repeal.—In many of the foregoing instances,
wherein earlier and later enactments are said to stand together
without repeal, there is, in fact, a partial repugnance; and then,
accurately speaking, a repeal of the earlier by the later takes
place as to the part,t—a subject more minutely explained and
illustrated in the next chapter. But, —
Without Repugnance, — no statute, except by express words or
affirmative implication, operates as a repeal of the prior law,
whether statutory or common.’ Still—
Exceptional Doctrine. — An exception to this proposition, un-
certain in its form and application, is admitted in some of our
tribunals ; in how many it would be impossible to say. Thus, —
§ 158. Revision of Whole Subject — (United States).—In the
Supreme Court of the United States, Field, J., after laying down
the general doctrine as in the foregoing sections of this sub-title,
and after saying that if two acts “are repugnant in any of their
provisions, the latter act, without any repealing clause, operates
to the extent of the repugnancy as a repeal of the first,” 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 showing that it was intended
as a substitute for the first act, it will operate as a repeal of that
act.”® Now, if this means that the legislative intent, however
1 The State v. Bishop, 41 Misso. 16. son v. Green Bay, &c. Railway, 36 Wis.
2 Pierpont v. Crouch, 10 Cal. 315. 883; New Orleans v. Hoyle, 23 La. An.
For other cases of irreconcilable repug- 740; In re United Patriots’ National
nance, see People v. Burt, 48 Cal. 560; Benefit Soc. 4Q. B. D.29; United States
Evansville v. Bayard, 39 Ind. 450. v. Tynen, 11 Wal. 88, 92.
8 And see post, § 165. 5 Affirmed by all the foregoing cases
* Mongeon v. People, 55 N. Y. 613; under this sub-title.
Mitchell v. The State, 19 Ind. 381; Ole- 6 United.States v.Tynen, 11 Wal. 88, 92.
148
§ 158 INTERPRETATION. [Book II.
expressed, is to be carried out,! the doctrine is harmonious with
all that has gone before in these elucidations. But if the mean-
ing is, that the court is permitted to enter into surmises outside
of any statutory words, and from its ideas of the nature of the
subject declare, where there is no repugnance, a repeal of the
prior law, the doctrine is irreconcilably adverse to the whole
body of the law of statutory interpretation.? For it is fundamen-
tal in our jurisprudence, that the intention of the legislature must
be ascertained from the words of a statute, and not from any
general inferences to be derived from the’ nature of the sub-
ject with which it deals.2 And in the case under consideration,
nothing was decided contrary to the common and better doctrine.
The point adjudicated was, that, “‘when there are two acts of
Congress on the same subject, and the latter act embraces all the
‘provisions of the first, and also new provisions, and imposes dif-
ferent or additional penalties, the latter act operates, without any
repealing clause, as a repeal of the first.” This results from the
single rule of repugnance ; since, as in the nature of things there
cannot be two different salaries for the same service,® so there
cannot be two different punishments for the same offence. Ina
subsequent case before the same tribunal, it was laid down, that,
for a repeal to take place in the circumstances under considera-
tion, the objects of the two statutes must be the same, it is not
sufficient that their subjects are.6 Other statements of the doc-
trine have been made by single judges in the national tribunals.’
In the full court at Washington, Strong, J., speaking: for all the
judges, declared the doctrine of the first mentioned case to be,
‘that the former statute is impliedly repealed so far as the pro-
visions of the subsequent statute are repugnant to it, or so far as
the latter statute, making new provisions, is plainly intended as a
substitute for it. [Here there is an ambiguity; namely, whether
the court is to infer an intent which the legislature took care not
to express, contrary to the rule in all other cases of statutory in-
terpretation ; or whether the inference is to be drawn from what a
1 Ante, § 70; Butler v. Russel, 3 Clif. 5 Ante, § 156 a.
261. 8 United States v. Claflin, supra.
2 Ante, § 145, 146, 152, 154, 355. 1 Patterson v. Tatum, 3 Saw. 164;
3 Fordyce v. Bridges, 1 H. L. Cas.1. Butler v. Russel, 3 Clif. 251; United
* Reporter’s head-note to United States States v. Cheesman, 3 Saw. 424; United
v. Tynen, supra. And see United States States v. Barr, 4 Saw. 254.
v. Claflin, 97 U S. 546; Norris v. Crocker,
13 How. U. S, 429.
144
CHAP. XVIII.] GENERAL DOCTRINE OF REPEAL. § 159
judge may properly see in the words and surroundings. But the
meaning appears to be cleared of doubt by the following.] Where
the powers or directions under the several acts are such as may
well: subsist together, an implication of repeal cannot be allowed.” 1
While thus our high national tribunal seems freed from any just .
imputation of having absolutely accepted a doctrine to which few
legal persons will on adequate reflection, and as a question of
principle, assent, we have from it dicta creating some uncertainty
as to what might be its decision should cases easily to be imagined
arise. For the natural expression of the better doctrine would
be simply, that, where two statutes can be made by construction
to subsist together, the later shall not operate as a repeal of the
earlier.
§ 159. In our States — (England). — The unfortunate doctrine,
thus in a measure explained, originated in some of our State tri-
bunals. It is believed never to have been known in England.?
1 Henderson’s Tobacco, 11 Wal. 652,
657.
2 How in England. — Though my at-
tention has long been directed to this
doctrine, I have never found it in any
English case, not saying that it does not~
exist in some case overlooked. I extract
from Wilberforce on Stat. Law, p. 328-
330, a collection of matter as near to this
doctrine as I have seen; but I think the
reader will agree with me, that none of
it reaches so far. ‘“ Where an affirmative
statute introduces a new law or gives a
new right, and it appears to be the in-
tention of the legislature that the new
law alone shall. be followed, or that a
right which previously existed should be
merged in the one newly created, the
later statute will act as a repeal of the
earlier, ‘as implying,a negative.’ Har-
court v. Fox, 1 Show. 506, 520, per Eyres,
J.; O’Flaherty v. McDowell, 6 H. L.
Cas, 142, 157, per Lord Cranworth, L. C.
‘Thus the 1 Will. & M. ec. 21, which pro-
vided that the custos rotulorum should ap-
point a clerk of the peace to act ‘for so
‘long a time only as he shall well demean
himself in his said office,’ was « repeal
pro tanto of 87 Hen. 8, c. 1, giving the
appointment of the clerk of the peace to
the custos rotulorum, but limiting the ten-
ure of the office of clerk of the peace to
10
the time that the person making the ap-
pointment should continue custos rotulo-
rum. Harcourt v. Fox, 1 Show. 506. For
the same reason it is said by Lord Coke,
that the act 33 Hen. 8, c. 23, enacting
that persons examined before the King’s
Council might be tried for treason in any
county where the King should please,
would have been repealed by 1 & 2 Phil.
& M. c. 10, which provided that all trials
for treason should be had according to
the course of the common law and not
otherwise, even if the later act had not
contained the negative words ‘and not
otherwise.’ Foster’s Case, 11 Co. 56},
63 a. Section 57 of 4 & 5 Will. 4, c. 76,
enacted that every man who should marry
a woman having legitimate or illegiti-
mate children should be liable to main-
tain such children, and should ‘be charge-
able with all relief granted to them. It
was held that these words, though affirm-
ative, operated, in the cases to which the
act referred, as a repeal of so much of
18 Eliz. c. 3, § 2, and 49 Geo. 3, c. 68, as
rendered the putative father of a bastard
child liable for its maintenance. Langv.
Spicer, 1 M. & W. 129. Section 6 of 8 &
9 Will. 8, c. 30, provided that appeals
against orders of removal should be de-
termined at the Quarter Sessions of the
Peace for the county, division, or riding
i 145
§ 159.
INTERPRETATION.
[BOOK IL,
Precisely how the question stands in all our States the author
will not attempt to define.
Looking at’ the cases less critically
than in the last section, we find the doctrine to have been ac-
cepted perhaps in Massachusetts,! Maine,? Pennsylvania,® Ver-
mont, and possibly Alabama,® together with some of the other
States,® to the extent, simply and no further, that, where a newly-
containing the parish from which the
removal was ordered, and not elsewhere.
5 & 6 Will. 4, c. 76, § 105, gave jurisdic-
tion in boroughs to the recorder over all
matters cognizable by any court of Quar-
ter Sessions of the Peace for counties.
It was at first suggested that this section
gave a recorder concurrent jurisdiction,
Reg. v. St. Edmund's, 2 Q. B. 72, but in a
subsequent case the court held that the
affirmative words of the later section re-
pealed the earlier provision, and that a
recorder had exclusive jurisdiction over
appeals against orders of removal from
any parish within his borough. Reg. tv.
Suffolk Justices, 2 Q. B. 85.” For Eng-
lish cases adverse to the doctrine disap-
proved in the text, see post, § 160, note.
1 Commonwealth v. Cooley, 10 Pick.
87; Goodenow v. Buttrick, 7 Mass. 140;
Bartlet v. King, 12 Mass. 537, 545; Ash-
ley, Appellant, 4 Pick. 21,23; Mason v.
Waite, 1 Pick. 452; Ellis v. Paige, 1 Pick.
43, 45; Jennings v. Commonwealth, 17
Pick. 80; Commonwealth v. Ayer, 3 Cush.
150; Commonwealth v. Foster, 1 Mass.
488; Nichols v. Squire, 5 Pick. 168; Com-
monwealth v. Dennis, 105 Mass. 162.
2 Towle v. Marrett, 3 Greenl. 22; Pin-
geer v. Snell, 42 Maine, 53; Buck v.
Spofford, 31 Maine, 34, 36.
3 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 neces-
sary in carrying such act or acts into
effect.” Consequently, INegal Fees. —
It was. held, that an indictinent did not
lie at common law against an officer for
taking illegal fees, the remedy being un-
der the statute of March 28, 1814, § 20.
146
.
Commonwealth v. Evans, 13 8. & R. 426.
Still the general doctrine is maintained
in Pennsylvania, that there is no repeal
by implication where the two acts can be
construed together. Shinn v. Common-
wealth, 3 Grant, Pa. 205.
* Giddings v. Cox, 31 Vt. 607; Farr v.
Brackett, 30 Vt. 344; Isham cv. Benning-
ton Iron Co. 19 Vt. 230.
5 The State v. Whitworth, 8 Port. 434;
Smith v. The State, 1 Stew. 506. But
see George v. Skeates, 19 Ala. 738.
£ The State v. Seaborn, 4 Dev. 305,
310; Dugan »v. Gittings, 3 Gill, 188;
Strauss v. Heiss, 48 Md. 292; Caldwell
v. St. Louis Perpetual Ins. Co. 1 La.
An. 85; Smith v. The State, 14 Misso.
147; Bryan v. Sundberg, 5 Texas, 418;
Rogers v. Watrous, 8 Texas, 62; Erwin
v. Moore, 15 Ga. 361; Illinois and Michi-
gan Canal v. Chicago, 14 Ill. 334; Pankey
v. People, 1 Scam. 80; Leighton v. Walk-
er, 9 N. H. 59; Wakefield v. Phelps, 37
N. H. 295; Pulaski v. Downer, 5 Eng.
588; Gorham v. Luckett, 6 B. Monr. 146;
Stirman v. The State, 21 Texas, 734;
Swann v. Buck, 40 Missis. 268; Sacra-
mento v. Bird, 15 Cal: 294; The State v.
Conkling, 19 Cal. 501; Industrial School
District v. Whitehead, 2 Beasley, 290;
The State v. Jersey City, 11 Vroom, 257;
Conley v. Calhoun, 2 W. Va. 416; The
State v. Rogers, 10 Nev. 319; Thorpe v.
Schooling, 7 Nev. 15; Broaddus v. Broad-
dus, 10 Bush, 299; Cullen v. The State,
42 Conn. 55; Campbell v. Case, 1 Dak.
Ter. 17; Breitung v. Lindauer, 87 Mich.
217; The State v. Campbell, 44 Wis. 529;
The State v. Van Stralen, 45 Wis. 437.
See Daviess v. Fairbairn, 3 How. U. 8.
686, 645. In Indiana, to work a repeal, .
the new provisions must be inconsistent
with the old. Longlois v. Longlois, 48
Ind. 60; Coghill v. The State, 37 Ind.
111; Hamlyn v. Nesbit, 87 Ind. 284;
Dowdell . The State, 58 Ind. 333. And
see Hogan v. Guigon, 29 Grat. 705.
CHAP. XVIU.]) GENERAL DOCTRINE OF REPEAL. § 160
enacted statute covers the whole ground occupied by a prior one
or by the common law, it repeals such law by implication, though
there is no repugnance. A part of the cases add, as qualifying
this proposition, that the new statute must plainly appear to
have been intended as a substitute for the old, or as furnishing
the only rule of law for the question. Now, partly to repeat,! —
§ 160. Objections — (True Rule). —If the legislature did in-
tend the new enactment to be a substitute for the old law, and:
if it expressed such intention, or if it employed language incon-
sistent with any other-conclusion, such legislative intent? must,
all concede, be carried into effect by interpretation. But our
jurisprudence is full of instances in which two or a dozen distinct
laws cover one question, or cluster of facts, and all stand to-
gether, parties having their election on which one to proceed.
If the legislature says that its statute is a revision of the whole
subject, and meant to be a repeal of all prior laws relating there-
to, no court will hesitate to give it this effect. But if, instead of
saying this, it simply enacts what is consistent with the prior law,
or re-enacts such law, how can a court know that it means what it
does not say, a repeal of laws which may subsist with those which
it establishes ? Hence, in principle, and equally on the better
American authorities and on the English,? the just doctrine is,
that, without exception, a statute in affirmative terms, with no
intimation of an intent to repeal prior laws, does not repeal them,
unless the new and the old are irreconcilably in conflict.*
1 Ante, § 158.
2 Ante, § 70.
8 Ante, § 150.
* The reader is referred, among other
authorities, including those before cited
in the course of this discussion, to Twen-
ty-two Packages of Cloth v. United States,
16 Pet. 342, 362; Rex v. Paine, 1 East
P. C. 5; Morlot v. Lawrence, 1 Blatch.
608; Rex v. Carlile, 3 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; Dakins v. Sea-
man, 9M. & W. 777, 789; s. c. nom. Da-
kins v. Searman, 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; Ashton v. Poynter, 1 Cromp.
M. & R. 788; Phipson v. Harvett, 1
‘
Cromp. M. & R. 473; Rex v. Aslett, 1
New Rep. 1, 7; Dore v. Gray, 2 T.R.
358, 365; Reg. v. Dicken, 14 Cox C. C.
8; Planters’ Bank v. The State, 6 Sm. &
M. 628; Kinney v. Mallory, 3 Ala. 626;
Chesapeake and Ohio Canal v. Baltimore
and Ohio Railroad, 4 Gill & J. 1; The
State v. Harker, 4 Harring. Del. 559; De
Armas Case, 10 Mart. La. 158, 172; Her-
man v. Sprigg, 3 Mart. n. s. 190, 199;
Williams v. Potter, 2 Barb. 316; George
v. Skeates, 19 Ala. 738; United States v.
Twenty-five Cases of Cloths, Crabbe, 356,
870, 882; The State v. Moore, 19 Ala.
514; Freeman v. The State, 6 Port. 372 ;
Morris v. Delaware and Schuylkill Canal,
4 Watts & S. 461; Beals v. Hale, 4 How.
U. S. 37; Brown v. Miller, 4 J. J. Mar.
474; Alexandria v. Dearmon, 2 Sneed,
104; Aspden’s Estate, 2 Wal. Jr. 368, 481;
147
§ 161 INTERPRETATION. [BOOK II.
§ 161. Reasons for Objectionable Doctrine. — For the objection-
able doctrine now being explained, no reasons which will bear
scrutiny have yet been assigned in the books. Commonly, when
any attempt at giving reasons is made, it is a mere following of
a Massachusetts dictum, thus: “It is a well-settled rule, that,
when any statute is revised, or one act framed from another,
some parts being omitted, the parts omitted are not to be revived by
construction, but are to be considered as annulled. To hold oth-
erwise would be to impute to the legislature gross carelessness or
ignorance; which is altogether inadmissible.” ! Here is a ludi-
crous putting of the ‘‘ cart before the horse.” A repeal of the
entire old law, with no words of repeal or occasion for it shown,
is first assumed !
Daviess v. Fairbairn, 3 How. U.S. 636;
Mitchell v. Duncan, 7 Fla. 13; The State
v. Fuller, 14 La. An. 667; The State v.
Kitty, 12 La. An. 805; Beridon vu. Bar-
bin, 13 La. An. 458; Pratt v. Atlantic
and St. Lawrence Railroad, 42 Maine,
579; Richards v. Patterson, 30 Missis.
583; Commercial Bank v. Chambers, 8
Sm. & M. 9; Ament 2. Humphrey, 3
Greene, Iowa, 255; Attorney-General v.
Brown, 1 Wis. 513; Casey v. Hamed, 5
Iowa, 1; The State v. Smith, 7 Iowa, 244;
Edgar v. Greer, 8 Iowa, 394; The State
v. Woodside, 9 Ire. 496. In New York,
the act of 1824 authorized a divorce from
bed and board to the husband for the
wife’s cruel treatment; the Revised Stat-
utes 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, referring to Perry
v. Perry, 2 Barb. Ch. 311; Perry v. Perry,
2 Paige, 501; Van Veghten v. Van Vegh-
ten, 4 Johns. Ch. 501; McNamara v. McNa-
mara, 2 Hilton, 547, 549. Fo~ later New
York views on this sort of question, see
New York v. Broadway, &c. Railroad, 12
Hun, 571; Excelsior Petroleum Co. v. Em-
bury, 67 Barb. 261. For more as to re-
peals by general revisions of the laws, see
Barker v. Bell, 46 Ala. 216; Ex parte
Birchfield, 52 Ala. 377; Sanders v. The
State, 58 Ala. 371; The State v. Twogood,
7 Iowa, 252; Gray v. Mount, 45 Iowa, 591;
148
Then the court says, that “ the parts omitted
are not to be revived by construction !”
If our law is, what Coke
Ballin v. Ferst, 55 Ga. 546; Scheftels v.
Tabert, 46 Wis. 439; Middleton v. New
Jersey, &c. Railroad, 11 C. E. Green, 269 ;
Whitaker v. Haynes, 49 Cal. 596; Fred-
erick v. Groshon, 30 Md. 436. See ante,
§ 98. In the Illinois case of Bruce »v.
Schuyler, 4 Gilman, 221, 271, Wilson, C.
J. stated the rule in the following words:
“The doctrine of repeal by implication
is not favored by the law, and is never to
be resorted to except when the repug-
nance or opposition is too clear and plain
to be reconciled. The rule of law is,
that all laws in part materia are to be con-
strued together.” The reporter’s head-
note to a later Illinois case is: “ A stat-
ute which covers all the grounds of prior
ones on the same subject, and revises the
whole law on the given subject, necessa-
rily works a repeal of all prior conflicting
laws, whether such conflict be found in
the provisions of general laws or those of
special charters.” Andrews v. People, 75
Ill. 605. See Booth v. Carthage, 67 Ill.
102. The Scotch law also appears to ac-
cord with the view in the text. Cum-
ming’s Case, Shaw Crim. Cas. 17. “It
is arule of law, that one private act of
Parliament cannot repeal another, except
by express enactment.” Even though
the second private act is declared to be
a public one, the consequence is the same.
Birkenhead Docks v. Laird, 4 De G., M.
& G. 782, 23 Eng. L. & Eq. 389.
1 Ellis v. Paige, 1 Pick. 43, 46.
CHAP. XVIII.] GENERAL DOCTRINE OF REPEAL. § 162
and others have said it is, the ‘‘ perfection of reason,” surely this
perversion of logic is not law. The question, the reader per-
.ceives, has nothing to do with the revival of a repealed statute.
But it is, as already explained, whether, when the legislative
body makes what on its face is a mere addition to the laws,
employing no negative words and saying nothing of repeal, a
court should impute to it * gross carelessness or ignorance ;”” and
so declare repealed portions of the old law which may well stand
with the new, because the law-making power either did not know
what the law was before, or did not sufficiently understand the
use of language to express what it meant. The most plausible
application of this sort of doctrine occurs where a statute of our
own has covered the whole subject embraced in some English
act which with us is common law. In such a case, it is said by
those who follow this doctrine, that our statute repeals the Eng-
lish,1—a view entitled to grave consideration on the question
whether we have adopted the English act; but, supposing it
adopted, why may it not stand until the legislature dissents from
it, either by direct words or by an inconsistent enactment ?
§ 162. In Conclusion — of this question, an examination of the
cases in which was involved the erroneous doctrine will show,
that there neither is nor can be any uniformity in its applica-
tion, —in other language, that it is a mere drifting to sea, with-
out rudder or compass, —and that it is equivalent to no rule.
It simply permits, in certain circumstances, the courts to make
the laws, instead of following what the legislatur#has enacted.
Hence, among other objections, it is inconvenient. And it puts
the judges in the legislative seat. If the new law is not incon-
sistent with the old, why infer a repeal where none is declared ?
All enactments are to be interpreted in harmony with the com-
mon law; yet this law recognizes a variety of remedies for a
single wrong, a variety of offences committed by a single act, a
variety of modes of procedure to gain a common right, a variety
of jurisdictions over & given matter, a variety of results from a
single cause.2 Nature recognizes the same. And for a court,
1 Mason v. Waite, 1 Pick. 452; The an affirmative statute was held under this
State v. Seaborn, 4 Dev. 805, 310; Report rule to repeal the common law received
of Judges, 3 Binn. 595, 597; Towle v. from England."
Marrett, 3 Greenl. 22. And see Common- 2 Ante, § 141.
wealth v. Dennis, 105 Mass. 162, where 8 And see the next chapter.
149
§ 163
INTERPRETATION.
[Book I.
disregarding the teachings of both, to declare for a repeal where
the legislature has not, is to enact, not interpret, the laws.
IV. Repeals in Particular States.
§ 163. Further Authorities grouped. — The foregoing discussions
disclose some diversities of doctrine in the different States.
Hence, and for purposes of con-
there are probably others.
And
venience, some of the authorities are here, in a note,! collected
1 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. 865, 1 Temp. & M.
32, 13 Jur. 107, 18 Law J. n. 8. M. C. 51;
Reg. v. Overton, 4 Q. B. 83; Reg. vu.
Tivey, 1 Den. C. C. 63; Rex v. Farring-
ton, Russ. & Ry. 207; Rex v. Robinson, 2
Leach, 4th ed. 749, 2 East P.C. 1110;
Rex v. Carlile, 3 B. & Ald. 161; Rex ».
Waddington, 1 B. & C. 26; Rex v. Moor,
2 Mod. 128; Sir John Knighit’s Case, 3
Mod. 118; Rex v. Jackson, Cowp. 297;
Rex v. Taylor, Russ. & Ry. 373; Reg. v.
Pugh, 6 Mod.:140, 141; Reg. v. Sill,
Dearsly, 10, 14 Eng. L. & Eq. 185; Rex
v. O’Brian, 7 Mod. 878, 379; Reg. uv.
Brecon, 8 New Sess. Cas. 434, 13 Jur.
422 ; Reg. v. Thompson, 20 Law J. N. 8.
M. C. 183, 15 Jur. 654; Rex v. Stanley,
Russ. & Ry. 432; Rex v. Boyall, 2 Bur.
832, 2 Keny. 549; Michell v. Brown, 1
Ellis & E. 267.
Ireland. — Reg. v. Murphy, Jebb, 315.
United States. — United States v. Pi-
rates, 5 Wheat. 184; United States v.
Halberstadt, Gilpin, 262; United States
v. Jones, 3 Wash. C.C. 209; Morlot v.
Lawrence, 1 Blatch. 608; United States
v, A Package of Lace, Gilpin, 388; United
States v. Irwin, 5 McLean, 178; The
Estrella, 4 Wheat. 298; United States v.
Cushman, 1 Lowell, 414.
Alabama.—The State v. Coleman, 5
Port. 82; 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; Hawkins
v. The State, 3 Stew. & P. 63; Moore v.
The State, 16 Ala. 411; The State v.
Moseley, 14 Ala. 390; The State v. Al-
150
laire, 14 Ala. 485; Hirschfelder 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; De-
Bernie v. The State, 19 Ala. 23; Jordan
v. The State, 15 Ala. 746; Turner v. The
State, 40 Ala. 21; Jeffries v. The State,
39 Ala. 655; Magruder v. The State, 40
Ala. 847; Luke v. Calhoun, 56 Ala. 415;
Sanders v. The State, 58 Ala. 371; Steele
v. The State, 61 Ala. 213.
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; The State v. Bran-
don, 28 Ark. 410; The State v. Holman,
29 Ark. 58.
California. — People v. Chu Quong, 15
Cal. 332; Ex parte Smith, 40 Cal. 419;
Whitaker v. Haynes, 49 Cal. 596; Ex
parte McCarthy, 53 Cal. 412.
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;
Parrott v. Stevens, 37 Conn. 98; Leonard
v. Wolfram, 41 Conn. 481.
Dakota. — People v. Sponsler, 1 Dak.
Ter. 289.
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. Savannah,
T. U. P. Charl. 235; Union Branch Rail-
road ». East Tennessee and Georgia Rail-
road Banking Co. 14 Ga. 827; Gorman
v. Hammond, 28 Ga. 85; Bloom v. The
State, 20 Ga. 443; Wall v. McNeil, 20
Ga. 239; Wheeler v. The State, 23 Ga.
CHAP. XVIII. ] GENERAL DOCTRINE OF REPEAL.
and cited in the order of the States.
§ 163
Mainly they are not repe-
titions of what has gone before, but some of them occur also in
9; Georgia Railroad v. Kirkpatrick, 35
Ga. 144.
Lllinois. — Bruce v. Schuyler, 4 Gilman,
221; Ottawa v. La Salle, 12 Ill. 8389; Illi-
nois and Michigan Canal v. Chicago, 14
Ill. 3824; Tyson v. Postlethwaite, 13 Ill.
727; Perry v. People, 14 Ill. 496; Smith
v. People, 25 Ill. 17. .
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, 5 Ind. 280; Simington v.
The State, 5 Ind. 479; Henry v. Henry,
13 Ind. 250; The State v. Horsey, 14 Ind.
185; The State «. Pierce, 14 Ind. 302;
Cordell v. The State, 22 Ind. 1; Webb v.
Baird, 6 Ind. 13; Dodd v. The State, 18
Ind. 56; Hamlyn v. Nesbit, 37 Ind. 284;
Ardery v. The State, 56 Ind. 828; The
State v. Miller, 58 Ind. 399; The State v.
Smith, 59 Ind. 179; Swinney v. Fort
Wayne, &e. Railroad, 59 Ind. 205; The
State v. Christman, 67 Ind. 328; Doug-
lass v. The State, 72 Ind. 385. .
Iowa. — The State v. Moffett, 1 Greene,
Towa, 247; Jones v. The State, 1 Iowa,
395; Goodwin v. Thompson, 2 Greene,
Towa, 329; Baker v. The Milwaukee, 14
Iowa, 214; The State v. Donehey, 8 Iowa,
396; Stoneman v. Whaley, 9 Iowa, 390.
Kunsas. — The State v. Young, 17 Kan.
414.
, Kentucky. — Ely v. Thompson, 8 A. K.
Mar. 70; Ervine v. Commonwealth, 5
Dana, 216; Harrison v. Chiles, 3 Litt.
194; Gregory v. Commonwealth, 2 Dana,
417; Adams vu. Ashby, 2 Bibb, 96; Ec-
cles v. Stephenson, 3 Bibb; 517; Lillard
v. McGee, 4 Bibb, 165; Hickman ». Lit-
tlepage, 2 Dana, 344; Commonwealth vo.
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; Herman v.
Sprigg, 3 Mart. n. s. 190; The State v.
Judge, 14 La. An. 486; The State v.
Fuller, 14 La. An. 720; New Orleans v.
Mechanics and Traders’ Bank, 15 La.
An. 107; Weaver v. Maillot, 15 La. An.
895, The State v. Carodine, 28 La. An.
24; Peet v. Nalle, 830 La, An. 949; The
State v. Daniel, 381 La. An. 91.
Maine. — Gooch v. Stephenson, 13
Maine, 371, Towle v. Marrett, 3 Green].
22; Parsons v. Brigham, 54 Maine, 240;
The State v. Woodward, 34 Maine, 293;
The State ». Thompson, 70 Maine, 196.
Maryland. — Dugan v. Gittings, 3 Gill,
138; Wright v. Freeman, 5 Har. & J. 467;
Chesapeake and Ohio Canal v. Baltimore
and Ohio Railroad, 4 Gill & J.1; Fred-
erick v. Groshon, 80 Md. 486; Cumber-
land v. Magruder, 34 Md. 381.
Massachusetts. — Commonwealth v.
Worcester, 3 Pick. 462; Jennings v. Com-
monwealth, 17 Pick. 80; Wilde v. Com-
monwealth, 2 Met. 408; Commonwealth
v. Cooley, 10 Pick. 87; Shattuck o.
Woods, 1 Pick. 171; Goodenow r. But-
trick, 7 Mass. 140; Bartlet v: King, 12
Mass. 587; Ashley, Appellant, 4 Pick.
21; Mason v. Waite, 1 Pick. 452; Nichols
v. Squire, 5 Pick. 168; Commonwealth v.
Ayer, 3 Cush. 150; Ellis v. Paige, 1 Pick.
43; Commonwealth v. Kimball, 21 Pick.
873; Commonwealth v. King, 13 Met.
115; Britton v. Commonwealth, 1 Cush.
802; Salem Turnpike and Chelsea Bridge
v. Hayes, 5 Cush. 458; Commonwealth v.
Herrick, 6 Cush. 465; Commonwealth v.
Flannelly, 15 Gray, 195; Commonwealth
v. Norton, 13 Allen, 550: Carter v. Burt,
12 Allen, 424; New London Northern
Railroad v. Boston, &c. Railroad, 102
Mass. 386; Commonwealth v. Smith, 103
Mass. 444; Commonwealth vo. Costello,
118 Mass. 454.
Minnesota. — Maple Lake v. Wright,
12 Minn. 408; Burwell v. Tullis, 12 Minn.
572; The State v. Herzog, 25 Minn. 490.
Mississippi. — White v. Johnson, 25
Missis. 68; Shelton v. Baldwin, 26 Missis.
439.
Missonri.— The State v. Merry, 3
Misso. 278; Smith v. The State, 14 Misso.
147; The State v. St. Louis County Court,
41 Misso. 52.
Nevada. — Thorpe v. Schooling, 7 Nev.
15.
New Hampshire. — The State v. Buck-
151
§ 1634
the notes to the foregoing discussions.
INTERPRETATION.
[Book 11
They are not meant to
be, and are not, an exhaustive collection.
§ 163 a. Course of the Discussion. — Having, in this chapter,
seen what are the leading docfrines of repeal, we shall in the next
chapter follow some of them more into detail. And in the chap-
ter next following we shall consider the consequences of repeal.
man, 8 N. H. 203; Leighton v. Walker,
9 N. H. 59.
New Jersey. — Perine v. Van Note, 1
Southard, 146; Buckallew v. Ackerman,
3 Halst. 48 ; The State v. Chambersburg,
8 Vroom, 258.
New York. — Vallance v. King, 3 Barb.
548; People v. Townsey, 5 Denio, 70;
Crittenden v. Wilson, 5 Cow. 165; Wright
v. Smith, 13 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, 13 Johns. 822; Wheaton v. Hib-
bard, 20 Johns. 290; Stafford v. Ingersol,
8 Hill, N. ¥. 88; Renwick v. Morris, 3
Hill, N. Y. 621, 7 Hill, N. Y. 575; Me-
Cartee v. Orphan Asylum Society, 9 Cow.
437; Hand v. Ballou, 2 Kernan, 541;
People v. McCann, 16 N. Y. 58; New
York v. Walker, 4 E. D. Smith, 258;
Manchester v. Herrington, 6 Seld. 164.
North Carolina. —The State v. Hen-
derson, 2 Dev. & Bat. 543; The State v.
Walker, N. C. Term R. 229; The State
v. Seaborn, 4 Dev. 305, 310; The State v.
Nat, 13 Ire. 154.
Ohio. — Carter v. Hawley, Wright, 74;
Moore v. Vance, 1 Ohio, 1; Dodge v.
Gridley, 10 Ohio, 173, 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. Com-
monwealth, 1 Whart. 279; Report of
Judges, 3 Binn. 595; Commonwealth v.
Cromley, 1 Ashm. 179; Street v. Com-
monwealth, 6 Watts & 8. 209; Common-
wealth v. Evans, 13 8. & R. 426; Jeffer-
son v. Reitz, 6 Smith, Pa. 44; Gwinner v.
Lehigh, &c. Railroad, 5 Smith, Pa, 126;
Commonwealth v. McGuirk, 28 Smith,
Pa. 298.
152
Rhode Island. — The State v. Wilbor, 1
R. I. 199.
South Carolina. — The State v. Jones,
1 McMul. 286; The State v. Williams,
2 Rich. 418; The State v. Baldwin, 2
Bailey, 541; The State v. Brown, 2
Speers, 129; The State v. Bowen, 3 Strob.
573; The State v. Nicholas, 2 Strob. 278;
The State v. Thompson, 2 Strob. 12; The
State v. Cattell, 2 Hill, S. 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. John-
son, 2 Bailey, 137; The State v. Stoll, 2
8. C. 588; The State v. Gurney, 2 S.C.
559; The State v. Branham, 18 S. C. 389.
Tennessee. —‘The State v. Gainer, 3
Humph. 39; The State v. Rutledge, 8
Humph. 32; Simpson v. The State, 10
Yerg. 525; Taylor v. Fhe State, 7 Humph.
510; The State v. Martin, 3 Heisk. 487;
France v. The State, 6 Baxter, 478.
Texas. — Fowler v. Brown, 5 Texas,
407; Rogers v. Watrous, 8 Texas, 62;
The State v. Horan, 11 Texas, 144; Greer
v. The State, 22 Texas, 588; May v. The
State, 35 Texas, 650; The State v. Perry,
44 Texas, 100; Monroe v. The State, 3
Texas Ap. 341; Ellison v. The State, 6
Texas Ap. 248; Hunt v. The State, 7
Texas Ap. 212; Myers v. The State, ‘8
Texas Ap. 321.
Vermont.—The State v. McLeran, 1
Aikens, 311; The State v. Wilkinson,
2 Vt. 480; Pratt x. Jones, 25 Vt. 303,
307.
Virginia. — Commonwealth v. Pegram,
1 Leigh, 569; Lanthrop v. Common-
wealth, 6 Grat. 671; McReady v. Com-
‘monwealth, 27 Grat. 982.
Wisconsin. — Schieve v. The State, 17
Wis. 252.
CHAP. XIX.] | REPEAL WITH OTHER DOCTRINES. § 163d
CHAPTER XIX.
THE DOCTRINE OF IMPLIED REPEAL COMBINING WITH OTHER
DOCTRINES.
§ 163 b, 163 c. Introduction.
163 d-164. Concurrence in Laws avoiding Repeal.
1644-174. Divisibility of Laws avoiding Repeal.
§ 163 6. In General.— It has already been made apparent in
this volume, that the several doctrines of the law are not separate
entities, but each is a thread in a seamless garment.! This truth
is elemental in our system of jurisprudence, and doubtless in
every other. So the doctrine of implied repeal combines with,
modifies, and is modified by, every other doctrine in contact
wherewith the statute has the effect to place it. Wei shall not,
in this chapter, undertake to trace the consequences of this con-
tact through the entire law, but shall simply examine such of
them as will open to the reader’s understanding the larger sub-
ject, and give him a practical command of all whenever the occa-
sion arises. Limiting, therefore, the sphere of our survey, —
§ 163 c. How Chapter divided.— We shall consider, I. The
Doctrine of Concurrent Remedies and Sources of Right as avoid-
ing Implied Repeal; II. The Doctrine of the Divisibility of
Laws as avoiding, by admitting of Partial Repeal, the Necessity
of Entire Repeal.
I. The Postrine of Concurrent Remedies and Sources of Right as
avoiding Implied Repeal.
§ 163 d. In Nature. — It is a common phenomenon in nature,
that, of two or more things, any one, or all in combination, may
equally well execute a given function; as, for, example, the
two eyes of a man may be used severally or jointly to see a
given object. So, — ;
1 And see ante, § 4-7.
153
§ 164 INTERPRETATION. [BOOK I.
In Law. — Two or more separate laws may establish the same
right, or provide redress for the same wrong. And the person
seeking to enforce the right or avenge the wrong may proceed on
the law he chooses. And bfils of exchange, bills of lading, and
other contracts are every day done in duplicate or triplicate; one
part being, to a claimant, equally available as all. The forms of
this general truth are, in the law, endless. Hence, —
§ 163 ¢. Doctrine defined. — The doctrine of this sub-title is,
that a statute establishing the same right or remedy as a prior
law does not by implication repeal it, but a party may proceed
under either at his election, unless the two are repugnant, and
then the repeal takes place to the extent of the repugnance.!
Thus, —
§ 164. Surisdiction of Court — (Election). — The jurisdiction of
one court is not taken away by an affirmative statute giving the
same to another. Either can then hear the cause, at the election
of the suitor. For example, “ If, by a former law,” says Black-
‘stone, ‘‘an offence be indictable at the quarter sessions; and the
latter 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.” ? But, —
Proceedings pending in one Court bar Same in another. — Since
the common law forbids the harassing of a person by two suits
at a time for the same thing,’ it results that, after a competent
tribunal has obtainéd jurisdiction of a cause, another of con-
current jurisdiction is precluded from entertaining the like suit
while this one is pending. The rule, therefore, is, that the
1 And see ante, § 154, 158-162.
2 Crim. Proced. I. § 315; ante, § 112;
Commonwealth v. White, 8 Pick. 453;
Murfree v. Leeper, 1 Tenn. 1; Burgin-
hofen v. Martin, 3 Yeates, 479; Overseers
v. Smith, 2 S. & R. 863; Commonwealth
v. McCloskey, 2 Rawle, 369; Wright v.
Marsh, 2 Greene, Iowa, 94; Galsworthy
v. Durrant, 8 Weekly Reporter, 594;
Shaftesbury v. Russell, 1 B. & C. 666, 673,
674; Cates v. Knight, 3 T. R. 442, 444;
Cooke v. State National Bank, 52 N. Y. 96.
3 1 Bl. Com. 90.
154 f
4 Kerbey v. Siggers, 2 Dowl. P. C.
659; Kirby v. Siggers, 2 Dowl. P. C.
813; Johnston v. Bower, 4 Hen. & M.
487; Buffum v. Tilton, 17 Pick. 510;
Humphries v. Dawson, 88 Ala. 199;
Boyce v. Douglass, 1 Camp. 60; Combe
v. Pitt, 8 Bur. 1423, 1482; Prosser «.
Chapman, 29 Conn. 515; Rogers v. Hos-
kins, 15 Ga. 270; McKinsey v. Anderson,
4 Dana, 62; Tracy v. Recd, 4 Blackf. 56;
Davis v. Dunklee, 9 N. H. 545; Parker v.
‘Colcord, 2 N. H. 86. And see 2 Kent
Com. 121-126.
CHAP. XIX.] | REPEAL WITH OTHER DOCTRINES. § 1644
court first taking jurisdiction is entitled to retain it to the end.)
So, —
Indict under Statute or Common Law. — It is every day prac-
tice in the criminal courts to proceed against an offender either
under’a statute or at the common law, as the prosecuting power
elects.2, Even where an indictment is meant to be drawn ona
statute, if it proves defective as such, yet is good at the com-
mon law, it stands, —the court rejecting the concluding words,
‘“‘against the form of the statute,” as surplusage.? And, —
Election where no Repeal. — In all cases where the new'statute
does not repeal the prior law, both laws have a concurrent effi-
cacy, and suitors may elect under which to proceed.
‘
II. The Doctrine of the Divisibility of Laws as avoiding, by ad-
mitting of Partial Repeal, the Necessity of Entire Repeal.
§ 164 a. Nature of Divisibility.— The law being, alike while it
remains the pure common law and when it is augmented by stat-
utes, a seamless mass in distinction from a mere collection of
11 Bishop Mar. Women, § 634; 1
Crim. Proced. § 315; Withers v. Den-
mead, 22 Md. 185; Buck v. Colbath, 3
Wal. 334; Mason v. Piggott, 11 Ill. 85;
McNab v. Heald, 41 Ill. 826; Stearns v.
Stearns, 16 Mass. 167; The State v. Yar-
brough, 1 Hawks, 78; Thompson v. Hill,
38 Yerg. 167.
2 1 Saund. Wms. ed. (6th) 135 3, note;
Gooch v. Stephenson, 13 Maine, 371; 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. Attercliffe cum Darnall, 4
New Sess. Cas. 47, 14 Jur. 174, 19 Law J.
n.s. M. C. 50; The State v. Morton, 27
Vt. 310; The State v. Norton, 3-Zab. 33;
The State v. Berry, 4 Halst. 874; The
State v. Branham, 13 S. C. 389; Wash-
ington, &c. Turnpike v. The State, 19 Md..
239; Ex parte Birchfield, 52 Ala. 377;
The State v. Worden, 46 Conn. 349. See
The State v. Boogher, 71 Misso. 681. ,
Where the charter of a turnpike corpo-
ration provided a penalty for a failure to
keep the road in repair, but contained no
negative words, the court held, that an
indictment for non-repair against the cor-
poration would still lie at common law.
Waterford and Whitehall Turnpike v.
People, 9 Barb. 161. And see The State
v. Virt, 3 Ind. 447.
8 Crim. Proced. I. § 601; Rex v. Dick-
enson, 1 Saund. Wins. ed. 135, note;
Reg. v. Wigg, 2 Ld. Raym. 1163; Ben-
uet v. Talbois, 1 Ld. Raym. 149; The
State v. Walker, N. C. Term R. Tay-
lor, 229. So Recognizance. — A reeog-
nizance 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. Pp. Reg. v. Ewer, Holt, 612. And
see Crim. Proced. I. § 264 a.
* Broom Leg. Max. 2d ed. 25; Fos-
ter’s Case, 11 Co. 56, 62; Richards v.
Dyke, 3 Q. B. 256, 268; Gooch vu. 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. 889; Colden v. Eldred, 15 Johns.
220.
155
§ 166 INTERPRETATION. _ [Boox 1.
separate parts,! a carving off, by a repugnant statute, of a portion
from the mass to be -held as impliedly repealed, may cut as well
through the written as the unwritten old. The separation can-
not always be made absolutely anywhere, because the nature of
the matter may forbid; but it can be made as well through the
statutes, without reference to their clauses in formal terms, as
through the common law. Now, —
Illustrations. — For illustrations of this doctrine, the reader is
referred to the cases in which statutes are held to be void in part
for unconstitutionality, and by-laws void in part as unauthorized.?
Other illustrations will appear as we proceed.
§ 165. Repeal or Modification — (Partial, of Statute).— In the
last chapter, we saw something of so much of this doctrine as
relates to the implied repeal of a prior statute. It may be par-
tial. And such partial repeal is, in essence, simply a branch of
that sort of modification of law by law to which a chapter further
back is devoted.t It is not always in the books called by the
name repeal. Nor would it be a violent departure from usage in
legal language to say, that, whenever an earlier provision and a
later can to any extent stand consistently together, there is no
repeal, but only a modification of law by law.’ If there is a par-
tial conflict, the prior law is, to the extent of it, abrogated; but,
where such prior law consists of a statute, we do not say, speak-
ing of it as a whole, that it is repealed.
. § 166. Where separable. — In illustration of the doctrine, that,
for repeal, the law is separable at some places and not at others,
according to the matter composing it,® and as showing something
of the bounds of the doctrine yet not exhausting the subject, the
following will be helpful: —
Offence and Punishnient.— We can always separate the offence
from the punishment. So that, for example, a statute which pro-
vides a new punishment for an old offence repeals by implication
only so much of the prior law as concerns the punishment ; leav-
ing it permissible to indict an offender either under the old law,
1 Ante, § 163 5. eral law, unless there be such repug-
2 Ante, § 34. nancy between them that they cannot
3 Ante, § 157. . both be complied with under any circum-
£ Ante, § 122 et seq. ' stances.” De Armas Case, 10 Mart. La.
5 This doctrine was stated in part by 168, 172.
Mathews, J. as follows:' “A particular 6 Ante, § 164 a.
law is not repealed by a subsequent gen-
156
CHAP. XIX.] REPEAL WITH OTHER DOCTRINES. § 167
whether statutory or common, and inflict on him upon conviction
the punishment ordained by the new,! or under the new statute,
at the election of the prosecuting power.? The offence and pun-
ishment, therefore, may be defined by different laws; and so, as
we have seen,? if a Statute simply creates an offence, the common-
law punishment may by implication be imposed. But as law
without its penal or other like sanction is impossible,’ if there is
a statute, not merely re-enacting. the common law, but creating
an offence and fixing its penalty, then another statute repeals so
much of this one as relates to the penalty, all right to prosecute
for a violation of it is gone. The abolition of the punishment
abolished the crime.’ Still, —
§ 167. Form of Indictment.—In mere form of the indictment,
it was ruled at an English trial,® and so in authority the better
English doctrine seems at the common law to have been,’ that,
where the offence was originally created by a statute, affixing to
it a 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 pleading,
not resting well on principle; and, in this country, the question
has been decided both ways.°
1 Commonwealth v. Searle, 2 Binn.
382, 339; Williams v. Reg. 7 Q. B. 250;
The State v. Wilbor, 1 R. I. 199; Mc-
Cann v. The State, 13 Sm. & M. 471; The
State v. Thompson, 2 Strob. 12; Rex v.
Berry, 1 Moody & R. 463; The State v.
Williams, 2 Rich. 418; Rex v. Bridges, 8
East, 58. But see The State v. Boogher,
71 Misso. 631.
2 Rex v. Dickenson, 1 Saund. Wms.
ed. 185; Rex v. Dixon, 10 Mod. 335, 337,
Say. 226; Rex v. Urlyn, 2 Saund. Wms.
ed. 308, note; Rex v. Chatburn, 1 Moody,
403; Sir John Knight’s Case, 3 Mod.
117; Rex v. O’Brian, 7 Mod. 378, 379.
See, however, Felix v.. The State, 18 Ala.
720.
3 Ante, § 138.
* Crim. Law, I. § 6-8.
5 Reg. v. Adams, Car. & M. 299. See
The State v. King, 69 N. C. 419; The
State v. Smith, 44 Texas, 443; Smith v.
The State, 7 Texas Ap. 286.
6 Reg. v. Adams, Car. & M. 299. ,
7 1 Chit. Crim. Law, 2d Eng. ed. 291,
and Am. Notes; 2 Gab. Crim. Law, 246;
Even in England the plural form
Lee v. Clarke, 2 East, 333, 339; Rex v.
West, Owen, 134.
8 For the distinction, see Crim. Proced.
I. § 605.
9 That the singular form is sufficient,
Strong v. The State, 1 Blackf. 193; 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.
113. That the plural form must be em-
ployed, The State v. Moses, 7 Blackf.
244, and King v. The State, 2 Ind. 523,
the judges being apparently unaware of
their previous decision in Strong v. The
State; The State v. Cassel, 2 Har. & G.
407. See Kane vo. People, 8 Wend. 203;
United States v. Gibert, 2 Sumner, 19;
Sears v. United States, 1 Gallis. 257, 259.
In The State ». Pool, 2 Dev. 202, a ma-
jority of the judges held, that, where one
statute creates an offence under a pen-
alty recoverable in a civil action, and
another makes it indictable, the indict-
ment must conclude against the form of
the statutes, in the plural. But Hender-
son, C. J. dissenting, said: “I am in-
157
[Book I,
§ 168 INTERPRETATION.
has been ruled to be bad and the singular good.! Now, although
the punishment is the measure of the offence (there being none
where there is no punishment, and it 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 punishment,’ 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
originally at common law, and the punishment is by statute, a
conclusion at common law is sufficient.*
§ 168. Change of Punishment. — Two different punishments for
precisely the same offence, with no variations in its elements, and
no modifying discretion in the court, cannot, in the nature of
clined to believe that this is the rule;
that, where it is necessary to have re-
course to two or more statutes to show
that the acts imputed as Crimes are in
fact so, that is, acts forbidden or duties
enjoined, . . . there both or all the acts
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 prohibit it; in
fact, was silent in regard to it, and
only prescribed the mode of prosecution,
and the punishment upon conviction. .. .
The defendant cannot be said to act con-
trary to a statute which prescribes noth-
ing to be done, but only fixes the mode
of proceeding against, and the measure
of punishment to, those who have vio-
lated another.” p. 207, 208. In the Su-
preme Court of Maine, Parris, J. drew
the distinctions as follows: “ Where one
statute creates 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 latter only
‘qualify the method of proceeding upon
the former, 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 pro-
158
hibited by several statutes, if only one is
the foundation of the action, and the
others are explanatory, it is sufficient to
say, against the form of the statute.” Mor-
rison vr. Witham, 1 Fairf. 421, 425.
1 Reg. v. Wise, 1 Cox C.C. 80. See
Crim. Proced. I. § 606.
2 Crim. Proced. I. § 79-88, 538-542;
II. § 48, 177, 565, 572.
3 Reg. v. Williams, 14 Law J. nN. 8.
M. C. 164.
4 Reg. v. Williams, supra; Williams
v. Reg. 7 Q. B. 250, 1 Cox C. C. 179;
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. v. Bethell, 6
Mod. 17; The State v. Evans, 7 Gill & J.
290; Williams v. Reg. 10 Jur. 155; Rus-
sell v. Commonwealth, 7 S.& 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. And see con-
trary dictum in Castro v. Reg. 6 Ap. Cas.
229, 232. In King v. The State, 2 Ind.
623, the court, after laying down the doc-
trine, that, where one statute defines the
offence and another prescribes the pun-
ishment, the indictment must conclude in
the plural, adds: “This is no doubt cor-
rect, for the obvious reason that neither
statute would of itself support the prose-
cution.” This doctrine can be just in
principle only, if at all, in a State like
CHAP. XIX.] REPEAL WITH OTHER DOCTKINES. § 169
things, subsist together... And so are all the authorities to the
extent, that, in these circumstances, a milder new punishment
repeals a severer old.? We have judicial intimations leading
to the inference, that, the converse is not true; but, if by a more
recent enactment a heavier punishment than the old is estab-
lished, a prisoner may be sentenced under either law.? If the
new law defined the offence, omitting anything, however slight,
which was in the old definition, this would be so ;! but, where
nothing of this sort intervenes, it is impossible the two different
punishments should stand together. Therefore the only admis-
sible view in principle, and the better in authority, is, that the
new punishment, whether greater or less than the old, repeals it
by force of the repugnance.6 Where, by two sections of one
statute, jurisdiction over the same offence was given to differ-
ent courts, and different punishments were prescribed, it was
held that only the milder could be ordered by either tribunal.®
Sull, —
§ 169. Remedies differing with Punishment. — Several concurrent
remedies “of a different nature,’
a
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.2 “ Therefore —
Indiana where there are no common-law
crimes. For, the reader will notice, the
former statute would have supported the
indictment, the same as would the com-
mon law in the case of a common-law
offence; since, if the former statute had
failed to prescribe a penalty, then, as we
have seen, ante, § 138, the offence cre-
ated by it would have been punishable at
the common law.
1 Ante, § 156 a, 158.
2 Henderson v. Sherborne, 2 M. & W.
236, 239; Smith c. The State, 1 Stew.
506; The State v. Thompson, 2 Strob.
12; The State v. Whitworth, 8 Port.
434; United States v. Jones, 3 Wash.
C. C. 209; The State v. Upchurch, 9
Tre. 454; The State v. Ripley, 2 Brev.
300; Burton v. Watkins, 2 Hill, S. C.
674.
8 Harrison v. Chiles, 3 Litt. 194; The
State v. Taylor, 2 McCord, 483; Reg. v.
Pugh, 6 Mod. 140, 141.
4 Post, § 171, 172.
‘substantially,
» Nichols v. Squire, 5 Pick. 168; Perine
v. Van Note, 1 Southard, 146; Buckallew
v. Ackerman; 3 Halst. 48; Carter v.
Hawley, Wright, 74; Commonwealth ».
Kimball, 21 Pick. 373 ; Sir John Knight’s
Case, 3 Mod. 117; Attorney-General v.
Lockwood, 9 M. & W. 378, 391. See
Clarke v. The State, 23 Missis. 261; The
State v. Ward, 6, N. H. 529; Sullivan »v.
People, 15 Ill. 233; post, § 169-171. In
Pennsylvania, this has been so provided,
by statute. Common-
wealth v. Evans, 13S. & R. 426.
6 Scrimegrour v. The State, 1 Chand.
48.
7 Lord Abinger, in Henderson v. Sher-
borne, 2M. & W. 236, 239.
8 1 Mod. 34, note; Rex v. Jackson,
Cowp. 297; Reg. v. Wigg, 2 Ld. Raym.
1163; Jennings v. Commonwealth, 17
Pick. 80; Crittenden v. Wilson, 5 Cow.
165; The State v. Rutledge, 8 Humph.
82; Hodges v. The State, 8 Ala. 55; Rex
v. Moor, 2 Mod. 128; Simpson v. The
159
§ 170 INTERPRETATION. [BOOK IL.
Indictment or other Process for Nuisance.—“ 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 expeditious remedy which is given him by
the act of Parliament, by sale of the swine.”! So a statute
making it penal to “injure 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.’
Why ?— There is no repugnance between provisions of differ-
ent natures, for the cure of a common evil. The case is substan-
tially within the doctrine of the last sub-title.
§ 170. Remedies of Different Natures. — Nice questions arise as
to whether or not two remedies are so far different in their
natures that they may stand together. The common case is—
Civil and Criminal. — A civil action for private redress, and an
indictment for public, are of different natures, and they may
always be concurrent, and neither will be a bar to the other.‘
But —
Penal Action and Indictment.— Can a statutory penalty, im-
posed for public redress, and made recoverable by an action civil
in form, and an indictment for the same wrong, subsist thus to-
gether? Ina sort of general sense it may be said that they can
Yet the books are not in all respects so distinct on this question
as one might wish. So let us look a little into the particulars.
Presumed Legislative Intent. — In New Jersey, a statute having
prohibited a thing under a penalty of ten dollars, recoverable in
an action of debt by any one suing for it, and a subsequent
enactment having made it indictable, and fixed the punishment
at a fine of twenty dollars, the former provision was held to be
repealed by the latter; because such, it was deemed, was the
legislative intent. But this case does not hold that there was
any irreconcilable repugnance. On the other hand, —
Indictment and Summary Fine for Nuisance — (Obstructing Way).
— The Vermont court held, that a statutory provision imposing
State, 10 Yerg. 525; Pitman v. Common- 2 The State v. Moffett, 1 Greene, Iowa,
wealth, 2 Rob. Va. 800; United States v. 247.
Halberstadt, Gilpin, 262; Renwick »v. 8 Wetmore v. Tracy, 14 Wend. 250.
Morris, 3 Hill, N. ¥. 621, 7 Hill, N. Y. 4 Crim. Law, I. § 264 et seq., 1069.
575. 5 Crim. Law, I. § 1067.
1 Reg. v. Wigg, 2 Ld. Raym. 1168. 8 Buckallew v. Ackerman, 3 Halst. 48.
160
CHAP. XIX.] REPEAL WITH OTHER DOCTRINES. § 171
a fine of seven dollars, to be recovered by complaint before a jus-
tice 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.!
§ 171. Two Penalties or Punishments for one Wrong. — There is
nothing in the nature of things repugnant in laws which provide
any number of distinct penalties or punishments — such as fine,
forfeiture, imprisonment, and the like —for the same wrong.
And numerous statutes do.so provide. Nor does the nature of
things forbid the ordaining of separate proceedings for their recov-
ery. But our written constitutions forbid, to the extent of the
provision “that no person shall be subject; for the same offence,
to be twice put in jeopardy of life or limb.” ? Hence arise com-
plications of doctrine, and the limits of what is constitutionally
permissible are not precisely defined.? It is, of course, no objec-
tion that the right to prosecute is derived from statutes passed at
different times. Again, —
Offences variously aggravated. — A part of the indictable offences
are, like successive circles of different dimensions, included with-
in one another; a robbery, for example, being an assault com-
mitted under particular circumstances of aggravation.’ In these
cases, an offender may be convicted of either the simpler or
ageravated form, at the election of the prosecuting power; ex-
cept that sometimes the line separating felonies and misdemeanors
cannot in this way be passed. The several grades of offence
thus appearing have their corresponding punishments, while yet
a person convicted or acquitted in one degree is ordinarily exempt
from prosecution in another. Hence, if the new statute adds
aggravations not in the old law of the offence, and creates a
1 The State v. Wilkinson, 2 Vt. 480.
And see Salem Turnpike and Chelsea
Bridge v. Hayes, 5 Cush. 458.
2 Crim. Law, I. § 981.
- § People v. Stevens, 138 Wend. 341; Reg.
v. White, Dears. 203, 20 Eng. L. & Eq. 585;
Blatchley v. Moser, 15 Wend. 215. The
Illinois court, holding an officer not in-
dictable for taking illegal fees, said: “A
remedy has been provided by the inflic-
tion of a penalty for such acts; but the
11
modes of proceeding to enforce such
penalty are entirely of a civil nature.”
Pankey v. People, 1 Scam. 80, 82. Still
there is doubt whether this view is just.
A civil remedy in the nature of a penalty
for the offence may well stand with a
common-law indictment, the two remedies
being enforceable together.
# Crim. Law, I. § 780.
§ Crim. Law, I. § 1054.
161
§ 173 INTERPRETATION. [Book 11.
higher penalty ;! or omits an aggravating quality and provides
a lower penalty ;? or, if the new statute is applicable to a par-
ticular class only of persons, who owe special duties in the mat-
ter;? the new punishment does not supersede the old.* This is
clear: but, where the change is the reverse of this, the same
result 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.®
§ 172. Separate Crimes of one Transaction.— How far, under
our constitutions, it is competent for legislation to make sepa-
rate crimes of one transaction, providing for each its distinct
punishment, this is not the place to inquire. But, to the ex-
tent to which this can be constitutionally done, there is no
repugnance between statutes which so provide. Therefore the
one does not necessarily repeal the other.’
.§ 178. As to Offence, in Distinction from Punishment. — Discard-
ing the exceptional doctrine, peculiar to a limited number of our
tribunals,’ which holds a mere revision of laws, where there is
no repugnance, to operate as a repeal of whatever of the old is
within the scope of the new, we shall find the instances rare
wherein a statute will by implication repeal the prior law, statu-
tory or common, concerning the offence alone, as distinguished
from the punishment. If the old and new are identical, there is
no occasion for adjudging a repeal, since certainly they are not
repugnant.? If they vary from each other, there is still no rea-
son in ordinary circumstances for.deeming them repugnant.
Numerous shades and degrees of offence may, in the nature of
things, and as transactions ordinarily are, attach to a single act;
and, if the legislature by separate statutes has provided for more
than one of these, no just reasons can forbid all to stand.” But,—
1 The State v. Maloney, R. M. Charl.
84.
2 The State v. Buckman, 8 N. H. 208;
Rex v. Taylor, Russ. & Ry. 373; The
State v. Danforth, 3 Conn. 112; South-
worth v. The State, 5-Conn. 325.
8 Gregory v. Commonwealth, 2 Dana,
417.
4 Ante, § 164, 169. And see The State
v. Taylor, 2’'McCord, 483; Rex v. Wad-
dington, 1 B. & C. 26; Knowles v. The
State, 3 Day, 103; Commonwealth v.
Pegram, 1 Leigh, 569; Allen v. Common-
162
wealth, 2 Leigh, 727; Taylor v. The State,
7 Humph. 510. :
5 Smith v. The State, 1 Stew. 506.
And see The State v. Jones, 6 Ala. 666 ;
The State v. Flanigin, 5 Ala. 477.
® Crim. Law, I. § 1060-1066.
T United States v. Nelson, 1 Abb. U.S.
135.
' 8 Ante, § 158-162.
9 Ante, § 163 d, 163 e.
10 See cases cited ante, § 154-164;
Commonwealth v. Herrick, 6 Cush. 465.
CHAP. XIX.]| REPEAL WITH OTHER DOCTRINES. § 174
§ 174. Felony and Misdemeanor. — Because of the different
natures, under the common-law rules, of felony and misdemeanor,
their different punishments, and the diverse modes of proceeding
against the offender, the same act cannot be both the one and
the other. Therefore if a statute elevates to a felony what before
was a misdemeanor, 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 Reg. v. Button, 12 Jur. 1017, 1021; 388; Warner v. Commonwealth, 1 Barr,
Rex v. Robinson, 2 East P. C. 1110, 1114, 154; Rex v. Cross, 1 Ld. Raym. 711;
1115, 2 Leach, 4th ed. 749; Rex v. Wal- s.c. nom. Rex v. Crosse, 12 Mod. 634;
ford, 5 Esp. 62; The State v. Wright,4 Rex v. Pim, Russ. & Ry. 425; Hayes v.
McCord, 358; Burton v. Watkins, 2 Hill, The State, 65 Ind. 99.,
S. C. 674; The State v. Dick, 2 Murph.
163
§ 175 INTERPRETATION. [B00K IL.
CHAPTER XX.
THE CONSEQUENCES FOLLOWING ACTUAL AND ATTEMPTED
REPEALS.
§ 174.4. Introduction.
175-180. General Doctrine.
181-187. Specific Questions.
§ 174 a. Complications of Doctrine. — Our written constitutions
render, we shall see in this chapter, repeals in some circumstances
practically impossible ; as, where they would divest vested rights.1
Complicated with this condition of the law are some nice com-
mon-law doctrines relating to the effect of conceded repeals.
We shall not undertake to separate these two classes of cases
under their distinct heads, but — :
How Chapter divided. — We shall consider, I. The General
Doctrine; II. Specific Questions.
\
I. The General Doctrine.
§ 175. Right and Remedy, distinguished. — Both in the nature
of things and in adjudication, there is a distinction between what
pertains to the right and what to the remedy. And our entire
law is'separable into these two classes.
Concerning Each. — Rights are the product of the legal rule as
prevailing when and where the facts transpired;? and, when
vested, they do not change with changes in the law.2 Remedies
are governed by the law of the place in which the rights are
sought to be enforced or their violation avenged, as existing at
the time ® when the proceedings are carried on and the judgment
is rendered,
1 Ante, § 85a. 4 May v. Breed, 7 Cush. 15, 34; Story
2 Bishop Con. § 719, 720; Don v. Confl. Laws, § 556-558; De la Vega v.
Lippmann, 5 Cl.& F.1; Scott v.Seymour, Vianna, 1 B. & Ad. 284; Fergusson »,
1H. &C. 219. Fyffe, 8 Cl. & F. 121.
3 Ante, § 85 a. 5 Hale v. The State, 15 Conn. 242;
164
CHAP. xx.] CONSEQUENCES OF REPEAL.
§ 177
§ 176. Remedy — (Procedure).— The procedure in a cause,
whether civil or criminal, pertains to the remedy. And, subject
to exceptions growing out of special reasons, it must conform to
the general law of procedure prevailing at the place and time
where and while the cause is instituted and progressing. In
respect of past transactions, therefore, the same as of future ones,
it may be changed from time to time, at the legislative pleasure.!
Again, —
Punishment — (Ex post Facto).— The punishment wherewith
the law visits a crime, being, as we have seen, separable from the
definition of the crime,? pertains to the remedy. A statute in-
creasing it for offences already committed would be void as ex
post facto ;3 but, subject to this exception, a convicted prisoner
may receive whatever sentence the law provides at the time it is
pronounced, and no other can be, imposed.*
Now, —
§ 177. Repeal ends Proceedings. —No court can entertain a
cause without authority of law,
ute terminates all proceedings under it.®
Thas, —
applies to a municipal by-law.®
Therefore the repeal of a stat-
And the same rule
In Criminal Prosecutions. — If the common or statutory law,
which authorizes a prosecution and conviction for any offence, is
repealed or expired’ before final judgment, the court can go no
Lore v. The State, 4 Ala. 173; The State
v. Fletcher, 1 R. I. 198; Davidson ve.
Wheeler, Morris, 288; Knoup v. Piqua
Bank, 1 Ohio State, 603.
1 Ante, § 84, 85 a; Bishop Con. § 719,
7871; Brock v. Parker, 5 Ind. 538; Lore
v. The State, 4 Ala. 173; Hale v. The
State, 15 Conn. 242; United States v. Sam-
peryac, Hemp. 118; Hickory Tree Road,
7 Wright, Pa. 139; Railroad v. Hecht,
95 U. S. 168; Jones v. Davis, 6 Neb. 33;
People v. Essex, 70 N. Y. 228; De Mill
v. Lockwood, 3 Blatch. 56; Searcy: v.
Stubbs, 12 Ga. 487; Ralston v. Lothain,
18 Ind. 8308; Read v. Frankfort Bank, 23
Maine, 318; Bank of United States v.
Longworth, 1 McLean, 35; Sutherland r.
De Leon, 1 Texas, 250; Hope v. Johnson,
2 Yerg. 125; People v. Phelps, 5 Wend. 9.
See Van Valkenburgh v. Torrey, 7 Cow.
252. ‘
2 Ante, § 166, 167.
8 Crim. Law, I. § 279, 281.
4 The State v. Williams, 2 Rich. 418;
The State v. Fletcher, 1 R. I. 193; ante,
§ 166.
5 Hickory Tree Road, 7 Wright, Pa.
139; Thomas v. The State, 8 Texas Ap.
112; Musgrove v. Vicksburg, &c. Rail-
road, 50 Missis. 677; Smith v. Arapahoe
Dist. Court, 4 Colo. 235; Miller’s Case, 3
Wils. 420, 1 W. Bl. 451; Hunt v. Jennings,
5 Blackf. 195; Road in Hatfield, 4 Yeates,
392; Directors of the Poor v. Railroad, 7
Watts & S. 236; The State v. Lackey, 2
Ind. 285; Reg. v. Denton, 18 Q. B. 761,
Dears. 3, 14 Eng. L. & Eq. 124; Common-
wealth v. Hampden, 6:Pick. 501, 508 ; Illi-
nois and Michigan Canal v. Chicago, 14 Ill.
3834; North Canal Street Road, 10 Watts,
851; Fenelon’s Petition, 7 Barr, 173.
6 Kansas City v. Clark, 68 Misso. 588.
7 The Helen, 6 Cranch, 203; The
Rachel v. United States, 6 Cranch, 329;
Yeaton v. United States, 5 Cranch, 281;
The Irresistible, 7 Wheat. 551; Davidson
rv. Wheeler, Morris, 238 ; Eaton v.Graham,
11 Ill. 619. But see post, § 181, 182.
165
,
§ 177 INTERPRETATION. [Book I.
further with the case.!_ Even after verdict rendered against the
prisoner,? or after he has pleaded guilty,’ sentence cannot be
pronounced; and he must be discharged. 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, a re-
peal of the law will not arrest the execution of the sentence.®
Again, —
In Penal Actions. — For the same reason, in cases where no
vested private rights interpose, statutes authorizing gui tam and
other penal actions in civil form for violations of public or quasz’
public duty, follow the same rules as to the effect of repeal.’
But, —
Before Statute is in Force. — Between the time of the enactment
' Commonwealth v. Kimball, 21 Pick.
373; Commonwealth v. Marshall, 11 Pick.
.850; Taylor v. The State, 7 Blackf. 93;
Mayers v. The State, 2 Eng. 68; Anony-
mous, 2 Lewin, 22; United States v.
Passmore, 4 Dall. 372; Stoever v. Im-
mell, 1 Watts, 258; Commonwealth v.
Beatty, 1 Watts, 382 ; Scott v. Common-
wealth, 2 Va. Cas. 54; The State v. Cole,
2 McCord, 1; The State v. Fletcher, 1
R. 1.193; Attoo v. Commonwealth, 2 Va.
Cas. 382; Commonwealth v. Leftwich, 5
Rand. 657; Anonymous, 1 Wash. C. C.
84; People v. Townsey, 5 Denio, 70, 72;
1 Kent Com. 465;° The State v. Allaire,
14 Ala. 435; Jordan v. The State, 15 Ala.
746; The State v. Loyd, 2 Ind. 659;
Heald v. The State, 36 Maine, 62; How-
ard v. The State, 5 Ind. 183; The Gov-
ernor v. Howard, 1 Murph. 465; The
State v O’Conner, 13 La. An. 486; The
Rachel v. United States, 6 Cranch, 829;
United States v. The Helen, 6 Cranch,
203; Yeaton v. United States, 6 Cranch,
281; Wall v. The State, 18 Texas, 682;
The State v. Ingersoll, 17 Wis. 631; 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, 39 Ala. 541; Reg. v.
Denton, 18 Q. B. 761, Dears. 3; The
State v. Gumber, 37 Wis. 298; Tuton v.
The State, 4 Texas Ap. 472; Halfin v.
The State, 5 Texas Ap. 212; Carlisle v.
The State, 42 Ala. 523; Annapolis v. The
166
State, 30 Md. 112; United States v. Fin-
lay, 1 Abb. U. S. 864; The State v. Long,
78 N. C. 571; Greer v. The State, 22
Texas, 588.
2 Commonwealth v. Duane, 1 Binn.
601; Keller v. The State, 12 Md. 322;
Commonwealth v. Pattee, 12 Cush. 501;
The State v. Stone, 43 Wis. 481.
8 Whitehurst v. The State, 43 Ind. 473;
Mullinix v. The State, 43 Ind. 511.
4 The Rachel v. United States, 6
Cranch, 329; Yeaton v. United States, 5
Cranch, 281; Chaplin v. The State, 7
Texas Ap. 87; Hubbard v. The State, 2
Texas Ap. 506; Montgomery »v. The State,
2 Texas Ap. 618; Sheppard r. The State,
1 Texas Ap. 522. See The State v.
Brewer, 22 La. An. 273.
5 Lewis v. Foster, 1 N. H. 61.
6 The State v. Addington, 2 Bailey,
516; Foster v. Medfield, 3 Met. 1.
7 Pope v. Lewis, 4 Ala. 487; The State
v. Tombeckbee Bank, 1 Stew. 847; Eaton
v. Graham, 11 Ill. 619; Sumner v. Cum-
mings, 23 Vt. 427; Lewis v. Foster, 1
N. H. 61; Allen v. Farrow, 2 Bailey, 584;
Commonwealth v. Welch, 2 Dana, 330;
Saco v. Gurney, 34 Maine, 14; Broughton
v. Branch Bank, 17 Ala. 828; Engle v.
Shurts, 1 Mich. 150; Thompson »v. Bas-
sett, 5 Ind. 535; Welch v. Wadsworth,
30 Conn. 149; Williams v. Middlesex, 4
Met. 76; Uwchlan Township Road, 6
Casey, Pa. 156; Gaul v. Brown, 53 Maine,
496; Rood v. Chicago, &c. Railway, 48
Wis. 146; Union Iron Co. v. Pierce, 4 Bis.
327.
CHAP. XX. ] CONSEQUENCES OF REPEAL. § 1774
of a repealing statute and its going into operation, it produces no
consequences whatever in any case.!
§ 177 a. In other Civil Causes. — Subject to more numerous
exceptions, the repeal of an ordinary civil statute is followed by
the same results as of a criminal or penal one. The party loses
his rights under it, and pending proceedings can be carried no
further. With respect to future steps, the repealed act is re-
garded as having never existed.2 Yet, —
Vested Rights. — Since, under our written constitutions, vested
rights cannot by any form of legislation be divested, while still
the remedy may be changed, but not so as to be virtually de-
stroyed,' it follows, as a part of the same proposition, that no
repeal of a statute can divest this class.of rights. We may say,
that the effect of the repeal cannot be so, or that the formal
repeal is thus far unconstitutional and void, or that the constitu-
tion saves the right after the repeal has transpired, or that it so
blends with the statute as to render it to this extent irrepealable,
— different methods of stating the same legal doctrine. The
old remedy, if no new one is provided, remains for the enforce-
ment of the irrevocable, vested right.© But—
Not Vested. — Any right not vested falls with the repeal of the
statute on which it rests.7
1 Ante, § 31; Grinad v. The State, 34
Ga. 270.
2 Surtees v. Ellison, 9 B. & C. 750;
Musgrove v. Vicksburg, &c. Railroad, 50
Missis. 677 ; Van Inwagen v. Chicago, 61
Til. 31; Assessors v. Osbornes, 9 Wal. 567;
United States v. Six Fermenting Tubs, 1
Abb. U.S. 268; Nicholls v. Gee, 30 Ark.
185; Hunt v. Jennings, 5 Blackf. 195; Illi-
nois, & Canal v. Chicago, 14 111.334; Mac-
nawhoc Plantation v. Thompson, 36 Maine,
365; Uwchlan Township Road, 6 Casey,
Pa. 156; Stephenson v. Wait, 8 Blackf.
508; North Canal St. Road, 10 Watts,
351; Petition of Fenelon, 7 Barr, 173;
Hickory Tree Road, 7 Wright, Pa. 139.
3 Ante, § 85 a.
4 Ante, § 84, 84a, 176; post, § 178;
De Mill v. Lockwood, 8 Blatch. 56;
Woodruff v. Scruggs, 27 Ark. 26; Mc-
Creary v. The State, 27 Ark. 425; Beebee
vu O'Brien, 10 Wis. 481; Langford »v.
King, 1 Mon. Ter. 33.
5 Memphis v. United States, 97 U. S.
293; Rock Hill College v. Jones, 47 Md.
1; Milner v. Pensacola, 2 Woods, 632;
Grey v. Mobile Trade Co. 55 Ala. 387;
Musgrove v. Vicksburg, &c. Railroad, 50
Missis. 677; Backes v. Dant, 55 Ind. 181;
Creighton v. Pragg, 21 Cal. 115; Davis
v. Minor, 1 How. Missis. 183; James v.
Dubois, 1 Harrison, 285; Rice wv. Rail-
road, 1 Black, 358; Ex parte Graham, 13
Rich. 277; Naught v. Oneal, Breese, App.
29; Taylor v. Rushing, 2 Stew. 160;
Streubel v. Milwaukee, &c. Railroad, 12
Wis. 67. Rights of property depend on
the statutes as existing at the time they
vest. Hunt v. Hunt, 37 Maine, 333;
Mays v. Williams, 27 Ala. 267; Yar-
mouth v. North Yarmouth, 34 Maine,
411.
6 Wilson v. Herbert, 12 Vroom, 454.
See Knoup v. Piqua Bank, 1 Ohio State,
603.
7 Bailey v. Mason, 4 Minn. 646; Butler
v. Palmer, 1 Hill, N. Y. 324.
167
§ 1784 INTERPRETATION. [B00K IL.
§ 178. Taking away Remedy. — There is no vested right in any
particular remedy ;! hence, as already appears,’ a statute may
modify the remedy, yet not so as to leave none,’ or one so diffi-
cult as to be practically without avail.
Rights vested in Penal Actions. — There may be vested rights in
penal actions,® and the repeal of the statute will not take them
away.’ Some nice questions arise as to what act, under this
rule, will vest, in the person performing it, the right to a penalty
incurred by another. There are analogous questions relating to
the effect of a pardon, discussed in “ Criminal Law.’’’ The doc-
trine probably is, that, when the suit is in the name of. the gov-
ernment, the right does not vest until final judgment;$ but,
when a private individual is plaintiff, the bringing of the suit
vests the right.
Costs — are governed by the statutes existing when final judg-
ment in the cause is rendered ;° so that an earlier repeal, though
while the suit is in progress, terminates the right. At such ren-
dition of judgment, before they are taxed, they become vested,
and then a repeal of the statute will not divest them. They can
be taxed afterward.
§ 178 a. Office. — A public office is not a vested right. In
the absence of any positive constitutional restraint, the legisla-
ture may repeal the statute creating it, and the dispossessed in-
cumbent will be entitled only to the salary already earned.* Or
1 Commionwealth v. Hampden, 6 Pick.
601.
2 Ante, § 84, 84 a, 176, 177 a.
8 Story Const. § 13885, 1391; Butler v.
Palmer, 1 Hill, N. Y. 324, 328; De Cor-
dova v. Galveston, 4 Texas, 470.
4 Riggs v. Martin, 5 Pike, 506. See
Newkirk v. Chapron, 17 Ill. 344. ,
5 Taylor v. Rushing, 2 Stew. 160;
Dow v. Norris, 4 N. H. 16; Palmer v.
Conly, 4 Denio, 374; Conly v. Palmer, 2
Comst. 182. And see McGowen v. Deyo,
8 Barb. 340.
§ See, also, Rice v. Railroad, 1 Black,
358; Ix parte Graham, 13 Rich. 277:
Sinking Fund Commissioners v. Northern
Bank, 1 Met. Ky. 174; Davis v. Minor,
1 How. Missis. 183; James v. Dubois, 1
‘Harrison, 2865; Grace v. Donovan, 12
Minn. 580.
* Crim. Law, I.§ 109-111. °
168
8 The State v. Youmans, 6 Ind. 280;
Bank of St. Mary’s v. The State, 12 Ga.
475.
® Ellis v. Whittier, 37 Maine, 548;
Onondaga v. Briggs, 3 Denio, 173; War-
field v. Watkins, 30 Barb. 395. And see
Commonwealth v. McKenney, 14 Gray,
1; Billings v. Segar, 11 Mass. 340.
10 Saco v. Gurney, 34 Maine, 14; Rader
v. Southeasterly Road Dist. of Union, 7
Vroom, 273.
11 Restall v. London, &c. Railway, Law
Rep. 3 Ex. 141; Steamship Co. v. Joliffe,
2 Wal. 450. See Jackett v. Judd, 18
How. Pr. 885; Jones v. Underwood, 18
How. Pr. 682; Scudder v. Gori, 18 Abb.
Pr. 207, 28 How. Pr. 155; Steward »v.
Lamoreaux, 5 Abb. Pr. 14; Morgan v.
Thorne, 7 M. & W. 400.
12 1 Bishop Mar. & Div. § 677; Hall
v. The State, 39 Wis. 79; The State v.
CHAP. XX.]
CONSEQUENCES OF REPEAL. *‘
§ 180
it may reduce the salary or enlarge the duties of the office.!
So, =
Suing State. — A statute permitting suits against the State is
merely of grace, conferring on creditors no vested rights. And
if, while a suit under it is pending, it is repealed, the jurisdiction
of the court is gone, and it abates.?
§ 179. Statutes limiting Effect of Repeal.— Inevitable as on the
principles of the unwritten law the foregoing rules are, a partial
failure of justice sometimes arises where, through them, substan-
tial rights not in form vested are taken away, or persons guilty
of crime are suffered to escape punishment.
Therefore, in some
or most of the States, there are statutes limiting the consequences
of repeal; such as, that, in criminal cases, or both in criminal
and civil, it shall not affect suits pending, or causes of prose-
cution or action already accrued.?
A statute of this sort is
within the general rule of interpretation requiring all laws to
be construed together;* so that, though by express terms the
legislature may make a repeal contrary thereto,® it will in the
absence of such terms be treated as a part of every repealing
enactment.6 In general, where rights are thus preserved, the
procedure, after the repeal, takes the forms ordained by the new
law.’ Again, —
’
§ 180. Saving Clause in Repealing Statute. — The common-law
Baldwin, 45 Conn. 134; Coffin v. The
State, 7 Ind. 157; Benford v. Gibson, 15
Ala. 621; Phillips v. New York, 1 Hilton,
483; Smith v. Philadelphia, 2 Parsons,
298; Barker v. Pittsburgh, 4 Barr, 49;
People v. Haskell, 5 Cal. 357; People v.
Banvard, 27 Cal. 470.
1 The State v. Gales, 77 N. C. 283;
Butler v. Pennsylvania, 10 How. U. S.
402; Turpen v. Tipton, 7 Ind. 172;. Mi-
ami v. Blake, 21 Ind. 82; People v. Dev-
lin, 88 N. Y. 269; Haynes v. The State,
8 Humph. 480; Walker v. Dunham, 17
Ind. 483; The State v. Smedes, 26 Missis.
47; Commonwealth v. Bacon, 6 S. & R.
322; People v. Squires, 14 Cal. 12.
2 Ex parte The State, 52 Ala. 231.
3 Acree v. Commonwealth, 13 Bush,
853; Dillon v. Linder, 36 Wis. 844;
Lakeman v. Moore, 32 N. H. 410; United
States v. Barr, 4 Saw. 254; Volmer v.
The State, 34 Ark. 487; Myers v. The
State, 8 Texas Ap. 821; Simms v. The
State, 8 Texas Ap. 230; The State v.
Ross, 49 Misso. 416; Gordon v. The State,
4 Kan. 489; Luke v. Calhoun, 56 Ala.
415; The State v. Mathews, 14 Misso.
183; McCuen v. The State, 19 Ark. 634;
Reynolds v. The State, 3 Kelly, 53; Com-
monwealth v. Adcock, 8 Grat. 661; The
State v. Shaffer, 21 Iowa, 486; People v.
Quinn, 18 Cal. 122; Jordan v. The State,
88 Ga. 585; Richardson v. The State, 3
Coldw. 122.
4 Ante, § 82, 86 et seq.
5 Ante, § 147.
6 Commonwealth v. Desmond, 123
Mass. 407; The State v. Boyle, 10 Kan.
118; The State v. Crawford, 11 Kan. 32;
Chaplin v. The State, 7 Texas Ap. 87.
And see Newsom v. Greenwood, 4 Ore-
gon, 119.
1 Farmer v. People, 77 Ill. 822, See
ante, § 175, 176.
169
§ 180 INTERPRETATION. [BOOK U.
effect of a repeal may be, and sometimes is, avoided by a saving
clause in the repealing statute, authorizing prosecutions under
the old law for offences already committed:} or otherwise, and
with differing limitations, allowing proceedings under the law
repealed.2, Even, —
Reviving Lapsed Right. — Where there is no saving clause, and
the repeal has gone into effect, a subsequent enactment may
revive the lapsed right, by providing steps for its vindication.
This occurs, for example, where the repealing statute is repealed.
One who had committed a crime under the former laws could
not be prosecuted while they were repealed; but, on becoming
laws again, like a bridge that had been removed and then re-
placed, they would sustain the judicial steps. In the language
of Wilde, J. the repealing statute “operated only as a suspension
.of his liability, and not in the nature of a pardon.”* So if, while
civil causes are pending in a court, it is abolished by law, and by
reason of some defect in the law they are not transferred to any
tribunal, the legislature at a subsequent period may provide for
their transfer. Nor is a statute ex post facto which creates a
new court, or gives jurisdiction to an existing one, to try offences
previously committed.®
' Taylor v. The State, 7 Blackf. 938;
Commonwealth v. Marshall, 11 Pick. 350;
Commonwealth v. Kimball, 21 Pick. 373;
‘United States v. The Helen, 6 Cranch,
203 ; The Irresistible, 7 Wheat. 551; Com-
monwealth v. Edwards, 4 Gray, 1.
2 Reg. v. West Riding of Yorkshire, 1
Q. B. D. 220; Commonwealth v. Bennett,
108 Mass. 20.
3 Commonwealth v. Mott, 21 Pick.
492 ; Commonwealth v. Getchell, 16 Pick.
452. See Van Valkenburgh ». Torrey, 7
Cow. 252, 255; The State v. Dunkley, 3
Tre. 116; Dawson r. The State, 6 Texas,
347; McMullen e. Guest, 6 Texas, 375;
Commonwealth v. Leech, 12 Harris, Pa.
55.
* Commonwealth v. Getchell, 16 Pick.
452; and see Roby v. West, 4 N. H. 285;
In re Pennsylvania Hall, 5 Barr, 204.
Contra, Roberts v. The State, 2 Tenn.
170
423. Yet it seems, both on reason and
authority, that, if process has been actu-
ally abated because of the repeal of a
statute, its re-enactment cannot operate
to reinstate the particular abated process.
Commonwealth v. Leech, 12 Harris, Pa.
65. And, according to the principle
recognized in a Tennessee case, perhaps,
if the process were merely abatable, the
same result might follow. Tucker ».
Burns, 2 Swan. Tenn. 35. A subsequent
statute may validate proceedings under
one which has been repealed. In re Penn-
sylvania Hall, supra.
5 Scott v. Smart, 1 Mich. 295. And
see Freeborn v. Smith, 2 Wal. 160.
6 Commonwealth v. Phillips, 11 Pick.
28; Perry v. Commonwealth, 3 Grat. 632.
And see Grinder v. Nelson, 9 Gill, 299;
The State v. Howard, 15 Rich. 274
CHAP. XX.]
CONSEQUENCES OF REPEAL. § 183
II. Specific Questions.
§ 181. Simultaneous Repeal and Re-enactment. — The repeal of
a statute, accompanied by a re-enactment of its terms, or of its
substantial provisions in any other forms of expression, does not
break its continuity ;1 and there is no moment when, whatever
words of repeal are employed, it can be said to be repealed?
Among other consequences, a suit brought under the old law can
be finished under the new.®. And all rights created undér\the
old remain under the nominally new. The case would appear,
in principle, to be like that of an instantaneous seisin, where a
man by one act receives and passes back an estate ; and the con-
sequences of ownership do not, therefore, attach to him. But
the concurrent enactment of provisions different from the repealed
ones does not preserve the continuity of the laws; so that, for
example, in a criminal case, the defendant cannot be sentenced
under the old law, because it is repealed; or under the new,
because not in force when the criminal fact transpired.$
§ 182. Statute expiring by own Limitation. — There is authority
for saying, that, if the period to which a penal law is by its terms
applicable elapses, a prosecution for an offence under it may go
on.’ This seems contrary to a proposition in an earlier section.’
The distinction in principle is, that, if a statute makes an act
punishable when committed within a particular time, the expira-
tion of the time does not prevent the punishment; while, on the
other hand, if there is no way of proceeding in a case but the one
pointed out by it, and it has run its time, then, since there can
be no proceeding, there can be no conviction and sentence.
§ 183. Punishment differing with Time of Offence. — From the
foregoing views we learn, that an offence may be subjected to a
1 St. Louis v. Foster, 52 Misso. 513;
The State v. Gumber, 87 Wis. 298;
Scheftels v. Tabert, 46 Wis. 489; Laude
v. Chicago, &c. Railway, 33 Wis. 640;
Middleton v. New Jersey West Line Rail-
road, 11 C. E. Green, 269; The State v.
Baldwin, 45 Conn. 184.
2 Martindale v. Martindale, 10 Ind.
666; Cordell v. The State, 22 Ind. 1;
Alexander v. The State, 9 Ind. 337; Ful-
lerton v. Spring, 3 Wis. 667; Randolph
v. Larned, 12 C. E. Green, 557. And see
ante, § 152 a; The State v. Miller, 58
Ind. 399.
8 McMullen v. Guest, 6 Texas, 275.
And see People v. Livingston, 6 Wend.
526. :
’ 4 Capron v. Strout, 11 Nev. 304.
1 Bishop Mar. Women, § 828, 326.
The State v. Long, 78 N. C. 571.
Stevens v. Dimond, 6 N. H. 330.
Ante, § 177.
Oa aan pe
171
§ 184 INTERPRETATION. [BOoK 11.
particular punishment when committed before the repeal of a
statute, and to a different one when committed after, if such is
the expressed will of the legislature. And,—
“ Hereafter.” — Where the provision was, that one ‘“ hereafter”
doing a thing before penal should receive a particular punish-
ment, different from the old, it was held that sentences for prior
offences should be under the old law.! Still, —
Legislative Intent distinct — (Bankrupt Law — Perjury). — With-
out a plain expression of the legislative intent, interpretation will
no¥Tecognize a distinction of this sort, being contrary to the ordi-
nary course of things, Within this principle was the act of Con-
gress repealing the earlier bankrupt law. It declared that the
repeal should ‘in no wise affect the execution of any commission
of bankruptcy, which may have issued prior to the passing of
this act, but every such commission shall be proceeded in and
fully executed as if this act had not been passed.” Yet the lia-
bility to prosecution for perjury already committed under the
repealed law was held not to be preserved by these terms.’
Again, —
§ 184. Further of Change of Punishment.— There is a single
case which seems to hold, that, if a statute provides a new pun-
ishment for a common-law offence, then a person commits the
offence, then another statute repeals this one, and likewise: or-
dains a still different punishment for the future, the delinquent,
whose guilt was incurred while the first statute was in force, yet
who could not be punished under it because repealed, could be
subjected to the common-law punishment. The reasons for this
decision are not given in the report. The only ground for sup-
porting it would seem to be, that the repeal of the first statute,
with the ordaining of another punishment for the future, was a
reinstating of the common-law punishment for the past ; and, as
a prisoner is to receive the punishment provided by the law at
the time when sentence is rendered,‘ this one may be subjected
to that of the common law.® And it is established, that, after an
1 Commonwealth v. Pegram, 1 Leigh, 8 Rex v. McKenzie, Russ. & Ry. 429.
569; Allen v. Commonwealth, 2 Leigh, See People v. Townsey, 5 Denio, 70;
727. And see Rex v. McKenzie, Russ. & Roberts v. The State, 2 Tenn. 423; The
Ry. 429; Pitman v. Commonwealth, 2 State v. Daley, 29 Conn. 272.
Rob. Va. 800; The State v. Daley, 29 4 Ante, § 166, 168, 176.
Conn, 272. 5 In Connecticut, a statute having
* Anonymous, 1 Wash. C. C. 84,89. made manslaughter punishable by im
172
CHAP. XX.] CONSEQUENCES OF REPEAL. § 185
offence is committed, the punishment for it may be changed in
any way which shall not render it ex post facto.1 Where a stat-
ute operated as a repeal 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 a defendant to
the old law, which was not in force when he did the act.
§ 185. Increasing Punishment — (Ex post Facto).— An enact-
ment increasing the punishment for an offence after it is com-
mitted is, under our State and national constitutions, void as
being ex post facto On the other hand, —
Mitigating Punishment: — A statute thus in mitigation of a pun-
ishment already incurred is good.® Thus, —
Death to Whipping, Imprisonment, &c. — Where, at the time of a
conviction for forgery, the penalty was death ; but the prisoner
appealed, and pending his appeal it was reduced to fine, whip-
ping, and imprisonment ; the milder sentence was pronounced.®
So, —
prisonment in the State prison not less
than two years nor more than ten, a man
committed it, then an act repealed this
one, and directed that, when it should be
thereafter committed, it should be punished
by imprisonment in the State prison
or county jail not less than ten years.’
Thereupon the majority of the court
held, that the offender could not be sub-
jected to the old punishment, because the
statute was repealed, or the new, because
the new statute did not apply to past
offences. The dissenting judge deemed,
that the offender could be subjected to
the common-law punishment, the offence
being at common law. The State v. Da-
ley, 29 Conn. 272. Some Alabama cases
hold, that, where a statute provides an
increased punishment for an offence if
afterward committed, and is silent con-
cerning it when it had been committed
before, and there is no express repeal, the
old offender can be punished under the
old law. The words were: “From and
after the passage of this act, any person,”
&e. Said Judge, J.: “The latter statute
has operative effect only as to the of-
fences named therein when committed
subsequent to its passage.” Miles v. The
State, 40 Ala. 39, 42; Moore v. The
State, 40 Ala. 49; Stephen v. The State,
is
2
40 Ala. 67; Wade v. The State, 40 Ala,
74.
1 Crim. Law, I. § 279, 181; Veal v.
The State, 8 Texas Ap. 474; Perez v.
The State, 8 Texas Ap. 610; The State
v. Kent, 65 N. C. 311.
“2 Ante, § 173. /
3 Commonwealth v. Marshall, 11 Pick.
350. And see The State v. Daley, 29
Conn. 272, stated in note to next section.
4 Crim. Law, I. § 279, 281; Const. U.
S. art. 1, § 9,10; Calder v. Bull, 3 Dall.
386, 389; Watson v. Mercer, 8 Pet. 88, 110;
Bennett v. Boggs, Bald. 60, 74; The State
v. Kent, 65 N. C. 311; Hannahan v. The
State, 7 Texas Ap. 664; Commonwealth
v. Maloney, 112 Mass. 288. And see
Hope v. Johnson, 2 Yerg. 123; ante, § 85.
5 Crim. Law, ut sup.; Story Const.
§ 1845; Commonwealth v. Mott, 21 Pick.
492, 500, 501; Flaherty v. Thomas, 12
Allen, 428; Commonwealth v. McKen-
ney, 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, 39 N. H. 179;
Rich v. The State, 9 Texas Ap. 176; The
State v. Miller, 58 Ind. 399. See Mullen
v. People, 31 Ill. 444.
6 The State «. Williams, 2 Rich. 418.
And see Leighton v. Walker, 9 N.
178
INTERPRETATION. [Book .
§ 185
‘Whipping to Imprisonment. — Where the change was from whip
ping not exceeding one hundred stripes, to imprisonment not
exceeding seven years, this was held in Indiana to be in mitiga-
tion, and therefore constitutional. But certainly the court went
far in this case. In reason, where the penalties are of different
natures, it is often difficult to say that the one is less than the
other; though any thing not extending to the life is clearly milder
than death.
Pillory and Fine to Imprisonment — (Mayhem). — In Mississippi,
prior to 1839, the punishment for mayhem was the pillory and a
fine. It was then changed to imprisonment in the penitentiary.
But it was also provided, that this and other changes should not
affect past offences, except where the punishment was in mitiga-
tion, and then the new punishment should be inflicted. There-
upon a man was convicted of mayhem committed before the
going into effect of the new statute, and sentenced to the old
punishment; and this was held to be right. But the court said,
that the prisoner might have demanded the new punishment, had
he chosen it, and then he would have been entitled thereto?
Degrees of Offence— (Homicide). A statute dividing an of-
fence —as, for example, the homicide of murder or manslaughter
— into degrees, and ordaining new punishments, yet not making
the punishment for any degree higher than was provided for the
offence by the prior law, may be applied to acts already com-
mitted, and to indictments, if adequate in form under the new
law, already pending. The continuity of the law of the punish-
ment is not broken ;? or, if it was, this circumstance would not in
principle work a difference. In a measure contrary to this view
and some others in the present connection is the —
New York Doctrine. — The courts of this State appear to hold,
that, where a statute prescribing the punishment for a common-
261; Dawson v. The State, 6 Texas, 347;
Holt v. The State, 2 Texas, 363; Herber
59. In a Texas case the court observes:
“Among all nations of civilized man,
from the earliest ages, the infliction of
stripes has been considered more degrad-
ing than death itself.” Herber v. The
State, 7 Texas, 69,73. Stilla punishment
is not to be estimated, as to its weight
or severity, exclusively by its degrading
nature.
1 Strong v. The State, 1 Blackf. 193.
And see Clarke v. The State, 23 Missis.
174
v. The State, 7 Texas, 69; Martin v. The
State, 24 Texas, 61.
2 Clarke v. The State, 23 Missis. 261.
And see Veal v. The State, 8 Texas Ap.
474; Perez v. The State, 8 Texas Ap. 610.
3 Ante, § 181; Keene v. The State, 3
Chand. 109; Commonwealth v. Gardner,
11 Gray, 438.
4 Ante, § 180.
CHAP. Xx. ] CONSEQUENCES OF REPEAL. § 186
law offence, such as felonious homicide, is repealed by another
which provides a milder punishment, and declares that acts al-
ready done shall be punished under the new law, the remedy is
gone. It is deemed that, the old law being unqualifiedly re-
pealed, there can be no punishment under it; neither, on the
other hand, can the new punishment be inflicted, because this
would be ex post facto. These and some connected views being
special to this State, and not of common interest elsewhere, it
will suffice simply to refer to the authorities.!
§ 186. Repeal of Repealing Statute.— Subject to some excep-
tions, the repeal of a repealing statute revives the old law,
whether statutory or common.? And this rule prevails even in
the case of a repeal by the implication of a conflicting enactment.®
So, with the repeal of a statute which had merely modified the
law, the modification ceases. Now, —
Common-law Exceptions. — There are common-law exceptions
to this doctrine, growing out of the reasons of particular cases,
and probably not reducible to rule. Thus, “if a statute,” says
Dwarris,® “*be repealed by several acts, a repeal of one act, or
two, and not of all, does not revive the first statute.6 Ifa repeal-
ing 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.”8 And there are other exceptional
cases of like nature.? A statute which refers to and adopts the
provisions of another statute is not repealed by the subsequent
repeal of the statute adopted.
1 Hartung v. People, 22 N. Y. 95;
Shepherd v. People, 25 N. ¥. 406; Har-
Phillips v. Hopwood, 5 Man. & R. 15, 10
B. & C. 39; People v. Hunt, 41 Cal. 435.
tung v. People, 26 N. Y. 167, 28 N. Y. 400;
Ratzky v. People, 29 N. Y. 124; McKee
v. People, 32 N. Y. 239.
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, 7
Watts & S. 236; James v. Dubois, 1 Har-
rison, 285; 1 Kent Com. 466; Wayman
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; People vr. Wintermute,
1 Dak. Ter. 63; Gray vu. Obear, 54 Ga.
231; Lindsay v. Lindsay, 47 Ind. 283;
8 Hastings v. Aiken, 1 Gray, 163.
$ Glaholm t, Barker, Law Rep. 1 Ch.
Ap. 228, 229,
5 Dwar. Sta . 2d ed. 534.
6 The Bishops’ Case, 12 Co. 7; Tattle
v. Grimwood, 3 Bing. 493, 496.
7 Broughton v. Gully, 9 B. & C. 344,
354.
8 Williams v. Roughedge, 2 Bur. 747.
9 Goodno v. Oskosh, 31 Wis. 127;
People v. Tyler, 36 Cal. 522; People v.
Brooklyn, 8 Abb. Pr. n. s. 150.
10 Sikar v. Chicago, &c. Railroad, 21
Wis. 370.
175
§ 187 INTERPRETATION. [Book u.
‘Statutory Exceptions. —Sometimes the statute which repeals a
repealing one specifies an effect different from the common-law
rule, and then it must prevail. And of late, both in England?
and in many. of our States, there is a general enactment providing
that repealed laws shall not be revived by the repeal of the stat-
ute which repealed them. Thus, in Illinois, “no act or part of
an act repealed by another act of the General Assembly, shall be
deemed to be revived by the repeal of such repealing act.” ?
Like words prevail in Louisiana? In Ohio they are: “ When-
ever a law shall be repealed, which repealed a former law, the
former law shall not thereby be revived unless specially provided
for.” And this regulation is held in the United States Circuit
Court to apply to repeals which are implied by reason of repug-
nance, as well as to those which are express.*
§ 187. Repealing Statute expiring — (Temporary ). — Where a
repealing statute expires of its own ‘limitation, the repealed law
does not revive.6 Where there is a temporary statute, subse-
quently continued, made-perpetual, or revived by another, after
its. perind has elapsed, or, of course, before, all things done are
regarded as having transpired under the first statute; though, if
there is an intermediate time in which it-had no force, such time,
unless saved by a special clause, is lost.§
1 13 & 14 Vict. c. 21, § 5, 6; Levi v. 4 Milne v. Huber, 3 McLean, 212. As
Sanderson, Law Rep. 4 Q. B. 330; Gla- to Wisconsin, see Smith v. Hoyt, 14 Wis.
holm v. Barker, supra, at p. 229. . 252. As to California, Manlove v. White,
2 Sullivan ». People, 15 Ill. 233. 8 Cal. 376.
3 Tallamon v. Cardenas, 14 a. An. 5 United States ». Twenty-five Cases
509; Witkouski v. Witkouski, 16 La. An. of Cloths, Crabbe,356.
282. 6 1 Kent Com, 466.
176
CHAP. XXI.] CONTRACT AND EXPAND MEANINGS. § 188
CHAPTER XXI.
HOW THE MEANINGS OF STATUTES ARE VARIOUSLY CON-
TRACTED AND EXPANDED UNDER THE DIFFERING REASONS
CONTROLLING THE INTERPRETATION.
§ 188. General and Legal Interpretation, compared. — Every writ-
ing must, to be understood, be interpreted by the reader. And
the merit of the interpretation is commensurate with its success
in ascertaining what the writer meant. All know this to be
true, for example, of the letter of a friend describing a country
in which he is travelling. And we have seen that the same is
true also of the written laws, —they require interpretation, the
object whereof is simply to determine the meanings of the
makers.! In the instance of the letter, should the reader have :
been born and reared between walls affording no outlook, —
should he never have seen a hill, valley, plain, sheet of water,
flowing stream, or landscape of any sort, — his understanding of
its descriptions would necessarily be very imperfect. For they
could be comprehended only by mingling with the words, to illu-
mine, enlarge, compress, and otherwise modify their primary
meanings, the results of a familiarity with external nature. So
interpretation deals with every thing; so, we have seen, it does
with the written laws. The mind of the interpreter truly com-
prehends them only as he collates them with the rest of the legal
system.2 Now, —
Doctrine of this Chapter, defined. — The doctrine of this chapter
is, that, since all language is elastic in its meanings,? since the
language of the written laws is to be interpreted by the reasons
of the law, and since these reasons are numerous and the results
to which they severally press are diverse, statutes are in mean-
ing variously contracted and expanded according to the differing
1 Ante,-§ 70-72, 116.
2 Ante, § 82, 86-90, 92 d, 102, 113 b et seq., 122 et seq.
8 Ante, § 92 d.
12 177
§ 1894 INTERPRETATION. [Book 11
numbers, natures, and strength of the reasons which individually
or collectively enter into their interpretation.
§ 189. Elsewhere — Here — And distinguished. — To the casual
thought, this chapter may appear the same in subject with a pre-
ceding one, in which it was shown how the various provisions of
the statutory and common laws, being interpreted together, cut
short and extend one another in their effects... But it has been
explained that the difference is absolute and complete.? Not the
minutest particle of what pertains to the one topic is included in
the other. We are here inquiring, not after the effects, but the
meanings; and no wider distinction exists between any two
things in the law.
§ 189 a. Mlustrations of Doctrine. — The doctrine of this chap-
ter will be best explained by a series of illustrations ; thus, —
_ Derogation of Prior Law.— As shown in other connections,
affirmative statutes in derogation of the prior law, whether statu-
tory or common, are strictly construed ; that is, kept in meaning
strictly within their terms.* An excellent writer, referring to
so much of this rule as relates to the prior common law, attributes
it to the high reverence formerly paid to such law, and deems
that now, while legislation is greatly changing it, this rule of in-
terpretation has ceased to have any “solid foundation in our
jurisprudence.” But the thoughtful reader will see, that the
rule is derived from no such reason as is thus supposed, nor
could it ever have depended on any reason even analogous
thereto. Every judge is by the character of his duties compelled
to pay respect to all the laws which he is sworn to administer,
whatever may be his private opinions respecting any particular
ones, — he cannot judicially deem one law to be good and another
bad, — cannot prefer one to another, — cannot love one and hate
another. Therefore he cannot construe one law strictly be-
cause he thinks another better than it, or liberally because he
deems another poorer. But the reason why an affirmative stat-
1 Ante, § 122 et seq. Bokenham, 11 Mod. 148, 150; Wear v.
2 Ante, § 118 a, 118 b. Adamson, 1 Q. B. D. 546, 554, 2 Ap.
3 Ante, § 119, 155. Cas. 743; Stevenson v. The State, 5 Bax-
4 Post, §190e; Ashv. Abdy, 3Swanst. ter, 681: Hawthorne v. The State, 58
664; Boyd v. The State, 53 Ala. 601; Missis. 778; Springfield v. Connecticut
Wood v. Wood, Phillips, N. C. 638; MRiver Railroad, 4 Cush. 63.
Dewey v. Goodenough, 56 Barb. 54; East 5 Sedgw. Stat. Law, 2d ed. 267-274.
St. Louis v. Maxwell, 99 Ill. 439; Barrett 6 Ante, § 70; post, § 235; Reithmiller
v. Long, 3 H. L. Cas. 395; Arthur v. v. People, 44 Mich. 280.
178
CHAP. XXI.] CONTRACT AND EXPAND MEANINGS. § 189d
ute contrary to the prior law is to be kept by the courts within
its express terms is, that, where two laws stand side by side with
no words of repeal, the one later in date is in its very nature
powerless to take from the earlier any thing which is not directly
in conflict with it. Presumption has no room to work. Impli-
cation against what is positively ordained is never permitted in
our jurisprudence. Again, —
§ 189 6. Depriving of Life. — The law, in numerous of its pro-
visions, is watchful over human life, and careful to avoid the
taking of it away. A judge, as a man, may be of the same mind
with the law, or he may not; but, inghis judicial capacity, he is
required to preserve, as far as he may, the lives of the people.
Therefore the courts should and do give a strict construction to
statutes which inflict capital punishment.! Here the interpreta-
tion is the same as of a statute in derogation of the prior law, —
that is, it is strict,—but the reason is quite different. Once
more, —
§ 189 ¢. Taking away Public or Private Rights. —It being a pri-
mary function of all laws to maintain the rights of individuals
and the public, statutes taking any of them away, even where
not unconstitutional, are to be strictly construed.2 The reason
for this, the reader perceives, is substantially the same as for the
like doctrine of the last section. On the other hand, —
§ 189 d. Remedial Statutes. — A statute which, in a certain
sense, works with the prior law, to help it where it is weak, or
furnish a remedy it had not,’ is, unlike one antagonistic thereto,
to receive a wide and liberal construction; expanding the mean-
ing of the words as fully as they will bear, and supplying words
where the other rules of interpretation® permit.6 The common
expression of this doctrine is, that remedial statutes are to be
interpreted liberally, in aid of the remedy.’ Every thing to ad-
1 2 Hawk. P.C.c. 18, § 16; Rexv. Har- United States »v. Athens Armory, 35 Ga.
vey, 1 Wils. 164; Rex v. Whistler, 11 344, 351.
Mod. 25, 28 and note. 8 Avery v. Groton, 36 Conn. 304.
2 Ante, § 82,119; Morris v. Mellin, 6 * Ante, § 92 d, 93, 102.
B. & C. 446, 449; Oldakar v. Hunt, 19 5 Ante, § 79-81, 145, 146.
Beav. 485, 489, 490; Randolph v. Mil- , © Perry v. Jefferson, 94 Ill. 214.
man, Law Rep. 4 C. P. 107, 113; Rex v. 7 Ante, § 120; post, § 192; Avery v.
Birmingham Canal, 2 B. & Ald. 570, 579; Groton, supra; Vigo’s Case, 21 Wal. 648;
Harrod v. Worship, 1 B. & 8.381; Dept- York v. Middleburgh, 2 Y. & J. 196;
ford v. Sketchley, 8 Q. B. 894, 408; Yar- Smith v. Stevens, 82 Ill. 554.
mouth v. Simmons, 10 Ch. D. 618, 527;
179
§ 190 INTERPRETATION. [BOOK IL.
vance the remedy is to be done which can be, consistently with
any construction permissible! And —
§ 189 ¢. Numerous other Illustrations — of construing statutes
liberally, each instance depending on its special reasons in the
law, might be given. But some have been mentioned already ;? .
and others, in sufficient numbers to make the doctrine plain, will
occur as we proceed. Now, — ;
§ 190. How far Expansion permissible. — There can be no rule
to determine, a priori, how far interpretation may expand a stat-
ute beyond the strict meanings of its terms. Each instance must
depend on the particular words, the subject, and the other cir-
cumstances.2 Various attempts at laying down doctrine on this
topic have been made; such as, —
Bringing within Mischief — Or Intent.— We sometimes read,
that, in liberal interpretation, cases out of the letter of an act,
yet within the mischief or cause of making it, should be brought
by this power of expansion within its remedy; since the law-
maker could not set down all cases in express terms. The
older books, more frequently than the later, employ on occasions
very broad language of this sort. For example, it is said in
Plowden, that ‘every thing which is within the intent of the
makers of the act, although it be not within the letter, is as
strongly within the act as that which is within the letter and
intent also.”® And, later, said Pratt, J.: “ The only question is,
whether the case be within the meaning of the act; for no mat-
ter whether within the words or not.”® And Lord Mansfield:
“In remedial cases, the construction of statutes is extended to
other cases within the reason or rule of them.’* Some writers
have assumed, that such is not the law now; and, even in our
books of reports, instances may be found of judicial dissent. The
brief forms of the old English statutes afforded more frequent
opportunities for this sort of interpretation than do the plethoric
1 Johnes v. Johnes, 3 Dow, 1,15; Atch-
eson uv. Iiveritt, Cowp. 382, 391; The
State v. Powers, 36 Conn. 77; Hyde vo.
Cogan, 2 Doug. 699, 706.
2 Ante, § 120.
3 Ante, § 120.
* Broom Leg. Max. 2d ed. 59; Co. Lit.
246; 3 BL Com. 480, 431; Jenk. Cent.
58, 60, 226; Bac. Abr. Statute, I. 5, 6;
York v. Middleburgh, 2 Y. & J. 196;
180
Holbrook v. Holbrook, 1 Pick. 248, 254;
Brown v. Thorndike, 15 Pick. 888, 402;
The State v. Stephenson, 2 Bailey, 334;
Brinker v. Brinker, 7 Barr, 53, 55; Van
Valkenburgh v. Torrey, 7 Cow. 252.
5 Stowel v. Zouch, 1 Plow. 358 a, 366.
6 Hammond v. Webb, 10 Mod. 281,
283.
7 Atcheson v. Everitt, Cowp. 382, 391.
CHAP. XXI.] CONTRACT AND EXPAND MEANINGS. § 1908
modern ones. And the doctrine does not and never did admit
of unreasoning application in all cases of liberal construction. It
is greatly limited ;' and, it may be, subjected to so many excep-
tions as itself to become rather the exception than the rule.
Still, to its widest bound, it does now, as in former ages, prevail,
in all cases of liberal interpretation wherein the court can dis-
tinctly see that, without it, the legislative intent? will not be
carried into effect.2 Thus, —
§ 190 a. “ Single Woman” construed to include Married Woman
— (Bastardy).— The English statute of bastardy, 7 & 8 Vict.
c. 101, constituting a part of the system of poor laws, provided,
in § 2, “that any single woman who may be with child,” &c.
should be entitled to proceed against the putative father in a
way pointed out, to enforce contributions for its support. And
this privilege was held, by construction, to extend to married
women in like circumstances. ‘ The law differently interpreted,”’
said Lord Denman, C. J., “ would fail to reach a very large pro-
portion of illegitimate children ;”* while the reasons of the law,
and plainly enough the real intent of the legislature, extended
equally to all. Moreover, this case seems fairly to be within
a principle of our language, everywhere recognized, whereby is
put a—
§ 190 4. Part for whole. — By a common figure of speech, we
often use a word of narrow meaning to signify the whole of the
thing to which it belongs. In this way, for example, the expres-
sion “a hundred hands” is understood to denote a hundred
working persons, when the connection and obvious intent of the
speaker require. And, more largely, a writer sometimes men-
tions a thing in the form of illustration; meaning, and being
1 Smith Stat. & Const. Law, p. 831.
Lord Kenyon, the great conservative cor-
rector of what some deemed the eccen-
tricities of Lord Mansfield, once put the
doctrine thus: ‘‘In expounding remedial
laws, it is a settled rule of construction
to extend the remedy as far as the words
will admit.” Turtle v. Hartwell, 6 T. R.
426, 429. And see Bac Abr. Statute, I.
6; Broom Leg. Max. 2d ed. 60; Dwar.
Stat. 2d ed. 622 et seq.; ante, § 145, 146.
2 Ante, § 70, 73, 79-81, 145, 146.
3 In The State v. Morris Canal and
Banking Co. 1 Green, N. J. 192, it is said:
“ The case is not within the words of the
statute, but is governed by analogy there-
to.” And see other cases cited to this
section, and post.
4 Reg. v. Collingwood, 12 Q. B. 681,
687. .The learned judge also points out,
that this statute but follows the language
of 6 Geo. 2, c. 31, which it supersedes ;
“yet Lord Ellenborough and the whole
court, in Rex v. Luffe, 8 East, 193, held
that an order might be made on the pu-
tative father of the bastard child of a
married woman, who was to be considered
single under the existing circumstances
and for that purpose.” p.686. See Sta-
cey v. Lintell, 4 Q. B. D. 291.
181
§ 1906 INTERPRETATION. [BOOK IL.
understood to mean, not only it, but also all else which it illus-
trates. In this way, and in proper circumstances, statutes are
construed to signify more than they literally express; as, where
an act of Parliament! required persons to make oath, that, among
other things, ‘our sovereign lord King George is lawful and
rightful king,” arid they “will bear faith and true allegiance to
his majesty King George.” The construction given it during a
succeeding reign was, not that there should be a swearing to sup-
port a dead king, or that the statutory command expired with
the life of King George, but that the name of the living sovereign
should take the place in the oath of the one deceased? Evi-
dently this rule of construction, sound though it is, can be safely
followed only by cautious steps. ‘“ Where,” said Lord Camden,
C. J., “it is clear the person or thing expressed is put by way of
example, the judges must fill up the catalogue ; yet we ought to
be sure, from the words and meaning of the act itself, that the
thing or person is really inserted as an example. . . . Wherever
this rule is to take place, the act must be general, and the thing
expressed must be particular. . . . In all cases that fall within
this rule, there must be a perfect.resemblance between the per-
sons or things expressed and those implied. Thus, for instance,
administrators are the same thing with executors; tenant for
half a year and tenant for years have both terms for a chattel
interest, differing only in the duration of the term; and so of the
rest, which I need not repeat one by one. And, in all these cases,
the persons or things to be implied are in all respects the objects
of the law as much as those expressed.” 3
1 6 Geo. 3, c. 53, § 1.
° Miller v. Salomons, 7 Exch. 475.
3 Entick v. Carrington, 19 Howell St. _
Tr. 1029, 1060. Wilberforce (Stat. Law,
215, 216) has collected, as, by some opin-
ions, pertaining to the interpretation of
the ancient statutes rather than the mod-
ern, the following illustrations: “The
usual method in which the language of
ancient statutes is extended consists in
the treatment of particular words as if
they were put for examples. Thus the
statute Circumspecte agatis (13 Edw. 1) di-
rects the judges to use themselves cir-
cumspectly in all matters concerning the
Bishop of Norwich and his clergy, ‘not
punishing them if they hold plea in Court
182
Christian of such things as be mere spir-
itual.” It was held that the Bishop of
Norwich was put for an example, and
that the act extended to all bishops. 2
Inst. 487. The same view was taken of
the provisions of Westminster the Second
(13 Edw. 1, stat. 1, c. 46), which enumer-
ated windmills, sheep-cotes, cow-houses,
and curtilages. 3 Inst. 476. In the 31st
chapter of the same statute the judges of
the Common Pleas were named, and it
was held that all other judges, inferior
as well as superior, were included. 2
Inst. 427; Strother v. Hutchinson, 4 Bing.
N. C. 83. So, too, in Westminster the
First (3 Edw. 1, c. 46), the judges of the
King’s Bench at Westminster were put
CHAP. XXI.] CONTRACT AND EXPAND MEANINGS. § 190
§ 190 ¢. In Brief.— The doctrine in brief is, that, as many
times said in the course of these discussions, the full legislative
intent, whether awkwardly or well expressed, and whether by
the use of accurate language or inaccurate, is, when it can be
ascertained from the words of the statute, collated with what-
ever else is permissible, to prevail, especially in liberal construc-
tions, over both the literal meanings and the omissions of words.?
And, to reach this end, statutes, as they appear on their face, are
by interpretation both contracted and expanded in their mean-
ings. Now, —
§ 190 d. Extending and Shortening, compared. ~ While in rare
instances statutes may be extended in their meanings as above
described, courts less readily and less frequently deal with them
so. -Oftener the course is to restrain them, so as ta exclude cases
within the words but not the mischief.?
And, —
Excepting out of Operation —It is common in the interpreta-
tion of statutes of every class, to except out of their operation
cases clearly not within the mischief intended to be remedied.?
On the other hand, — \
§ 190 ¢. Penal, not extended. — A penal statute “cannot be
extended by implication or construction to cases within the mis-
chief, if they are not at the same time within the terms, of the
act, fairly and reasonably interpreted.” ¢
by way of example for the purpose of
describing all courts of justice. 2 Inst.
256. In the 4th chapter of the same stat-
ute the words ‘man, dog, or cat’ include
all animals escaping alive from a wreck.
2 Inst. 167. Again, the 1 Rich. 2, c. 12,
which gives an action for an escape, men-
tions the warden of the Fleet, but extends
to all jailers. Platt v. London, 1 Plow.
85; Plummer v. Whichcot, T. Jones, 60,
62. In the statute of Gloucester (6 Edw.
1, ¢. 8) the County Court is named for
example, but hundred Courts and Courts
Baron are also within the law, 2 Inst.
311; and in c. 11, London is named for
excellency, but the act extends to all
cities and boroughs which have the same
privileges. 2 Inst. 322.”
2 And see Houk v. Barthold, 73 Ind.
ai.
2 Rex v. Parker, 2 East P. C. 592.
8 Bac. Abr. Statute I. 5,6; Williams
t. Prichard, 4T. R. 2,3; Canal Company
v. Railroad Company, 4 Gill & J. 1; Hol-
brook v. Holbrook, 1 Pick. 248, 254;
Brown v. Thorndike, 15 Pick. 388, 402;
Hart v. Cleis, 8 Johns. 41; Marietta, &e.
Railroad v. Stephenson, 24 Ohio State,
48; The State v. Gregory, 47 Conn. 276;
Ball v. The State, 50 Ind. 595; Watson v.
Hall, 46 Conn. 204.
4 Allen, J. in Verona Central Cheese
Co. v. Murtaugh, 50 N. Y. 314, 317; The
State v. Jaeger, 63 Misso. 403; Huffman
v. The State, 29 Ala. 40; Young v. The
State, 58 Ala. 358; Dobson v. The State,
57 Ind. 69; Wood v. Erie Railway, 72
N. Y. 196; Gibson ». The State, 38 Ga.
571; Atlanta v. White, 33 Ga. 229. See
Williams v. Evans, 1 Ex D. 277; ante,
§ 189 a; post, § 194.
183
§ 192 INTERPRETATION. [Book 1.
CHAPTER XXII.
TO WHAT STATUTES AND UNDER WHAT CIRCUMSTANCES THE
PROCESSES OF CONTRACTION AND EXPANSION OF MEANINGS
ARE APPLIED.
§ 191. Meaning Plain. — When the meaning of a statute of any
sort is plain on its face, it can be extended or shortened by the
courts only in its effects They are not justified in interpreting
what needs no interpretation ;? their duty is simply to carry out
the expressed legislative purpose and intent.®
Elsewhere — Here.—It was deemed that the perspicuity and
usefulness of these discussions would be promoted by presenting
this subject of the strict and liberal interpretation, under various
aspects, from diverse points of observation. Therefore the general
doctrine and distinctions were stated in a chapter a considerable
way back. And in the last chapter the topic was further and
differently unfolded. The title of this chapter has informed the
reader, that, in it, a third aspect of the doctrine will be presented.
§ 192. Things Odious — Things Favored — (Strict — Liberal). —
There are things which the law deems odious; not as being
unnecessary, but 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. To things odious, is
applied the strict interpretation; to things favored, the liberal:
as a father, in chastising his child, would keep within the neces-
sity of the case to the letter;® while, in bestowing a merited
reward, he would cast in something also from affection. For
example, ~
Instances of Liberal_— (Remedial — Suppressing Fraud — Bene-
ficial). — The law loves harmony and right; therefore it con-
strues remedial statutes, made to amend defects in the prior law,
! Ante, § 122 et seq. 2 Ante, § 72, 116 and note.
8 Ante, § 70. And see Cearfoss v. The State, 42 Md. 403.
4 Ante, § 119, 120. 5 Ante, § 190e.
184
CHAP. XXII.] WHAT AND WHEN CONTRACT, ETC. § 193
liberally :+ it loves honesty and fair-dealing, so construes liberally
statutes to suppress frauds,’ as far as they. annul the fraudulent
transaction ;? and, generally, it employs a liberal interpretation
for such written laws as operate beneficially for those whom they
immediately concern. On the other hand, —
Strict — (Hardships — Forfeitures — Depriving of Rights ).— En-
actments of the opposite tendency, taking away rights, work-
ing forfeitures,> or creating hardships of any kind, it construes
strictly.6 Again, —
§ 193. In Deprivation, Strict — (Penal — Forfeiture, again —
Against Liberty — Summary Process).— The law delights in the
life, liberty, and happiness of the subject ; consequently it deems
statutes which deprive him of these,’ or of his property, however
necessary they may be, in a sense odious. For which and for
kindred reasons,® as well as because every man should be able to
1 Ante, § 189d; 1 Bl. Com. 86, 87;
Broom Leg. Max. 2d ed. 60; The State
v. Stephenson, 2 Bailey, 334; Neal v.
Moultrie, 12 Ga. 104; Brown v. Thomp-
son, 14 Bush, 538; The State v. Blair, 32
Ind. 313; ante, § 120.
2 Twyne’s Case, 3 Co. 80, 82a; Ca-
dogan v. Kennet, Cowp. 482, 434.
8 “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 penal.
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
when the statute acts upon the offence,
by setting aside the fraudulent transac-
tion, here it is to be construed 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. Mof-
fat, 1 Barb. 65. And see Ellis v. Whit-
lock, 10 Misso. 781.
4 Bac. Abr. Statutes, I. 7, 9.
5 Bac. Abr. Statutes, I. 6, 7; Salters
v. Tobias, 3 Paige, 338; Smith v. Spoon-
er, 3 Pick. 229; ‘Sewall v. Jones, 9 Pick.
412; Sullivan v. Park, 33 Maine, 488;
post, § 193.
6 See further, as to these distinctions,
Jortin v. Southeastern Railway, 3 Eq.
Rep. 281, 24 Law J. yn. s. 843, 1 Jur. w. 8.
433, 31 Eng. L. & Eq. 320.
7 Ante, § 1895; Reg. v. Banes, Holt,
612, 515.
5 “« 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 legis-
lature, not the court, which is to define a
crime, and ordain its punishment. It is
said, that, notwithstanding 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, independent rule, which
subverts the old. It is a modification of
the ancient maxim, and amounts to this,
that, though penal laws are to be con-
strued strictly, they are not to be con-
strued so strictly 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 ordi-
nary acceptation, or in that sense in
which the legislature has obviously used
them, would comprehend. The intention
of the legislature is to be collected from
the words they employ. Where there is
no ambiguity in the words, there is no
185
§ 198
INTERPRETATION.
[BOOK IL.
know certainly when he is guilty of crime,! statutes which sub-
ject one to a punishment or penalty,? or to forfeiture,?.or a sum-
mary process‘ calculated to take away his opportunity of making
a full defence, or in any way deprive him of his liberty,® are to
be construed strictly. And the degree of strictness will depend
somewhat on the severity of the punishment they iuflict.®
Derogation of Common Law — (Testify for Self).— Theugh a
statute in derogation of the common law‘ —as, for example, per-
room for construction. The case must
be a strong one indeed, which would jus-
tify 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
determine that a case is within the inten-
tion of a statute, its language must au-
thorize us to say so. It would be danger-
ous indeed to carry the principle, that a
case which is within the reason or mis.
chief of a statute is within its provisions,
so far as to punish a crime not enumer-
ated in the statute, because it is of equal
atrocity or of kindred character with
those which are enumerated. If this
principle has ever been recognized in ex-
pounding criminal law, it has been in
eases of considerable irritation, which it
would be tinsafe to consider as precedents
forming a general rule for other cases.”
Marshall, C. J. in United States v. Wilt-
berger, 5 Wheat. 76, 95,96. ‘“ When a
law imposes a punishment which acts
upon the offender alone, and not as a
reparation to the party injured, 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
construction.” Johnson, J. in The State
v. Stephenson, 2 Bailey, 334, 335. And
see Commonwealth v. Loring, 8 Pick. 370;
United States v. Wigglesworth, 2 Story,
369; Strong v. Stebbins, 5 Cow. 210;
Verona Central Cheese Factory v. Mur-
taugh, 4 Lans. 17.
1 Beccaria on Crimes, c. 11; Living-
ston, J. in The Enterprise, 1 Paine, 32. :
2 Ante, § 119; Andrews v. United
States, 2 Story, 202, 213; Commonwealth
v. Martin, 17 Mass. 589; Commonwealth
v. Keniston, 5 Pick. 420; Carpenter v.
186
People, 8 Barb. 603, 605; The State v.
Upchurch, 9 Ire. 454; Van Rensselaer v.
Onondaga, 1 Cow. 448; Scaving v. Brink-
erhoff, 5 Johns. Ch. 329; Courteen’s Case,
Hob. 270; Searle z. Williams, Hob. 288 ;
Hall ev. 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. 181; 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, 30 Ala. 591; The State v.
Whetstone, 18 La. An. 876; Gibson v.
The State, 88 Ga. 571. Double Dam-
ages.— A statute giving a party double
damages is to be construed strictly.
Smith v. Causey, 22 Ala. 568; Bay City,
&e. Railroad v. Austin, 21 Mich. 390;
Cohn v. Neeves, 40 Wis. 393. And see fur-
ther as to this class of statutes, Le Forest
v. Tolman, 117 Mass. 109 ; Swift v. Apple-
bone, 23 Mich. 252; post, § 195 a.
3 Ante, § 192; United States v. Highty-
four Boxes of Sugar, 7 Pet. 458; The
State v. Dill, 2 Sneed, 414.
4 Ante, § 119; Logwood v. Planters’
and Merchants’ Bank, Minor, 23; Child-
ress v. McGehee, Minor, 181; Crawford
v. The State, Minor, 148; Yancey v. Han-
kins, Minor, 171; Hale v. Burton, Dudley,
Ga. 105. Contempts of Court. — Stat-
utes against contempts are strictly inter-
preted. Maxwell v. Rives, 11 Nev. 213.
5 Pierce’s Case, 16 Maine, 255.
8 See Randolph v. The State, 9 Texas,
521; post, § 199.
7 Sibley v. Smith, 2 Mich. 486; Sugar
v. Sackett, 13 Ga. 462; Rathbun v. Acker,
18 Barb. 398; ante, § 155. :
CHAP. XXII.] WHAT AND WHEN CONTRACT, ETC, § 195
mitting a party to testify for himself in his own cause !— is to be
construed strictly, the reason for this, we have seen,? is different.3
§ 194. Meaning of Strict Interpretation.— Such statutes are to
reach no further in meaning than their words ;4 no person is to
be made subject to them by implication ,* and all doubts con-
cerning their interpretation are to preponderate in favor of the
accused. Only those ‘transactions are covered by them which
are within both their spirit and their letter.’
§ 195. Revenue Laws, including Taxation.— It being the duty of
all persons to bear their several proportions of the public burden,
statutes imposing taxes are not penal, and they should be liberally
interpreted. But connected with and aiding in the levying and
collecting of taxes, there may be and are penal statutes, to be
construed strictly. And so it is with the other classes of revenue
laws. Their primary object being the collection of duties,” not
the punishment of crime, they are in the ordinary case construed
liberally as being remedial. But a crime connected with these
laws must, in reason, be like any other, requiring the statute cre-
ating it to be strictly construed.“ And it is the same of any penal
! Hotaling v. Cronise, 2 Cal. 60; War-
ner v. Fowler, 8 Md. 25.
2 Ante, § 189 a.
3 Granting Franchise. — A statute
granting a franchise, as a turnpike char-
ter, is to be construed strictly. Ante,
§ 119; The State v. Clarksville and R. T.
P..Co. 2 Sneed, 88. See also Academy
of Fine Arts v. Philadelphia, 10 Harris,
‘Pa, 496. Taking Land.— So of one
taking the land of individuals for the
public use. Ante, § 119; Sharp v. Speir,
4 Hill, N. Y.76; Sharp v. Johnson, 4 Hill,
N. Y. 92. See also Rathbun v. Acker, 18
Barb. 393. .
4 Ante, § 119, 189 a, 190 e; People v.
Peacock, 98 Ill. 172.
5 The State v. McOmber, 6 Vt. 215;
Rex v. Mitchell, 2 East P.C 936, 937;
Rex v. Hammond, 2 Mast P. C. 1119, 1
Leach, 4th ed. 444; Leonard v. Bosworth,
4 Conn. 421; The State v. Sumner, 10
Vt. 587; The State v. Sanford, 1 Nott &
McC. 512, 515; Rex v. Parker, 2 East
P. C. 592, 1 Leach, 4th ed. 320, note ;
Rex v. Hickman, 1 Leach, 4th ed. 818, 2
East P.C. 598; United States v. Wiggles-
worth, 2 Story, 869; Rawson v. The
State, 19 Conn. 292; United States v.
Wilson, Bald. 78, 102; The Harriet, 1
Story, 251; Bell v. Dole, 11 Johns. 178;
post, § 220.
8 The Enterprise, 1 Paine, 32; United
States +. Wigglesworth, 2 Story, 369;
The People v. Howell, 4 Johns. 296; Com-
monwealth v. Macomber, 3 Mass. 254;
Kent v. The State, 8 Blackf. 163; post,
§ 218.
T Post, § 230, 282; Cearfoss v. The
State, 42 Md. 408.
8 Cornwall v. Todd, 38 Conn. 443.
But see Daines v. Heath, 3 C. B. 938, 941.
And see Alter v. Shepherd, 27 La. An. 207.
Special Exemptions. — Correspondingly,
therefore, statutes conferring special ex-
emptions from the general burdens should
be strictly construed. The State v. Mills,
5 Vroom, 177. Sce also Commonwealth
e. Maryland, 32 Md. 501.
® Coleman v. Hart, 37 Wis. 180.
10 United States v. Twenty-eight Pack-
ages, Gilpin, 306,326. And see Attorney-
General »v. Radloff, 10 Exch. 84, 26 Eng.
L. & Eq. 418.
ll United States v. Hodson, 10 Wal.
395, 406; Cliquot’s Champagne, 3 Wal.
114, 145. ‘
12 United States v. Buzzo, 18 Wal. 125.
187
§ 1954 INTERPRETATION. [Book 1.
forfeiture in the nature of punishment.! The general object of
revenue laws being remedial, the forfeitures and penalties by
which they are enforced in civil forms of action do not, in prin-
ciple, require so strict a construction of the provisions which
declare them as is given to laws inflicting imprisonment or death.
But surely most of them should be deemed equal in this respect
to the statutes which give double damages, and which, we have
seen, are interpreted strictly.? Still the doctrine of the courts
appears to be, especially of late, that, even as to these provisions,
the revenue laws shall be construed liberally, not in the extreme
sense, yet not strictly, but in a sort of equipoise between the two
interpretations.
§ 1954. Costs—are unknown at the common law; they are
the mere creatures of statutes. Where they are simply an in-
demnity to the party receiving them,® for his expenditures in the
case, and the like, they would seem in reason to be remedial,
requiring a liberal construction of the statute. On the other
hand, where they are penal in their nature, the contrary must be
the reasonable consequence. The question has not been much
illumined by adjudication, but generally the statutes giving costs
appear to have been strictly construed.’ As to the English doc-
trine, says a late writer:* “ The Statute of Gloucester, giving
costs, was held in one case to be remedial; and, though else-
where it was said that statutes giving costs were to be construed
strictly, this dictum has been since declared to be ‘ hardly con-
sistent with the principle upon which the Statute of Gloucester
has been interpreted.’ ”
1 United States v. Eighty-four Boxes
of Sugar, 7 Pet. 453, 462, 463. And see
Clifton v. United States, 4 How. U. S.
242.
2 Ante, § 195, note.
8 United States v. Three Tons of Coal,
6 Bis. 379; United States v. One Hundred
Barrels Spirits, 1 Dil. 49, 2 Abb. U.S.
305; United States v. Watts, 1 Bond, 580;
United States v. Barrels of High Wines,
7 Blatch. 459; United States v. Mynderse,
7 Blatch. 488; Twenty-eight Cases, 2
Ben. 63; United States v. Olney, 1 Abb.
U. S. 275; United States v. Willetts, 5
Ben. 220; Taylor v. United States, 3
How. U.S. 197. See also Adams v. Ban-
croft, 3 Sumner, 384; United States v.
188
Wigglesworth, 2 Story, 369; Dwar. Stat.
2d ed. 642; Rex v. Hymen, 7 T. R. 536;
Walwin v. Smith, 1 Salk.177; The Mayor
v. Davis, 6 Watts & S. 269.
4 Crim. Proced. L § 1813; The State
v. Kinne, 41 N. H. 288.
5 Harold v. Smith, 5 H. & N. 381.
6 Durkin’s Case,°2 Lewin, 163.
7 Dent v. The State, 42 Ala. 514;
Cone v. Bowles, 1 Salk. 205.
8 Wilb. Stat. Law, 231, 232.
9 Ward v. Snell, 1 H. Bl. 10, 18.
10 Rex v. Glastonby, Cas. temp. Hardw.
355, 857; Cone v. Bowles, supra.
Rex v. York, 1 A. & E. 828, 834, by
Lord Denman, C. J.
CHAP. XXII.] WHAT AND WHEN CONTRACT, ETC. § 196
Double Costs.— A statute allowing double costs is plainly
penal, to, be construed strictly Now, —
§ 196. Strict and Liberal, to Different Clauses. — Each entire
statute is not necessarily to be interpreted in one way, but the
clauses will be dealt with differently when from their natures
they are subject to different rules. For example, an act may be
in part penal and in part remedial, and then the penal part will
be construed strictly and the remedial liberally.2_ Within this
doctrine, —
Penal, both Liberal and Strict.— While the parts of a penal
statute which subject to punishment or a penalty are, from their
odious nature, to be construed strictly,? those which exempt from
penal consequences will, because of their opposite character, re-
ceive a liberal interpretation. Thus, —
Trade, not qualified. — Lord Mansfield, speaking of the offence,
under an old English statute, of exercising a trade —‘‘set up,
occupy, use, or exercise’? — without the statutory qualifications,
said: ‘“*The constructions made by former judges have been
favorable to the qualifications of the persons attacked for exer-
cising the trade, even where they have not actually served ap-
prenticeships.: 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
precisely within the express letter.” And, in the case in judg-
ment, it appearing that the defendant had not served an appren-
ticeship to the trade in question, consequently that he was not
qualified within the letter of the statute, he was still held not to
be within its penalties, though, having entered into a partnership
with a qualified person, he had shared the profits and losses of
the partnership, yet had not exercised the trade personally.*
And, in general terms, —
1 Prescott v. Otterstatter, 4 Norris,
Pa. 534. See ante, § 193, note.
2 Hyde v. Cogan, 2 Doug. 699, 706.
8 Ante, § 119, 189 b, 192, 193, 195.
4 Raynard v. Chase, 1 Bur. 2,6. The
statute is 5 Eliz. c. 4, § 31, the material
words of which are: “It shall not be
lawful for any person, &c. to set up, oc-
cupy, use, or exercise any craft, mystery,
or occupation now used or occupied with-
in the realm, &c., except he shall have
been brought up therein 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 person will-
ingly offending or doing the contrary
shall forfeit and lose for every default
forty shillings for every month.”
189
§ 198 [Book 1.
INTERPRETATION.
Liberal in favor of Defendants, strict against them — “ Penal stat-
utes,” says Hawkins, ‘‘ are construed strictly against the subject,
and favorably and equitably for him.”! Or, in the words of
Gould, J.: “In expounding penal statutes, it is an established
rule that the construction must be strict as against the defend-
ant, but liberal in his favor.” 2 And this compressing on the one
side, and expanding on the other, constitute together what is
meant by the books when they speak of construing this class of
statutes strictly. So that not unfrequently the interpretation is
carried further on the liberal side in these penal statutes than in
any other. Again, —
§ 197. Conflicting Demands for Strict and Liberal.— A single
and indivisible provision of a statute may be such as to demand,
for one reason, a strict interpretation, and a liberal for another.
In which case the interpretation, thus subjected to two opposite
forces, will not yield fully to either; but it will be between the
two extremes. For example, —
Imprisonment for Debt.— A statute authorizing imprisonment
for debt is remedial because designed to coerce payment, and
penal because depriving persons of their liberty. While, there-
fore, it cannot on the one hand be overmuch condensed in the
interpretation, it cannot on the other be extended to include
cases not within its terms.5 Again, to present the doctrine ina
somewhat different aspect, —
Two Constructions as to Jurisdiction. — A statute creating a lim-
ited jurisdiction should be construed strictly as to its extent,® and
liberally as to the mode of proceeding.’
§ 198. Exceptions as to Strict, for Criminal Statute. — Even as
against defendants, not every criminal statute is to be strictly
construed. Thus, —
Jurisdiction, again. — While, to the extent stated in the last sec-
tion, and as to statutory jurisdictions out of the course of the
common law,® and perhaps in some other cases, jurisdictional
1 1 Hawk. P. C., Curw. ed., p. 90, § 8.
2 Myers v. The State, 1 Conn. 602.
And see The State v. Upchurch, 9 Ire.
454, and the observations of Lord Mans-
field in Rex v. Parker, 2 East P. C. 592.
See also United States v. New Bedford
Bridge, 1 Woodb. & M. 401; Warrington
v. Furbor, 8 East, 242, 245.
8 Ante, § 191; post, § 199.
190
4 And see ante, § 195, 195 a.
5 Fathaway v. Johnson, 55 N. Y. 93,
95, citing Sturges c. Crowninshield, 4
Wheat. 122, 200; Von Hoffman v. Quin-
cy, 4 Wal. 535.
6 The State v. Anderson, 2 Tenn. 6;
Shawnee v. Carter, 2 Kan. 115.
7 Russell v. Wheeler, Hemp. 3.
8 Hartley rv. Hooker, Cowp. 528, 524;
CHAP. XXII.] WHAT AND WHEN CONTRACT, ETC. § 198
statutes are strictly construed, the rule has nothing to do with
the civil or criminal character of the suit. Jurisdictional and
other like statutes made for the advancement of justice are
remedial, to be interpreted liberally, equally in civil causes and
in criminal! And a question of jurisdiction may be solved in
favor of the tribunal exercising it, as well against the defendant
in a criminal cause as in a civil; the rule of strict construction
does not apply. So, —
The County — (Venue).—It is of little consequence to one
arraigned for crime in what county he is tried, consequently legis-
lative acts determining the venue —that is, the place of trial —
are not construed strictly. Again, —
Preliminary Arrest. — Though, in general, statutes authorizing
imprisonment are of the penal class, to be strictly construed, a
doubt may arise as: to how far those of this sort which pertain
simply to the procedure constitute an exception. Certainly a
mere preliminary arrest is a step in aid of the remedy, and is in
harmony with the common law, — two considerations indicating
a liberal construction. And in apparent accord with this view
is the established interpretation of the English statute of 29 Car.
2,c.7,§6. It forbade arrests on the Lord’s day, “except in
cases of treason, felony, or breach of the peace,” and these words
were extended by judicial interpretation to include all indictable
offences. On the other side, we have an interpretation given
by the Court of Exchequer to a provision authorizing any con-
stable of the London police “ to take into custody, without war-
rant, all loose, idle, and disorderly persons whom he shall . . .
have good cause to suspect of having committed or intending to
commit any felony, misdemeanor, or breach of the peace.” It
was held not to justify the arrest of one suspected of having com-
mitted a misdemeanor, yet not alleged to have been “loose, idle,
and disorderly ;” Pollock, C. B. observing, “In a case in which
the liberty of the subject is concerned, we cannot go beyond the
Hudson v. Tooth, 3 Q. B. D. 46; Pierce
v. Hopper, 1 Stra. 249, 260; Walker v.
Wynne, 3 Yerg. 62; Wakefield v. The
State, 5 Ind. 195; O’Brian v. The State,
12 Ind. 369.
1 Mitchell v. Mitchell, 1 Gill, 66; The
State v. Towle, 48 N. H. 97.
2 Smith v. People, 47 N. Y. 3880, 341.
3 People v. Hulse, 3 Hill, N. Y. 309,
319; Nash v. The State, 2 Greene, Iowa,
286; 2 Hawk. P. C., Curw. ed., c. 29,
§ 62.
* 4 Crim. Proced. I. § 207; Rawlins v-
Ellis, 16 M. & W. 172, 10 Jur. 1039; Cecil
v. Nottingham, 12 Mod. 348, and the note
to Leach’s ed.
191
§ 199 INTERPRETATION. [BOOK II.
natural construction of the statute.””"1_ These two cases are vari-
ously distinguishable, and especially in this, that the Sunday
arrest was lawful also at the common law, and the particular
arrest without warrant was not.?
§ 199. Different Degrees of Strict and Liberal. — It is little else
than repeating what has already been said ® to add, that the con-
structions of different statutes will be more or less strict or liberal
according to the different pressures of the controlling principles.
For the interpretation of no law, written or unwritten, comes
from any one rule alone, but from all the legal reasons applicable
to the case combined. One principle may bear more or less
strongly in a particular direction and another in another, and the
result will be the product of the combined forces. 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 principle
may press one way and the other another way. Thus, in con-
struing 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 pres-
sure toward the strict rule; so the balance may be in equipoise,
or the one scale or the other may simply preponderate, according
to the special circumstances of the case, or the views of the par-
ticular judge.> But rarely will any court so extend an enactment
by construction as to involve penal consequences not within its
express words.
1 Bowditch v. Balchin, 5 Exch. 878.
In the report, this statute is stated to be
2&3 Vict. c. 94, § 8. But this is a mis-
take, the chapter referred to being in one
section and on another subject. I find
the provision in 2 & 3 Vict. c. 47, § 64,
but am not quite certain that this is the
place meant. *
2 And see, on this general subject,
Jones v. Allen, 1 Head, 626.
3 Ante, § 191, 193, 195, 196, 198.
4 The State v. Wilcox, 3 Yerg. 278;
Rex v. Mitchell, 2 East P. C. 936, 037;
192
Commonwealth v. Snelling, 4 Binn. 379;
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, § 193.
5 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, 13 Johns.
497; Van Valkenburgh v. Torrey, 7 Cow.
252.
CHAP. XXII.] WHAT AND WHEN CONTRACT, ETC. § 199 4
§ 199 a. Statutory Changes.— We have seen that some statutes
have interpretation clauses,! which, of course, must be heeded by
the interpreter. And, in some of our States, there are a few
general rules made statutory ; whereof most, it is believed, are
simply in affirmance of the common law, but occasionally there
is an innovation thereon. Of the latter sort, —
Liberal, for Penal Laws.— There are States in which the rule
requiring penal statutes to be construed strictly is abolished by
legislation.2~ And in Iowa it is enacted that every statute shall
‘“‘be liberally construed, with a view to promote its objects, and
in furtherance of justice.”® In this condition of the laws, will
the courts hang or imprison a man by an equitable extension of
a statute beyond the fair meaning of its words? Not every
act of legislation can, under a just application of judicial rules,
do every thing which to the casual observation appears on its
face.
1 Ante, § 54, 55. 240; People v. Soto, 49 Cal. 67. And see
2 Commonwealth v. Davis, 12 Bush, ante, § 55. ‘
8 The State v. Stoller, 38 Iowa, 321.
18 193
§ 201 INTERPRETATION. [Book I..
CHAPTER XXIII.
EXPOSITIONS OF THE STRICT INTERPRETATION.
§ 199 b. Scope and Purpose. — Though, as just seen,! the pres-
sure for a strict interpretation is not uniform in the cases wherein
it prevails, so that a correct exposition in one instance is not
necessarily a reliable guide for another, it, like the liberal,? has
in a general way its bounds. This chapter will attempt, by
minuter investigations than were descended to in the foregoing
ones,’ to discover with greater exactness what the bounds are.
§ 200. Legislative Intent.— Equally in strict interpretation as
in liberal, the object is simply to ascertain the true legislative
will,—to arrive at which, is the end of all interpretation.* A
rendering so strict as to defeat this will is never admissible.
Again, —
Other Rules — (Absurd — Eluded — Title — Preamble). — The
rule of strict interpretation does not prevent our calling in the
aid of other rules, and giving each its appropriate scope, yet not
so as to overturn this one. For example, penal statutes, like
others, are to be so construed as not to work an absurdity,’ or
defeat their purpose, or the process of the court instituted for
their enforcement,’ or be eluded ;® and we may gather light con-
cerning their meaning from the title and preamble.!° So, —
§ 201. Intent Clear.— Where the legislative intent is clear
! Ante, § 197, 199. 7 Rawson v. The State, 19 Conn. 292;
2 Ante, § 189 d-190 d. * Commonwealth v. Loring, 8 Pick. 370;
3 Ante, § 194 and places referred to. The Harriet, 1 Story, 251; ante, § 82.
4 Ante, § 70, 75, 82; The State v. 8 Bartolett v. Achey, 2 Wright, Pa.
Brooks, 4 Conn. 446; Rawson v. The 273. Compare with ante, § 198.
State, 19 Conn. 292; Commonwealth »v. ® The Emily and The Caroline, 9
Loring, 8 Pick. 370; The Enterprise, 1 Wheat. 381, 388; Commonwealth v. Mc-
Paine, 32; United States v. Wilson, Bald. _ George, 9 B. Monr. 3; ante, § 82.
78; Pike v. Jenkins, 12 N. H. 255. 10 The State v. Stephenson, 2 Bailey,
5 Walton v. The State, 62 Ala. 197. 334; The State v. Fields, 2 Bailey, 554;
6 The Harriet, 1 Story, 251; Pike v. The State v. Smith, Cheves, 157; ante,
Jenkins, 12 N. H. 255. § 46, 48-51.
194
CHAP. XXII. ] EXPOSITIONS OF THE STRICT.
§ 204
without interpretation, this rule is, with all the others, quiescent.!
Its mission is simply to illumine what is obscure, and help what is
weak. Therefore the propositions of this chapter are to be ap-
plied only where there is occasion for them, — in cases of doubt,
not doubt in the uninformed, but in the educated, legal mind.
Now, —
§ 202. Propositions. — Remembering that what is to be con-
strued strictly is not to be uniformly pressed within the narrow-
est limits permissible in strict interpretation, for the degrees of
strictness vary,” let us examine the subject of this chapter under
the following propositions.
§ 203. First. Equally in strict interpretation as in liberal, the
statutes may be extended by other provisions of statutory law, and
by the common law, combining with them : —
Explained elsewhere. — This doctrine, as to all kinds of statutes,
is explained in a previous chapter. And the reader there ob-
served, that the illustrations of it are largely from criminal
statutes, the construction of which is strict But it is a doc-
trine of the effect of the statutes, not of their interpretation.
§ 204. Secondly. The rule of strict interpretation is not vio-
lated by permitting the words of the statute to have their full
meaning, or the more extended of two meanings. Otherwise
expressed, —
Meaning Intended. — As already seen,* the meaning intended
by the legislature is to prevail in strict construction, the same as
in any other. And though, by the general rule, legal and other
technical words are to be rendered in their narrow technical
sense,® they may, even in strict construction, have their wider
popular meaning when the court is able to see that the legisla-
ture so intended. And all the words are to be taken in such a
sense, bent neither one way nor the other, as will best manifest
the legislative intent.6 Thus, —
to the six sections next following; also,
1 Ante, § 191 and places referred to.
Rex v. Glover, 2 Russ. Crimes, 3d Eng.
2 Ante, § 196, 197, 199 b.
8 Ante, § 128-130, 1384-137, 189-144.
* Ante, § 200.
5 Ante, § 96, 99.
6 Pike v. Jenkins, 12 N. H. 255; Peo-
ple v. Howell, 4 Johns. 296; The Mayor
v. Davis, 6 Watts & S. 269; The State
v. Powers, 86 Conn. 77. For illustra-
tions of this doctrine, see the cases cited
ed. 146; Reg. v. Hale, 2 Car. & K. 826;
Rex v. Taylor, Russ. & Ry. 373; Stone,
v. The State, Spencer, 401; Hodgman v.
People, 4 Denio, 235; Rex v. Hickman,
1 Leach, 4th ed. 318, 2 East P. C. 593;
Rex v. Parker, 2 East P. C. 592, 1 Leach,
4th ed. 320, note; The State v. Anone, 2
Nott & McC. 27; Reg. v. Bowden, 2
195
§ 205 INTERPRETATION.
[Book IL.
§ 205. “Subject..— A foreigner living in England ,under the
sovereign’s protection is an English subject, within an act of Par-
liament defining crimes ; “but it was admitted, that, if the stat-
ute had said natural-born subject, &ec., it would not have.extended
to him.” 4
“Not authorized by Law” — (Lottery). — An act of one of our
States, making penal the sale of lottery tickets in “any lottery
not authorized by law,” probibits the sale of tickets in lotteries
authorized by the laws of other States and countries, unless also
authorized by some law, either Federal or State, having force in
the particular locality.2. And —
Moody, 285, 1 Car. & K. 147; Reg. »v.
Charretie, 13 Q. B. 447; Reg. v. Wallace,
2 Moody, 200; Commonwealth v. Stearns,
2 Met. 348; Smith v. Commonwealth, 4
Grat. 532; Commonwealth v. Phillips, 11
Pick. 28; Commonwealth v. Smith, 14
Mass. 374; Rex v. Willoughby, 2 East
P. C. 944; Rex v. Shepherd, 2 East P. C.
944; s.c. nom. Rex v. Sheppard, 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, 3 Ire. 506; Linney v. The State, 6
Texas, 1; Hudgins v. The State, 2 Kelly,
173; Downman v. The State, 14 Ala.
242; Commonwealth v. Pash, 9 Dana,
81; Cole v. Commonwealth, 8 Dana, 31;
The State v. Gurney, 33 Maine, 527; The
State v. Robinson, 33 Maine, 664; Rex
v. Moore, 2 Car. & P. 285, 1 Moody, 122;
Commonwealth v. Smith, 7 Pick. 137;
Commonwealth v. Kneeland, 20 Pick.
206; Ream v. Commonwealth, 3 S. & R.
207; Reg. v. Oldham, 14 Eng. L. & Eq.
668, 2 Den. C. C. 472; Reg. v. Wiley, 1
Eng. L. & Eq. 567, 2 Den. C. C. 37; Col-
lins 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. West Riding of Yorkshire, 2 Eng.
L. & Eq. 296; Rex vc. Ridgeley, 1 East
P.C.171; 8.c. nom. Rex v. Ridgelay, 1
Leach, 4th ed. 189; Angel v. Common-
wealth, 2 Va. Cas. 228; United States v.
196
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, Kir-
by, 52; White v. Commonwealth, 4 Binn.
418; The State v. Carr, 5 N. H. 367;
Bagley v. The State, 1 Humph. 486; Reg.
v. Evans, Car. & M. 298; The State v.
Britt, 8 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. Reek-
spear, 1 Moody, 342; Rex v. Cox, 1
Moody, 337, 5 Car. & P. 297; James »v.
Elder, 23 Missis. 184; The State v. Glace,
9 Ala. 283; Rex v. Robinson, 2 Stark.
485; Rex v. Thomas, 2 East P. C. 605, 2
Leach, 4th ed. 877; Rex rv. Rowley, Russ.
& Ry 110; Reg. v. Mence, Car. & M. 234;
The State v. Brown, 4 Port. 410; Red-
man rv. Sanders, 2 Dana, 68; United
States +. Jones, 3 Wash. C. C. 209; The
State v. Smith, 32 Maine, 369; Common-
wealth v. Houghton, 8 Mass. 107; Brown
v. Commonwealth, 8 Mass. 569; Common-
wealth v. Whitmarsh, 4 Pick. 233; The
State v. Blythe, 3 McCord, 363; The
State v. Clarksville and R. T. P. Co. 2
Sneed, 88; Walton v. The State, 62 Ala.
197; Bowden v. The State, 2 Texas Ap.
56.
1 1 East P. C. 58, 64; Anonymous, J.
Kel. 38, referring to Calvin’s Case, 7 Co.
1, 6b.
2 Commonwealth v. Dana, 2 Met. 329.
And see post, § 959; People ». Warner,
4 Barb. 314; Commonwealth v. Cone, 2
Mass. 182; Sims v. Sims, 75 N. Y. 466.
CHAP. XXIII.]_ EXPOSITIONS OF THE STRICT. § 207
Kidnapping by Foreign Command. — A provision to punish 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 coming from another State, by order of its
military powers, while it is under martial law in a time of civil
insurrection, to seize and carry back its insurgent citizens found
here.!
Otherwise as to other States, &c.— (Larceny of “Bank-note” —
Betting on Election — “Exportation”).— A statute forbidding the
larceny of ‘‘any bank-note” extends to bank-notes of other
States ;7 against betting “upon any election in this State,” to a
betting, within this State, on an election for President of the
United States.2 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. Forging “Order..— The English statute of 7 Geo. 2,
c. 22, against the forging of orders for the payment of money,
and the like, was not confined in its interpretation to commer-
cial transactions; but extended to an order, drawn by a justice
of the peace on a high constable or treasurer, to pay a reward.?
So —
“ Street, Lane, Passage-way ” — (Smoking in). — The Massachu-
setts 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). — A jail is held to be an
“inhabited dwelling-house,”’ within the statutes against arson.’
1 Commonwealth v. Blodgett, 12 Met. And see further, as to the meaning of
56. this and kindred terms, post, § 325-335.
2 Cummings v. Commonwealth, 2 Va. 6 Commonwealth v. Thompson, 12
Cas. 128. Forgery.— The same prin- Met. 231. Compare with Crim. Law, II.
ciple applies 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.
3 Quarles v. The State, 5 Humph. 561;
Givens v. Rogers, 11 Ala. 543.
ai * Commonwealth v. King, 1 Whart.
8.
5 Rex v. Graham, 2 East P. C. 945.
§ 1267.
7 People v. Cotteral, 18 Johns. 115;
Commonwealth v. Posey, 4 Call, 109. So
it is a “house.” Rex -. Donnavan, 1
Leach, 4th ed. 69; s. c. nom. Rex v.
Donnevan, 2 East P. C. 1020; Stevens v.
Commonwealth, 4 Leigh, 683. And see
also post, § 279, 289. Yet in the jury
case of Reg. v. Connor, 2 Cox C. C. 65,
Parke, B. ruled that a jail was not, under
197
"§ 209 INTERPRETATION. [BooK 1.
“ Advertisement” — (Sign-board — Lotteries). — 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 passage of the act making the advertising of lottery
tickets penal, a continuance of it is within the act.
§ 208. “Brect and Build” — (Wooden Building — Suffer to re-
main — Alter). — To elevate and enlarge a wooden building, in a
way materially to alter its character, is to ‘erect and build”
it, within statutes and ordinances for preventing the spread of
fires in populous places.? But to make mere internal alterations
therein, and apply it to a new use, —as, to convert a meeting-
house or a joiner’s shop into a dwelling-house, — is not to “erect
and build” it.8 Nor is it such to remove a building from one
part of a lot to another,* or to suffer one to remain which was
built before the passage of the statute.6 Again, —
“Wooden Building.” — A building partly of wood and partly of
brick, called brick-pane, has been held not to be a “ wooden
building” within a penal statute of this class; though, had the
statute been remedial, the result would have been otherwise.®
So, —
§ 209. “Crew.” — Where a statute made it an offence for “any
master or other officer” of a vessel maliciously to ‘‘ beat, wound,
the circumstances of the case, a “house ”
within the statute then in question. He
said that, in the above case of Rex v.
Donnevan, referred to as in 2 W. BI.
682, “it was held that a jail was a house
within the meaning of the words ‘any
house’ in the statute 9 Geo. 1, c. 22; but
there the jailer’s house was a part of the
jail, and the court gave this as the reason
for their decision. A jail is not a house
at common law.”’ There is no reference
to any authority for this dictum. Itisa
place where people, though prisoners,
are under the protection of the law,
and eat, drink, and sleep. One, there-
fore, would find it difficult to suggest a
reason why it is not both a house and a
dwelling-house. In the facts of this case,
the jail was used only as a lock-up, and
it was under the same roof with the
court-house, — circumstances, perhaps,
which properly varied the result.
1 Commonwealth v. Hooper, 5 Pick.
42. See post, § 958.
198
2 Douglass v. Commonwealth, 2 Rawle,
262. And see Tuttle v. The State, 4
Conn. 68; McGary v. People, 45N. Y. 153.
And see post, § 292. So, Nuisance. —
Under statutes against the “erecting” of
buildings which may become nuisances,
one “erects” a livery stable who enlarges
and fits up a dwelling-house for use as
such. Hastings v. Aiken, 1 Gray, 163.
8 Booth v. The State, 4 Conn. 65.
4 Brown v. Hunn, 27 Conn. 332.
5 The State v. Brown, 16 Conn. 54;
Tuttle v. The State, 4 Conn. 68. So,
“* Receiving.’ — Keeping possession of a
thing is not within a statute against “re-
ceiving” it. Attorney-General v. King,
5 Price, 195. And, ** Spread Awning.”
—A city ordinance forbidding any per-
son “to spread any awning,” &c., is not
violated when the person continues to
keep spread an awning spread before.
The State v, Cleaveland, 3 R. I. 117.
6 Stewart ». Commonwealth, 10 Watts.
806, decided on a city ordinance.
CHAP. XXIII. ] EXPOSITIONS OF THE STRICT.
§ 210
or imprison any one or more of the crew,” the word “ crew” was
held to include the undev-officers as well as the common seamen ;
consequently a master committed the offence by imprisoning his
first mate.
“Goods and Merchandise” — “Personal Goods.” — 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.3
“Materials for Lottery.” — Books kept in relation to the pro-
ceedings of a lottery are “ materials for a lottery.”
§ 210. “Pedler, Hawker, Petty Chapman.” — One who carries
about goods, offering them for sale, is held to “trade, deal, and
traffic” in them, “as a pedler, hawker, or petty chapman.” >
And —
“Deal in Selling.” — To sell spirituous liquors in a single instance
is to “deal in the selling” of them. But —
“Dealer.” — The word “dealer” alone, in a variety of statutes,
including criminal ones, is held not to be satisfied by a single in-
stance of traffic.’
Causing False Entry — False Statement. — A woman in England
went to a register of births, to have registered the birth of a
child. She stated the necessary particulars, every one of which
was false; and, when he had written the entry, she signed it as
the person giving the information. This was held to constitute
the felony of causing a false entry, within the words of 6 & 7
1 United States v. Winn, 3 Sumner,
209. As to the meaning of the word
“mariner,” see Brush v. Bogardus, 8
Johns. 157.
2 Stat.7 & 8 Geo. 4, c. 29,§17; Rex
v. Wright, 7 Car. & P. 159. See post,
§ 344, 345; Chamberlain v. Western
Transp. Co. 44 N. Y. 305.
3 United States v. Davis, 5 Mason,
556, the court observing: “It is true the
words ‘ goods or chattels’ may, in the con-
struction of wills, include bonds, notes,
bank-bills, &c.; but this is upon the pre-
sumed intention of the testator, where a
liberal exposition of his words is allow-
able, and upon principles derived from
the civil and canon law. But in penal
statutes a more strict construction is
adopted; and the analogy of the com-
mon law, in respect to larceny, may well
furnish the proper rule for decision.” See
post, § 344, 345,
4 Commonwealth v. Dana, 2 Met. 329.
5 Merriam v. Langdon, 10 Conn. 460.
See, however, Page v. The State, 6 Misso.
205.
6 The State v. Paddock, 24 Vt. 312.
And see The State v. Von Glon, 1 McMul.
187. For more on this expression and
others of the sort, see post, § 1016-1018,
1090-1092.
7 Carter v. The State, 44 Ala. 29;
Overall v. Bezeau, 87 Mich. 506; Barton
v. Morris, 10 Philad. 360. And see The
State v. Yearby, 82 N. C. 561.
199
§ 211 INTERPRETATION. [BooK 1.
Will. 4, c. 86, § 43, “shall wilfully insert or cause to be inserted,
é&c., any false entry of any birth,” &c.; and not merely the mis-
demeanor, under § 41, of making a “ false statement.” !
§ 211. “Stage, &c. of Manufacture.” — Goods remain in “a stage,
process, or progress of manufacture,” after the texture is com-
plete, until brought into a fit condition for sale.?
“Within ten Feet” of Road, Foot-path.— Where a statute pro-
hibits the erection of buildings within ten feet of a particular
road, and directs that the foot-path be deemed part of the
road, a building within ten feet of the foot- pa is within the
prohibition.’
“Deliver Manifest." — The captain of a vessel oes not deliver a
manifest of his cargo, within a statutory requirement, unless the
manifest he delivers is true.*
“ Disturb Congregation.” — If it is made penal to “disturb any
congregation assembled in any church, meeting-house, or other
place of religious worship,” a Methodist camp-meeting, on camp-
ground, at times when religious services are not actually pro-
gressing, is within the protection.®
“Woman.” — A girl under twelve years of age, not attained to
puberty, is a “woman,” within the former statute of Virginia
making it felony, punishable by death, for a slave, free negro, or
mulatto to attempt to ravish a white woman. But such a girl
is not included in the word “woman” in every statute of this
sort.’
Sale of Services. -— To sell the services of a slave is to sell the
slave within a former act to prevent the introduction of this class
of persons into the State’ So—
“Lottery Ticket." — A quarter-ticket in a lottery is a lottery
ticket.2 And—
“Mould, &c. adapted to Coining.” — A statute against being pos-
sessed of any mould, pattern, die, &c., adapted to coining, is
' Reg. v. Dewitt, 2 Car. & K. 905. 624. More particularly, see Crim. Law,
And see Reg. v. Brown, 2 Car. & K. 604; ID. § 302-805.
Smith v. The State, 5 Humph. 163; Rex 6 Commonwealth v. Watts, 4 Leigh,
v. Harley, 4 Car. & P. 369. 672; Charles v. The State, 6 Eng. 389,
2 Rex v. Woodhead, 1 Moody & R. 406, 410.
549. 7 Commonwealth v. Bennet, 2 Va. Cas.
8 Rex v. Gregory, 2 Nev. & M. 478, 5 235.
B. & Ad. 66565. 8 Link vr. Beuner, 3 Caines, 325.
4 Phile v. The Anna, 1 Dall. 197. 9 Freleigh v. The State, 8 Misso. 606.
5 Commonwealth v. Jennings, 3 Grat.
200
CHAP. XXIII. ] EXPOSITIONS OF THE STRICT.
§ 219
violated by having one half, or any smaller part, of such appa-
ratus,) or the apparatus to make one side only of a counterfeit
coin.?
§ 212. Thirdly. Jt is not a violation of the rule of strict con-
struction to give the words of a statute a reasonable meaning,
according to the intent of the makers, disregarding captious objec-
tions, and even the demands of an exact grammatical propricty.3
Thus, — é
“ Person" — (State — Corporation). — In this class of statutes
as in others, the State, United States,® or a corporation ® may be
included in the word “ person.” But such is not necessarily the
construction ;‘ as, for example, not in every statute has the word
‘person’ been held to extend toa corporation. The rule would
seem to be, that prima facie it does,® because a corporation is au
artificial person created by the law; but considerations of the
subject, object, and connected words of the particular statute
may lead to the contrary result." So, —
1 The State v. Griffin, 18 Vt. 198.
2 Commonwealth v. Kent, 6 Met. 221.
A Part, in Larceny. — See, under Stat.
14 Geo. 2, c. 6, as to killing a sheep with
intent to steal a part of the carcass, Rex
v. Williams, 1 Moody, 107; Rex v. Clay,
Russ. & Ry. 387. ;
3 For illustrations of this doctrine,
see the cases cited to this and the next
four sections; also Commonwealth vo.
Martin, 17 Mass. 359; Commonwealth v.
Keniston, 5 Pick. 420; The State v. Mairs,
Coxe, 453; Rex v. Atkinson, Russ. & Ry.
104; Rex v. Harris, 7 Car. & P. 446;
Rex v. Shadbolt, 5 Car. & P. 504; Com-
monwealth v. Loring, 8 Pick. 370.
4 Stewart v. The State, 4 Blackf. 171;
Martin v. The State, 24 Texas, 61.
5 The State v. Herold, 9 Kan. 194.
® Germania v. The State, 7 Md. 1;
Planters and Merchants’ Bank v. An-
drews, 8 Port. 404; People v. Utica Insur-
ance Co., 15 Johns. 358, 381; Fisher v.
Horicon Iron and Man. Co., 10 Wis. 351 ;
Miller v. Commonwealth, 27 Grat. 110;
People v. May, 27 Barb. 238; Beaston v.
Farmers’ Bank, 12 Pet. 102, 134; Society,
&c. v. New Haven, 8 Wheat. 464; Olcott
v. Tioga Railroad, 20 N. Y. 210; Bartree
v. Houston, &c. Railroad, 86 Texas, 648 ;
Norris v. The State, 25 Ohio State, 217;
Newcastle Corporation, 12 Cl. & F. 402;
Memphis v. Laski, 9 Heisk.511. See The
State v. Ohio and Mississippi Railroad, 23
Ind. 362. Of this there seems to have
been formerly some doubt. See Rex v.
Harrison, 1 Leach, 4th ed. 180, 2 East P.
C. 926, 988; Rex v. Jones, 1 Leach, 4th
éd. 366, 2 East P. C. 991.
7 The State v. Bancroft, 22 Kan. 170;
In re Fox, 52 N. Y. 580; United States v.
Fox, 94 U.S. 815.
8 The State v. Cincinnati Fertilizer
Co. 24 Ohio State, 611, a case which in
some of the other States would probably
be held the other way.
9 Miller v. Commonwealth, 27 Grat.
110; In re Oregon Bulletin Publishing,
&c. Co. 138 Bankr. Reg. 199; Douglass v.
Pacific Mail Steamship Co. 4 Cal. 304;
Northwestern Fertilizing Co. v. Hyde
Park, 3 Bis. 480.
10 Crim. Law, I. § 417; Louisville, &e.
Railroad v. Commonwealth, 1 Bush, 250;
Douglass v. Pacific Mail Steamship Co.,
4 Cal. 304.
N Pharmaceutical Society v. London,
&c. Supply Assoc. 5 Ap. Cas. 857, in
which the H. of L. held the word “ per-
son” in 81 & 82 Vict., cv. 121, not to in-
201
§ 213 INTERPRETATION. [BooK m1.
Continued — (Negro — Indian — Judge). — A negro,! Indian,?
or judge holding court,? may be comprehended under this word
‘“‘person.” Again, —
Masculine includes Peminine — (“ His” — “Man” — “ Woman”), |
— A woman may be meant by the masculine pronoun “his.’’ 4
And, in a statute not penal,® probably also in a penal one, she
‘may be by the word “ man.”
“Sheep.” — The word * sheep”’ may include a ewe ® or a lamb.’
And —
“Cattle” — may comprehend horses,’ geldings,® asses,” pigs,"
and sheep. Moreover, —
§ 218. Singular and Plural. — The singular number may be
comprehended in the plural. For example, —
“ Bank-notes,” “Bills obligatory ”— (Larceny ).— A statute making
it felony to purloin from the post-office * bank-notes” is broken
by taking a single bank-note.43 And one punishing the larceny
of “dlls obligatory ” is infringed when a single bill obligatory is
stolen.* So, —
“ Tippling-houses "— (Lord’s Day). — Under a statute declaring
it an offence “to keep open tippling-houses on the Sabbath day,”
a person may incur the guilt by so keeping open one tippling-
house. But, —
“House,” “ Dwelling-house.” — Between “house” and “ dwell-
ing-house”’ there is a distinction which, though nice, is palpable
in the law.6 Therefore when the legislature had taken away
clergy from the felony of burning a dwelling-house, one con-
elude a corporation, sustaining the Court
of Appeal in 5 Q. B. D. 310, and overrul-
ing the Queen’s Bench division in 4 Q.
B. D. 213; Saint Leonards, Shoreditch,
v. Franklin, 8 C. P. D. 877; Common-
wealth v. Phenix Bank, 11 Met. 129,
149.
1 The State v. Peter, 8 Jones, N. C.
‘19; Hammond v. The State, 14 Md. 155.
2 United States v. Shaw-mux, 2 Saw.
364.
3 Bass v. Irvin, 49 Ga. 436.
4 Rex v. Smith, Russ. & Ry. 267.
5 Smith v. Allen, 31 Ark. 268.
6 Reg. v. Barran, Jebb, 245; Reg. v.
Bannam, 1 Crawf. & Dix C. C. 147.
7 Reg. v. Spicer, 1 Car. & K. 699; The
State v. Tootle, 2 Harring. Del. 541.
202
8 Rex v. Moyle, 2 East P. C. 1076.
9 Rex v. Mott, 2 East P. C. 1075, 1
Leach, 4th ed. 73, note.
1 Rex v. Whitney, 1 Moody, 3.
1! Rex v. Chapple, Russ. & Ry. 77;
Decatur Bank v. St. Louis Bank, 21 Wal.
294.
12 United States v. Mattock, 2 Saw. 148.
See post, § 245-248.
13 Rex v. Hassel, 1 Leach, 4th ed. 1,2
East P. C. 698.
4 Commonwealth rv. Messinger, 1 Binn.
273.
15 Hall v. The State, 3 Kelly, 18. So,
in another sort of case, under a grant to
“orphans” a single orphan will take.
Averit v. Alleam, 23 Ga. 382.
16 Post, §§ 277, 289.
CHAP. XXIII.] | EXPOSITIONS OF THE STRICT. § 215
victed of burning a house, omitting the word “dwelling,” was
held not to be excluded therefrom.! Again, —
§ 214. “Demolish” — “ Destroy.” — To consume a house by fire
is to demolish it;? and to destroy the parts of a thrashing ma-
chine, which the owner has taken down in apprehension of a
mob, is to destroy the machine.?
“Similar Pieces "— (Counterfeiting). — A statute against having
in possession ten similar pieces of gold or silver counterfeit coin
is violated if the offender has ten pieces of either kind, though
not all of the same denomination.+!
Standing a Jack. — Under the prohibition of standing a jack
without license, and letting him to mares for profit and hire, an
unlicensed standing under a contract to purchase the mules at a
price below their value, was held to constitute the offence.®
§ 215. False Grammar — and other verbal inaccuracies no more
impair a statute which is to be construed strictly than any other.®
For example, —
“Sell from.” An Alabama act made it punishable to “buy,
sell, or receive from any slave” certain things without his mas-
ter’s consent. And it was held to be infringed by a sale to the
slave; for its obvious meaning should not be defeated by the in-
accurate use of a preposition.’ So—
Rejecting “ of ” — (Carnal Abuse). — In the following statute of
Missouri, the second “of” — printed in italics —is rejected in
the construction: “If any guardian of any white female under
the age of eighteen years, or of any other person to whose care
or protection any such female shall have been confided, shall
defile her by carnally knowing her,” &c.; and thus its penalties
1 The State v. Sutcliffe, 4 Strob. 372. 4 Brown v. Commonwealth, 8 Mass.
But see Commonwealth v. Posey, 4 Call,
109.
2 Reg. v. Howell, 9 Car. & P. 457;
Reg. c. Harris, Car. & M. 661. -And see
Reg. v. Bowen, 1 Den. C. C. 22.
8 Rex v. Mackerel, 4 Car. & P. 448.
And see Rex v. Fidler, 4 Car. & P. 449.
A similar rule prevails as to the halves of
bank-notes cut apart, and so sent in a
letter for greater safety. Rex v. Mead,
4 Car. & P. 535. Destroy Vessel.— As
to what is destroying a vessel, see United
States v. Johns, 1 Wash. C. C. 363; Crim.
Law, I. § 570, note.
59, 71. And see Commonwealth rv. Whit-
marsh, 4 Pick. 233; Commonwealth ve.
Smith, 7 Pick. 187. Yet, consistently
with this, the court said in Brown v. Com-
monwealth: “To be convicted of the
crime, the prisoner must be proved to
have had in his possession at least ten
gold pieces, or ten silver pieces.” p. 71.
Sedgwick, J. And see ante, § 94, 95;
Crim. Law, II § 286, 288.
5 Commonwealth v. Harris, 8 B. Monr.
373.
6 Ante, § 79, 81; post, § 2438.
% Worrell v. The State, 12 Ala. 782.
208
§ 216 INTERPRETATION. [BooK I.
extend to persons in care who are not guardians, as well as to
those who are.}
§ 216. On the other hand, —
Fourthly. The words of a penal or other statute requiring a
strict construction must not be extended beyond what they will fairly
and reasonably bear.2 Thus, —
“Beat” — “ Assault.” — Pulling a person to the ground and
holding him there is not “beating” him.2 And where an act
makes an assault indictable it means a real assault, not a con-
structive one.*
“Wound inflictea.".—-A wound incurred by forcing a part of
one’s body against a weapon with which another is attacking him,
is not a wound inflicted by the other.’
“Ship or Vessel."—An open boat is not a “ship or vessel,”
within the acts of Congress of 1820 and 1828, prohibiting com-
mercial intercourse with the British colonies.®
“Stack of Straw.” — A stack, of which the lower part is cole-
seed ‘ straw, and the upper is wheat stubble, is not a stack of straw.®
“ Officer” — (Resisting). One specially deputed by a justice
of the peace, under authority of a statute, to serve a particular
process, the Vermont court has held, is not an “ officer” within a
provision making it criminal to ‘impede or resist any officer” in
the execution of his office.®
! The State v. Acuff, 6 Misso. 54.
2 For illustrations of this doctrine, see,
besides the other cases cited to this sec-
tion and the next, the following: The
State v. Jim, 3 Murph. 3; Rex v. Snell,
2 Moody & R. 44; The State v. Smith,
Cheves, 157; Rex v. Mountford, 7 Car. &
P. 242, 1 Moody, 441; Rex v. Aris, 6 Car.
& P. 348; United States ,v. Tenbroek, 2
Wheat. 248; Williams v. The State, 12
Sm. & M. 58; Commonwealth v. Catlin,
1 Mass. 8; Willington v. Stearns, 1 Pick.
497 ; Reg. v. Deneny, Jebb, 255; Rex v.
Pateman, Russ. & Ry. 455; Reg. v. San-
ders, 9 Car. & P. 79; Lord Duffus’s Case,
2 Comyns, 440; Rex v. Nixon, 7 Car. &
P. 442; Calvert v. Commonwealth, 5 B.
Monr. 264; Rex v, Richardson, 6 Car. &
P. 835; The State v. Briley, 8 Port. 472;
Rex v. Wakeling, Russ. & Ry. 504; Reg.
v. Adams, Car. & M. 299; Hickerson
v. Benson, 8 Misso. 8; The State v. Shoe-
maker, 7 Misso. 177; Rex v. Palmer, 2
204
Leach, 4th ed. 680, 2 East P.C. 586; Rex
v. Davis, 2 East P. C. 593, 1 Leach, 4th
ed. 496, note; The State v. Pinchback, 2
Mill, 128; Leonard v. Bosworth, 4 Conn.
421; Culp v. The State, 1 Port. 83; Rex
v. Pike, 1 Leach, 4th ed. 317, 2 East P.C.
647; Wash v. The State, 14 Sm. & M.
120; United States v. Pearce, 2 McLean,
14; Reg. v. Thorn, Car. & M.206; Moore
v. The State, 13 Sm. & M. 259.
3 Reg. v. Hale, 2 Car. & K. 326.
4 The State v. Freels, 3 Humph. 228;
Evans v. The State, 1 Hlumph. 394;
Humphries v. The State, 5 Misso. 203.
5 Rex v. Beckett, 1 Moody & R. 526.
For the meaning of “ Wound,” see post,
§ 314.
6 United States v. An Open Boat and
Lading, 5 Mason, 120.
7 A species of cabbage.
8 Rex rv. Tottenham, 7 Car. & P. 287.
9 The State » McOmber, 6 Vt. 216.
Possibly not all courts would so hold;
CHAP. XXIII.] | EXPOSITIONS OF THE STRICT. § 218
“Implements of Gaming.” — Game-cocks, being live animals, are
not “implements ”’ of gaming.
Located “in” — (Wooden Building). — An act made penal,
among other things, the erection, to any building, of a wooden
addition having “‘in” it a chimney or fireplace. And an addi-
tion warmed from a chimney and fireplace put solely in the old
part, for the exclusive accommodation of the new, was held not
to be within the inhibition.”
§ 217. “Security for Money."—- Money, which means simply
what is legal tender,® is not andicated by the words “security for
money.” 4
“Instrument, Arms,” &c. — (Escape). — A writing, informing a
prisoner that he has a friend, and may be released from confine-
ment, is not ‘any instrument, arms, or other thing calculated to
aid his escape.”’ 5
“ Alter” — (Forgery). — One does not “alter” ® bank-bills, who
so cuts them as, by putting the parts together, to make a greater
number.’
“ Countersigned,” &c. — (Forgery). —— A counterfeit bill on an
existing bank, the cashier’s name wherein is fictitious, is not
in the similitude of a bank-bill “countersigned by the cashier
thereof.”’ §
“Greater or other Fees” — (Extortion). — A statute against
“any officer taking greater or other fees” than are prescribed in
it, is not violated by one who, out of office, receives such fees for
services rendered while in office.®
“Stack of Wheat.” Wheat thrashed from the straw is not a
“stack of whéat.” 10
§ 218. Fifthly. Zf, in a criminal case requiring the strict con-
struction of a statute, the court entertains a reasonable doubt of its
meaning, this doubt will prevail in favor of the accused : 41 —
there being room for the opinion, that, 5 Hughes v. The State, 1 Eng. 181.
though the deputy was not an officer for § Crim. Law, II. § 573-578.
general purposes, he was such for this 7 Commonwealth v. Hayward, 10 Mass.
particular occasion. Yet see Kavanaugh 84.
v. The State, 41 Ala. 399. 8 Commonwealth v. Boynton,2 Mass.
1 Coolidge uv. Choate, 11 Met. 79. See 77.
post, § 319, 9 Gallagher v. Neal, 3 Pa. 183. Seeante,
2 Daggett v. The State, 4 Conn. 60. § 171, note; Crim. Law; IT. § 390 et seq.
3 Post, § 346. 10 Commonwealth v. Erskine, 8 Grat.
‘ Rex v. Skutt, 1 Leach, 4th ed. 106, 624. See ante, § 216.
2 East P. C. 582. 11 Ante, § 194.
205
§ 220 INTERPRETATION. [Book IL:
Not multiply Felonies. — Within this doctrine, the court will
lean to a construction which will not multiply felonies.! Like-
wise —
Computation of Time in Sentence. — The day on which a prisoner
is sentenced will be reckoned as a part of his term of imprison-
ment.2 So, also, —
“Until or Until " — (Deserting Seamen). — Under an act of Con-
gress authorizing the commitment of a deserting seaman “ to the
house of correction or common jail... there to remain until
the ship or vessel shall be ready to proceed on her voyage, or until
the master shall require his discharge,” the seaman cannot be
detained after the vessel has sailed.2 Now, —
§ 219. Concerning the Propositions. — The foregoing proposi-
tions, with their illustrations, bring to view not many departures,
in strict interpretation, from what would be held in liberal,
though they do some. They are chiefly helpful as showing what
meanings the words may take under the pressure of ordinary
rules of interpretation, without violating the principles govern-
ing penal and other like laws, which require a strict construction.
It is our next proposition, which, more than any other, distin-
guishes the strict interpretation from the liberal; namely, —
§ 220. Sixthly. In strict construction, no case is to be brought
within the statute unless completely within its words. Or, —
Otherwise expressed — (Within Mischief, not Words). — As
stated by Hawkins, the doctrine is: ‘No parallel case, which
comes within the same mischief, shall be construed to be within
the purview of it [the statute], unless it can be brought within
the meaning of the words.” In slightly different language,
though a case of this sort is fully within the mischief to be
remedied, and is even of the same class and within the same rea-
son as other cases enumerated in the statute, construction will
not be permitted to bring it within the statute unless it is also
within the statutory words.6 Thus, —
' Commonwealth v. Macomber, 3 Mass.
254; Commonwealth v. Barlow, 4 Mass.
439.
2 Commonwealth v. Keniston, 5 Pick.
420. See ante, § 105-111.
3 The State v. Patterson, T. U. P.
Charl. 311.
4 2 Hawk. P. C., Curw. ed.,c. 18, § 16.
5 Ante, § 194 and places there referred
206
to: Rex v. Hammond, 2 East P. C. 1119,
1 Leach, 4th ed. 444; Leonard v. Bos-
worth, 4 Conn. 421; Hall v. The State,
20 Ohio, 7; Rex v. Senior, 1 Leach, 4th
ed. 496, 2 East P. C. 693; Melody v. Reab,
4 Mass. 471, 473. For further illustra-
tions, see the cases cited to the five next
following sections; also Rex v. Ellis, 8
D. & R.178; The State v. Lovett, 3 Vt.
CHAP. XXIII.] EXPOSITIONS OF THE STRICT. ! § 222
§ 221. “Breaking” or not — (Burglary ). — Under words making
punishable those who, with intent to commit any felony, * shall
in the night-time enter without breaking, or in the daytime break
and enter, any warehouse,” an entry in the night by breaking
was held not to be included.!
Place not within Enumeration — (Gaming). —It being forbidden
to set up a faro-table ‘in any dwelling-house, out-house, or place
occupied by any tavern-keeper, retailer of wine, spirituous liquors,
beer, or cider,” one in a locality not in terms mentioned —as, for
instance, in a house used solely for this purpose — was held not
to be prohibited.?
One Party only prohibited — (Living in Fornication).— It was
provided in Tennessee, that, ‘‘if any white man or woman shall
presume to live with any negro, mustee, or mulatto man or
woman, as man and wife, each and every of the parties so offend-
ing shall be liable to forfeit,’ &c. And this was held to make
the act penal only in the white person, not also in the other.®
Clergy excluded under Circumstances. — Where a statute ousts
clergy from an offence when committed under specified circum-
stances, all, for a case to be within it, must transpire in the county
of the trial. Again, —
§ 222. Time for Penalty added to Time of Delay — (Recording
Marriage ). — An Indiana statute required the official person who
solemnizes a marriage, to file the marriage certificate in the
proper office within three months from its solemnization, under a
penalty, for the delay after the first three months, of five dollars
amonth. And it was held, that no criminal liability arises until
110; Rex v. Paddle, Russ. & Ry. 484;
Carpenter v. People, 8 Barb. 603; The
State v. Cooper, 16 Vt.551; Hamuel ».
The State, 5 Misso. 260; Sharpe’s Case,
2 Lewin, 233; Kyle v. The State, 10 Ala.
236; 2 East P. C. 919; Hawkins v. The
State, 3 Stew. & P. 63; The State v. Smith-
erman, | Ire. 14; Rex v. Remnant, 5 T. R.
169; Rex v. Mellish, Russ. & Ry.80; Reg.
v. Turner, 8 Car. & P. 755; Reg. v. Scott,
3 Q. B. 548; Campbell v. Commonwealth,
2 Rob. Va. 791; The State v. Curtis, 5
Humph. 601; Commonwealth »v. Barrett,
9 Leigh, 666; United States v. An Open
Boat and Lading, 5 Mason, 120; Rex v.
Watson, 2 East P. C. 562, doubted in Rex
v. Lavender, 2 East P. C. 566; The State
v. Savage, 32 Maine, 583; Rex v. Ross,
Russ. & Ry. 10, 2 East P. C. 1067; Rex
v. Ellis, 5 B. & C. 395, 8 D. & R. 178;
United States v. Nott, 1 McLean, 499;
The State v. Clemons, 3 Dev. 472; Wil-
liams v. Matthews, 3 Cow. 252; The
State v. Black, 9 Ire. 378; Commonwealth
v. Gee, 6 Gush. 174; United States v.
Hiler, Morris, 330.
1 Commonwealth v. Carrol, 8 Mass.
490.
2 Baker v. The State, 2 Har. & J. 5.
8 The State v. Brady, 9 Humph. 74.
See and compare ante, § 135, 136, 139, 140,
145; Crim. Law, I. § 225-228, 657-659.
+ 2 East P. C. 773.
207
§ 228 INTERPRETATION. [BooK 11.
the lapse of four months; that is, until the full penalty for a
month’s delay is matured. .
“Cord of Wooa.” — Where a statute, regulating the sale of cord-
wood, imposed a penalty of so much per cord “ for every cord of
wood bought and sold ” contrary to its provisions, the court held
that no penalty could be incurred in the purchase or sale of less
than a cord.”
“Free Negro,” omitted from Penal Part.— By a former Georgia
statute, “if any slave, free negro, Indian,” &c., shall do certain
things mentioned, “any such slave or slaves, and his and ‘their
accomplices,” shall suffer death. This was held not to apply to
a free negro, who was mentioned only in the first clause.®
Contemplated Circumstances wanting — (Credit to Student). — A
statute provided, ‘that no person or persons shall give credit to
any student of Yale College, being a minor, without the consent
in writing of his parents or guardian, or of such officer or officers
of the college as may be authorized by the government thereof to act
in such cases, except for washing and medical aid.” And it was
held, that, to render the commission of the offence possible,
authority must have been conferred on some officer of the
college, “by the government thereof,” to give or withhold the
consent.!
“ Privately" — (Larceny). — A statute against “ privately”
stealing is not violated when force is used ;® though, in matter
of proof, the prosecutor need not show affirmatively that there
was no force.6 So —
§ 223, “Suffer” — (Animals at Large). — An enactment that
“‘no swine shall be suffered to go at large”’ is not violated when
the animals escape, without the owner’s will.’
“ Adjoining” — Grounds separated from a dwelling-house by a
narrow walk, and a paling with a gate in it, are not “ adjoining ”
the dwelling-house.§
1 Kent v. The State, 8 Blackf. 163; 1 4 Morse v. The State, 6 Conn. 9.
Bishop Mar. and Div. § 346. 5 Rex v. Cartwright, 2 East P. C. 641;
2 Pray v. Burbank, 12 N. H. 267. Rex v. Jones, 2 East P. C. 641.
8 Ex parte George, T. U. P. Charl. 80. ® Rex ». Matthews, 2 East P. C. 642.
For another illustration of the same prin- 7 Commonwealth v. Fourteen Hogs, 10
ciple, see The State v. Roberts, 1 Tread. S. & R. 393.
116. So also The State v. Conover, 3 8 Stat. 7 & 8 Geo. 4, c. 29, § 88; Rex».
Harring. Del. 565; The State v. Moseley, Hodges, Moody & M. 341.
14 Ala, 390; Butler v. Cook, 14 Ala. 576;
Frierson v. Hewitt, 2 Hill S. C. 499.
208
CHAP. XXII] EXPOSITION OF THE STRICT. § 224
Place and Distance specified — (Liquor Laws).— Intoxicating
liquor was forbidden to be sold at a ‘* booth, tent, wagon, huck-
ster’s shop, or other place erected, brought, kept, continued, or
maintained within the distance aforesaid.” And it was held,
that a sale within the prohibited distance was uo offence, unless
made at one of the specified places.!
Bills of Non-existing Bank — (Forgery). — A statute against
passing bills “‘ purporting to be” the bills “ of a bank, company,
or association, which never did in fact exist,” is not infringed by
fraudulently passing bills of a bank i infact existing, though unin-
corporated and illegal.?
“Threatening” Officer acting unauthorized — (Election Frauds ). —
One who resisted by threats a demand made upon his father,
by the judges of an election, to answer questions they had no
right to put, was held not to have committed the statutory offence
of threatening an officer of the elections in the discharge of his
duty ; because the judges, in. putting the questions, were not in
the discharge of their duty.’
“Begin to destroy” — (Malicious Mischief). — Under the Eng-
lish statute of T & 8 Geo: 4, c. 30, § 8, against beginning to de-
stroy any house (“shall unlawfully and with force demolish, pull
down, or destroy, or begin to demolish, pull down, or destroy,”
&c.), one cannot be convicted unless he intended to proceed so
far as to leave really no house.!
“Maintain Owners no Right of Property.” — Under a statute pun-
ishing ‘‘ any free person who, by speaking or writing, shall maintain
that owners have not right of property in their slaves,” a simple
denial of the right was adjudged insufficient. The denial must
be maintained, which means something more ; and the right
denied must be a legal, not simply a moral right.2 But—
§ 224. “Cut Down” — “ Destroy” — (Trees — Vessel). — This
sort of doctrine will not be unreasonably extended. For ex-
ample, it having been made by statute criminal to “unlawfully
and maliciously cut down or otherwise destroy any trees,” a total
! Bouser v. The State, Smith, Ind. 408, 4 Car. & P.237. And see Reg. v. Howell,
See, as to the constitutionality of this sort 9 Car. & P. 437; Reg. v. Phillips, 2 Moody,
of legislation, Fetter v. Wilt, 10 Wright, 252. For other cases requiring the intent,
Pa. 457. as well as the act, to come within the
2 Cahoon v. The State, 8 Ohio, 5387. . statute, see Commonwealth v. Morse, 2
3 Commonwealth v. Gibbs, 4 Dall. 253. Mass. 128; People v. Griffin, 2 Barb. 427.
4 Reg. v, Adams, Car. & M. 299; Rex 5 Bacon v. Commonwealth, 7 Grat.
v. Price, 6 Car.& P. 510; Reg.v. Thomas, 602.
14 209
§ 225 INTERPRETATION. [Book 11.
destruction was adjudged unnecessary. It was sufficient if the
tree was “cut down,” though the stump left could be grafted!
So in the act of Congress punishing with death those who destroy
vessels, the word ‘destroy’ has been held not to require an
irreparable disruption of all the parts; it is generic in meaning,
and includes ‘‘ castaway.” In legal contemplation, “ to * destroy
a vessel’ is to unfit her for service, beyond the hopes of recovery
by ordinary means.”? Still, as many of the foregoing illustrations
show, —
§ 225. Fully done.— The act forbidden by a statute must be
fully done in all its parts, else the offence is not complete ;#
though, indeed, there may be an indictable attempt.t For
example,— _
“sell” —A statute made it criminal knowingly to sell “any
free person for a slave.” Thereupon one transferred to another
the possession of a free negro, under a written agreement to be
paid the price; with the proviso, that the vendee should take
him on trial for a month, and at the end thereof make the pay-
ment if he liked him, and receive a bill of sale. But before the
month elapsed, the negro ran away, and the court held, that
the offence was not committed, the sale not having been finished.’
So, —
“ Persuading to enlist” — (Treason). — Where it was made crim-
inal knowingly and willingly to “aid or assist any enemies, at
open war with this State, by persuading others to enlist for that
purpose,” the offence was adjudged not complete until the person
persuaded had actually enlisted. In like manner, ~
“Administer Poison” —(Attempt to murder). — A statute against
administering poison with intent to murder is not violated until
something more is done than a mere delivery of it from the party
administering ; though perhaps it need not be taken into the
stomach.’ Again, —
1 Rex v. Taylor, Russ. & Ry. 373. See
ante, § 214, 223.
2 United States v. Johns, 1 Wash. C.C.
363, 372,
8 Leonard v. Bosworth, 4 Conn. 421;
Redman v. Sanders, 2 Dana, 68; United
States v. Battiste, 2 Sumner, 240; Bare-
field v. The State, 14 Ala. 603; People v.
Genung, 11 Wend. 18; Reg. v. Charretie,
13 Jur. 450, 18 Law J. n. 8. M. C. 100;
210
Mayers v. The State, 3 Eng. 222; United
States v. Twenty-eight Packages, Gilpin,
806. See Commonwealth v. Hancock
Free Bridge, 2 Gray, 58.
4 Ante, § 138, 140.
5 Commonwealth v. Nix, 11 Leigh, 636.
As to what acts constitute a sale, see post,
§ 1013-1015.
® Respublica v. Robert, 1 Dall. 39.
7 Rex v. Cadman, 1 Moody, 114, Car.
CHAP. XXIII.]| EXPOSITION OF THE STRICT. § 225
“Coin resembling,” &c. — (Counterfeiting). — Under-_a statute
against buying “any false or counterfeit coin, resembling, or ap-
parently intended to resemble or pass for, any of the king’s cur-
rent gold or silver coin, at or for a lower rate or value than the
same by its denomination imports,” the offence is possible only
where the counterfeits have been finished ready for circulation.!
Crim. Law, 3d ed. 237. Carrington says, Moody says, they “seemed to think swal-
the judges thought it necessary that the lowing not essential.” See post, § 747.
poison should be taken into the stomach ; 1 Reg. v. Bradford, 2 Crawf. & Dix
C. C. 41.
211
§ 227 INTERPRETATION. [BOOK II.
CHAPTER XXIV.
THE LIBERAL INTERPRETATION WHICH MINGLES WITH THE
STRICT.
§ 226. Already — Here.— We have already seen, in general,
how the liberal interpretation mingles with the strict, as applied
to different clauses and parts, and even to the same parts, of the
same statute Here we are to extend the doctrine into some
details.
Doctriné defined. — The doctrine is, that, when from any of the
recognized reasons the main provisions of a statute are to be con-
strued strictly, the same reasons require those which create
exceptions, exemptions, and the like, to be interpreted liberally.
And, beyond this, the strict construction as well as, and even
more than, the liberal, excepts and exempts, without the aid of
any statutory words, whatever, while within the terms of a stat-
ute, is not within its motives and purposes,
To what Clauses. — The most familiar applications of this doc-
trine are to criminal statutes, and from them the illustrations of
this chapter will be chiefly drawn. But it is applied equally to
all other statutes which are strictly construed. Thus, —
§ 227. Liberal for Defendants. — As already seen, while a crimi-
nal statute is to be construed strictly in those parts which are
against defendants, its construction is to be liberal in those which
are in their favor; that is, for their ease or exemption.? And an
entire statute, made for their benefit or defence, is equally to be
rendered in the same liberal way. To illustrate, —
Counsel in Treason. — While, in England, the common law
denied counsel to persons on their trials for treason or felony,?
the statute of 7 Will. 3, c. 8, § 1, was passed. It provided, that,
in indictments for high treason, “all and every person, &c., shall
! Ante, § 196-198, Commonwealth, 6 Dana, 838; Dull »v.
2 Ante, § 196, 197. And see Heward People, 4 Denio, 91.
v. The State, 13 Sm. & M. 261; Sneed v. 8 Crim. Proced. I. § 14-19; 5 Howell
St. Tr. 471, note.
212
.
CHAP. XXIV. ] LIBERAL WITH STRICT. § 229
be received and admitted to make his and their full defence by
counsel, &c.; and the court, &c., is required immediately, upon
his or their request, to assign to such person and persons such
and so many counsel, not exceeding two, as the person or per-.
sons shall desire.” This provision, the reader perceives, was in.
favor of the accused; to be, therefore, liberally construed. So
it was held, that, where more persons than one were indicted
jointly, each was entitled to two counsel.! Again, —
§ 228. “Name subscribed " — (Threatening Letters ). — Under the
English statutes of 9 Geo. 1, ¢. 22, §.1, and 27 Geo. 2, c. 15, against
sending threatening letters? “without any name subscribed
thereto, or signed with a fictitious name,” a threatening letter,
to be within the inhibition, must be not only within these statu-
tory words but within their spirit also. If the letter in question,
while not signed by any name real or fictitious, is in the undis-
guised handwriting of the accused, and the person threatened is
familiar with it, —or, if it contains allusions showing that the
sender meant to make known who he was, — the statutory offence
is not committed ; because, although the letter is “without any
name subscribed thereto’? within the words of the act, it is still.
not unsigned within its spirit.2 The provision, requiring the
name to be fictitious or unsigned, the reader perceives, creates an
exemption in favor of the prisoner; so that, by the liberal con-
struction demanded, facts within the spirit of the words are equiv-
alent to those within the words. So, on the other hand, —
§ 229. “Divorced” — (Proviso in Polygamy). — If the statute
has an exception or proviso in the defendant’s favor, he, for his
protection, need only bring himself within its letter, regardless
of its spirit. For example, the first English act against polygamy
excepted out of its penalties persons “ divorced ;”* and this was
held, correctly, yet contrary to the entire policy of the law, to
shield from punishment those who should contract second mar-
riages after a judicial separation from bed and board, such a sepa-
ration being called a divorce. “It is also,” adds East, “ agreed,
that a second marriage, pending an appeal from a divorce a vin-
culo matrimonii, is aided by this exception; though the appeal
11 East P.C. 111. And see Crim. 4 Post, § 579; 1 Bishop Mar. & Div.
Proced. I. § 1040. § 297.
2 Crim. Law, IT. § 1200. 5 3 Inst. 89; 1 Hale P. C. 694; Porter’s
3 Rex v. Heming, 2 East P. C.1116,1 Case, Cro. Car. 461; Middleton’s Case, J.
Leach, 4th ed. 445, note. Kel. 27.
213
§ 231 INTERPRETATION. [BOOK II.
suspends, and possibly may repeal, the sentence; in which case
the second marriage would of course be invalid.” 1 Hence, —
§ 230. Contract and Expand. — The doctrine is, that, in favor
of accused persons, criminal statutes may be either, according to
the form of the provision, contracted or expanded by interpreta-
tion in their meanings, so as to exempt from punishment those
who are not within their spirit and purpose; while, at the same
time, as the last section shows, and as explained in the last chap-
ter, they can never be expanded against the accused, so as to
bring within their penalties any person who is not within their
letter. Otherwise expressed, whenever the thing done is not
within the mischief evidently intended by the statute, though it
is within its words, the doer is not punishable; while, on the
other hand, one may defend himself by showing, if he can, that
either the main part of the enactment, or some exceptive clause
thereof, is so unguardedly worded as to open an escape for him
through the letter, his act being still a complete violation of its
spirit. Further to particularize, —
§ 231. First. In favor of defendants, criminal statutes will be con-
tracted by interpretation, so as to avoid punishing those who, though
breaking their letter, have not violated also their spirit. Thus, —
Cutting short in Effect.— Their effect will be cut short, as ex-
plained in a previous chapter.? Within this principle, —
Wilful Transgression — Statutes in general terms may be re-
stricted by interpretation to cases in which the transgression was
wilful? In this way, too, —
False Pretences, &c. — Interpretation greatly restricts the stat-
utes against false pretences ;* indeed, the books are full of illus-
trations of the same principle. And, generally, —
Meaning of Makers. — If the thing done is not within the
intention of the law-makers, it is not within the law, though
within its letter.®
11 East P. C. 467. _ 4 See ante, § 133; also People v. Stet-
2 Ante, § 122 et seq. son, 4 Barb. 151; Rex v. Douglas, 1 Moody,
3 Ante, § 131, 132; Crim. Proced. I. 462; Reg. v. Henderson, Car. & M. 328.
§ 522, 523; Reg. v. Cohen, 8 Cox C. C. 5 See ante, § 123, 141, 190. And see
41, 42; The State v. Simpson, 73 N. C. Reg. v. Marner, Car. & M. 628; Richard-
269; People v. Powell, 63 N. Y. 88; Reg. son v. Broughton, 3 Strob. 1.
v. Matthews, 14 Cox C. C. 5; Marietta, ® The State v. Clarksville and R. T. P.
&c. Railroad v. Stephenson, 24 Ohio State, Co. 2 Sneed, 88.
48; Watson v. Hall, 46 Conn. 204; White
v. The State, 44 Ala. 409,
214
CHAP. XXIV. ] LIBERAL WITH STRICT.
§ 232
§ 232. Another Form of the Doctrine. — This doctrine is com-
monly stated in terms somewhat narrower than the above;
namely, that the acts to be punishable must come, not only with-
in the words of the statute, but also within its reason and spirit,
and the mischief it was intended to remedy.1 Thus, —
Slave Trade. — An act of Congress made it punishable “to im-
port or bring in any manner into the United States or territories
thereof, from any foreign kingdom, place, or country, any negro,
mulatto, or person of color, with intent to hold, sell, or dispose of
such negro, mulatto, or person of color as a slave, or to be held
to service or labor.” And this act was adjudged, in the time of
slavery, not to be violated by conveying slaves from the United
States to Europe, and thence back, to be held again in bondage ;
because its object was to put an end to the slave trade; so that,
though the case was within its letter, it was not within the mis-
chief to be suppressed.2, Again, —
“Selling for Slave” — (Consent of Injured Person). — The sale of
a free negro into slavery, with his own consent,’ under the collu-
sive agreement between him and the seller to divide the proceeds,
was adjudged not to be within a statute against “ selling a free
person for a slave, knowing the person so sold to be free.” * But
the consent of a boy eight years old would not excuse the offence.®
So—
Under Claim of Right.— An act of this sort done under a bona
fide claim of right will not be punished, though it is within the
general terms of a statute. Hence, for example, —
Deer Stealing. — A man killing deer under color of right is not
within the English statutes against deer stealing.’
1 Haynes v. The State, 5 Humph. 120;
Daggett v. The State, 4 Conn. 60; The
State v. Sumner, 10 Vt. 587; Common-
wealth v. Clark, 2 Ashm. 105. And see,
for illustrations, besides the other cases
referred to, Reg. v. Marner, Car. & M.
628; The State v. Boozer, 5 Strob. 21;
The State v. Mahan, 2 Ala. 340; Rex v.
Corry, 5 East, 872; The State v. New-
begin, 25 Maine, 500; The State v. Lane,
8 Ire. 256; Hancock v. Sturges, 13 Johns.
331; Preston v. Hunt, 7 Wend. 53; Rich-
ardson v. Broughton, 3 Strob. 1; The
State v. Johnson, 1 Dev. 360; Rex v.
Sharpe, 1 Moody, 125; Wood v. Smith,
23 Vt. 706; Commonwealth v. Slack, 19
Pick. 304; Wragg v. The State, 14 Ala.
492; United States v. Hiler, 1 Morris,
830; Rex v. Williams, 1 Leach, 4th ed.
529.
2 United States v. The Garonne, 11
Pet. 73.
3 Crim. Law, I. § 257-263.
4 Mercer v. Commonwealth, 2 Va. Cas.
144.
5 Davenport v.
Leigh, 588.
8 Gordon v. Farquhar, Peck, 155.
7 Rex v. Speed, 1 Ld. Raym. 583, the
judge observing: “ The case is out of the
intent of the act, but is plainly within the
words. The intent of the act was to
215
Commonwealth, 1
§ 283 INTERPRETATION. © ~ {Book m1.
Judicial Sale — (Champerty). — A judicial sale is not within the
statutes against champerty.!
§ 233. Larcenies from Places specified in Statute.— The principle:
under consideration finds frequent illustration in statutes visiting
with special consequences larcenies committed in specified places.?
By construction, these statutes extend only to things usually
kept in the places, under their protection, and by persons within
the spirit of their provisions. Thus, —
From Shop, &c.—- The statute of 10 & 11 Will. 3, c. 23, forbade
clergy to ‘‘any person who, by night or day, shall, in any shop,
ware-house, coach-house, or stable, privately and feloniously steal
any goods of the value of five shillings or more, though such
shop, &c., be not broken open, and though the owner or any
other person be or be not in such shop.” And the construction
was, that it “was made as a remedy for the owners of shops to
preserve their own goods which might be left there by way of
trade;” therefore, thatit.did not apply where one had left his
shirt in another’s shop, to be sent to a third person to mend.?
So—
From Dwelling-house. _ The statute of. 12 Anne, stat. 1, ¢. 7,
against stealing goods “being in any dwelling-house, &c., al-.
though such house, &c., be not actually broken in by such
offender, and although the owner of such goods or any other
person or persons be or be not in such house,” is not violated
where one steals, in his own house, the goods of another;* or
where a wife does the same in her husband’s house;® or where
the larceny is of property found upon the person, though ina
dwelling-house, but therefore not under its protection;® or
punish rogues and vagabonds; and not
to punish persons who by mistake in the
execution of their trusts exceed what the
law warrants. If the keeper of a walk
gives leave to third persons to kill a deer;
though this license does not give sufficient
authority to the third person to kill it,
yet it will not be an unlawful killing
within the statute, because there is a
color of right.” See also post, § 237.
1 Sims v. Cross, 10 Yerg. 460; Tuttle
v. Hills,6 Wend. 213; Anderson v. Ander-
son, 4 Wend. 474; Hoyt v. Thompson, 1
Seld. 320.
2 Crim. Law, II. § 900-903.
8 Anonymous, 8 Mod. 165; 8. p. Rex
216
v. Stone, 1 Leach, 4th ed. 334, 2 East P.C.
643; Rex v. Seas, 1 Leach, 4th ed. 304,
2 East P. C. 643.
* Rex v. Thompson, 1 Leach, 4th ed.
338 ; 8. c. Rex v. Macdaniel, 2 East P. C.
644. But a lodger who invites a man
into his room, and there steals his goods,
is within the statute. Seven judges
against three, in Rex v. Taylor, Russ. &
Ry. 418. See, further, § 234.
5 Rex v. Gould, 2 East P. C. 644, 1
Leach, 4th ed. 339, note; Commonwealth
v. Hartnett, 3 Gray, 460.
6 Rex v. Campbell, 2 Leach, 4th ed.
664, 2 East P. C. 644; Rex v. Watson, 2
East P. C. 680, 681; Rex v. Owen, 2 East
GHAP. XXIV. ] LIBERAL WITH STRICT. § 235
where the things stolen are such as are not ordinarily deemed
to be under the protection of the dwelling-house.! For like
reasons, —
§ 234. “Enter” and steal — (Consent to Entry), — An Alabama
statute having made punishable any person who should * enter
any dwelling-house ” and commit larceny therein, one who, before
entertaining the criminal intent, entered by the owner’s permis-
sion, was held not to have committed the offence.2 But under
the differently-worded Georgia enactment the contrary was ad-
judged ; because, said the court, “larceny from the house is
defined to be either the breaking or entering any house with an
intent to steal; or, after breaking and entering said house, steal-
ing therefrom any money or thing of value.” % Perhaps some
may dissent from this, on the ground that, in favor of the ac-
cused, or even where a strict interpretation is required, “ break-
ing and entering,’ in the second clause, should be taken in an
evil sense, such being the ordinary effect of the expression in
the law.
In Dwelling-house, by later English Statute. — In England, the
before-mentioned statute of Anne was superseded by 7 & 8 Geo.
4, c. 29, § 12, the words of which are simply, “shall steal in any
dwelling-house any chattel, money, or valuable security to the
value in the whole of five pounds or more.” And it was held,
that one may commit the offence in his own house by there steal-
ing another’s goods. This interpretation does not overrule the
earlier, the statutory expressions being different; yet it may
create some doubt whether the present English judges would
interpret the old words, were they modern, as the former judges
did. Still, —
§ 235, Just and Beneficial. — Whatever may be said of any
P. C. 645, 2 Leach, 4th ed. 572. And see
The State v. Chambers, 6 Ala. 855. A
man went to bed with a prostitute, first
putting his watch in his hat on the table.
She stole it while he was asleep ; and this
was held to be larceny from a dwelling-
house, though if he had been awake, the
legal consequence might have been dif-
ferent. Reg. v. Hamilton, 8 Car. & P.
1 2 East P. C. 644, 680, 681. And see
2 East P. C. 647; Rex v. Rourke, Russ. &
Ry. 886. Butif the property is such as
is usually under the protection of the
dwelling-house, and by mistake is left in
the possession of the occupier under the
supposition that it is for one of the per-
sons therein, the stealing of it will come
within these statutes. Rex v. Carroll, 1
Moody, 89.
2 The State v. Chambers, 6 Ala. 855.
8 Berry v. The State, 10 Ga. 511, 617.
4 Reg. v. Bowden, 2 Moody, 285. And
see Commonwealth v. Hartnett, 8 Gray,
450.
217
§ 236 INTERPRETATION. [BooK u.
particular application of the doctrine, the doctrine itself, properly
applied, is highly just and beneficial. Criminal punishment
should be kept within the conscience of mankind, and be with-
held where it refuses assent.! In the nature of things, statutes
cannot be so framed as, by express exemption, to provide for
every possible, unforeseen and even foreseen case, thereafter to
arise, which, while within the terms of their main provisions, is
still outside of their spirit and purpose.2- And what cannot be
done the courts should understand as not haying been attempted.
Therefore, though a case in judgment is within the letter of a
statute, if they can see that it is exceptional to its spirit and pur-
pose, and so the law-makers did not mean punishment: for it,
they ought not to inflict the punishment. By excepting it in the
interpretation, they fulfil their highest duty, which is to carry
out the true legislative intent.2 And —
Mischiefs avoided.— The mischiefs resulting from a contrary
course are endless. To punish one who has not violated the
spirit of the law, however contrary to the letter his act may have
been, is to strike a blow at the root of our jurisprudence, as well
as to wrong the individual. Especially in this country, where
emphatically the law emanates from the people, — not always
the whole people, many acts depending on bare majorities, —
there is no way in which a legislative enactment, good or bad,
can be brought so effectually into disrepute, or be made the in-
strument of so much real injustice, as to construe it in disregard
of the principle we are considering. When a statute comes into
being under a divided public sentiment, the judges necessarily
form their private opinions; and, if adverse, they are liable in
fact, whatever may be their real purpose, to construe it so rigidly
by the letter as to punish some whom its framers never meant to
punish; and suffer to escape others whom, if they had followed
more its spirit, they would have seen to be within the letter.
Clearly the legislature alone is to determine its own policy; and,
if what it does is within its powers, the judges have no right to
interfere: they are, on the other hand, to concur judicially in the
propriety of its enactments, and construe them as it, had it fore-
seen the case, would have dictated. At the same time, —
§ 236. Words the Guide. — The legislative words are the pri-
' Crim Law, I. § 210, 211. 3 Ante, § 70.
2 And see ante, § 124. 4 And see ante, § 70 and note.
218
CHAP. XXIV.] LIBERAL WITH STRICT.
§ 237
mary guide to the intent.1. What else can be looked at by the
courts we saw in another connection.2, And, —
Beyond Mischief which prompted. — If the court knows the mis-
chief which prompted an enactment, its construction is not neces-
sarily to be so narrow. For, in the words of Shaw, C. J., “it is
not unusual in legislation, where a particular apprehended wrong
or grievance is the immediate occasion for the passing of an act,
to extend it to other wrongs of the like kind, and make a general,
instead of a special provision.” 3 Therefore, —
Kidnapping. — In the case before the tribunal, an act, the motive
for which was probably to prevent negroes from being kidnapped,
and reduced to slavery in other States, was held applicable to the
seizure and carrying away of white men for a different purpose.*
§ 237. Limits of Doctrine. —The doctrine under consideration
should not be carried beyond where its reason — namely, the fol-
lowing of the legislative intent, as apparent in the entire words,
illumined by such surroundings as the judicial mind may look
into '— will lend it support.6 Thus, —
Permit “in Writing." Where a statute requires, to render the
doing of a thing lawful, a permit “in writing,” no consent not
written will suffice.’ Within this doctrine, —
Consent of Parents to Marriage. — An officiating clergyman vio-
lates a statute forbidding the joining of’ minors in marriage,
“unless the parent be present and consent to the marriage, or
give a certificate in writing under his hand,” if without such
presence he proceeds on a mere verbal expression of approbation
from the parent. So, —
Selling to Minors. — Under a statute forbidding the selling of
intoxicating drinks to minors without the parental consent, mere
proof of the father’s willingness that the son should drink the
sort of beverage sold will not excuse the seller.? Again, —
1 Ante, § 146.
2 Ante, § 74-77.
3 Commonwealth v. Blodgett, 12 Met.
56, 79. But see Rex v. Williams, 1 Leach,
4th ed. 529.
* Commonwealth v. Blodgett, supra.
And see, for a further statement of this
case, ante, § 205.
5 Ante, § 70-77.
§ And see, besides the other cases cited
to this section, Rex v. Ledbitter, 1 Moody,
76; The State v. Findley, 1 Brev. 107.
7 The State v. Hart, 4 Ire. 246; The
State v. Stroud, 1 Brev. 551; 1 Bishop
Mar. & Div. § 342. As to what words in
a permit are sufficient, see Hurt v. The
State, 19 Ala. 19.
8 Wyckoff v. Boggs, 2 Halst. 138. See
ante, § 232 and note; 1 Bishop Mar. &
Div. § 342.
9 Adler vr, The State, 55 Ala. 16.
219
§ 239 INTERPRETATION. [Book 0,
Lord's Day. — A general prohibition against doing worldly busi-
ness on the Lord’s day extends to persons who conscientiously
observe the seventh day of the week as the Christian Sabbath.1
Moreover, —
§ 238. Doubtful Cases and Judicial Differences. —In this class of
cases as in others, there will be those lying near the line sepa-
rating the one result from the other, and those on which judicial
opinions differ.2 Of the latter sort, —
Selling Liquor for Medical Use — Under statutes forbidding in
general terms the unlicensed sale of intoxicating liquors, some
courts hold that no necessity of a purchaser, and no prescription
of a physician, even in a case where there is no person in the
county authorized to sell the liquor, and it is an essential medi-
cine, will protect the vendor. Other courts, it is believed the
majority, execute these laws in the spirit which prompted their
enactment; holding, for example, that a druggist is justified,
upon a proper occasion, bona fide, and with due caution, in
retailing liquor to be used merely as a medicine.*
Near the border line are such cases as —
Practising Medicine. — A statute against permitting slaves “to
go about the country under the pretext of practising medicine,
or healing the sick,” was interpreted to embrace all circumstances
of medical practice, even those in which the slave is competent,
and undertakes it with his master’s encouragement from motives
of humanity.6 So, —
Concealed Weapons.— A prohibition of carrying weapons con-
cealed about the person has been adjudged broken by so carrying
a pistol for the purpose of merely exhibiting it as a curiosity.®
§ 239. Secondly. In favor of defendants, criminal statutes, like
remedial, will be expanded in their meanings. Already —
Illustrated. — This doctrine has been variously illustrated in
foregoing discussions ;7 as, for example, in the interpretations
1 Specht v. Commonwealth, 8 Barr,
812.
2 See, besides the other cases cited to
this section, The State v. Griffin, 3 Harring.
Del. 560; The State v. Isaacs, 1 Speers,
223.
8 Commonwealth v. Sloan, 4 Cush. 62;
Commonwealth v. Kimball, 24 Pick. 366.
4 Donnell v. The State, 2 Ind. 658.
See also People v. Safford, 5 Denio, 112;
220
Wood v. Smith, 23 Vt. 706; Anderson v.
Commonwealth, 9 Bush, 569. And see,
as illustrative, Brown v. Maryland, 12
Wheat. 419; Bode v. The State, 7 Gill,
826; Hall v. The State, 4 Harring. Del.
182 ; post, § 1019, 1020.
5 Macon v. The State, 4 Humph. 421.
6 Walls v. The State, 7 Blackf. 572.
7 And see 1 East P. C. 248; Duchess
of Kingston’s Case, 1 Leach, 4th ed. 146.
CHAP. XXIV.] LIBERAL WITH STRICT. '§ 240
given by the English judges to the statutes against the exercise
of trades by unqualified persons.! It is further illustrated in
those cases? wherein acts general in terms are construed to
require the concurrence of a wrongful intent with the thing
done; and in most of the cases cited to the point that a statute
will not be suffered to extend beyond the mischief contemplated
by it,2— the court in fact inserting, by construction, a clause in
favor of the.accused.t Again, —
§ 240. House-breaking. — The English interpretations of 1 Edw.
6, c. 12, § 10, illustrate the doctrine. It took clergy from per-
sons convicted of the “breaking of any house by day or by
night,” any one being therein put in fear, and also from the
perpetrators of certain other enumerated crimes, which were felo-
nies; adding, that clergy shall be allowed, “in all other cases of
felony.” Thereupon it was held, that, for a case to be within
the former clause, the breaking must be such as amounts toa
felony. ‘So that,” observes East, “ the general words of it ought
to be supplied with an intendment; namely, where the party is
convicted of breaking the house in the night burglariously, or in
the day, and stealing goods therein.”® So, —
Heavier Punishment for Second Offence.— Whenever a statute
makes a second offence felony, the first being misdemeanor, or
punishes the second more heavily than the first, it is enlarged by
construction to mean, after conviction for the first, not merely
after it is committed.® 3
1 Ante, § 196. 4 Commonwealth v. Slack, 19 Pick.
2 Ante, § 132, 231; Reg. rv. Allday, 8 304.
Car. & P. 186; Smith v. Kinne, 19 Vt. 564. 5 2 East P. C. 625, 631.
3 Ante, § 232, 233. 6 People v. Butler, 3 Cow. 847. And
see Dwar. Stat. 2d ed. 643.
221
§ 242 INTERPRETATION. [Book 1.
CHAPTER XXV.
SOME MISCELLANEOUS DOCTRINES OF STATUTORY INTERPRETA.~
TION.
§ 241. Introduction.
242-242 b. Technical Meanings for Technical Words.
248. Grammatical Construction.
244. Provisions in the Alternative.
245-246 b. General Words following Particular.
246 c-248. Meanings overlying one another.
249, 249 a. Express Mention implying Exclusion.
249 b-253. Statutory and Common-law Remedies mingling.
254-256. Mandatory and Directory Statutes.
256 a. Concluding Suggestions and Views.
§ 241. What for this Chapter and how divided. — While the
foregoing chapters have brought to view most of the rules of
statutory interpretation, a few, of a miscellaneous character, were
found not to be distinctly within the scope of any of them.
Therefore they were left unexplained, or explained only in part.
We shall, in this chapter, consider them under the following
heads: I. Giving the Technical Meanings to Technical Words ;
II. Grammatical Construction ; III. Provisions in the Alterna-
tive ; IV. General Words following Particular ; V. Meanings
overlying one another; VI. The Express Mention of one Thing
implying the Exclusion of another ; VII. How Statutory and
Common-law Remedies mingle; VIII. Mandatory and Directory
Statutes; IX. Concluding Suggestions and Views.
I. Giving the Technical Meanings to Technical Words.
§ 242. In General. —That, prima facie, interpretation is to
give to those words of a statute which are technical to its sub-
ject their technical meanings we have already seen.! And this
is because the legislature may reasonably be presumed to have
1 Ante, § 96-100.
222
CHAP. XXvV.] MISCELLANEOUS DOCTRINES.
§ 242
so intended.
is to—
Terms of fixed legal Meanings.' — As the result of constant adju-
dication, very many words and phrases commonly employed in
statutes, contracts, and pleadings have acquired fixed legal mean-
ings, unlike or more limited or extended than their popular ones.
Then, as all laws are to be construed together,? when a statute
employs a word or phrase of this sort, it is, in the absence of any
express indication to the contrary, to be interpreted in the sense
which the law has thus ascertained.2 For example, —
“Infamous Crime " — (Threatening Letters — Solicitations to Sod-
omy). —It having been made punishable in England to send to
any person, with an intent mentioned, any letter threatening to
accuse him of (among other things) “any infamous crime,” *—
the judges “ were of opinion, that a charge of making overtures to
commit sodomy was not within this act; that they were bound to
take the word ‘infamous’ in its legal sense ;5 and that such over-
tures, however they would disgrace and expose to detestation,
would not subject the person making them to an infamous pun-
ishment, or prevent his being a witness.” ® So—
“Charged with Crime” — “Accused of Crime” — are severally
phrases the meaning of which in the law is familiar. They imply
certain legal steps. Therefore a former statute in Alabama,
_against the concealment or carrying away of any slave ‘“ charged
with a capital crime,” could, as construed by the courts, be vio-
lated only after legal proceedings were commenced against the
slave.’ And, in a similar South Carolina statute, the words
‘‘accused of crime” were held to mean when complaint is
made to a magistrate for the purpose of having a warrant issued.8
But —
The most frequent application of this doctrine
1 Ante, § 96 et seq.
2 Ante, § 86 et seq., 113 d et seq.
3 United States v. Magill, 1 Wash. C.
C. 463; Adams v. Turrentine, 8 Ire. 147;
United States v. Wilson, Bald. 78, 95;
Reg. v. Ellis, Car. & M. 564; Kitchen v.
Tyson, 3 Murph. 314; Macy v. Raymond,
9 Pick. 285; Bennac v. People, 4 Barb.
164; Eason v. The State, 6 Eng. 481,
Spencer v. The State, 20 Ala. 24: United
States v. Smith, 5 Wheat. 153; United
States v. Pirates, 5 Wheat. 184; The
State v. Mace, 5 Md. 337; Ex parte Vin-
cent, 26 Ala. 145.
* Stat. 4 Geo. 4, ¢. 54, § 3.
5 Crim. Law, L § 972, 974.
6 Rex v. Hickman, 1 Moody, 34. Sub-
stantially the same meaning is given to
the words “infamous crime” in the
Constitution of Pennsylvania. Common-
wealth v. Shaver, 3 Watts & S. 338.
7 The State v. Duncan, 9 Port. 260.
And see Willington v. Stearns, 1 Pick.
497.
8 The State v. South, 5 Rich. 489.
223
§ 2424 INTERPRETATION. [BooK U.
-“ Fleeing from Justice” — (Limitations). — A “fleeing from jus-
tice,” within the proviso of a limitations statute, may take place
before prosecution begun.!
“On Complaint.” —.A statute authorizing a criminal prosecution
to be instituted “on complaint,” means a complaint as techni-
cally understood, usually under oath.2 And —
“Manslaughter” —in a statute has its common-law meaning.?
So —
“Negligent Escape” —signifies the same in a statute as at the
common law.+*
Meaning by Statutory Use. — Statutory use, equally with use at
the common law, may have imparted to a word a particular im-
port, so that in a subsequent act it will have the same meaning.®
§ 242 a. Technical not meant. — Where, from the connection,
subject, or otherwise, it is plain that the technical meaning was
not intended by the legislature, the court, we have already seen,®
will not impute it. To illustrate, —
“ Dwelling-house.” — The word “ dwelling-house,” the meaning
of which is fully explained further on,’ includes, in the law of
burglary and generally in the law, a structure for business uses
whereof any internally connected room is occupied for sleeping
and abode.’ But if, in a statute exempting property from the
claims of creditors, it was given this wide meaning, one might
protect against them any amount of real estate by living in some
inferior room thereof, to the utter subversion alike of justice and
the legislative will. Therefore, in such a statute, the word will
not extend to parts of a building devoted to business purposes.?
Again, —
“Outlaw.” — The word “outlaw,” in a statute, will not have
its common-law meaning? in a State where outlawry is unknown.
1 United States v. Smith, 4 Day, 121.
2 Campbell v. Thompson, 16 Maine,
Bald. 78; for “party” see Merchants’
Bank v. Cook, 4 Pick. 405, 411.
117. But the requirements of the com-
plaint, under the statutes of our several
States, and at the common law, differ.
Crim. Proced. I. § 152, 230-232.
% The State v. Fleming, 2 Strob. 464.
And see United States v. Magill, 1 Wash.
C.C. 463; The State v. Taylor, 2 McCord,
483.
4 Adams v. Turrentine, 8 Ire. 147.
For “rob,” “jeopardy,” “ dangerous
weapons,” see United States v. Wilson,
224
5 The State v. Nates, 3 Hill, S. C. 200.
® Ante, § 100. :
7 Post, § 277-290.
8 Post, § 280, 282; Samanni v. Com-
monwealth, 16 Grat. 542; The State v.
Mordecai, 68 N. C. 207; The State v.
Outlaw, 72 N. C. 598; The State v.
Potts, 75 N. C. 129.
° In re Lammer, 7 Bis. 269, 14 Bankr.
Reg. 460. ,
10 Crim. Law, I. § 967; Crim. Proced.
CHAP. XXV.] MISCELLANEOUS DOCTRINES.
§ 243
Therefore, in Alabama, counties having been made liable for per-
sons killed by outlaws, the court, looking at the condition of the
State at the time when the act was passed, deemed it to refer to
lawless and disorderly persons roaming about in disguise, and
habitually committing violence and outrage.! Now, —
§ 242 6. Consequences.— The consequences of this sort of in-
terpretation are, that, to the extent to which it furnishes the
tule, the law is made, as it should be,? one system; while, at the
same time, the real intent of the legislature is carried out. And
the doubts concerning the meanings of statutes are diminished to
their smallest possible proportions. For thus an enactment of
to-day has the benefit of judicial renderings extending back
through centuries of past litigation.
II. Grammatical Construction.
§ 243. In General. — However desirable a correct use of the
English language may be, the courts have no jurisdiction to
enforce it on the legislature. Therefore, as already seen,? when
the legislative meaning is plain, the exact grammatical construc-
tion and propriety of language may be disregarded, even in a
penal statute. For example, —
“ and” — “ Or." — The conjunction “and ”’ will be read as “or,”
and “or” as “and,’”’ when the sense obviously so requires ;* and
this, in plain cases, even in criminal statutes against the accused.°
So, —
I. § 673; ante, § 182. ‘“ One who is put
out of the protection or aid of the law.”
Bouv. Law Dict. And see Drew v. Drew,
37 Maine, 389; Walker v. Thelluson 1,
Dowl. x. s. 578; Loukes v. Holbeach, 4
Bing. 419; Aldridge v. Buller, 2M. & W.
412; Wharton Peerage, 12 Cl. & F. 295;
Rex v. Yandell, 4 T. R. 521; Macrae v.
Hyndman, 6 Cl. & F. 212.
! Dale v. Gunter, 46 Ala. 118, 187.
2 Ante, § 113 b et seq.
8 Ante, § 78-81, 98, 212.
* Ante, § 81; The State v. Mitchell, 5
Ire. 350; Hall’s Case, Cro. Eliz. 307;
Creswick v. Rooksby, 2 Bulst. 47; Water-
house v. Keen, 4 B.& C. 200, 6 D. &R.
257; Dwar. Stat. 2d ed. 682; Smith Stat.
& Const. Law, 782; Barker v. Esty, 19
Vt. 131; Winterfield ». Stauss, 24 Wis.
15
394, 406; Townsend v. Read, 10 C. B.
n. S. 8308; Fowler v. Padget, 7 T. R. 509;
Commonwealth v. Griffin, 105 Mass. 185;
Sparrow v. Davidson College, 77 N.C.
35; People v. Sweetser, 1 Dak. Ter. 308 ;
Rigoney v. Neiman, 23 Smith, Pa. 330;
Green v. Wood, 7 Q. B. 178.
5 The State v. McCoy, 2 Speers, 711;
The State v. Miles, 2 Nott & McC. 1;
Foster vr. Commonwealth, 8 Watts & S.
77; Rolland v. Commonwealth, 1 Norris,
Pa. 306; The State v. Smith, 46 Iowa,
670; The State v. Brandt, 41 Iowa, 593.
Contra, The State v. Kearney, 1 Hawks,
53. So it has been said, by way of dic-
tum, that “and” in a penal statute can
never be construed to mean “or.” United
States v. Ten Cases of Shawls, 2 Paine,
162.
225
§ 244 INTERPRETATION. [Book un.
“On” — “Or.” — To correct an obviously clerical error, “on”
may be read as “or,” even in the strict construction of a penal
statute.2 And, —
“Such,” — when evidently it does not refer to any preceding
matter, may be disregarded.2 Again, —
Misnomer. — A misnomer, — for example, in the name of a per-
son or corporation, — which can be corrected by other parts of
the statute, will be corrected in the interpretation ;4 for the court
will look into the entire enactment, and compare part with part.§
III. Provisions in the Alternative.
§ 244. In General. — Provisions in the alternative are common
in legislation ; and the rule is, that whatever is within any one of
the disjunctively connected clauses is within the statute. Thus,—
Alternative Offences, — If, as is common in legislation, a statute
makes it punishable to do a particular thing specified, “or”
another thing, “ or’ another, one commits the offence who does
any one of the things,° or any two, or more, or all of them.
And the indictment may charge him with any one,’ or with
any larger number, at the election of the pleader; employing, if
the allegation is of more than one, the conjunction “and” where
“or” occurs in the statute.8 “ The rule,” it was once observed,
“‘is undoubtedly limited in its application to cases where the
offences created in a statute are not repugnant.” ®
And, what-
ever be the form of the allegation, the proofs need sustain only so
much of it as constitutes a complete offence.”
1 Ante, § 79.
2 Tollett v. Thomas, Law Rep. 6 Q. B.
514, 518.
8 The State v. Beasley, 5 Misso. 91.
4 Blanchard v. Sprague, 3 Sumner, 279.
5 Ante, § 82, 86.
6 Commonwealth v. Loring. 8 Pick.
870; The State v. Layman, 8 Blackf.
330; The State v. Miles, 2 Nott & McC.
1; The State v. Kearney, 1 Hawks, 53;
Commonwealth v. Clapp, 5 Pick. 41;
Commonwealth v. Burns, 4 J. J. Mar.
177; Davenport v. Commonwealth, 1
Leigh, 588; Rex v. Baylis, Cas. temp.
Hardw. 291; Rex v. Dixon, Russ. & Ry.
63; The State v. Murphy, 6 Ala. 845;
Carrico v. The State, 11 Misso. 579; The
226
State v. Fidler, 7 Humph 602; The State
v. Hull, 21 Maine, 84. See Crim. Proced.
I. § 436, 586-588.
7 Rex v. Franks, 2 Leach, 4th ed. 644;
The State v. Laney, 4 Rich. 193.
8 Angel v. Commonwealth, 2 Va. Cas.
231; The State v. Murphy, 6 Ala. 846,
Mooney v. The State, 8 Ala. 328; Me-
Elhaney v. The State, 24 Ala. 71; The
State v. Price, 6 Halst. 203, 215. But
see, contra, Miller v. The State, 5 How.
Missis 250. See also Washburn v. Mc-
Inroy, 7 Johns. 134.
® The State v. Woodward, 25 Vt. 616.
See Crim. Proced. I. § 489-492.
10 Crim. Proced. I. § 586; United States
v. Millard, 18 Blatch. 534. °
CHAP. XXv.] MISCELLANEOUS DOCTRINES. § 246
IV. General Words following Particular.
§ 245. Enumeration weakening.— When specific and general
terms in a statute are mingled, the meaning of the whole is in
various circumstances less broad than if the general were em-
ployed alone. Or, in the words of Lord Bacon, “ As exception
strengthens the force of a law in cases not excepted, so enumera-
tion weakens it in cases not enumerated.”1 The more common
form of this constitutes what has been termed the “ celebrated
rule,” 2 that, —
Doctrine defined. — Where particular words of a statute are fol-
lowed by general, -- as if, after the enumeration of classes of per-
‘sons or things, it is added, “‘and all others,” — the general words
are restricted in meaning to objects of the like kind with those
specified. For example, —
“Other Person” — (Sabbath-breaking). — The statute of 29 Car.
2,¢.7, § 1, provided “that no tradesman, artificer, workman,
laborer, or other person whatsoever” should exercise his ordinary
calling on the Lord’s day. Thereupon the words “other per-
son” were held not to include a farmer, who is not a person of
like denomination with those specifically mentioned ; for, as Bay-
ley, J. said, if all persons were meant, there was no need of the
specific enumeration.4 Again, —
“Other Craft." — The words of another statute were “ wherry,
lighter, or other craft.” And the term “ craft” was held not to
include a steam-tug ; because, though a steam-tug is a craft, it is
not one of the same character as a wherry or a lighter.6 Still, —
§ 246. Limit of Doctrine. — This rule does not require the
entire rejection of general terms. And its object is, not to
defeat, but to ascertain and carry out, the legislative intent.‘
1 1 Story Const. § 448; Page v. Allen,
8 Smith, Pa. 338.
2 Smith Con. 172.
8 Dwar. Stat. 2d ed. 621; Rex v. Gill-
brass, 7 Car. & P. 444; Rex v. Garratt, 6
Car. & P. 369; Rex v. Harris, 7 Car. & P.
446; The State v. Burrows, 11 Ire. 477;
The State v. Sumner, 10 Vt. 587; Reg. v.
St. George, 9 Car. & P. 483; Brooks v.
Cook, 44 Mich. 617; The State v. Stoller,
58 Iowa, 821; People v. New York, &c.
Railway, 84 N. Y. 565; In re Hermance,
71 N. Y. 481; McDade ‘v. People, 29
Mich. 50; 1 East P. C. 187, 188. And see
Bush v. The State, 18 Ala. 415; Monck
v. Hilton, 2 Ex. D. 268.
4 Reg. v. Whitnash, 7 B. & C. 596;
Smith Con. 172.
5 Reg. v. Reed, 23 Law Times Rep.
156, 28 Eng. L. & Eq. 133.
8 The State v. Williams, 2 Strob. 474;
Monck »v. Hilton, 2 Ex. D. 268.
7 Ante, § 70, 82.
227
§ 246 INTERPRETATION. [Book u.
Therefore, where the courts can see that its application would
lead to results contrary to the real meaning of the law maker,
they will not give it effect.'| Especially in this country, what-
ever may be the true limit of the rule in England, general words
will be construed, even as against defendants in penal statutes,
more broadly than the specific, where such appears clearly to
have been the meaning of the legislature.”
Further of Doctrine — Such being the doctrine in general terms,
and such its limits, the application of it in particular instances
must depend largely on the discretion of the judges. Often this
rule will be complicated with others, and the others will help
the way out where the leadings of this one alone might seem
obscure. Thus, —~
Dog, in Malicious Mischief.— A statute in Texas made it an
offence to ‘‘ wilfully and maliciously kill, maim, beat, or wound
any horse, cattle, goat, sheep, or swine, or wilfully injure or
destroy any other property of another.” And the malicious kill-
ing of another’s dog was held not to be within the act. Said
Wheeler, J.: “ Dogs are not mentioned in the statute; nor do
they come within either class or description of the animals which
are mentioned. They are not regarded by the law as being of
the same intrinsic value, as property, as the animals enumerated
in the statute; and cannot, we think, be brought within the
prohibition under the general expression ‘any other property’ by
intendment.”® Indeed, as dogs are not property of which lar-
ceny could be committed at the common law,? the doctrine of this
decision is, in a certain sense, an illustration of the other doc-
trine, that statutes are to be construed in harmony with the com-
1 Woodworth v. The State, 26 Ohio
State, 196, 198; The State v. Williams,
supra. And see Wright v. Pearson, Law
Rep. 4 Q. B. 582.
2 Tb.; Foster v. Blount, 18 Ala. 687.
See also as to this, and for further views
and illustrations, The State v. Holman, 3
McCord, 806; Shropshire v. Glascock, 4
Misso. 536; Boynton v. Curle, 4 Misso.
599; Commonwealth v. Wyman, 8 Met.
247; Commonwealth v. Percavil, 4 Leigh,
686; Vicaro v. Commonwealth, 5 Dana,
604; The State v. Williams, 2 Strob. 474;
United States v. Pearce, 2 McLean, 14;
Calder v. Deliesseline, Harper, 186; Eu-
banks v. The State, 5 Misso. 450; The
228
State v. Wilson, Cheves, 163; Rex »v.
Norris, Russ. & Ry. 69; Rex v. Parker, 1
Leach, 4th ed. 320, note; Riley v. The
State, 9 Humph. 646; The State »v.
Cooper, 5 Day, 250; Rex v. Blick, 4 Car.
& P. 377; The State v. Edmund, 4 Dev.
340; Commonwealth v. Wyatt, 6 Rand.
694; Reg. v. Oldham, 14 Eng. L. & Eq.
668, 2 Den. C. C. 472; The State v.
Moseley, 14 Ala. 390; Rex v. Coates, 6
Car. & P. 394; Jenning’s Case, 2 Lewin,
130; Elmsly’s Case, 2 Lewin, 126; United
States v. Briggs, 9 How. U.S. 351; Crow
v. The State, 6 Texas, 334.
8 The State ». Marshall, 13 Texas, 55.
4 Crim. Law, II. § 773.
CHAP. XXV.] MISCELLANEOUS DOCTRINES. § 246 b
mon law.) But, even as thus viewed, the question is one on
which judicial opinion appears to be divided.?
True Foundation of Doctrine.— Plainly the true foundation of
the doctrine under consideration is the necessity, already men-
tioned,’ of the legislature’s making usc of words in different
meanings; or, as expressed by Chase, C. J., “‘ the poverty of lan-
guage often compels the employment of terms in quite different
significations.” * And to ascertain the sense meant, we look into
the subject and the connection.’ In this way, as already seen,®
general words may be rendered as specific, and specific as gen-
eral. So,—
§ 246 a. Inferior not include Superior. — Analogous to the rule
under consideration is another, namely, that, in the language of
Dwarris,’ “a statute which treats of things or persons of an infe-
rior rank cannot, by any general words, be extended to those of
a superior. Thus, an old statute treating of ‘abbots, priors,
hospitallers, &c.,’° and a later act speaking of ‘deans, prebenda-
ries, parsons, vicars, and others having spiritual promotion,’ have
been respectively held not to extend to bishops; abbots and
deaus being the highest persons named, and bishops being of a
still higher order.”
§ 246 6. Further of Reasons. — The constructions explained in
this sub-title accord with the ordinary workings of the human
1 Ante, § 114, 119, 139, 141, 155.
2 Crim. Law, II. § 985, note. A Wis-
consin statute, relating to the manage-
ment of houses of correction, gave the
supervisors of Milwaukee County power
to remove officers “for incompetency,
improper conduct, or other cause satis-
factory to the board.” And the words
“other cause” were construed to mean
other kindred cause. The State v. Mc-
Garry, 21 Wis. 496.
3 Ante, § 92d.
* Texas v. White, 7 Wal. 700, 720.
5 Ante, § 93, 98 a, 102, 111.
8 Ante, § 102.
7 Dwar. Stat. 2d ed. 656.
8 Affirmed in Woodworth v. Paine,
Breese, 294. And see East Oakland v.
Skinner, 94 U. S. 255; Campbell v. Paris,
&e. Railroad, 71 Ill. 611; Ellis v. Murray,
28 Missis. 129.
9 Westm. 2, c. 41. m
Canterbury’s Case, 2 Co. 46. And
see Wilb. Stat. Law, 183, 184. The last-
named author adds: “The Dean of St.
Paul’s was not included in the words,
‘great men or noblemen or noblewomen,’
which occur in the act 37 Hen. 8, c. 12;
because, by the order of those words,
‘great men must mean persons superior
in certain respects to noblemen and noble-
women.’ Warden of St. Paul’s v. The
Dean, 4 Price, 65, 79 (citing, also, in this
connection, Ailesbury v. Pattison, 1 Doug.
28, 30). In later cases, it has been held
that an act imposing duties upon ‘ cop-
per, brass, pewter, tin, and all other
metals not enumerated,’ did not ‘apply to
gold and silver, Casher v. Holmes, 2 B. &
Ad. 592, and that the words ‘ wherry,
lighter, vessel, barge, or other craft,’ did
not include a brig, Blanford v. Morrison,
15 Q. B. 724, or a steam-tug, Reed v.
Ingham, 3 Ellis & B. 889. See, however,
Tisdell v. Combe, 7 A. & E. 788.”
229
§ 247 INTERPRETATION. [Book II.
mind. A writer who enumerates certain things, adding a gen-
eral clause, mentions, as of course, the highest things, and some
of each class, within those which he had in contemplation. Any
person can, by experiment, ascertain that his own mind will com-
monly work so. We reasonably assume, therefore, in construing
his language, that he did not intend to include things higher than
any mentioned, or of a class outside of those specified. Yet the
mind does not necessarily, in every instance, move in this way.
And when the court can discern that the mind of the maker of a
statute moved otherwise, it should not apply to his work this
rule of interpretation.
V. Meanings overlying one another.
§ 246 c. Doctrine in Principle. — Both because words have no
absolutely fixed and uniform meanings,! and because in the
necessary structure of language they overlie one another in sig-
nificance, — as well as because, in our law, its several provisions
habitually overlie one another,?—it follows that, where a stat-
ute employs several terms in combination, the proper import of
each one of which embraces something of what is expressed in
others, each term should be given in the construction its full
meaning ; thereby creating partial, yet harmless, repetitions. So
the question is in just principle. In authority, —
§ 247. Old Doctrine — (“Sheep or Ewe,” &c.). —It is a doc-
trine of the older books, that, when a statute enumerates several
things, and the words are so broad in meaning as to overlie one
another, the less specific will be narrowed in the interpretation
to prevent this consequence. For example, if, where this doc-
trine prevails, a statute makes specially punishable the stealing
of “a sheep or a ewe,” an indictment describing the animal as a
sheep is not supported by proof of stealing a ewe.2 But—
Modern English Doctrine. — This doctrine is entirely overturned
1 Ante, § 92 d. The State v. Plunket, 2 Stew. 11; Bush
2 Ante, § 1438, 160, 162, 163 d-164, 170-_v. The State, 18 Ala. 415; Rex v. Beaney,
172. Russ. & Ry. 416. See also Rex v. Gill-
8 Rex v. Puddifoot, 1 Moody, 247; brass,7 Car. & P. 444; Rex v. Paty, 2
Rex v. Birket, 4 Car. & P.216; The State East P. C. 1074, 1 Leach, 4th ed. 72,
v. Tootle, 2 Harring. Del. 541; Rex v. 2 W. BI. 721; Rex v. Moyle, 2 East
Loom, 1 Moody, 160. For the same gen- P.C.1076; The State v. McLain, 2 Brev.
eral doctrine, see also Rex v. Cook, 1 448.
Leach, 4th ed. 105, 2 East P. C. 616;
230
CHAP. XXV.] MISCELLANEOUS DOCTRINES. § 248
in England, and the rule of reason established in its place.!
- Thus, —
“Sheep or Ewe,” &c.— The words of 7 & 8 Geo. 4, c. 29, § 25,
against larceny, were ‘“‘ram, ewe, sheep, or lamb.” And on an
indictment for stealing a sheep, the majority of the judges, as
early as 1838, held, that, though the proof failed to show the sex
of the stolen animal, the conviction was right, because, notwith-
standing this overlying of meaning, “the word sheep in the stat-
ute was a generic term, including ram, ewe, and wether, and the
two former words might be rejected.”2 And where, in a later
case, on a like indictment upon the same statute, employing the
word “sheep,” the animal stolen was proved to have been a lamb,
the majority of the judges sustained the conviction. This doc-
trine has been since followed as settled.‘
§ 248. With us,—the earlier English doctrine has been some-
times followed ; as, in —
Texas —It appears to have become established in Texas by
numerous decisions.’ For example, under a statute providing a
special punishment “if any person shall steal any horse, gelding,
mare, colt, ass, or mule,” an indictment charging the larceny of
a “horse” was held not to be supported where the proof showed
the animal stolen to have been a “ gelding.’ Said Lindsay, J.:
“ The term is used in the statute upon which this indictment was
founded distinctively from the word horse, and a conviction for
the theft of a horse, upon the proof of taking feloniously a geld-
ing, would be as incongruous as that of stealing a mule or an ass
upon a similar indictment.”
1 Reg. v. McCulley, 2 Moody, 34; s.c. or five months old may be described in
nom. McCully’s Case, 2 Lewin, 272 ; Reg.
v. Spicer, 1 Den. C. C. 82, 1 Car. & K.
699. And see The State v. Godet, 7 Ire.
210; post, § 326; Crim. Law, II. § 332,
347, 348; Crim. Proced. I. § 620.
2 Reg. v. McCulley, supra.
8 Reg. v. Spicer, supra.
* Reg. v. Aldridge, 4 Cox C. C. 143.
Foal — Filly.— Not inconsistently, it is
believed, with the old doctrine, foals
and fillies were, in 1822, held to be in-
cluded in the words “horse, gelding, or
mare,” of the English statute 2 & 3 Edw.
6, c. 88. Rex v. Welland, Russ. & Ry.
494. So, Pig.— Under the statutory
words “hog, sheep, or goat,” a pig four
an indictment for larceny as a “hog.”
Lavender v. The State, 60 Ala. 60; Wash-
ington v. The State, 58 Ala. 355.
5 Brisco v. The State, 4 Texas Ap. 219,
221; Valesco v. The State, 9 Texas Ap.
76; Persons v. The State, 3 Texas Ap.
240; Keesee v. The State, 1 Texas Ap.
298; Gholston v. The State, 33 Texas,
342; Banks v. The State, 28 Texas, 644;
Dalton v. The State, 4 Texas Ap. 333;
Lunsford v. The State, 1 Texas Ap. 448;
Swindel v. The State, 32 Texas, 102;
Pigg v. The State, 43 Texas, 108.
6 Jordt v. The State, 31 Texas, 671,
572.
231
§ 249 INTERPRETATION. [BOOK 11.
Delaware — (“Sheep”). —In Delaware, the statute not being
in the form we are considering, proof of stealing a ram was held
to sustain an indictment charging the larceny of a “sheep;” yet,
it is perceived, the present question could not in this case arise.!
Other States. — How the question stands in the other States
generally the author will not attempt to decide; except that, in
most of them, it appears not to be settled.”
VI. The Express Mention of one Thing implying the Exclusion of
another.
§ 249. Maxim. — The doctrine of this sub-title is embodied in
the maxim, that the express mention of one thing excludes all
others, — Ezpressio unius est exclusio alterius.2 Thus, —
Express Remedy excluding Impliea.— Though, as we have seen,!
the mere establishing of a new statutory right carries with it by
implication a remedy, yet, if the statute creating the right pro-
vides a remedy, our maxim applies, and the statutory method
excludes all others. So, —
Express Mention of Effect.— Where a statute expressly defines
what its effect shall be, other effects are by implication excluded.®
Again, —
Limiting authorized Act.—If the legislature declares that a
thing before lawful may be done; and adds, that this shall not
1 The State v. Tootle, 2 Harring. Del.
641.
2 Consult Crim. Proced. I. § 620;
American cases cited to last section;
Wiley v. The State, 3 Coldw. 362; The
State v. Royster, 65 N.C 539; The State
v. Hill, 79 N. C. 656; The State v. Dun-
navant, 3 Brev 9; The State v. McLain,
2 Brev. 443; Fein v. Territory, 1 Wy.
Ter. 376; People v. Soto, 49 Cal. 67;
Gabriel v. The State, 40 Ala. 357; Stol-
lenwerk v. The State, 55 Ala. 142; Wat-
son v. The State, 55 Ala. 150; Shubrick
v. The State, 2 S.C. 21; Toledo, &c. Rail-
way v. Cole, 50 Ill. 184.
8 Broom Leg. Max. 2d ed. 505, 515;
Co. Lit. 210a; Watkins v. Wassell, 20
Ark. 410; Feldman v. Morrison, 1 Bradw.
460; Howell v. Stewart, 54 Misso. 400;
Scovern v. The State, 6 Ohio State, 288,
291.
232
4 Ante, § 187.
5 Thurston v. Prentiss, 1 Mich. 193;
The State v. Loftin, 2 Dev. & Bat. 31;
Smith ». Lockwood, 13 Barb. 209; Con-
well v. Hagerstown Canal, 2 Ind. 588;
The State v. Corwin, 4 Misso. 609; Rex
v. Douse, 1 Ld. Raym. 672; Dudley ».
Mayhew, 3 Comst. 9; Almy v. Harris, 5
Johns. 175; Lang v. Scott, 1 Blackf. 405;
Bailey v. Bryan, 3 Jones, N. C. 357 ; Cam-
den v. Allen, 2 Dutcher, 398; Victory v.
Fitzpatrick, 8 Ind. 281; McCormack ».
Terre Haute, &c. Railroad, 9 Ind. 283;
Ham v. Steamboat Hamburg, 2 Iowa, 460;
post, § 250. And see United States v.
Dickey, Morris, 412; People v. Stevens,
13 Wend. 341.
§ Perkins v. Thornburgh, 10 Cal. 189;
Pursell v. New York Life Ins. &. Co. 42
N. Y. Super. 883; Watkins v. Wassell, 20
Ark. 410.
CHAP. XXV.] MISCELLANEOUS DOCTRINES. § 250
be construed to permit the doing of some other thing embraced
in the general provision; the result will be an implied prohibi-
tion of such other thing, though it was before lawful.! On the
other hand, —
Remedy for existing Right. — A statute which merely prescribes
a new remedy for an existing right is cumulative only, and a
party may follow either it or the antecedent law at his election,
unless by direct words or necessary implication it takes away the
prior remedy.2- And —
§ 249 a. Limits of Doctrine.— Special caution is required not
to carry the main doctrine of this sub-title too far. For example,
the omission of a thing from a statute is not equivalent to the
insertion of its opposite; as, if it enumerates provisions not to be
affected by it, all unenumerated provisions on like subjects are
not therefore repealed.2 And an act forbidding the wife to give
evidence for her husband in criminal cases does not authorize her
doing it in civil cases. Likewise a provision that shop-books
shall not be evidence after a year does not make them such with-
in the year.5 We shall see more of this under the next sub-
title; as to —
VII. How Statutory and Common-law Remedies mingle.
§ 249 6. Already. — The discussions of this volume have al-
ready brought to view some of the doctrines pertaining to this
sub-title. But, —
Here.— In this connection, we shall somewhat extend our
vision, and endeavor to gain a more connected and complete com-
prehension of the entire topic.
§ 250. Creating Offence and prescribing Procedure. — Where the
same statute which creates an offence prescribes also the penalty,
mode of procedure, or any thing else of the sort, only what the
statute thus ordains is permissible. But, —
1 The State v. Eskridge, 1 Swan. Tenn. Howard, 6 Har. & J. 383; Booker v. Mc-
413. Roberts, 1 Call, 243.
2 Coxe v. Robbins, 4 Halst. 384; Almy 8 Burnham v. Onderdonk, 41 N. Y.
v. Harris, 5 Johns. 175; Colden v. Eldred, 425.
15 Johns. 220; Farmers’ Turmpike v. Cov- 4 Barbat v. Allen, 7 Exch. 609.
entry, 10 Johns. 889; Bearcamp River 5 Pitman v. Maddox, 2 Salk. 690.
Co. v. Woodman, 2 Greenl. 404; Fryeburg 6 Ante, § 249, and cases there cited ;
Canal-v. Frye, 6 Greenl. 88; Baltimore v. People v. Craycroft, 2 Cal. 243; Attor-
233
§ 250 a INTERPRETATION. [Book IL.
Affirming Common-law Offence. — Where the offence which a
statute creates is such also at the common law, and the statute
and common law are not repugnant, all new provisions thus legis-
latively ordained are cumulative, and the procedure may conform
to either law.1 Again, —
Creating Offence without providing Procedure or Punishment. —
Where a statute forbids a thing of a public nature? before law-
ful, but provides no penalty, the indictment is at the common
law,? and the common-law punishment follows.4 Or, if such a
statute prescribes no mode of prosecution, the common-law in-
dictment lies.65 In like manner, —
§ 250 a. Private Statutory Interest.— Where a statute creates
a private interest, but is silent as to the remedy, any person
within the benefit conferred, or injured by the prohibited wrong,
may sue.® Or, as otherwise expressed, “ when any statute re-
quires an act to be done for the benefit of another, or to forbear
the doing of an act which may be to his injury, though no action
. be given in express terms by that statute, for the omission or com-
mission, the general rule of law in all such cases is, that the party
injured shall have an action.’’?
ney-General v. Radloff, 10 Exch. 84, 23
Law J. n. 8. Exch. 240, 18 Jur. 555, 26
Eng. L. & Eq. 418; Renwick v. Morris, 7
Hill, N. Y. 575; Rex v. Ivyes, 2 Show.
468; Reg. v. Dye, 11 Mod. 174; Com-
monwealth v. Swift Run Gap Turnpike,
2 Va. Cas. 361; McElhiney v. Common-
wealth, 10 Harris, Pa. 365; The State v.
Meyer, 1 Speers, 305; The State v.
Helgen, 1 Speers, 310; Barden v. Crocker,
10 Pick. 883; Rex v. Hemmings, 3 Salk.
187; Anonymous, 3 Salk. 189, 2 Ld.
Raym. 991; Rex v. Gluff, 12 Mod. 104,
Rex v. Hurst, 11 Mod. 140; Rex v. Mar-
riot, 4 Mod. 144; s. c. nom. Rex v. Mar-
riott, 11 Mod. 140, note; Hartley v.
Hooker, Cowp. 523; Crofton’s Case, 1
Mod. 34; Rex v. Buck, 1 Stra. 679; Rex
v. Savage, 1 Ld. Raym. 347; The State
v. Maze, 6 Humph. 17; Rex v. Wright, 1
Bur. 543; Sudbury Meadows v. Middle-
sex Canal, 23 Pick. 26; Dodge vu. Essex,
3 Met 380; Henniker v. Contoocook Val-
ley Railroad, 9 Fost. N. H. 146.
1 Ante, § 163 d, 164, 166, 167, 173;
Crittenden v. Wilson, 5 Cow. 165; Peo-
ple v. Craycroft, 2 Cal. 243; Rex v. Dixon,
234
But a new statutory remedy for
10 Mod. 335; Gooch v Stephenson, 13
Maine, 371.
2 Crim. Law, I. § 237, 238.
8 Rex v. Robinson, 2 Bur. 799, 803;
Rex v. Smith, 2 Doug. 441; Rex v. Har-
ris, 4 T. R. 202.
4 Ante, § 138; Reg. v. Price, 11 A. &
E. 727, Reg. v. Walker, Law Rep. 10
Q. B. 355, 13 Cox C. C. 94.
5 Colburn v. Swett, 1 Met. 232; Elder
v. Bemis, 2 Met. 599, The State v. Meyer,
1 Speers, 305; The State v. Helgen, 1
Speers, 310; and the cases 1n the last two
notes.
8 Ante, § 134, 188, 144; Crim. Law, L
§ 237, 238; Ewer v. Jones, 2 Ld. Raym.
934, 987; Privilege of Priests, 12 Co.
100, Arundel v. Duckett, 20 Md. 468;
Shepherd v. Hills, 11 Exch. 55, 67; High-
tower v. Fitzpatrick, 42 Ala. 597; Dudley
v. Mayhew, 3 Comst.9. And see Steam-
ship Co. v. Joliffe, 2 Wal. 450.
7 Ashby v. White, 14 Howell St. Tr.
695, 785; Pickering v. James, Law Rep.
8 C. P. 489; Hitchins v. Kilkenny, &c.
Railway, 9 C. B. 586; The Waverly, 7
Bis. 465.
”
CHAP. XXv.] MISCELLANEOUS DOCTRINES.
§ 250 ¢
an existing right does not take away the former remedy, and
either may be pursued.’ So, as in the case of a criminal statute,?
where the act which confers a civil right prescribes the remedy,
it only is permissible? Or, if a statute authorizes the doing of
a thing which was before unlawful, and prescribes the remedy
for the injured party, it only can be pursued ;* or, if it provides
for a part of the injury, its rule prevails as to the part, while the
common-law remedy is available for the rest.
§ 250 6. Civil and Criminal or Penal.— As private and public
wrongs and redress are separate and concurrent,® provisions for
the procedure as to the one have no relation to the same as to
the other. So that, for example, if a statute creates a new offence
and imposes a penalty, the remedy by injunction is nevertheless
in a proper case available.’ So also, in a proper case, not as of
course in every one, an action at common law may be maintained
by the private party in such circumstances.®
§ 250 c. Indictment —is the common, yet not the only, form
for prosecuting crimes.® When, therefore, a statute creates a
crime, whether it fixes the punishment or not, an indictment will
1 Coxe v. Robbins, 4 Halst. 384; Almy
v. Harris, 5 Johns. 175; Colden v. Eldred,
15 Johns. 220; Farmers’ Turnpike v. Cov-
entry, 10 Johns. 389; Bearcamp River
Co. v. Woodman, 2 Greenl. 404; Frye-
burgh Canal v. Frye, 5 Greenl. 38; Balti-
more v. Howard, 6 Har. & J. 383; Booker
v. McRoberts, 1 Call, 248; People v. Cray-
croft, 2 Cal. 248; Adams »v. Richardson,
43 N. H. 212; Bruce v. Delaware and
Hudson Canal, 19 Barb. 371; Sharp »v.
Warren, 6 Price, 131.
2 Ante, § 250.
8 Stevens v. Evans, 2 Bur. 1152, 1157;
The State v. Stewart, 26 Obio State, 216;
Lang v. Scott, 1 Blackf. 405; Rochester
v. Bridges, 1 B. & Ad. 847, 859; Ward »v.
Severance, 7 Cal. 126; Roberts v. Lan-
decker, 9 Cal. 262; Thurston v. Prentiss,
1 Mich. 193; Almy v. Harris, 5 Johns.
175; Renwick v. Morris, 7 Hill, N. Y.
575; Fuller v. Edings, 11 Rich. 239; But-
ler v. The State, 6 Ind. 165; Victory v.
Fitzpatrick, 8 Ind. 281; Cole v. Musca-
tine, 14 Iowa, 296; Hazen v. Essex, 12
Cush. 475; Camden v. Allen, 2 Dutcher,
398; Weller ». Weyand, 2 Grant, Pa.
103; Brown v. White Deer, 3 Casey, Pa.
109; Babb v. Mackey, 10 Wis. 371;
Wolverhampton New Waterworks v.
Hawkesford, 6 C. B. n. s. 336, 356; Ste-
vens v. Jeacocke, 11 Q. B. 731; Marshall
v. Nicholls, 18 Q. B. 882; St. Pancras v.
Batterbury, 2 C. B. Nn. s. ‘477 ; Bassett v.
Carleton, 32 Maine, 553.
4 Henniker v. Contoocook Valley Rail-
road, 9 Fost. N. H. 146; Best v. Gholson,
89 Ill. 465; In re Washington Park, 52
N. Y. 181; In re Townsend, 4 Hun, 31;
McKinney v. Monongahela Nav. Co. 2
Harris, Pa. 65; Sudbury Meadows v.
Middlesex Canal, 23 Pick. 36; Dodge v.
Essex, 3 Met. 380.
5 Troy v. Cheshire Railroad, 3 Fost.
N. H. 838.
6 Crim. Law, I. § 264 et seq.
7 Cooper v. Whittingham, 15 Ch. D.
501.
8 Hayes v. Porter, 22 Maine, 371;
Couch »v. Steel, 3 Ellis & B. 402; Atkin-
son v. Newcastle, &c. Waterworks, 2 Ex.
D. 441.
9 Crim. Proced. I. § 130 et seq.
235 te
§ 251 INTERPRETATION. [BOoK IL
lie against the violater,! unless it provides some other form of
procedure.2 So, —
§ 250 d. Penal Action.— Though a penal action is not prop-
erly criminal,’ if a statute provides a penalty for a wrong of a |
public nature,* to be recovered by action,® the plaintiff should be,
not the informer, though he is to receive a part of the penalty,
but the State. Yet it is common, by express provision, to allow
qui tam actions, in which an informer sues in his own name for
a penalty, as well on behalf of himself as the State.’ But even
then, if the private person has not commenced such action, the
State may sue. While his action is pending, no other person
can maintain a suit.29 Now, —
§ 251. Complications less obvious. — While the doctrines of this
sub-title are thus far plain, both in reason and authority, there
may be complications of facts the legal consequences whereof are
less obvious. Thus, —
Different Date or different Part of Statute.— Plainly if a statute
of to-day creates an offence, and, prescribing no remedy, leaves
it to be proceeded against under the common law, a statute of
to-morrow defining the procedure will be cumulative, the same as
if the offence had been originally at the common law.” Then
will it make a difference should the statutes be simultaneously
enacted? There are cases which hold not, and that, if one sec-
tion of an act creates an offence, and another prescribes the rem-
edy, the remedy is cumulative! And a much-esteemed book
lays down the doctrine, that, “‘ where an offence is not so at the
1 Ante, § 250; 2 Hale P.C. 171; 2
Hawk, P. C. c. 25, § 4; Rex vu. Wright, 1
Bur. 548, 544; Reg. v. Buchanan, 8 Q. B.
883; The State v. Pate, Busbee, 244;
Blackwell v. Old Colony Railroad, 122
Mass. 1; United States v. Ebner, 4 Bis.
117; Burnet v. Davidson, 10 Ire. 94. See
The State v. Carr, 6 Oregon, 133.
2 Rex v. Wright, supra; Rex v. Mar-
‘riot, 4 Mod. 144.
3 Crim. Law, I. § 32; Webster v. Peo-
ple, 14 Ill. 865; Canfield v. Mitchell, 43
Conn. 169.
4 See Ordway v. Central National Bank,
47 Md. 217; Gilmore v. Dawson, 64 Misso.
310.
5 2 Hawk. P. C. c. 25,§ 4. See Carle
v. People, 12 Ill. 285.
6 Rex v. Hymen,7 T. R. 586; Smith
: 236
v. Look, 108 Mass. 189, 141; Caroon »v.
Rogers, 6 Jones, N. C. 240. Under the
Missouri statute, see Hudson ». St. Louis,
&c. Railway, 53 Misso. 525; Fickle v. St.
Louis, &c. Railway, 54 Misso. 219; Seaton
uv. Chicago, &c. Railroad, 55 Misso. 416.
7 Smith v. Look, supra; Wheeler v.
Goulding, 13 Gray, 589; Moore v. Jones,
23 Vt. 739; Chicago, &c. Railroad v.
Howard, 38 Ill. 414; Megargell v. Hazel-
ton Coal Co. 8 Watts & S. 342.
8 The State v. Bishop, 7 Conn. 181;
Commonwealth v. Howard, 18 Mass. 221,
222.
® Dozier v. Williams, 47 Missis. 605.
10 1 Russ. Crimes, 3d Eng. ed. 50.
11 Attorney-General v. White, 2 Co-
myns, 433, 436. But see Crofton’s Case,
1 Vent. 63, 1 Mod. 34.
CHAP. XXV.] MISCELLANEOUS DOCTRINES.
§ 252
common law, but made an offence by act of Parliament, an indict-
ment will lie where there is a substantive prohibitory clause in
such act of Parliament; though there be afterwards a particular
provision and a particular remedy given.”! Within this doc-
trine, if by one clause of a statute an offence is created, “and a
penalty is annexed to it by a separate and subsequent clause,” a
violation of it need not be pursued by a suit for the penalty, but
an indictment will lie ‘‘on the prior clause, on the ground of
its being a misdemeanor.”’? Now, to take another step in the
argument, can it make a difference that the prohibition and rem-
edy are in different clauses or sections? If we make the natural
answer that it cannot,? we come to a doctrine directly contrary
to what we have seen to be established. The logical course
would be to deny that provisions enacted at the same date have,
in this class of cases, the same effect as if established at different
dates. But the English decisions appear to have gone too far
otherwise to admit of reconciliation by logic; so the distinction
in England seems to be, that, where the same section both cre-
ates the offence and affixes the consequence, only the statutory
direction can be followed ;> but, where the offence is created in
one section and penalties are prescribed in a subsequent section,
the subsequent one is cumulative, and the common-law method
may be followed. But, —
§ 252. With us,— this particular distinction has probably not
been very much considered. And it is doubtful whether any
thing relating to it can be set down as established in American
law. Said a learned Massachusetts judge: ‘* The distinction to
be taken is, where a statute does not vest a right in a person,
but only prohibits the doing of some act under a penalty; in
such a case the party violating the statute is liable to the penalty
only; but, where a right of property is vested in consequence of
the statute, it is to be vindicated by the common law, unless the
statute confines the remedy to the penalty.”’ Should we apply
1 1 Saund. Wms. ed. (6th) 135, note.
And see Lichfield v. Simpson, 8 Q. B.
65; Collinson v. Newcastle, &c. Railway,
1 Car. & K. 546; Rochdale Canal v. King,
14Q. B. 122.
2? Ashurst, J. in Rex v. Harris, 4 T. R.
202, 205. See also 1 Russ. Crimes, 3d
Eng. ed. 49 et seq.; ante § 134, 186, 188.
8 Ante, § 68, 65, 66.
4 Ante, § 250, 250 a.
5 Attorney-General v. Radloff, 10
Exch. 84, 23 Law J. n. 8. Exch. 240, 18
Jur. 555, 26 Eng. L. & Eq. 413.
6 Reg. v. Buchanan, 8 Q. B. 883, 15
Law J. n.s. Q. B. 227, 10 Jur. 736; 1
Russ. Crimes, 3d Eng. ed. 60, 51.
7 Putnam, J. in Barden v. Crocker, 10
Pick. 383, 389.
237
§ 254 INTERPRETATION. [BOoK 11.
this distinction in the criminal law, it might possibly subject to
indictment one who violated a statute creating a crime and pre-
scribing a summary procedure, without words negativing any
other procedure ; though this consequence does not seem to be
inevitable.! A statute making a thing a. public nuisance, and in
the same section directing how it shall be punished, doubtless
leaves it subject to the common-law abatement.?
§ 253. In Conclusion of this Topic.— Under the present unsat-
isfactory condition of the authorities, true wisdom would seem to
indicate that, in each individual instance, special regard be paid
to those considerations which point to the actual legislative in-
tent. The practitioner, obliged to adapt his course nicely to the
shades of distinction taken by the courts heretofore, will consult
the cases carefully as to points presenting special difficulties.
But judges, seeking the truth more in the line of legal reason
than of precise authority, will consider whether, looking at the
whole law, the new remedy for the new offence was intended by
the legislature to supersede the common-law remedies, which
attach as of course to all offences.
VIII. Mandatory and Directory Statutes.
§ 254, Mandatory, defined. — A statute is called mandatory
when, if not all its provisions are complied with according to
their terms, the thing done is, as to it, void.
In General. — Most statutes are mandatory ;° and, for example,
their terms must be all and strictly pursued to render proceedings
under them good, or rights claimed under them valid.’ Even, —
Agreements contrary to Statute. — As we have seen,® agree-
ments in contravention of a statute or its policy are, in general,
void. And—
1 And see, to this point, The State v.
Thompson, 2 Strob. 12, which is, how-
ever, consistent with the English distinc-
tion as stated in the last section. And
to the point of the text is Crofton’s Case,
1 Mod. 34, which has perhaps been over-
tuled. See also People v. Stevens, 13
Wend. 341; Renwick v. Morris, 7 Hill,
N. Y. 576.
2 See Renwick v. Morris, 7 Hill, N. Y.
575; Rex r. Gregory, 2 Nev. & M. 478, 5
B. & Ad. 555.
288
8 Koch v. Bridges, 45 Missis. 247.
4 Ante, § 119; Fitzpatrick v. Turner,
14 Fla. 882; Hammons vu. The State, 8
Texas, 272; District Township, &c. v.
Dubuque, 7 Iowa, 262; Corbett v. Brad-
ley, 7 Nev. 106; Logwood v. Huntsville,
Minor, 23; Crawford v. The State, Minor,
148; Hale v. Burton, Dudley, Ga. 105;
Fitch v. Kirkland, 22 Wend. 182.
5 Ante, § 1384.
6 Peck v. Burr, 6 Seld. 294; Miller v.
Post, 1 Allen, 434; Hathaway v. Moran,
CHAP. XXV. } MISCELLANEOUS DOCTRINES.
§ 255
Thing done contrary, &c. — Penalty. — The same rule applies to
a thing done contrary to a statute ; it is commonly void. Or, if
the enactment merely imposes a penalty or a forfeiture, this is
usually, not always, equivalent to a prohibition.
§ 255. Directory, defined. — A statute is termed directory when
a part or all of its provisions operate merely as advice or direc-
tion to the official or other person who is to do something pointed
out, leaving the act or omission not destructive of the legality of
what is done in disregard of the direction.
What Directory and what Mandatory. —It is difficult, on the
authorities, to lay down exact rules for determining when a stat-
utory provision should be construed as directory, and when as
mandatory.2. In reason, we may say, that the interpretation will
be adopted which will best subserve justice and the true legis-
lative intent; but so indefinite a rule can be of little practical
avail. Let us look at some recognized distinctions. Thus, —
Not of Substance. ——- Whatever, in a statute, is not of the sub-
stance of its provisions will,? when not in the nature of a grant of
rights to parties or the public,* be construed as directory. And,—
Time and Manner of Official Acts.— Generally, when no rights
will be impaired, provisions, with no negative words or implica-
tions, concerning the time and manner, and more especially the
time, in which official persons shall perform designated acts, are
directory.6 Of this sort, for example, is the requirement that
44 Maine, 67. As to marriage see 1 4 Ante, § 112; The State v. Lean, su-
Bishop Mar. & Div. § 283-289; Parton
v. Hervey, 1 Gray, 119; Illinois Land and
Loan Co. v. Bonner, 75 Ill. 315
1 Hallet v. Novion, 14 Johns. 273, 290;
Mitchell v. Smith, 1 Binn. 110; Williains
v. Tappan, 3 Fost. N. H. 885, 391; Lewis
v. Welch, 14 N. H. 294; Louisville v.
Roupe, 6 B. Monr. 591; Tabb v. Baird, 3
Call, 475; Sellers v. Dugan, 18 Ohio, 489;
Griffith v. Wells, 3 Denio, 226; Bancroft
v. Dumas, 21 Vt. 456; Skelton v. Bliss, 7
Ind. 77.
2 Bladen v. Philadelphia, 10 Smith,
Pa. 464.
8 Norwegian Street, 81 Smith, Pa.
849; Wendel v. Durbin, 26 Wis. 390;
The State v. Lean, 9 Wis. 279; Hurford
v. Omaha, 4 Neb. 386; Howard v. Bod-
ington, 2 P. D. 203, 210,211; Rex v. Lox-
dale, 1 Bur. 445.
pra; People v. New York, 11 Abb. Pr.
114; Wendel v. Durbin, supra.
5 Pond v. Negus, 3 Mass. 230; Rex v.
Leicester, 7 B. & C. 6; Rex cv. Denby-
shire 4 East, 142; Reg. v. Rochester, 7
Ellis & B. 910; Reg. v. Ingall, 2 Q. B. D.
199; People v. Allen, 6 Wend. 486; Peo-
ple v. Peck, 11 Wend. 604; Marchant v.
Langworthy, 6 Hill, N. Y. 646; Hooker
v. Young, 5 Cow. 269; Ex parte Heath,
8 Hill, N. Y. 42; Colt v. Eves, 12 Conn.
243; Wan-kon-chaw-neek-kaw v. United
States, Morris, 332, 335 ; Walker v. Chap-
man, 22 Ala. 116; People v. Cook, 14
Barb. 259; The State v. Click, 2 Ala. 26;
McGuffie v. The State, 17 Ga. 497; Hart
v. Plum, 14 Cal. 148; People v. Lake, 33
Cal. 487; Wheeler v. Chicago, 24 Ill. 105;
St. Louis County Court v. Sparks, 10
Misso. 117; Blimm v. Commonwealth, 7
239
§ 255 INTERPRETATION. [Book Il.
the court which sentences a prisoner to the State prison “shall
so limit the time of sentence that it will expire between the
months of March and November.” A sentence, in disregard of
it, is not void.! And largely the statutes relating to the time
and manner of summoning and bringing in jurors are of this
class.2 The same is true of those providing for other steps in a
judicial cause.2 But a provision of this or any other sort which,
though in the nature of a command to an officer or court, confers
rights on parties, is generally or always mandatory. A familiar
illustration of this kind of statute is one giving the prevailing
party costs; they cannot be withheld at the discretion of the
judge.5 Further to illustrate, —
Time of Executing Sentence. —If a statute directs within how
many days, after judgment, the prisoner in a capital case shall be
executed, the court may still order him executed at a different
time® Again, —
Bush, 320; Torrey v. Millbury, 21 Pick.
64; Parchman v. The State, 2 Texas Ap.
228; Lackawana Iron, &e. Co. ». Little
Wolf, 38 Wis. 152; Rex v. Sparrow, 2 Stra.
1123; The State ». Camden, 10 Vroom,
620; Lee v. The State, 49 Ala. 43; Lime-
stone v. Rather, 48 Ala. 483; Ryan v.
Vanlandingham, 7 Ind. 416; Merrill v.
The State, 46 Ala. 82; Boykin v. The
State, 50 Missis. 375; Wright v. Sperry,
21 Wis. 331; McRoberts v. Winant, 15
Abb. Pr. n. 8. 210; Le Feuvre v. Miller,
8 Ellis & B. 3821. And see, besides the
other cases cited to this section, Striker
v. Kelly, 7 Hill, N. Y.9; Wiggin v. New
York, 9 Paige, 16; McBee »v. Hoke, 2
Speers, 138; The State v. Hill, 2 Speers,
150 ; Eustis v. Kidder, 26 Maine, 97; Rex
v. Page, 12 Mod. 123; Rex v. Ingram, 1
Ld. Raym. 215; Steele ». The State, 1
Texas, 142; Dyches v. The State, 24
Texas, 266; People v. Weller, 11 Cal. 49.
1 Miller v. Finkle, 1 Parker C. C. 374.
And see, for a like principle as to the sen-
tence, Brightwell v. The State, 41 Ga.
482.
2 The State v. Pitts, 58 Misso. 556;
The State v. Gillick, 7 Iowa, 287; The
State v. Smith, 67 Maine, 328; The State
v, Carney, 20 Iowa, 82. See The State v.
Maddox, 1 Lea, 671.
8 Dawson v. People, 25 N. Y. 399; The
State v. Jolly, 7 Iowa, 15; The State v.
240
Axt, 6 Iowa, 511; Friar v. The State, 3
How. Missis. 422; Zantzinger v. Ribble,
86 Md. 32; Ottillie v. Waechter, 33 Wis.
252 ; Body v, Jewsen, 83 Wis. 402; Com-
monwealth v. Edwards, 4 Gray, 1; Cro-
foot v. People, 19 Mich. 254; The State
uv. Baker, 8 Nev. 141; The State v. Scott,
1 Bailey, 294; The State ». Baker, 9 Rich.
Eq. 521; Territory v. Anderson, 1 Wy.
Ter. 20; Charter «. Greame, 13 Q. B.
216; Clark v. Commonwealth, 5 Casey,
Pa. 129.
4 Ex parte Jordan, 94 U. S. 248; Peo-
ple v. Livingston, 68 N. Y. 114; Stacey
v. The State, 3 Texas Ap. 121; Satter-
white v. The State, 3 Texas Ap. 428;
Wendel v. Durbin, 26 Wis. 390; Newman
v. The State, 6 Baxter, 164; French v.
Edwards, 13 Wal. 506; Donlin »v. Tet-
tinger, 57 Ill. 348; Blake v. Sherman, 12
Minn. 420; People v. Erie, 1 Buf. 517;
Howard v. Bodington, 2 P. D. 203; Vaux
vy. Vollans, 4 B. & Ad. 525. See The
State v. Cooper, 45 Misso. 64; Long v.
The State, 4 Texas Ap. 81.
© First National Bank v. Prescott, 27
Wis. 616.
6 Seaborn v. The State, 20 Ala. 15;
Rex v. Wyatt, Russ. & Ry. 230. See, on
this subject, Reg. v. Hartnett, Jebb, 302;
Reg. v. Hogg, 2 Moody & R. 380; Miller
v. The State, 3 Ohio State, 475.
CHAP. XXvV.] MISCELLANEOUS DOCTRINES. § 256
Hight-hours Law.— The act of Congress, termed the “ Kight-
hours Law,” which provided that eight hours should constitute a
day’s work for all laborers, workmen, and mechanics employed
by or on behalf of the government of the United States, was held
to be a direction to the agents of the government, and not a con-
tract between it and a class of its employees. By agreement, a
day’s work might still be more or less than eight hours.
Non-official Person. — A provision for a thing to be done by a
non-official person may be directory, equally as where the doer is
an officer.
Bonds and other Instruments. — Where a statute requires duties,
less in amount than two hundred dollars, to be paid in cash, a
bond: for such less amount is valid.2 And in other cases bonds,
deeds, and other instruments, not following a statutory form may
be good,‘ though they are not so always. So may an affidavit,
not in statutory form, be good.°
In Part directory. — The reader perceives, from these illustra-
tions, that a directory statute is not necessarily, while yet it may
be, such in full; it is oftener directory only in part.® For ex-
ample, it may be directory as to the time, and mandatory as to
the thing itself.’
§ 255 a. Legislative Intent — (Negative Words). — Negative or
other words indicating a legislative intent may, and often do,
cause a statute to be construed as mandatory, which otherwise
would be held directory. For example, —
§. 256. Peremptory Language. — As expressed by Dwarris,
“where affirmative words are peremptory, as that ‘ the forms of
proceedings set forth in the schedule annexed shall be used on
all occasions,’ Lord Kenyon observed, ‘I cannot say that these
words are merely directory ;’ and a material variance from the
7 The State v. Harris, 17 Ohio State,
608; The State v. Lean, 9 Wis. 279.
1 United States v. Martin, 94 U. S. 400.
2 Field v. Gooding, 106 Mass. 310;
Bainbridge v. The State, 830 Ohio State,
264; American Bank v. Cooper, 54 Maine,
438,
3 United States v. Linn, Crabbe, 307.
* Rex v. Lyon, Russ. & Ry. 255; Rex
uv. Randall, Russ. & Ry. 195.
5 The State v. Dayton, 3 Zab. 49.
§ Woodward v. Sarsons, Law Rep. 10
C. P. 733, 746; Reg. v. Fordham, 11 A.
&E. 73; Rex v. Norwich, 1 B. & Ad. 310;
Free Press Assoc. v. Nichols, 45 Vt. 7.
16
8 Liverpool Borough Bank v. Turner,
2 De G., F. & J. 502; Howard v. Boding-
ton, 2 P. D. 208, 211; Bladen -v. Phila-
delphia, 10 Smith, Pa. 464; Hurford v.
Omaha, 4 Neb. 336; The State v. Smith,
67 Maine, 328; Pearse v. Morrice, 2 A. &
E. 84, 96; Reg. v. Fordham, 11 A. & E.
73; Rex v. Newcomb, 4 T. R. 868; Bow-
man v. Blyth, 7 Ellis & B. 47; People »v.
Allen, 6 Wend. 486; Williams v. Swan-
sea Canal Nav. Co. Law Rep. 3 Ex. 158.
241
§ 256 a INTERPRETATION. [BooK 11.
form prescribed was in that case held fatal, the justices not hav-
ing pursued the authority of the statute.”! And it has been laid
down that statutes imposing a duty, and giving the means for
its performance, are mandatory.2, Moreover, —
Franchise. — ‘‘ It has frequently been held, that, where a power
or franchise is created by statute which fixes or prescribes the
mode of its exercise, it must be exercised in the mode pointed
out by the act, and no other.”? But a provision, that the officers
of a corporation shall be elected annually, does not take away
its incidental power to vhoose them after the election day has, by
accident, passed by without an election.‘
Liability of Officer.— The omission of an officer to perform an
act enjoined by statute may, though the statute is construed as
directory, render him liable at the suit of a party injured by the
neglect.5
Constitution. — A constitutional provision may, like a statutory
one, be interpreted as only directory.®
Caution. — It is well to be cautious not to carry the principle of
holding a statute to be merely directory too far.”
IX. Concluding Suggestions and Views.
§ 256 a. In General. — There are a few principles of statutory
interpretation, sometimes relied on, not embraced in the forego-
ing series of chapters. But they are all either of a doubtful
nature, or of little or no practical importance. They lie collected
before the writer at the present time. Yet after a somewhat
careful consideration of the subject, he has deemed it best that
these elucidations shall here close.
1 Dwar. Stat. 2d ed 610; Davison v. ferring to 2 Kent Con 295; Coles v.
Gill, 1 East, 64. And see Rex v. Lox- Allison, 23 Ill. 437.
dale, 1 Bur. 445. See The State v. Fos- 5 Brown v. Lester, 138 Sm. & M. 892.
ter, 61 Misso. 549. 5 Ante, § 36 a, 87; Washington v.
2 Veazie v. China, 50 Maine, 518; Mil- Page, 4 Cal. 388.
ford v. Orono, 50 Maine, 529; The State 7 See Smith Stat. & Const. Law, § 670-
v. Garber, 7 Neb. 14; Wendel v. Durbin, 681; Dwar. Stat. 2d ed. 608-612; Stay-
26 Wis. 390. ton v. Hulings, 7 Ind. 144; Webster v.
3 Smith Stat. and Const. Law, § 677. French, 12 Il. 302.
4 The State v. Fairbury, 61 Ill. 149, re-
242
CHAP. XXVI.] STATUTES OF LIMITATIONS.
§ 257
BOOK III.
SPECIAL INTERPRETATIONS PERTAINING TO THE
CRIMINAL LAW.
CHAPTER XXVI.
STATUTES OF LIMITATIONS OF CRIMINAL PROSECUTIONS.
§ 257. At Common Law —(In England).— There is no rule of
the common law limiting the time within which a criminal prose-
cution must be commenced. Nor, in England, have there ever
been any general statutes of limitations of criminal causes.2 “So
that,” says Chitty, “‘ instances have frequently occurred in which
parties have been convicted and punished many years after the
crime had been forgotten,” *—-a practice, however, not always
tolerated by the courts. The prosecution of some forms of high
treason was early — by 7 & 8 Will. 3, c. 8, § 5 — limited to three
years ; and there are statutes of limitations for poaching,® and for
a few other specific offences.’
statutes of limitations.
legislation, —
1 Dover v. Maestaer, 5 Esp. 92; Hyde
v. Partridge, 3 Salk. 227, 228.
2 Reg. v. Hull, 2 Fost. & F. 16.
8 1 Chit. Crim. Law, 160.
4 2 Hale P. C. 158; Burn Just. Indict-
ment, III. Lieut.-Col. Wall was tried,
convicted, and executed for a murder
committed twenty years before. 4 Bl.
Com. 15th ed. 805, note 2.
5 In Reg. v. Robins, 1 Cox C. C. 114,
A.D. 1844, which was an odious prosecu-
tion for bestiality, it appeared that the
Prosecuting witness had not complained
to a magistrate for nearly two years after
the fact was alleged to have transpired,
though he said he had mentioned it oth-
For penal actions also, there are
In contrast to this lack of English
erwise. No explanation of the delay
could be given, and Alderson, B. refused
to submit the question of guilt to the
jury and ordered an acquittal. And see
People v. Lohman, 2 Barb. 216.
6 Reg. v. Parker, Leigh & C. 459, 9
Cox C. C. 475; Reg. v. Brooks, 1 Den.
C. C. 217; Reg. v. Hull, supra.
7 Archb. Crim. Pl. & Ev. 19th ed. 79;
Reg. v. Thompson, 16 Q. B. 882.
3 31 Eliz. c. 5, § 5, followed by some
others; Dyer v. Best, Law Rep. 1 Ex.
152; Cobbett v. Warner, 1 H. & N. 388;
Maugham v. Walker, Peake, 163; Attor-
ney-General v. Hall, 11 Price, 760.
248 re
§ 259 SPECIAL INTERPRETATIONS. [Book 11.
§ 258. With us.—Jn most of our States, there are statutes
variously limiting the times for commencing the several sorts of
criminal prosecution. And there are, as in England, statutes of
limitations for penal actions,! the same as for others of the civil
class. The limiting statutes are not ih uniform words, but the
interpretations of most of them are well defined.
§ 258 a. Criminal and Civil, contrasted — (Constitutional). —
The rules for interpreting civil statutes of limitations are not in
all particulars applicable to criminal. Especially are not those
by which the constitutional validity of these statutes is tested.
What flows from this distinction will appear as we proceed.
§ 259. Strict or Liberal. — Whether the construction of a
civil statute of limitations is to be strict or liberal, —a question
on which there is no absolute harmony of opinion?,— that of a
criminal one is plainly, in principle, to be liberal ; because it is a
provision in favor of the accused, and we have seen that this
sort of provision is to receive a highly liberal construction’.
And such is the doctrine — at least, the better doctrine — of
the courts. Thus, —
Computation of Time — (“Two Years”). — There being different
methods of reckoning time, by one of which a given period will
be a day longer than by another,’ the Texas court, applying the
rule of a liberal rendering in favor of defendants, held, that,
where the statutory period was two years, and an offence was
committed on the first day of January, 1855, an indictment on
the first day of J anuary, 1857, was too late,®— a result contrary
to what would have followed the other method of computation.’
Still, —
1 The State v. Rundlett, 33 N. H. 70;
Raymond v. United States, 14 Blatch.
51; Adams v. Woods, 2 Cranch, 336;
Stimpson v. Pond, 2 Curt. C. C. 502;
Parsons v. Hunter, 2 Sumner, 419; Walk-
er v. Chapman, 22 Ala. 116.
2 Tolson v. Kaye, 3 Brod. & B. 217,
222; Pellatt v. Ferrars, 2 B. & P. 542,
547; Curlewis v. Mornington, 7 Ellis & B.
283, 292-294; Hart’s Appeal, 32 Conn.
520; Bedell v. Janney, 4 Gilman, 193;
Forster v. Cumberland Valley Railroad,
11 Harris, Pa. 371; Garland v. Scott, 15
La. An. 143; Elder v. Bradley, 2 Sneed,
247; Gautier v. Franklin, 1 Texas, 732;
Bell v. Morrison, 1 Pet. 351, 360; Willison
244
v. Watkins, 8 Pet. 43, 54; McCluny ». Sil-
liman, 3 Pet. 270, 278, 279.
3 Ante, § 196, 199.
4 People v. Lord, 12 Hun, 282; White
v. The State, 4 Texas Ap. 488.
5 Ante, § 105-111.
6 The State v. Asbury, 26 Texas, 82.
See The State v. Mason, 66 N.C. 636;
People v. New York Central Railroad, 28
Barb. 284; ante, § 218. s
7 Smith v. Cassity, 9 B. Monr. 192;
Owen v. Slatter, 26 Ala. 547. In Pres-
brey v. Williams, 15 Mass. 193, a civil case,
the computation was as in the text. And
see McGraw v. Walker, 2 Hilton, 404;
Elder v. Bradley, 2 Sneed, 247.
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 260 a
-§ 260. Analogous Offences. — The interpretation is not made so
liberal as to protect from prosecution offences merely analogous
to those specified in the statute. It extends only to those within
its words.! For example, —
Conspiracies. — An enactment limiting the time for proceeding
against an offence named does not include, by construction, a
conspiracy to commit the offence.? And it is not otherwise
though the limitation is in an exception of the statute. Thus,
in North Carolina, “in all trespasses and other misdemeanors,
except the offences of perjury, forgery, malicious mischief, and
deceit, the prosecution shall commence within two years after the
commission ;”” and a conspiracy to cheat and defraud was held
not to fall within the exception. ‘This is a distinct offence from
that of cheating or deceiving.” ? On the like principle of con-
struction, —
“Penalty.” — Where, in South Carolina, it was provided that
in every case of ‘penalty, fine, or forfeiture ” incurred, “no in-
formation, action, or prosecution shall be commenced or carried
on against the offender, for and in respect to such fine, penalty,
or forfeiture, unless within six months,” the word “ penalty” was
held to refer only to a fine or forfeiture of money ; and so this
statute does not bar the prosecution for an offence the punish-
ment whereof is corporal,—as, for instance, imprisonment or
death, — or, as to the imprisonment, where it is fine and impris-
onment.*
§ 260 a. When Statute begins to run. — All statutes of limita-
tions, criminal and civil, begin to run only when there is a
matured right of action or prosecution,® and there are in exist-
ence the needful parties.5 Hence, —
1 See post, § 261 d.
2 Reg. v. Thompson, 16 Q B. 832, 4
Eng. L. & Eq. 287. This case is not very
strong to the proposition in the text, but
it seems sufficiently to sustain it. See
also United States v. Hirsch, 100 U. S.
33
3 The State v. Christianbury, Busbee,
46, 47
* The State v. Taylor, 2 McCord, 483;
The State v. Thomas, 8 Rich. 295; The
State v. Free, 2 Hill, S. C. 628; The
State v. Fields, 2 Bailey, 554. And see
ees Makers v. Loder, 16 Q. B.
5.
5 Helps v. Winterbottom, 2 B. & Ad.
431; Reynolds v. Doyle, 2 Scott N. R.
45, 1 Man. & G. 753; Montgomery v.
Hernandez, 12 Wheat. 129; Fenton v.
Emblers, 1 W. Bl. 353, 354; Harris v. Os
bourn, 2 Cromp. & M. 629; Phillips «.
Broadley, 9 Q. B. 744; Mardis v. Shackle-
ford, 4 Ala. 493; Roberts v. Armstrong,
1 Bush, 263.
6 Metcalf v. Grover, 55 Missis. 145,
147; Murray v. East India Co. 5 B. &
Ald. 204, 213 : Douglas v. Forrest, 4 Bing.
686; Johnson v. Wren, 3 Stew. 172;
Clark v. Hardiman, 2 Leigh, 347; Hobart
v. Connecticut Turnpike, 15 Conn. 145.
245
§ 261 SPECIAL INTERPRETATIONS. [Book IIL.
In Homicide. — Although the offence of felonious homicide is,
by the better opinion, committed by the blow which results in
death,! yet, as there can be no prosecution for it until the death
has taken place, the statute of limitations does not begin to run
against it till then.2 Again, —
In Polygamy. — Where the offence of polygamy consists of mar-
rying a second time, the former husband or wife being alive,’ the
statute of limitations begins to run against it from the time of
such second marriage. But obviously where it is made a crime
analogous to polygamy for parties to cohabit under a polygamous
marriage,®> the statute does not begin to run to-day against a
cohabitation which will take place a year hence. So, —
In Nuisance. — While the statute will run against the erection
of a nuisance from the day when it is erected,’ the offence of its
continuance is not thus barred.®
§ 261. Commencement of Prosecution.— By some of the statutes
the indictment must be found, and by others the prosecution
commenced, within the statutory period. For example, the
words of 9 Geo. 4, c. 69, § 4, as to poaching, are, “‘ The prosecu-
tion . . . shall be commenced within twelve calendar months
after the commission of such offence.” And Pollock, C. B. ruled
in a jury case, that the issuing of the warrant of arrest does not
constitute a commencement of prosecution.? This is a negative
holding; and in the same negative way it is laid down, that the
finding of an indictment is not essential to the commencement of
prosecution, but it may have been begun by steps before. In
a case at the assizes, the same learned judge deemed the war-
rant of commitment to show, in the particular instance, “ the com-
mencement of the prosecution. The first proceeding was to take
the party before the magistrate, and he grants his warrant of
commitment.” And from a subsequent case before all the Eng-
lish judges it may perhaps be inferred, that, if there is a regular
1 Crim. Law, I. § 113-115 and note ;- 6 Commonwealth v. Grise, 11 Philad.
Crim. Proced. L § 50-52. 655; The State v. Sloan, 55 Iowa, 217.
2 The State v. Taylor, 31 La. An 861; 7 Henline v. People, 81 Ill. 269.
Reynolds v. The State, 1 Kelly, 222. 8 Nashville, &c. Railroad v. The State,
8 Post, § 586-588. 1 Baxter, 55.
4 Gise v. Commonwealth, 31 Smith, ® Reg. v. Hull, 2 Fost. & F. 16.
Pa. 428; Commonwealth v. McNerny, 10 10 Reg. v. Brooks, 1 Den. C. C. 217, 2
Vhilad. 206; Scoggins v. The State, 32 Car. & K. 402, 2 Cox C. C. 436.
Ark. 205. 11 Reg. v. Austin, 1 Car. & K. 621.
§ Post, § 688; Finney v. The State, 3
Head, 544.
246
CHAP. XXVI.] STATUTES OF LIMITATIONS.
§ 261
information or complaint in writing before a magistrate, and
thereupon he issues his warrant, and the proceedings go on in
the usual way, the prosecution is commenced by the complaint
and warrant; but this was not said, and the point decided was,
that, where evidence of the warrant only was produced, not
enough was shown to take away the statutory bar. Undoubt-
edly this question will depend in part on the terms of the indi-
vidual statute and the forms of procedure special to the particular
locality. In civil causes, with us, a suit is generally deemed to
be begun when papers for the purpose are filed in court,? or the
needful process is in good faith made out and delivered to an
officer to be served.? In some States and circumstances, perhaps
generally, not even a delivery of the process to the officer or a
filing of papers is necessary ;* while, in others, these,> or even a
' Reg. v. Parker, Leigh & C. 459, 9
Cox C. C. 475. And see Reg. v. Casbolt,
21 Law Times, n. s. 263; Rex v. Phillips,
Russ. & Ry. 369. The case of Rex v.
Willace, 1 East P. C. 186, is as follows:
“Stat. 8 & 9 Will. 3, c. 26, § 9, provides,
that no prosecution shall be made for
any offence against that act, unless such
prosecution be commenced within three
months next after such offence com-
mitted. In Willace’s Case, who was in-
dicted for high treason in coloring a
piece of base coin resembling a shilling
with materials producing the color of sil-
ver, the evidence was, that on the 5th
May, 1797, search was made in the pris-
oner’s lodgings in consequence of infor-
mation; and upon the party’s entering
the room the prisoner immediately ran
away. There was found in his room a
quantity of base money such as described
in the indictment, some in earlier, some
in more advanced stages of the process.
The prisoner was apprehended the same
evening and lodged in Durham jail. He
was afterwards carried before a magis-
trate, and by warrant dated 8th May was
committed to jail, charged on oath ‘ with
suspicion of high treason in counterfeiting
the current money of this kingdom, viz.
shillings,’ &c. The assizes at Durham
were holden on the 8th of August; so
that more than three months had elapsed
between the commission of the offence
and the preferring of the indictment.
But the judges, at a conference, unani-
mously held that the information and
proceeding before the magistrate was the
commencement of the prosecution within
the meaning of the act; and that the
variance between the manner of laying
the offence in the indictment and charg-
ing it in the commitment made no differ-
ence.” The Alabama statute provides,
that, within the meaning of the act, a
prosecution may be commenced “ by the
issue of a warrant, or by binding over the
offender.” Foster v. The State, 38 Ala.
425.
2 Bacon v. Gardner, 23 Missis. 60;
Dilworth v. Mayfield, 36 Missis. 40;
Wright v. Pratt, 17 Misso. 48; Sharp v.
Maguire, 19 Cal. 577; Pimental v. San
Francisco, 21 Cal. 351; Kinney v. Lee, 10
Texas, 155; Bank of United States v.
Lyles, 10 Gill & J. 326; Guild v. Hale, 15
Mass. 455; Ontario Bank v. Rathbun, 19
Wend. 291.
3 Evans v. Galloway, 20 Ind. 479;
State Bank v. Bates, 5 Eng. 120; State
Bank v. Cason, 10 Eng. 479; Johnson v.
Farwell, 7 Green]. 870; Hail v. Spencer,
1R.1.17; Davis v. Duffie, 18 Abb. Pr.
360.
4 Updike v. Ten Broeck, 3 Vroom, 105;
Bunker v. Shed, 8 Met. 150; Jewett v.
5 Baskins v. Wilson, 6 Cow. 471.
247
SPECIAL INTERPRETATIONS.
§ 261 a [Book 11.
service of process! will be required. Within this doctrine, it is
believed to be the general understanding in our tribunals that a
criminal prosecution is begun when a compiaint is made to a
magistrate who issues his warrant of arrest.? Still. on the other
hand, there is American authority for saying, that the word
“prosecution,” in a statute limiting criminal causes,.is an equiva-
lent for indictment; so that only on the finding of an indictment
will the running of the statute be stayed.? A presentment by
the grand jury has been held to be‘ and not to be ® a commence-
ment, — a question varying with the case, the statute, and the
practice of the court.®
§ 261 a. Continuing to run after beginning. — After any sort of
statute of limitations has attached to a case, — has begun to run,
—it, as a general rule, and in the absence of statutory terms
otherwise providing, continues its effect, though something inter-
venes which, if existing before,” would have prevented its attach-
ing ;® as, for example, though for a time there is no party to sue
or be sued,’ or the suit is forbidden,” or the person to be sued is
dead, — consequences provided against by the express terms of
many of our statutes. Yet even to this rule the unwritten law has
exceptions, which enter into and qualify the statute.
Thus, —
Creditor becoming Executor, &c.— If the creditor of a deceased
Greene, 8 Green]. 447; Gardner v. Web-
ber, 17 Pick. 407, 412; Mason v. Cheney,
47 N. H. 24; Burdick v. Green, 18 Johns.
14; Jones v. Jincey, 9 Grat. 708. See
Robinson v. Burleigh, 5 N. H. 228;
Graves v. Ticknor, 6 N. H. 587; Garland
v. Chattle, 12 Johns. 480; Collins x
Montemy, 3 Bradw. 182.
1 Taylor v. Taylor, 3 A. K. Mar. 18.
2 The State v. Howard, 15 Rich. 274;
The State v. May, 1 Brev. 160; Newell
v. The State, 2 Conn. 38; The State v.
Groome, 10 Iowa, 308 ; Ross v. The State,
55 Ala. 177; The State v. Gibbs, 1 Root,
171; Reg. v. Lennox, 34 U. C. Q. B. 28;
The State v. Miller, 11 Humph 505; Peo-
ple v. Clark, 83 Mich. 112. 120.
3 Commonwealth v. Haas, 7 Smith,
Ta. 443.
4 The State v. Cox, 6 Ire. 440.
5 United States v. Slacum, 1 Cranch
C. C. 485.
6 « Pending”? — As to what is a
“prosecution pending,” see The State v.
248
Arlin, 39 N. H. 179; Reg. ». Martin, 8
Q. B. D. 54; Schoeppe v. Commonwealth,
15 Smith, Pa. 51.
7 Ante, § 260 a.
8 Coventry v. Atherton, 9 Ohio, 34;
Cotterell v. Dutton, 4 Taunt. 826; Steven-
son v. McReary, 12 Sm. & M. 9,58; Wynn
v. Lee, 5 Ga. 217; Halsey v. Beach, 1
Penning. 122; Ruff. v. Bull, 7 Har. & J.
14; Pendergrast v. Foley, 8 Ga.1; Smith
u. Newby, 13 Misso. 159; Dillard v. Phil-
son. 5 Strob. 213.
® Rhodes v. Smethurst, 6 M. & W. 351,
4M. & W. 42; Byrd v. Byrd, 28 Missis.
144; Brown v. Merrick, 16 Ark. 612;
Tynan v. Walker, 35 Cal. 634; Baker v.
Brown, 18 Ill. 91.
W Houpt v. Shields, 3 Port. 247; Jor-
dan v. Jordan, Dudley, Ga. 182.
1 Stewart «. Spedden, 6 Md. 433; Hay-
man v. Keally, 8 Cranch C. C. 325; John-
son v. Wren, 3 Stew. 172; Conant v.
Hitt, 12 Vt. 286.
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 2618
person is made his executor or administrator, this act of the law,
rendering a suit for the debt impossible, since one cannot sue
himself, yet not extinguishing it, suspends the running of the
limitations statute! Again, —
Rebellion — War. — The mere temporary closing of the courts,
in consequence of disturbances from rebellion or war, does not
necessarily, or does not in all circumstances, suspend the run-
ning of the statute.2 But those hostilities do, which, by render-
ing unlawful or impossible the litigation in bar whereof the
statute is invoked,’ constitute the overwhelming necessity‘! to
which all laws must yield.®
§ 261 b. Exceptions. — Besides the exceptions thus engrafted
by the unwritten law on the statute, there are generally in our
States others, as already intimated, incorporated into its terms.
For example, — :
“Beyond Seas.” — The statutes of some of the States, following °
mainly the early English ones,’ except out of their operation per-
sons ‘ beyond the seas.”? In the absence of this statutory excep-
tion, this fact itself will not work the exemption.? The English
courts gave to the expression its obvious meaning ; so that, for
example, Ireland, both before and after the union, was adjudged
1 Seagram r. Knight, Law Rep. 2 Ch.
Ap. 628, 632; Spencer v. Spencer, 4 Md.
Ch. 456; Brown v. Stewart, 4 Md. Ch.
368. See Munroe v. Holmes, 13 Allen,
109.
2 Prideaux v. Webber, 1 Lev. 31; Hall
v. Wybourn, 2 Salk. 420. And see Hep-
burn’s Case, 3 Bland, 95. But see obser-
vations in Hanger v. Abbott, 6 Wal. 582,
541; United States v. Wiley, 11 Wal. 508,
518; Marks v. Borum, 1 Baxter, 87; Kil-
patrick v. Brashear, 10 Heisk. 372, 375.
3 See, for the principle, Bishop Con.
§ 610-631.
* Ante, § 124 and places there re-
ferred to.
5 Hanger v. Abbott, United States v.
Wiley, and other cases, supra; The Pro-
tector, 9 Wal. 687; Harrison v. Hen-
derson, 7 Heisk. 315; Neely v. Luster,
7 Heisk. 354; Braun v. Sauerwein, 10
Wal. 218 ; Levy v. Stewart, 11 Wal. 244;
Stewart v. Kahn, 11 Wal. 493; Coleman
v. Holmes, 44 Ala. 124; O’Neal v. Boone,
53 Ill. 85; Mixer v. Sibley, 53 Ill. 61;
Sierra v. United States, 9 Ct. of Cl. 224;
The Protector, 12 Wal. 700; Adger v.
Alston, 15 Wal. 555; Ross v. Jones, 22
Wal. 576; Gooding v. Varn, Chase, 286 ;
Eddins v. Graddy, 28 Ark. 500; Randolph
v. Ward, 29 Ark. 238; Hall v. Denckla,
28 Ark. 506; Bell v. Hanks, 55 Ga. 274;
Selden v. Preston, 11 Bush, 191; Mc-
Merty v. Morrison, 62 Misso. 140; Pitzer
v. Burns, 7 W. Va. 63; Sleght v. Kane, 1
Johns. Cas. 76. And see Shand v. Gage,
9 S. C. 187; Johnston v: Wilson, 29 Grat.
879; Zacharie v. Godfrey, 50 Ill. 186;
Delancey v. McKeen, 1 Wash. C. C. 354.
6 Vans v. Higginson, 10 Mass. 29;
Hall v. Little, 14 Mass. 203.
7 Hall v. Wybank, 3 Mod. 311; Beven
v. Clapham, 1 Lev. 145; Rochtschilt ».
Leibman, 2 Stra. 836; Swayn v. Stephens,
Cro. Car. 245; Parry «. Jackson, 4 T. R.
516.
8 Post, § 595.
9 Hall v. Wybourn, 2 Salk. 420; s. c.
nom. Hall v. Wyborn, 1 Show. 98; Anony-
mous, Comb. 190; Swayne v. Stevens,
W. Jones, 252.
249
§ 2616 SPECIAL INTERPRETATIONS. [Book Im.
to be,! and Scotland not to be,? “beyond the seas.” In 1833,
this construction was somewhat changed by the statute of 8 & 4
Will. 4, c. 27, § 19, which declared that, within its provisions
and the limitations act of 21 Jac. 1, c. 16, § 7, ‘“‘no part of the
United Kingdom, &c. shall be deemed to be beyond seas.” 3
This statute of Will. 4, adopted long after the Revolution, has, of
course, no effect with us; but some of our American courts, over-
looking it, and overlooking the English decisions pronounced in
its absence, have held that the words “beyond the seas” mean
simply out of the limits of the State. And, in one way or
another, a large proportion of our tribunals have reached this
conclusion.5 Other of our courts deny this construction; and
hold that, at least, another State. of the Union is not “ beyond
the seas.” It is difficult to find any other reason than the blun-
der just mentioned for adjudging that a man who steps across an
invisible line into an adjoining State has, by the one step, taken
1 Nightingale v. Adams, Holt, 426;
Anonymous, 1 Show. 91; Gaskin v. Gas-
kin, Cowp. 657, 658; Lane v. Bennett, 1
M. & W. 706. .
2 King v. Walker, 1 W. BI. 286. And
see Lane v. Bennett, supra, at p. 74-76.
3 And see Chandler v. Vilett, 2 Saund.
120 and notes; Ruckmaboye v. Motti-
chund, 8 Moore P. C. 4.
4 For example, in Bank of Alexandria
«, Dyer, 14 Pet. 141, 145, Taney, C. J.
delivering the unanimous opinion of the
Supreme Court of the United States,
said: “The question presented by these
pleadings is the construction of that
clause in the Maryland act of limit-
ations, which exempts from the operation
of the act all persons who are ‘beyond
the seas,’ at the time cause of action ac-
crues, and continues the exemption until
they shall return. The words, ‘beyond
the seas,’ in this law, are manifestly bor-
rowed from the English statute of limita-
tion of James 1, c. 21 [21 James 1, c. 16];
and it has always been held, that they
ought not to be interpreted according to
their literal meaning, but ought to be
construed as equivalent to the words,
‘without the jurisdiction of the State.’
According to this interpretation, a person
residing in any other State of the Union
was ‘beyond the seas,’ within the mean-
ing of this act of assembly; and there-
250
fore, excepted from its operation until he
should come within the limits of Mary-
land.” For a review of the decisions of
the Supreme Court of the United States
on this question, see Davie v. Briggs, 97
U. S. 628, 637:
5 Murray v. Baker, 3 Wheat. 541;
Forbe v. Foot, 2 McCord, 331; Shelby v.
Guy, 11 Wheat. 361; Pancoast v. Addi-
son, 1 Har. & J. 850; Wakefield v. Smart,
3 Eng. 488; Denham v. Holeman, 26 Ga.
182; Stephenson v. Wait, 8 Blackf. 508;
Galusha y. Cobleigh, 13 N. H. 79; Rich-
ardson v. Richardson, 6 Ohio, 125.
6 The State v. Harris, 71 N.C. 174;
Mason »v. Johnson, 24 Ill. 159; Marvin »v.
Bates, 13 Misso. 217; Fackler v. Fackler,
14 Misso. 431; Keeton v. Keeton, 20
Misso. 580; Gonder v. Estabrook, 9
Casey, Pa. 374. There are statutes the
special terms of which are so. Hall v.
Little, 14 Mass. 203, 204. State Statutes
in National Courts.— Though the Su-
preme Court of the United States has in-
terpreted the expression “beyond seas”
as an equivalent for “out of the State,”
still, where the question is upon a State
statute which has received the other
construction from the State tribunal
(ante, § 85, 115; Amory v. Lawrence,
3 Clif. 523), it will follow the latter. So
it did in passing upon the North Caro-
lina statute, on the ground “that the
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 262
where there is not a drop either of salt water or fresh, transported
himself ‘‘ beyond the seas.” “Even,” to quote from Lord Abinger,
C. B., if the court were “quite satisfied” that the legislature
meant so, it **could not supply the defect.” !
§ 261 c. Concealment. — On general principles, want of knowl-
edge of an offence, or the defendant’s concealing it,? or mere
ignorance of a civil right,? is no answer to the statutory bar.
But by the terms of some of our statutes, matters of this sort will
postpone the limitation of a criminal prosecution.
“Pleeing from Justice”——has the like statutory effect in some
of the States and under the United States jurisdiction.®
§ 261 d. To what Offences. — There are decisions, not requiring
special consideration, as to what offences are within the varying
terms of our limitations statutes. Now —
Offences within one another. — In those cases in which a convic-
tion for a minor offence may be had on an indictment for a major,
the same as in any other, the particular one for which the verdict
is found must not be barred by the statute.’
§ 262. Shifting the Proceedings — Valid — Erroneous. — It is
plain that the beginning of a prosecution for one offence will not
intercept the running of the statute against another.®
fixed and received construction by the
State courts of local statutes of limita-
tion furnishes rules of decision for this
court, so far as such construction and
statutes do not conflict with the Constitu-
tion of the United States.” Davie v.
Briggs, 97 U. S. 628, 637.
1 Lane v. Bennett, supra, at p. 73.
And see Wilson «. Appleton, 17 Mass.
180, 181.
2 United States v. White, 5 Cranch
Cc. C. 88.
3 Campbell v. Long, 20 Iowa, 382;
Abell v. Harris, 11 Gill & J. 867; Davis
«, Cotten, 2 Jones Eq. 430; Bossard v.
White, 9 Rich. Eq. 483; Leonard v. Pit-
ney, 5 Wend. 30.
4 Jones v. The State, 14 Ind. 120; Ran-
dolph uv. The State, 14 Ind. 282; Free v.
The State, 13 Ind. 824; Robinson v. The
State, 57 Ind. 118; Ulmer’ v. The State,
14 Ind. 62.
5 The State v. Washburn, 48 Misso.
240; United States v. O’Brian, 3 Dil.
381; United States ». Smith, 4 Day, 121,
R. S. of U. S. § 1046.
On the
6 The State « Enos, Kirby, 21;
Anschicks v. The State, 6 Texas Ap.
624; United States +. Hirsch, 100 U.S.
83; The State v. King, 29 La. An. 704;
Lamkin v. People, 94 Ill. 501; United
States v. Irvine, 98 U.S. 450; White v.
The State, 4 Texas Ap. 488; Laurent
v. Bernier, 1 Kan. 428; The State v.
Elrod, 12 Rich. 662; The State v. Abel-
lanado, 18 La. An. 141; The State v.
Markham, 15 La. An. 498; Common-
wealth «. East Boston Ferry Co. 18 Al-
len, 589; United States r. Fehrenback, 2
Woods, 175; The State ». J. P. 1 Tyler,
283; The State v. Hunkins, 43 N. H.
657; People v. Haun, 44 Cal. 96; United
States v. Norton, 91 U. S. 566; Common-
wealth v. Edwards, 9 Dana, 447.
7 White v. The State, 4 Texas Ap.
488; Turley v. The State, 3 Heisk. 11
(overruling Carden v. The State, 3 Head,
267); Nelson vc. The State, 17 Fla. 195;
Heward v. The State, 13 Sm. & M. 261;
Riggs v. The State, 30 Missis. 635.
8 Smith v. The State, 62 Ala. 29;
Buckalew v. The State, 62 Ala. 334.
251
§ 262 SPECIAL INTERPRETATIONS. [Book Itt.
other hand, if the issuing of a warrant is the commencement of a
prosecution,! the successive steps afterward required by the law
are merely a continuance of it, so that the running of the stat-
ute will be stopped.? But if one of such steps proves to be erro-
neous, and is therefore taken again, is the result different? In
Alabama, the written. law expressly providing that ‘a prosecu-
tion may be commenced, within the meaning of this chapter, by
the issue of a warrant, or by binding over the offender,” one thus
proceeded against was indicted, the indictment was quashed as
erroneous, and then a fresh indictment was found, while still
he remained in custody. And this was held to be such a con-
tinuous proceeding as prevented the statute of limitations from
reattaching to the case.2 In North Carolina, this doctrine was
carried to a point less obviously just in principle. By the stat-
ute, “in all trespasses and other misdemeanors, except the
offences of perjury, forgery, malicious mischief, and deceit, the
prosecution shall commence within two years after the commis-
sion of the said trespasses and misdemeanors, and not after,” &.4
And, without reference to the original complaint and warrant, or
order of commitment, if such there were, the court held, that,
where there is an indictment within the statutory period, then it
is abated on a plea of misnomer, then another is found against
the defendant by his right name after the statutory period has
elapsed, this is sufficient. Said the learned Chief Justice: ** The
first. bill was found within two years after the commission of
the offence; the second bill was a continuation and a part of
the same proceeding, according to a well-settled principle.” ®
-1 Ante, § 261. son, supra, where it is held, that, if an
2 Tully v. Commonwealth, 13 Bush,
142.
3 Foster v. The State, 38 Ala. 425. See
The State v. Kreps, § Ala. 951; Smith
«. The State, supra; The State v. Haz-
ard, 8 R. I. 273; The State v. Cason, 28
La. An. 40.
4 R. S.c, 35, § 8. The statute is not
given in the report.
5 The State v. Hailey, 6 Jones, N. C.
42, 43, referring to The State v. Johnson,
6 Jones, N. C. 221; The State «. Haney,
2 Dev. & Bat. 390; The State » Tisdale,
2 Dev. & Bat 1659; The State v. Hashaw,
2 Car. Law Repos. 251 The principle is
more fully stated in The State v. John-
252
indictment is found, and afterward an-
other one for the same cause, the legal
effect is simply to add a new count to the
first, and the two constitute one case.
Whether this is so in the other States we
need not inquire; since, if it is, it does
not follow that the new indictment 1s a
part of a procceding already quashed.
If it 1s such part, it is quashed also. It
may be further observed of The State v.
Hailey, that the point stated in the text
was not necessary to the decision, since
the statute contained a saving within
which the case clearly fell. Still in an
English case at the assizes, the learned
judge had so much doubt on the point as
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 264
There is apparently more or less authority quite opposite to this
doctrine, to the effect that proceedings declared erroneous or null
will not interrupt the running of the statute. But that they
may, is expressly enacted in some of the States.?
§ 263. Past and Future.— As every crime is a wrong com-
mitted against the power which makes the laws,? and as there-
fore a statute limiting the period for prosecution is a declaration
in the nature of grace to the offender,‘ such a statute, if in gen-
eral terms, should in reason be applied by the courts to past
offences,® the same as to future ones. This results also from the
doctrine ® that the statute is to be interpreted liberally in favor of
the accused. Even a civil statute of limitations, not within
these special reasons, is by a part of our courts held, in the lan-
guage of a learned Vermont judge, to “ operate upon an antece-
dent as well as subsequent cause of action, unless by its terms it
is restrained to the latter; ’’’ though some of the other tribunals
maintain the contrary. In matter of authority it has been held
that, prima facie, criminal statutes of limitations do 9 and do not”
include past offences.
§ 264. How take Advantage of Statute. — One relying on a stat-
ute of limitations need not plead it in bar.
The prosecuting
power is required affirmatively to show an offence within the
period of limitations.!
to reserve it, though it came to nothing,
for the prisoner was acquitted on the
merits. Rex v. Killminster, 7 Car. & P.
228. And it may be that some other
judges will take the same view as did
those of the North Carolina tribunal. See
also The State v. Duclos, 35 Misso.
237.
1 The State v. Curtis, 80 La. An. 1166;
The State v. Morrison, 31 La. An. 211.
? The State v. Duclos, 35 Misso. 237 ;
The State v. Primm, 61 Misso. 166.
3 Crim. Law, I. § 82.
* Lamkin v. People, 94 Ill. 501; Peo-
ple v. Lord, 12 Hun, 282. -
5 See ante, § 88-85 a.
® Ante, § 259.
™ Cardell v. Carpenter, 42 Vt. 234,
236, Wilson, J.; Pritchard v. Spencer, 2
Ind. 486; Sleeth v. Murphy, Morris, 321;
Walker v. Bank of Mississippi, 2 Eng.
500; Phares v. Walters, 6 Iowa, 106;
Root v. Bradley, 1 Kan. 437; Marston v.
Seabury, 2 Penning. 435; Brewster v.
Brewster, 82 Barb. 428.
8 Hull v. Minor, 2 Root, 223; Moore
v. McLendon, 5 Eng. 512; Calvert v.
Lowell, 5 Eng. 147; Central “Bank v.
Solomon, 20 Ga. 408; Thompson v. Alex-
ander, 11 Ill. 54; Ashbrook v. Quarles,
15 B. Monr. 20; Whitworth v. Ferguson,
18 La. An. 602; Deal cv. Patterson, 12
La. An. 728; Stine v. Bennett, 13 Minn.
153; Carothers v. Hurley, 41 Missis. 71 ;
Paddleford v. Dunn, 14 Misso. 617;
Weber v. Manning, 4 Misso. 229; Dick-
son r. Chicago, &c. Railroad, 77 Ill. 331.
9 United States v. Ballard, 3 McLean,
469; People v. Roe, 5 Parker C. C. 231.
10 Martin v. The State, 24 Texas, 61.
11 Crim. Proced. I. § 799. Query wheth-
er this is not otherwise in New York.
People v. Roe, 5 Parker C. C. 231.
12 United States v. Smith, + Day, 121;
Buckner v. The State, 56 Ind. 207; Hurt
v. Lhe State, 55 Ala. 214; Rex v. Phillips,
2538
§ 265 SPECIAL INTERPRETATIONS. [BooK IIL.
§ 264 a. Pertaining to Remedy — (Time and Place of Trial). —
Tn general, statutes of limitation, whether civil or criminal, are
regarded as pertaining, not to the right, but to the remedy.!
And, as with other remedies,? those which prevail at the time
and place of the trial furnish the rule for the suit.? Our written
constitutions have created exceptions to this doctrine, but they
are not numerous. The chief exception is in the civil depart-
ment ; namely, —
§ 265. Vested Rights. — When the time for bringing a civil
action las expired, the rights of the parties are ordinarily deemed
to have vested, and the legislature cannot then take away what
is thus vested by removing the statutory bar. Again, —
Construction of Statute. — Though, in general, and by the bet-
ter opinion, a statute of limitations should be applied to past
transactions,® the same as to future ones, the complete running of
a limitations statute creates a wide difference between cases
which are barred by it, even where no rights are vested, and
those which are not. Therefore, in reason, a new statute of
limitations should not be construed as intended to apply to any
case already barred under an old one, unless express words in
it require.
And so are the few authorities which we have.®
Within the principle involved in this proposition it was held,
that, —
Judgment Lien. — Though the legislature is not forbidden to
alter the limitation period of an existing judgment lien, yet, the
power being an extraordinary one, the intent to exercise it will
Russ. & Ry. 869; White v. The State, 4
Texas Ap. 488; Gore v. The State, 58
Ala. 391. See Commonwealth vo. Ruffner,
4 Casey, Pa. 259.
1 Waltermire v. Westover, 4 Kernan,
16, 20; Meek v. Meek, 45 Iowa, 294;
Pratt ». Huggins, 29 Barb. 277; Cook »v.
Kendall, 13 Minn. 824; Edwards v. Mc-
Caddon, 20 Iowa, 520; Cox vw. Berry, 18
Ga. 306.
2 Ante, § 175, 176.
8 Flowers v. Foreman, 23 How. U. S.
132; Hendricks v. Comstock, 12 Ind.
238; Walworth v. Routh, 14 La. An. 205;
Gassaway v. Hopkins, 1 Head, 583;
Sampson v. Sampson, 63 Maine, 328;
Patterson v. Gaines, 6 How. U.S. 550;
Winston v. McCormick, 1 Ind. 56; Man-
chester v. Doddridge, 3 Ind. 360; Cook v.
254
Kendall, 13 Minn. 824; Martin v. Martin,
35 Ala. 560; Howell v. Howell, 15 Wis.
55.
4 Pleasants v. Rohrer, 17 Wis. 677,
579; Sprecker v. Wakeley, 11 Wis. 432;
Fears v. Sykes, 35 Missis. 638; Sims vo.
Canfield, 2 Ala. 555; Newcombe »v. Leav-
itt, 22 Ala. 631; Winburn v. Cochran, 9
Texas, 123; McKinney v. Springer, 8
Blackf. 506; Piatt v. Vattier, 1 McLean,
146; Stipp y. Brown, 2 Ind. 647; Hill v.
Kricke, 11 Wis. 442; Knox v. Cleveland,
13 Wis. 245; Parish v. Eager, 15 Wis.
632. And see Cassity v. Storms, 1 Bush,
452; ante, § 85 a, 177 a, 178.
5 Ante, § 263.
6 Thompson v. Read, 41 Iowa, 48;
Pitman v. Bump, 5 Oregon, 17; Thomp-
son v. The State, 54 Missis. 740.
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 266
not be inferred from any doubtful expression.! So, in the crimi-
nal law, —
Authorizing Criminal Prosecution after Bar.— Assuming the legis-
lative power to authorize criminal prosecutions for offences against
which the statute of limitations has fully run, the exercise of the
power would be a step in legislation so out of the usual course
that it should not be inferred from words equally applicable to
past offences not barred. And for this also we have judicial
authority.2 -A different question arises as to the —
§ 266. Right to authorize Prosecution of Barred Offence — (Bx
post Facto Law).— However ungracious it may be for the legis-
lature to withdraw from persons accused of crime the protection
of a limitations statute which has once attached, there is no room
to question its power unless some clause of the constitution can
be pointed to forbidding. The doctrine of vested rights, which
concerns property alone,’ is not applicable ; there is no such
thing as a right vested in one to go unwhipped of criminal jus-
tice. The only question, therefore, is, whether such a provision
is ex post facto.» No other express constitutional clause than the
one forbidding ex post facto laws has ever been distinctly sug-
gested as applicable to the case. On this question, it may be
observed, first, that such a statute is not within any of the recog-
nized legal definitions of an ex post facto law ,® secondly, that it
is not within what we may term the lay-meaning of the words
ex post facto —after the fact. The punishment which it renders
possible, by forbidding the defence of lapse of time, is exactly
what the law provided when “the fact” transpired. No bend-
ing of language, no supplying of implied meanings, can, in
natural reason, work out the contrary conclusion. And, lastly,
sucha statute, however inexpedient or oppressive it commonly
would be deemed, is not within the mischiefs at which the con-
stitutional inhibition of ex post facto laws is directed. Natural
justice and a fundamental principle of the criminal law alike for-
bid the infliction of punishment where there could be no con-
1 Miller v. Commonwealth, 5 Watts & Law Repos. 34; Albee v. May, 2 Paine,
S. 488. 74; Beach v. Woodhull, Pet. C. C. 2.
2 Thompson w The State, 54 Missis. 4 2 Bishop Mar.Women, § 32; 1 Bishop
740; The State v. Sneed, 25 Texas Supp. Mar. & Div. § 667, 693.
66. : 5 Ante, § 85, 176, 180, 184, 185; Crim
3 Ante, § 39 a—41, 91a; Calderv. Bull, Law, I. § 279.
8 Dall. 386, 399 ; .Minge v. Gilmour, 1 Car. 6 Crim. Law, IJ. § 279-284.
255
§ 267 SPECIAL INTERPRETATIONS. [Book TI.
scious guilt.!. And the extent of the conscious guilt should be
and is the measure of the punishment. To protect, as far as may
be, this principle from the violence of inconsiderate or turbulent
legislation, the inhibition of ex post facto laws secures men against
being punished beyond what it was possible for their conscious
‘guilt to have been when the ‘ fact” occurred. But a statute
removing a limitations bar is wholly outside of this sort of con-
sideration. And it is immaterial to the argument what other
considerations, or how forcible, there may be against it.. The
running of the old statute had taken from the courts the right to
proceed against the offender, leaving the violated law without its
former remedy ; but it had not obliterated the fact that the law
forbade the act when it was done, or removed from the doer’s
mind his original cousciousness of guilt. Simply the remedy had
lapsed. And it has been adjudged, and never questioned, that,
in circumstances precisely analogous, this sort of lapse can be
repaired by a subsequent statute providing for a prosecution
Looking for judicial utterances to the point in terms, we find
them to be few and both ways. In a Texas opinion, laying
down the excellent rule that in the absence of express words a
statute will not be construed as intended to revive criminal pros-
ecutions already barred by a statute of limitations,’ the following
dictum occurs: ‘ The State, having neglected to prosecute within
the time prescribed for its own action, lost the right to prosecute
the suit. To give an act of the legislature, passed after such
loss, the effect of reviving the right of action in the State, would
give it an operation ex post facto, which we cannot suppose the
legislature intended.” * In New Jersey, the exact question arose,
and the Supreme Court decided by a divided bench that the
reversal of the statutory bar was good.’ Then the Court of Ap-
peals reversed the decision, also by a divided bench. Again, —
§ 267. Legislation connected with the Secession War. — We
have also on this question what may be deemed congressional
opinions. In 1869 it was provided by Congress,’ “‘ That the time
l Crim. Law, I. § 205, 286-291. ® Moore v. The State, 14 Vroom, 203.
2 Ante, § 180. And see The State xv. It does not seem to me clear that the
Shumpert, 1 S. C. 85. statute in question required: to be con-
3 Ante, § 265. strued as intended to apply to cases
4 The State v. Sneed, 25 Texas Supp. against which the limitations law had
66. already fully run.
5 The State v. Moore, 13 Vroom, 208. * For a very able presentation of the
256
CHAP. XXVI.] STATUTES OF LIMITATIONS. § 267
for finding indictments in the courts of the United States in the
late rebel States for offences cognizable by said courts, and which
may have been committed since said States went into rebellion,
be, and hereby is, extended for the period of two years, from and
after [the time when] said States are or may be restored to rep-
resentation in Congress: Provided, however, That the provisions
hereof shall not apply to treason or other political offences.” !
There. is some other legislation, National and State, which it
might be well to consider in connection with this; but lapse of
time is fast rendering it unimportant.?
side of the question favoring the legisla-
tive right, with many citations of authori-
ties, see, in the “ Globe,” the speech of
Hon. William Lawrence, of Ohio, deliv-
ered January 4, 1867.
1 Act of March 3, 1869, 15 Stat. at
Large, 340, c. 148. And see act of June
11, 1864, 18 Stat. at Large, 123, c. 118;
RB. S. of U.S. § 1048.
17
2 See ante, § 261a; United States ».
Wiley, 11 Wal. 508; Stewart v. Kahn,
11 Wal. 493; Brian v. Banks, 38 Ga. 300;
Bernstein v. Humes, 60 Ala. 582; Hart v.
Bostwick, 14 Fla. 162; Spencer v. Mc-
Bride, 14 Fla. 403; Huffman v. Alderson,
9 W. Va. 616; Oliver v. Perry, Phillips,
N. C. 581.
257
§ 269 SPECIAL INTERPRETATIONS. [Book IIL
CHAPTER XXVII.
THE MEANINGS OF PARTICULAR WORDS AND PHRASES IN THE
CRIMINAL LAW.
§ 268-270. Introduction.
271-275. The Person acting.
276-305. The Time and Place.
306-318. The Thing done.
819-347. Objects acted on and Instrumentalities.
347 a-350. The Proceedings.
§ 268. Elsewhere.— We have already seen something of the
immense variety in the meanings of words. And a leading pur-
pose of some of the foregoing chapters was to render palpable the
effects of their combinations in sentences and with reference to
diverse subjects.
Here — we are to bring under review various words and
phrases technically employed in statutes, in pleadings, and other
writings on the criminal law. ‘The elucidations will include the
common with the statutory law; because, as we have seen,? com-
mon-law terms employed in a statute have their common-law
meanings ; and because it is the purpose of this chapter to avoid,
as far as may be, by the completeness of its discussions, the
necessity of explanations and repetitions of like things in the
remaining part of the volume, and in “Criminal Law,” and
“Criminal Procedure.” Now,—
§ 269. Of these Technical Words and Phrases. — While, on the
one hand, man needs a language capable of conveying ideas in
infinite variety of shade and form, practical necessity requires
also, on the other hand, that in some circumstances he be able to
render the meanings exact and unquestionable. Such precision
is specially essential in the law. And because the decisions of
the courts on the significance of words, as on other questions, are
authoritative precedents for future causes, the result has come
1 Ante, § 92 d. 2 Ante, § 96.
258
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 271
about, that various words and phrases are to be rendered, whether
in the statutory or in the unwritten law, by legal meanings,
broader, narrower, or otherwise differing from their popular
. ones. After these legal meanings we are inquiring in the pres-
ent chapter. Not to introduce into it every word and phrase
which the criminal law has defined, but only so much of this
matter as the author’s division of the entire subject renders most
appropriate here, leaving other like matter for other places in this
series of volumes, —
§ 270. How Chapter divided. — We shall consider the terms
to denote, I. The Person acting; II. The Time and Place;
III. The Thing done ; IV. The Objects acted upon and the In-
strumentalities ; V. The Proceedings.
I. The Person acting.
§ 271. Agent — Servant — Clerk, &c. — These words are as fa-
miliar in the civil department of the law as in the criminal.
And their respective meanings depend, in some degree, on the
subject! to which they are applied and the connection? in which
they stand. For example, —
Agency falsely assumed. — In civil jurisprudence, one who has
done what is contrary to the duty of an agent cannot justify him-
self by showing that, in fact, he was not an agent, but only act-
ing as such without authority. Yet, in the criminal law, a per-
son to be punishable for a wrong committed contrary to his duty
as agent must, it appears generally to be holden, be such in fact.*
Again, —
The One Instance only —- (Embezzlement). — While in civil ju-
risprudence it is of no consequence as to the agent’s responsibility
that he acted or was authorized in the one instance only, there
are authorities which seem to make it otherwise in criminal.
According to some of the cases, he must, in embezzlement, be an
agent generally, not merely employed specially to do a single act
1 Ante, § 98 a, 102, 103. Schedda v. Sawyer, 4 McLean, 181; Ellas
2 Ante, § 92a, 93,95, 102; TheState v. Lockwood, Clarke, 311; Farrell v.
v. Bancroft, 22 Kan. 170. Campbell, 3 Ben. 8.
8 Story Agency, 820; Osgood v. Nich- 4 Rex v. Thorley, 1 Moody, 343. See
ols, 5 Gray, 420; Walrath v. Redfield, Reg. v. Foulkes, Law Rep. 2 C.C. 150,
18 N. Y. 457; Leader v. Moxon, 2 W. Bl. 13 Cox C. C. 63; Morse v. The State, 6
924; Hardacre v. Stewart, 5 Esp. 103; Conn. 9; Crim. Law, II. § 363, 364.
259
§ 2714 SPECIAL INTERPRETATIONS. [Book IIL.
in the particular matter ;! though he need not devote his whole
time or any considerable part of it to his employer, or be regu-
larly or constantly in his service.2— But the better modern doc-
trine discards this distinction, and applies the rule of our civil
jurisprudence to the criminal.2 On the whole, —
Elsewhere. — Because of these and other differences, real or sup-
posed, the plan of this series of volumes is, not to extend this
discussion here, but. to explain these several terms in connection
with the respective topics to which they relate.*
§ 271 a. Officer — Public Officer.— The meanings of the terms
“‘ officer,” “ public officer,” and the like, are also in a degree va-
riable. And they are somewhat considered in other. connec-
tions. A surveyor or supervisor of roads has been held to be,
and not to be,’ an officer, within the contemplation of differing
statutes.
be a public officer.$
A letter carrier has been adjudged, in Scotland, to
Under particular statutes, the assistant
clerk of a court,® a treasurer, a deputy treasurer,” a prosecuting
1 Rex v. Freeman, 5 Car. & P. 534;
Rex v. Haydon, 7 Car. & P. 445; Rex v.
Nettleton, 1 Moody, 259; Reg. v. Smith,
1 Car. & K. 423. And see Rex v. Smith,
Russ. & Ry. 516; Rex v. Beacall, 1 Car.
& P. 310; Reg. v. Gibbs, Dears. 445, 24
Law J. n. 8. M. C. 62, 1 Jur. n. s. 118,
29 Eng. L. & Eq. 538.
2 Rex v. Spencer, Russ. & Ry. 299;
Rex v. Hughes, 1 Moody, 370; Reg. ce.
Batty, 2 Moody, 257; Rex v. Carr, Russ.
& Ry. 198; Rex v. Leech, 3 Stark. 70.
3 Crim. Law, I. § 461, 464; IL. § 346.
* See more particularly, under the title
Embezzlement, Crim. Law, IT. § 331-351.
And see Reg. v. Atkinson, 2 Moody, 278;
Rex v. Hartley, Russ. & Ry. 189; Rex v.
Squire, 2 Stark. 349; Reg. v. Atkinson,
Car. & M. 525; Rex v. Beacall, 1 Car. &
P. 810; Rex v..Prince, 2 Car. & P. 517;
Rex v. Snowley, 4 Car. & P. 390; Rex v.
Pearson, 4 Car. & P. 572; Rex v. Salis-
bury, 5 Car. & P. 155; Reg: v. Townsend, .
Car. & M. 178; Reg. v. Hunt, 8 Car. & P.
642; Reg. v. White, 8 Car. & P. 742;
Reg. v. Wilson, 9 Car. & P. 27; Reg.
v, Welch, 2 Car. & K. 296; Reg. v.
Townsend, 2 Car. & K. 168; Rex v. Rees,
6 Car. & P. 606; Reg. v. Masters, 1 Den.
C.C. 382, 2 Car. & K. 930, Temp. & M.
1,18 Law J. x. 8. M.C.2; Reg. v. Miller,
260
2 Moody, 249; Rex v. Mellish, Russ. &
Ry. 80; Rex v. Burton, 1 Moody, 287;
Budd v. The State, 3 Humph. 483; Com-
monwealth v. Wyman, 8 Met. 247; Reg.
v. Watts, 1 Eng. L. & Eq. 558, 2 Den.
C.C. 14; The State v. Hart, 4 Ire. 246;
The State v. Chandler, 2 Strob. 266;
Reg. v. Jones, Car. & M. 611; Rex v.
Tyers, Russ. & Ry. 402; Reg. v. Masters,
3 New Ses. Cas. 326, 12 Jur. 942; Reg.
v. Sheppard, 9 Car. & P. 121; Walker
v, Commonwealth, 8 Leigh, 743; Rex v.
Jackson, 1 Moody, 119; Commonwealth
v. Stearns, 2 Met. 343; Reg. v. Lovell, 2
Moody & R. 236; Brooks v. The State,
30 Ala. 613; Reg. v. Gibson, 8 Cox C. C.
436; Reg. v. Hall, 18 Cox C. C. 49; Reg.
v. Barnes, 8 Cox C. C. 129; Reg. v.
Marsh, 3 Fost. & F. 523; Reg. v. Thorpe,
Dears. & B. 562, 8 Cox C. C. 29; Reg. v.
Bayley, Dears. & B. 121; s.c. nom. Reg.
v. Bailey, 7 Cox C. C. 179; Reg. v. Cosser,
18 Cox C. C. 187. °
5 Ante, § 216, 228; Crim. Law, I
§ 464, 465; II. § 349, 360.
6 Woodworth v. The State, 26 Ohio
State, 196.
* The State v. Putnam, 35 Iowa, 561,
8 Case of Smith, Syme, 185.
9 The State v. Newton, 28 La. An. 65.
© Crim. Law, II. § 349 and note; The
CHAP, XXVU.] PARTICULAR WORDS AND PHRASES. § 273
attorney,! a policeman,? a collector of taxes,? and an overseer of
the poor, have been held to be, and a town agent for the sale of
intoxicating liquors © and a county auditor ® not to be, officers or
public officers.’
§ 272. Aider— Abettor.— These words are not much used in
the modern law,8 but are common in the old books. Their mean-
ings are not precise and unvarying, like principal,? accessory,”
and:the like. Ordinarily an aider is one who assists at the fact,
and does not include an accessory whether before or after.
Hale says, that, “in some acts of Parliament, azders, being joined
with procurers, counsellors, and abettors, are intended of those
that are aiding to the fact; but, in other acts of Parliament,
where the word aiders is joined with maintainers and comforters,
it.is intended of those that are aiders ex post facto to their per-
sons.” 2 In like manner, while the term abettor commonly de-
notes one who instigates or encourages the doer at the fact, it
may not improperly be applied to the accessory before.¥
§ 273. Distiller — Rectifier. — A ‘ distiller” is “‘ one whose oc-
cupation is to extract spirit by evaporation and condensation.” 4
A “rectifier” is a person who, by then running the spirit through
charcoal, by passing it again through the still to raise the proof,
or by mixing it with anything else, purifies it and prepares it for
sale6 Therefore one who thus passes the spirit through the still
a second time was held not to be within the United States stat-
ute of July 24, 1813, imposing a duty on all stills employed in
distilling spirits from domestic and foreign materials ; though, in
coming to this conclusion, the court laid some stress on the word
‘“*materials,” supposed to mean something other than spirit itself,
State v. Brandt, 41 Iowa, 593; People v.
McKinney, 10 Mich. 54; Commonwealth
v. Morrisey, 5 Norris, Pa. 416.
1 The State v. Henning, 33. Ind. 189.
2 Sanner v. The State, 2 Texas Ap. 458.
* Crim. Law, II. § 349; The State v.
Walton, 62 Maine, 106.
4 The State v. Hawkins, 77 N. C. 194.
5 The State v. Weeks, 67 Maine, 60.
® The State v. Newton, 26 Ohio State,
265.
7 And see Commonwealth v. Binns,
178. & R. 219; Rainey v. The State, 8
Texas Ap. 62; Gordon v. The State, 2
Texas Ap. 154; Kavanaugh v. The State,
41 Ala. 399; Lockett v. The State, 61
Ga. 44; Commonwealth v. Smith, 111
Mass. 407.
8 See People v. Newberry, 20 Cal. 439.
® Crim. Law, I. § 604, 648, 675, 676.
10 Crim. Law, I. § 604, 663, 803.
Nl ] East P. C. 160; 1 Russ. Crimes, 3d
Eng. ed. 26.
12 | Hale P. C. 376.
13 2 Hawk. P. C. Curw. ed. c. 29, § 11,
p. 440.
14 Webster Unabridged Dict.
15 Quantity of Distilled Spirits, 3 Ben.
70; United States v. Tenbroek, 2 Wheat.
248, Pet. C. C. 180.
261
§ 274 {Book I.
SPECIAL INTERPRETATIONS.
and on considerations drawn from the probable intent of the law-
makers, arising out of the whole enactment.}
§ 274, Negro — Mulatto.2 — A negro is a black man descended
from the Southern African races. The word does not ordinarily
include a mulatto ;? but it would seem to in some of the States.4
A mulatto is ‘a person that is the offspring of a negress by a
white man, or of a white woman by a negro;” and the child of a
white woman by a mulatto father is not a mulatto.2 Yet by
local usage in South Carolina, this word generally signifies “a
person of mixed white, or European and negro descent, in what-
ever proportions the blood may be mixed;” though there must
be such a proportion of black blood as to be visible.6 The same
appears also to be its meaning in Arkansas.’
Person of Color — White.— The term “person of color,” em-
ployed in a statute, was held in North Carolina to mean one de-
scended from a negro within the fourth degree inclusive, though
an ancestor in the intervening generation was white.’ In Con-
necticut it was adjudged to denote, “not only all persons de-
scended wholly from African ancestors, and therefore of pure
and unmixed African blood, but those who have descended in
part only from such ancestors, and have a distinct, visible admix-
ture of African blood,” —all, in short, “‘having and disclosing
visibly the peculiar and distinctive color of the African race.” ®
It is difficult to see how this term can be so extended by inter-
pretation as to include any whom the law designates as white ;
and some of our courts hold all persons to be white in whom the
white blood predominates. In Michigan the decision of the
majority was, that all are white ‘in whom white blood so far
1 United States v. Tenbroek, supra.
2 See 1 Bishop Mar. & Div. § 308.
8 Felix v. The State, 18 Ala. 720; Dick
v. The State, 30 Missis. 631; Frasher v.
The State, 3 Texas Ap. 263, 280. And
see Heath v. The State, 34 Ala. 250; Ivey
v, Hardy, 2 Port. 648.
4 McPherson v. Commonwealth, 28
Grat. 939; The State v. Chavers, 5 Jones,
N.C. 11.
5 Thurman v. The State, 18 Ala. 276;
Medway v. Natick, 7 Mass. 88.
6 The State v. Davis, 2 Bailey, 558;
The State v. Hayes, 1 Bailey, 275, 276.
And see Johnson v. Boon, 1 Speers, 268.
See Dean v. Commonwealth, 4 Grat. 641.
262
7 Daniel v. Guy, 19 Ark. 121, 133, 184.
8 The State v. Dempsey, 9 Ire. 384.
See also The State v. Melton, Busbee, 49;
The State v. Chavers, 5 Jones, N.C. 11;
People v. Hall, 4 Cal. 399; Gentry v. Mc-
Minnis, 3 Dana, 382.
9 Johnson v. Norwich, 29 Conn. 407,
408. And see The State v. Davis, supra;
White +. Tax Collector, 3 Rich. 136;
Pauska ». Daus, 31 Texas, 67, 74.
10 1 Bishop Mar. & Div. § 308; Gray
v. The State, 4 Ohio, 3858; Williams v.
School District, Wright, 578; Jeffries
v. Ankeny, 11 Ohio, 372; Thacker v.
Hawk, 11 Ohio, 376; Lane v. Baker, 12
Ohio, 237.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 276
preponderates that they have less than one fourth of African
blood,” but those having a fourth or more of African blood are
not white. Martin, C. J. dissenting, deemed that a preponder-
ance of white blood makes a white man.!_ To prevent one’s being
white, the dark mixture need not be of negro blood. Our North
American Indians? and the Mongolian natives of China? have
been held not to be white.
§ 275. Other Terms, —indicating the person acting, are better
explained in connection with the particular subject.
. JI. The Time and Place.
§ 276. Daytime — Night Time — (Burglary). — It is sometimes
material, on a question of crime or its degree, that the wrongful
act was committed in the night. Thus, an attempted felony in
a dwelling-house, carried to the extent of breaking into it, is,.
when done in the night, a common-law felony called burglary ;
but, when done in the day, it is only, like other attempts to
commit felony, a misdemeanor.* On the other hand, special con-
sequences occasionally follow the doing of a thing in the day.®
In very ancient times, the night, within this distinction, was
deemed to commence with the setting and end with the rising of
the sun; but, for a long period, the common-law rule has been,
and it is now, that those portions of the morning and evening
wherein, though the sun is below the horizon, sufficient of his
light is above for the features of a man to be reasonably dis-
cerned, are day.6 Light from the moon is not to be taken into
the account ;7 therefore it is not always day when one’s face
may be seen. There is no middle space between day and night;
but, where one begins, the other ends.2 The obvious propriety
! People v. Dean, 14 Mich. 406. And 8 3 Inst. 638; 1 Hale P. C. 550; 2 East
see Walker v. Brockway, 1 Mich. N.P. P. C. 509; 1 Hawk. P. C. Curw. ed.
57. To the like effect is Bailey v. Fiske, p. 130,§2; Rex v. Tandy, 1 Car. & P.
34 Maine, 77. See also Gentry v. Mc. 297; Commonwealth v. Chevalier, 7 Dane
Minnis, 3 Dana, 382. Abr. 184; People v. Griffin, 19 Cal. 578.
2 Walker v. Brockway, supra; The 7 1Hale P.C. 551; 4 Bl. Com 224;
State v. Melton, Busbee, 49; Bailey v. Bac. Abr. Burglary, D.; Thomas v. The
Fiske, supra. State, 5 How. Missis. 20. -
3 In re Ah Yup, 5 Saw. 155. 3 Thomas v. The State, 5 How. Missis.
‘ Crim. Law, I. § 342, 559, 772; II. 20; The State v. Bancroft, 10 N. H. 105,
§ 90, 101; 1 Hale P. C. 549, 550. 107; 3 Inst. 63.
5 Crim. Law, IT. § 102; 1 Hale P. C. ® The State v. Bancroft, 10 N. H. 105,
550, 551; 4 Bl. Com. 224. 107; Rex v. Tandy, 1 Car. & P. 297.
263
§ 277 SPECIAL INTERPRETATIONS. [Book m1.
of furnishing, to person and property, a special protection in
periods of darkness and repose, has led to the introduction of the
distinction between night and day into many statutes; in con-
struing which, the courts follow the common-law rule as to when
each begins and ends.!_ But the difficulties of applying this rule
— as, for instance, in determining how much of the light where-
by we discern objects comes from the moon —are so considerable,
that it has been latterly, in England,’ and in some of our States,?
modified and made more exact by statutes, which have fixed an
-hour for night, in law, to begin and close.
§ 277. Dwelling-house, House, and Castle, with their Connected
Buildings : —
Terms distinguished — (Dwelling-house — Mansion-house —- House
— Messuage — Castle). — The words ‘“ dwelling-house ” and
“‘ mansion-house ” are identical in legal writings, but “ house”
is not quite the same.* In a deed or will, the latter is equivalent
to ‘*messuage ;”.° and it will pass the land, ‘an acre or more,” ®
under and around it, with the minor buildings ;* but in criminal
law it has never been understood as extending to the soil.
*« Dwelling-house” or “ mansion-house” is the proper word in
an indictment for common-law burglary, nor will ‘house”’ suffice
as.a substitute. The latter is of meaning somewhat larger than
the others,® though the difference is not quite definable; it is
1 Ante, § 242; Crim. Law, II. § 118;
Trull v. Wilson, 9 Mass. 154; Rex »v.
Kemp, 1 Leach, 4th ed. 222.
2 1 Vict. c. 86, § 4, is suspended by 24
& 25 Vict. c. 96,§ 1. By the latter, the
night, under the larceny act, which in-
cludes burglary, begins at nine in the
evening and ends at six in the morning.
Under the game laws, night begins one
hour after sunset and ends one hour
before sunrise. 1 Deac. Crim. Law, 509;
Archb. Crim. PL & Ev. 19th Eng. ed. 990 ;
9 Geo. 4, c. 69, § 12. And see Reg. »v.
Polly, 1 Car. & K. 77. i
8 Commonwealth v. Williams, 2 Cush.
682.
* Commonwealth v. Pennock, 38. & R.
199,
5 Clements v. Collins, 2 T. R. 498, 502.
And see 1 Chit. Gen. Pract. 167; Burrill
Law Dict., and Bouv. Law Dict., House;
Danvers v. Wellington, Hardres, 173.
264
8 Co. Lit. 5 6.
* Clements v. Collins, 2 T. R. 498;
Shep. Touch. 90, 94; Rogers v. Smith, 4
Barr, 93; Bennet v. Bittle, 4 Rawle, 339,
342. See Steele v. Midland Railway, Law
Rep. 1 Ch. Ap. 275; Marson v. London,
&c. Railway, Law Rep. 6 Eq. 101. This
word may have the like meaning in a
statute. Steele v. Midland Railway, su-
pra, at p. 278.
8 Crim. Proced. II. § 185;-1 Hale
P. C. 550, 567; 1 Hawk. P. C. Curw. ed.
p. 133, § 16; 3 Chit. Crim. Law, Ist ed.
1095, 1101; 1 Gab. Crim. Law, 79.
9 Crim. Proced. II. § 34.
10 The State v. Sutcliffe, 4 Strob. 372.
And see an article in 18 Law Reporter,
157; Daniel v. Coulsting, 7 Man. & G.
122; ante, § 213. Butsee Surman v. Dar-
ley, 14 M. & W. 181; Commonwealth v.
Posey, 4 Call, 109; Powell v. Price, 4
C. B. 105.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 279
the proper. word in indictments at the common law for arson.
The term “castle” is often, but not necessarily,? employed to
indicate the habitation wherein one may exercise certain special
rights of self-defence. Thus, to break into the dwelling-house of
another in the night, with intent to commit a felony therein, is
burglary ; maliciously to burn, in the day or night, another’s house,
is arson ; and no officer or private person is permitted, except under
special circumstances, to break open a man’s castle. Still, —
Meanings variable —((In Burglary and Larceny). — As already
seen, the meanings of these terms may vary with the subject
and their connection with other words ;° but, in general, they are
stable in the criminal law. For example, in statutes against
larceny from the dwelling-house, the term * dwelling-house ” has
the same signification as in burglary.®
§ 278. Dwelling-house, definea. — A dwelling-house is the apart-
ment, building, or cluster of buildings in which a man with his
family resides. To explain, —
Cluster of Buildings — (How Indictment in Burglary). — One
need not so construct his habitation that all its rooms will be
under one roof; therefore the word “ dwelling-house ” embraces
the entire congregation of buildings, main and auxiliary, used
for abode. It includes, says Hale, the privy, ‘barn, stable, cow-
houses, dairy-houses, if they are parcel of the messuage, though
they are not under the same roof, or joining contiguous to it.”?
And .the indictment for a burglary in any one of them may lay
it as committed in the mansion-house.’ But —
§ 279. Habitation essential to Dwelling-house.— Not even the
main structure is a dwelling-house, though built for one, unless
it is what the law terms inhabited. And a dwelling-house may
cease to be such without undergoing any change as a building.”
! Crim. Proced. II. § 34; 1 Hale P. C. 7 1 Hale P.C. 588.
567; 3 Chit. Crim. Law, Ist ed. 1126; 8 Crim. Proced. II. § 135, 186 (and see
Commonwealth v. Posey, 4 Call, 109. § 34); 1 Hale P.C. 557; 2 East P.C.
2 The State v. Zellers, 2 Halst. 220. 512; 3 Chit. Crim. Law, 1st ed. 1095.
3 Crim. Law, I. § 858; II. § 707; 9 Rex v. Harris, 2 Leach, 4th ed. 701,
Crim. Proced. I. § 195, 196. 2 East P. C. 498; Rex v. Thompson, 2
4 Ante, § 242 a, and last paragraph. Leach, 4th ed. 771, 2 East P. C. 498; The
5 McHole vy. Davies, 1 Q. B. D. 59; State v. Warren, 33 Maine, 30 ; Common-
Steele v. Midland Railway, Law Rep.1 wealth v. Barney, 10 Cush. 478. Com-
Ch. Ap. 275; Commonwealth v. Buzzell, pare with ante, § 242 a.
16 Pick. 153, 161. 10 Hooker v. Commonwealth, 13 Grat.
6 2 Rast P. C. 633, 644; 2 Deac. Crim. 763; The State v. Clark, 7 Jones. N. Cc.
Law, 768. 167.
265
§ 279 SPECIAL INTERPRETATIONS. [Book IIL.
If, for example, the furniture is removed and it is temporarily
abandoned to a carpenter for repairs, no one sleeping in it;! or,
if the former tenant has left, and it is waiting for another, a ser-
vant of the owner merely sleeping in it to protect some articles
of furniture ;? its character as a dwelling-house is suspended.
Nor is a building a dwelling-house, though finished and furnished
for abode, and used for taking meals and other purposes, unless
the occupier or some one of his family or servants sleeps in it.?
Sleeping is not alone sufficient ;‘ for, if a servant merely sleeps
in a warehouse to protect goods,® even when it had previously.
been used for habitation,® it is not thereby constituted a dwelling-
house. On the other hand, a temporary absence of occupants,
who intend to return, does not take from a dwelling-house its
character as such,’ And a man may have two or more dwelling-
houses ;® and they will severally so continue, though one is used
but a small part of the year, or on particular occasions, ay on the
holding of a fair. Yet, —
' Rex v. Lyons, 1 Leach, 4th ed. 185,
2 East P. C. 497;-Rex v. Fuller, 1 Leach,
4th ed. 186, note.
2 Rex v. Davies, 2 Leach, 4th ed. 876;
8 c. nom. Rex v. Davis, 2 East P. C. 499;
Nutbrown’s Case, 2 East P. C. 496.
8 Rex v. Martin, Russ. & Ry. 108; Rex
v. Harris, 2 Leach, 4th ed. 701, 2 East
P. C. 498. And see The State v. War-
ren, 383 Maine, 30. Commonwealth v.
Brown, 3 Rawle, 207, seems directly con-
trary to the text. The true view is, that,
if the owner has abandoned his dwelling-
house, and removed his furniture into a
new one, the latter becomes his dwelling-
house after his family have taken posses-
sion of it, though no one of them has yet
slept there. But, until possession taken,
in such a way as would transfer the domi-
cil, the new house, though furnished,
cannot be deemed a dwelling-house. In
Kx parte Vincent, 26 Ala. 145, 151, Gold-
thwaite, J. observed: “At the common
law, any house was a dwelling or man-
sion in a burglarious sense, in which any
person resided or dwelt; and, with refer-
ence to the offence which could only be
committed in the night, we think the true
test is, whether it was permanently used
by the occupier, or any member of his
family, as a place to sleep in.”
266
4 Rex v. Brown, 2 East P. C. 497; Rex
v. Turner, 6 Car. & P. 407.
5 Rex v. Smith, 2 East P. C. 497, 2
Leach, 4th ed. 1018, note. And see Rex
v. Brown, 2 East P. C. 501, 2 Leach, 4th
ed. 1018, note. Where, besides the ser-
vants sleeping to protect property, rooms
in the building were let to lodgers, it was
held to be a dwelling-house. Rex v. Gib-
bons, Russ. & Ry. 442. But if a store-
house is used regularly by the owner, or
some one of his family, as a sleeping
apartment, though for the sole purpose
of protecting the premises, it is, in North
Carolina, deemed a dwelling-house. The
State v. Outlaw, 72 N.C. 598. Yet it is
not so simply because a mere watchman
sleeps in it for this purpose. The State
v. Potts, 75 N. C. 129.
® Rex ev. Flannagan, Russ. & Ry. 187;
Rex v. Davies, 2 Leach, 4th ed. 876; 8. c.
nom. Rex v. Davis, 2 East P. C. 499,
7 Nutbrown’s Case, Foster, 76, 2 East
P.C. 496; Vaux v. Brook, 4 Co. 398;
The State v. Meerchouse, 34 Misso. 344.
8 Vaux v. Brook, 4 Co. 39 6; 8. c. nom.
Brooke’s Case, 2 Leon. 83; Rex v. Stock,
2 Leach, 4th ed. 1015, Russ. & Ry. 185;
Rex v. Westwood, Russ. & Ry. 495.
* Rex v. Smith, 1 Moody & R. 286.
CHAP. XXVIL.] PARTICULAR WORDS AND PHRASES. § 280
Frailty of Structure — (Tent, &c.— Burglary — Disorderly House),
—In the law of burglary and other like offences, “a tent or
booth in a fair or market” is not a dwelling-house,! because of
the frailty of the structure? But a loft over a coach-house and
stable is, when so used ;* and such, we have seen,‘ may be a jail ;
and such are chambers in a college, and the inns of court.5
Even a tent, or a boat on a river, may be a bawdy-house.§ So
that the kind of structure may somewhat vary‘ with the nature
of the offence and special terms of the statute.§
§ 280. Part only for Abode. — If one part of a building is used
for abode, it gives the character of dwelling-house to every other
part to which there is an internal communication ;° even though,
according to the authorities generally, occupied by another per-
son, for an entirely different purpose. And an indictment for
an offence committed in the part not inhabited may charge it to
have been done in the mansion-house of him who dwells in the
other part.0 Yet, —
Partners and one of them.—- Where one of two partners hired
and occupied as a dwelling-house a part of a building, and the
firm had the residue on a separate lease for a warehouse, the
parts being connected by an internal communication, a conviction
for a burglary in the warelouse was held not to be sustainable on
an indictment laying it as committed in the dwelling-house of the
one partner.!!_ This decision seems opposed to the above doctrine ;
aad, in principle, its soundness may be doubted. In matter of
pleading, it is hard to say that the offence could have been laid
in the dwelling-house of the firm that had none; yet there seems
to be authority that it could have been. On the other hand, in
law, the place could not be deemed a dwelling-house, except by
1 1 Hale P. C. 557.
2 1 Russ. Crimes, 8d Eng. ed. 798;
Callahan v. The State, 41 Texas, 43.
8 Rex v. Turner, 1 Leach, 4th ed. 305,
2 East P. C. 492.
* Ante, § 207.
5 1 Gab. Crim. Law, 177; 1 Hale P. C.
622, 528, 556.
© Crim. Law, I. § 1086.
7 Ante, § 277.
3 Consult McHole v. Davies, 1 Q. B. D.
69; Killman v. The State, 2 Texas Ap.
222; The State v. Barr, 89 Conn. 40; The
State v. Jake, Winst. II. 80; The State v.
Hall, 73 N. C. 252.
9 Rex v. Stock, 2 Leach, 4th ed. 1015,
Russ. & Ry. 185, 2 Taunt. 339; Rex v.
Smith, 2 East P. C. 497. Compare with
ante, § 242 a.
10 Crim. Proced. I. § 138 a; Rex v
Witt, 1 Moody, 248; Rex v. Sefton, Russ.
& Ry. 202; Rex v. Carrell, 1 Leach, 4th
ed. 287, 2 East P. C. 506.
1. Rex v. Jenkins, Russ. & Ry. 244.
12 Crim. Proced. Il. § 187; Rex v.
Athea, 1 Moody, 329; Quinn v. People,
71 N. Y. 561, 564.
267
§ 282 SPECIAL INTERPRETATIONS. [Book 111.
force of the principle, not without support in legal reason, that
every dwelling-house extends to the outer wall of the building
in which it is located, and to which also there is an internal com-
munication.! Indeed, this would seem to be the true doctrine.?
But, —
No Internal Communication. —If there is no internal communi-
cation, the parts are to be considered as though they were dis-
tinct buildings. Then, to approach questions on which there are
differences of opinion, if the occupier of a room for a purpose
other than habitation does not reside within the curtilage, and
according to some if he does,’ the room is not to be regarded as
a part of the dwelling-house.* On the other hand, it is by some
opinions in law such, if occupied for whatever purpose by him
who resides in the dwelling-house, and sufficiently connected,
though there is no internal communication. It will be viewed:as
though it were an out-building.®
§ 281. Chimney — Shutter-box. — The chimney is, by the better
opinion, a part of the dwelling-house.6 But any thing outside
the building, not pertaining to the freehold, as a shutter-box, is
not such! And —
Fence containing Door.— A door in the outward fence of the
curtilage, opening into the yard only, is not a portion of the
dwelling-house, the breaking whereof will be burglary; even
where, when one is within the area, there is no obstruction to his
entering the place of actual abode.®
§ 282. Summary in Reason. — If, leaving these detached points,
we look at this question in the light of legal reason, we have the
following. The structure wherein a man and his family live,
whether large or small, under one roof or many, is his dwelling-
house. And the number of roofs is not to be taken into the
1 See, as of some value on this ques- v. Toole, 29 Conn. 342; Quinn v. People,
tion, Rex v. Ball, 1 Moody, 30; Rex v.
Davis, Russ. & Ry. 822; Rex v. Bennett,
Russ. & Ry. 289; Stedman v. Crane, 11
Met. 295.
2 Crim. Proced. IL. § 138 a.
Dale v. The State, 27 Ala. 81.
v. The State, 9 Texas, 42.
3 Post, § 285.
4 Rex v. Egginton, 2 B. &- P. 608;
8. c. nom. Rex v. Eggington, 2 East P. C.
494, 666, 2 Leach, 4th ed. 918; The State
268
But see
See Cole
71 N. Y. 561, 673.
5 Post, § 283, 285; People v. Snyder,
2 Parker C. C. 23; Quinn v. People, 11
Hun, 336; Quinn v. People, 71 N. Y. 661.
6 Rex v. Brice, Russ. & Ry. 450. And
see 1 Hale P. C. 652; 1 Gab. Crim. Law,
170.
” Rex v. Paine, 7 Car. & P. 135; Com-
monwealth v. Trimmer, 1 Mass. 476;
Reg. v. Howell, 9 Car. & P. 437.
8 Rex v. Bennett, Russ. & Ry. 289;
Rex v. Davis, Russ. & Ry. 322.
CHAP, XXVII.] PARTICULAR WORDS AND PHRASES. § 284
account. If under one of his roofs there are apartments of any
sort not occupied by him, they are no more his place of abode
than where they are under a separate roof. But if there is an
internal communication from his rooms to them, and they are not
the dwelling-place of any other occupant, they are, within the
reasons of the law of crime, parcel of his dwelling-place; because
the internal communication creates the exact hazard which would
arise from a vacant room opening into the public way on the one
side, and into his rooms on the other. If the apartments: are
used for habitation by the person occupying them, then, as they
are such person’s dwelling-house, they cannot be that of his
neighbor:! Hence, —
§ 283. Doctrine of Reason, defined.— In reason, whether a
man’s abode consists of a cluster of sepaxate buildings, or of sepa-
rate rooms under one roof, the result is the same. And it is, that
the abode — the dwelling-house — extends only to buildings and
rooms used either directly for habitation or as auxiliary there-
to ;? with this single exception, that, where the walls of the
dwelling enclose other premises connected by an internal commu-
nication with the rooms lived in, such premises, if not the abode
of another person, are, though occupied by another, parts of the
dwelling-house with which they connect..
§ 284. Out-buildings. —In determining what out-buildings are
in law parcel of the dwelling-house, the following will be
helpful : —
Used for Sleeping. — All that are habitually used for sleeping
are believed to be either such? or separate dwelling-houses,*
according to principles already explained, however severed ftom
the main structure by distance or otherwise.
Separated by Way or another’s Land. — No out-building not
used for sleeping is parcel of the dwelling-house, if separated by
a public passage-way or road, however narrow ;° or by inter-
kins, 5 Jones, N. C. 480; The State v.
Outlaw, 72 N. C. 598; Page v. Common-
1 As to this last point, upon authority,
see post, § 287.
2 As to this point, on authority, see
post, § 285, 286.
3 United States v. Johnson, 2 Cranch
C.C. 21; The State v. Wilson, 1 Hayw.
242. And consult and compare Rex v.
Westwood, Russ. & Ry. 495; The State
v. Sampson, 12 S. C.'567;' The State v.
Mordecai, 68 N. C. 207; ‘The State v. Jen-
wealth, 26 Grat. 948.
4 Rex v. Turner, 1 Leach, 4th ed. 805;
Rex v. Westwood, supra; Ex parte Vin-
cent, 26 Ala. 145.
5 Rex v. Westwood, Russ. & Ry. 495;
Commonwealth v. Estabrook, 10 Pick.
293; Rex v. Garland, 2 East P. C. 493,
612, 1 Leach, 4th ed. 144; 1 Hawk. P. C.
269
[BOOK III.
§ 285 SPECIAL INTERPRETATIONS.
vening land, occupied by another person.!. Such appears, at
least, to be the legal rule, and it seems reasonable; for why
should a man be protected in an out-building as being parcel
of his mansion, if he himself has disconnected it from the
mansion in a way which gives strangers the right to pass be-
tween ?
§ 285. Same Enclosure.— A separate building within the same
enclosure is to be regarded as a part of the dwelling-house, if
reasonably near, and occupied by the same person; even though,
according to the English authorities, and some of the American
ones, it is used for a totally different purpose ; as a warehouse,
goose-house, shop, or store.2_ But where, in the latter case, a
third person is the occupant, it ceases to be parcel of the dwell-
ing-house, even though under the same roof, yet having no inter-
nal communication.2 And Hale seems to have deemed that, to
make an out-building a portion of the mansion, it must be held
under the same title ;* but this distinction has small support in
principle, and it is not favored by later writers.? In principle,
too, as we have seen,® a separate building, or separate room in
the same building with no internal communication, used, like a
store or shop, otherwise than for purposes connected with habita-
tion, cannot be deemed parcel of the dwelling-house ; and so are
a part of our American adjudications.? Again, —
Statutory Changes. — In England, since 1827, by 7 & 8 Geo. 4,
c. 29, § 18, reaffirmed by 24 & 25 Vict. c. 96, § 53, for an out-
building to be parcel of the dwelling-house in burglary and the
like, there must, though it is within the same curtilage, “be a
communication between such building and dwelling-house, either
immediate, or by means of a covered and enclosed passage lead-
Curw. ed. p. 184, § 23. And see The
State v. Jenkins, 5 Jones, N. C. 430.
1 Powell v. Price, 4 C. B. 105. See,
however, Rex v. Walters, 1 Moody, 13.
2 Rex v. Lithgo, Russ. & Ry. 357, in
which case, however, the warehouse was
under the same roof; Rex v. Chalking,
Russ. & Ry. 334; Rex v. Clayburn, Russ.
& Ry. 360; Rex v. Hancock, Russ. & Ry.
170; Rex v. Gibson, 1 Leach, 4th ed. 357,
2 East P. C. 508; Rex v. Walters, 1
Moody, 13; People v. Parker, 4 Johns.
424; 1 Deac. Crim. Law, 185; Pond v.
People, 8 Mich. 150. |
270
3 Ante, § 280; Rex v. Gibson, 1 Leach,
4th ed. 357, 2 East P. C. 508.
4 1 Hale P. C. 559.
5 2 East P. C. 494; 1 Gab. Crim. Law,
178, note.
§ Ante, § 282, 283.
™ The State v. Langford, 1 Dev. 253;
Armour v. The State, 3 Humph. 379;
The State v. Ginns, 1 Nott & McC. 583;
Hollister v. Commonwealth, 10 Smith, Pa.
108. And see Commonwealth v. San-
ders, 5 Leigh, 751. See Quinn »v. People.
71 N. Y. 561; People v. Snyder, 2 Parker
C. C. 23.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES.
ing from the one to the other.” !
§ 286
It is not clear how far this stat-
‘ute alters the law in cases where the two apartments are under
one roof.?
In Maine, by statute, “no warehouse, barn, or other
out-house, shall be deemed a dwelling-house or part of a dwelling-
‘house, unless the same shall be joined to or connected and occu-
pied with, and as a part of, the dwelling-house ;”’® and there are,
‘perhaps, like provisions in some of the other States.
§ 286. No Enclosure. — Under the unwritten law, to render an
-out-building a part of the dwelling-house there need be no com-
mon enclosure ;# though, where there is none, the question is
more difficult.
It then depends mainly on proximity and use.
‘A store twenty feet away, with no fence, was held not to be pro-
tected as part of the mansion ;° and perhaps we may conclude as
a question of authority, certainly as one of principle, that no
Separate structure, not tributary to habitation, will be so pro-
“tected, unless within an enclosure.’
But the privy,® barn, car-
riage-house, woodshed, and buildings of the like character, being
‘in their nature serviceable in respect of abode, are to be regarded
as parcel of the mansion-house, though unenclosed, if situated at
a reasonable distance, and with nothing intervening.
The out-
buildings, according to the English books, are required to be
simply within the curtilage of the dwelling-house.”
Curtilage —is not a word of exact meaning.
Now, —
It does not ex-
clude the idea of a wall or fence;?!' nor, on the other hand, does
it require any sort of precise, visible bound.”
An American court
has defined it to mean ‘a space necessary and convenient, and
‘habitually used for the family purposes, the carrying on of domes-
tic employments; it includes the garden, if there be one, and
need not be separated from other lands by fence.” ® There are
1So in Ireland, by 9 Geo. 4, c. 55
See 1 Gab. Crim. Law, 178.
2 Rex v. Higgs, 2 Car. & K. 322; Rex
v. Burrowes, 1 Moody, 274; Rex v. Tur-
ner, 6 Car. & P. 407. And see, regarding
this statute, Reg. v. Fletcher, 2 Car. & K.
215.
3 R. S. c. 155, § 12.
* The State v. Twitty, 1 Hayw. 102;
The State v. Wilson, 1 Hayw. 242; The
State v. Shaw, 31 Maine, 523; Pond v.
People, 8 Mich. 150.
5 People v. Parker, 4 Johns. 424; The
State v. Ginns, 1 Nott & McC. 583.
6 Ante, § 283.
7 And see Anonymous, J. Kel. 84.
§ Castle’s Case, 1 Hale P. C. 558.
3 See ante, § 284. And see The State
v. Whit, 4 Jones, N. C. 349.
10 1 Hawk. P.C. Curw. ed. p. 134, § 21,
22; 2 East P. C. 492; Rex v. Brown, 2
East P. C. 493; 1 Hale P. C. 558.
1 Commonwealth v. Barney, 10 Cush.
480; People v. Gedney, 10 Hun, 151.
12 Ivey v. The State, 61 Ala. 58.
13 The State v. Shaw, 31 Maine, 523.
And see Reg. v. Gilbert, 1 Car. & K. 84;
People v. Taylor, 2 Mich. 250; Ivey v.
271
§ 289 SPECIAL INTERPRETATIONS. [Book III.
no definable dimensions of grounds which it requires.'. But what
lies away from the dwelling-house with a public road intervening
is not within the curtilage.? -
§ 287. Separate Families — Lodgers. — Where a building is oc-
cupied by separate families,’ or where the whole of it is let to
lodgers,* each several apartment is in law the dwelling-house of
the occupying family or lodger; and the door leading thereto
from the common hall is deemed its, or an, outer door. But if
the owner lets to lodgers some of his rooms, retaining for habita-
tion the residue, the whole is considered in law as his dwelling-
house ;® the ownership, in an indictment, is, in general,. laid in
him ;7 and the door to a lodger’s room is not an outer door for
protection.®
§ 288. In Brief, as to Dwelling-house.— Such, in general, is a
dwelling-house under both the written and. the unwritten laws.
But the nature of the particular question, or the special terms of
a statute, may cause some variations.?
§ 289. House.— The word “house” includes, we have seen,”
whatever “ dwelling-house”’ or ‘ mansion-house” does, and some-
thing more; and it is the proper word in common-law indict-
ments for arson. But some of the statutes against arson have
‘‘ dwelling-house;” therefore this term is required in indict-
ments under them. How much broader “house” is than
“ dwelling-house” the authorities do not define; but the former,
in a statute prescribing the qualifications of. voters, was held. to
The State, supra; Bryant v. The State,
60 Ga. 358.
1 Edwards v. Derrickson, 4 Dutcher,
39.
2 Curkendall v. People, 36 Mich. 309.
8 Stedman v. Crane, 11 Met. 295; Rex
v. Bailey, 1 Moody, 23. See also Lang-
don v. Fire Department, 17 Wend. 234;
Dale v. The State, 27 Ala. 31.
4 Rex v. Trapshaw, 1 Leach, 4th ed.
427, 2 East P. C. 506, 780; Rex v. Rogers,
1 Leach, 4th ed. 89, 2 East P. C. 506.
5 Mason v. People, 26 N. Y. 200; Peo-
ple v. Bush, 3 Parker C. C. 552; Lee »v.
Gansell, Lofft, 374, 382; s. c. nom. Lee
v. Gansel, Cowp. 1. .
8 Rex v. Ball, 1 Moody, 30; Anony-
mous, J. Kel. 88, 84; Rex v. Taylor,
Russ. & Ry. 418.
* Crim. Proced. II. § 188; Rodgers uv.
272
People, 86 N. Y. 360; Markham »v. The
State, 25 Ga. 52. And see The State v.
Clark, 42 Vt. 629; Rex v. Hawkins, 2
East P. C. 501; Rex v. Picket, 2 East
P. C. 501; Rex v. Maynard, 2 East P. C.
501; Rex v. Jones, 1 Leach, 4th ed. 537,
2 East P. C. 504; The State v. Curtis, 4
Dev. & Bat. 222.
8 Lee v. Gansell, supra.
9 Ante, § 242 a; Page v. Common-
wealth, 26 Grat. 943; The State v. Troth,
7 Vroom, 422; The. State v..Troth, 5
Vroom, 377; In re Lammer, 7 Bis. 269.
10 Ante, § 277.
11 People v. Cotteral, 18 Johns. 115;
Reg. v. Fletcher, 2 Car. & K. 215; Com-
monwealth v. Barney, 10 Cush. 478 ; Peo-
ple v. Orcutt, 1 Parker C. C. 262.
12 Crim. Proced. II. § 34; The State v.
Sutcliffe, 4 Strob. 372.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 289
include, as the latter would not,! a building entirely completed,
intended for nabtetiony yet not actually so used? A building
not finished for use,’ or not built for habitation,‘ is not in law a
house ; and whether it would be arson to burn one so finished
before it had been slept in the books do not seem distinctly
to disclose. Under the statutory word ‘“dwelling-house” it
would not be;® and there is some authority for saying that
under “house” actual occupancy is essential.’
Jail as House. — A prison or common jail also, we have seen,°
is, when inhabited, both a dwelling-house and a house.®
Church. — A country church has been held to be a “house”
other than an “ out-house ” or a “ dwelling-house,” in statutory
arson.
Out-buildings. — The doctrine of the out-buildings, already con-
sidered," has, in a general way, the same application to ‘‘ house ”
as to “dwelling-house ;”’ but whether there may not be minor
differences the authorities do not clearly disclose. Thus, like
“‘dwelling-house” in burglary, so “house” in arson ‘“ extends,
at common law, not only to the very dwelling-house, but to all
out-houses which are parcel thereof, though not adjoining there-
to, nor under the same roof.” 2 One method of determining
whether or not an out-house is parcel of the dwelling-house has
been held to be, to inquire whether the burning of it would
endanger the main structure.!®
As to the —
Barn — (Arson). —It is arson at the common law to burn a
1 Ante, § 279.
2 Daniel v. Coulsting, 7 Man. & G. 122.
The like meaning was given to “house”
in a California statute against burglary.
People v. Stickman, 34 Cal. 242.
8 Elsmore v. St. Briavells, 8 B. & C.
461, 2 Man. & R. 514, explained in Daniel
v. Coulsting, 7 Man. & G. 122; Reg. v.
England, 1 Car. & K. 583; The State v.
McGowan, 20 Conn. 245; Surman v. Dar-
ley, 14 M. & W. 181. No doubt, how-
ever, such a building would pass by the
word “house ” in a deed or will. See
ante, § 277.
{ Reg. v. England, 1 Car. & K. 533.
5 See, however, The State v. Mc-
Gowan, Elsmore v. St. Briavells, Daniel
v. Coulsting, and Surman v. Darley, su-
pra.
6 Commonwealth v. Barney, 10 Cush.
18
478; The State v. Wolfenberger, 20 Ind.
242.
7 Reg. v. Edgell, 11 Cox C. C. 182.
8 Ante, § 207, 279.
9 Rex v. Donnavan, 1 Leach, 4th ed.
69; s.c.nom. Rex v. Donnevan, 2 East
P. C. 1020; ante, § 207, note.
_ 10 Watt v. The State, 61 Ga. 66. See
Crim. Law, II. § 105.
ll Ante, § 284 et seq.
12 2 Kast P. C. 1020; Hiles v. Shrews-
bury, 3 East, 457; 4 Bl. Com. 221. And
see The State v. Sandy, 8 Ire. 570; The
State v. Terry, 4 Dev. & Bat. 185; The
State v. Stewart, 6 Conn. 47; Chapman
v Commonwealth, 5 Whart. 427, Palmer
v. The State, 7 Coldw 82; Curkendall v.
People, 36 Mich. 309.
18 Gage v. Shelton, 3 Rich. 242.
2738
SPECIAL INTERPRETATIONS.
§ 290 [Book 11.
barn containing hay and grain, even where not parcel of the
mansion-house.! But we have no authorities for deeming the
word house alone adequate, in an indictment, to describe such a
barn, and it seems not to be.?
§ 290. Castie.— The habitation, often termed the “ castle” of
its occupant,? which he may defend from an intruder to the
taking of life,t and which only under limitations can be broken
to make an arrest,’ is probably commensurate, or nearly so, with
the dwelling-house in burglary. For example, an old case de-
cides, that a barn outside of the curtilage may be broken to serve
a fiert facias ; but, the report adds, the judges were agreed that,
if it had been parcel of the mansion, it could not have been
broken. Though this case has been partly misunderstood by
Viner’ and some others,’ we may infer from it,? from the reason
of the law, and the rule in burglary having been referred to as
furnishing a parallel in other particulars,” that the habitation is
the same in both. Moreover, —
Breaking in Arrest and Burglary, compared. — Whatever would be
a breaking in burglary — as, lifting the latch of a door having no
other fastening," or obtaining an entrance by falsehood and craft”
—is such also in arrest. And the same protection continues in
both during a temporary absence of the occupant.“ But there is
one difference: after an entry not improperly made, the breaking
in burglary may be of mere inside doors ; yet, to effect an arrest,
an officer is then permitted, after demand and refusal, to break
such doors. So there are various rules as to when an officer
1 1 Hale P. C. 567; Sampson v. Com-
monwealth, 5 Watts & 8. 385; Rex »v.
Reader, 4 Car. & P. 245.
2 Hiles v. Shrewsbury, 3 East, 457.
As to a school-house, see Wallace v.
Young, 5 T. B. Monr. 155.
3 Ante, § 277.
4 Crim. Law, I. § 858; II. § 707.
5 Crim. Proced. I. § 194-205; 4 BL.
Com. 223; Curtis v. Hubbard, 1 Hill,
N. Y. 336, 4 Hill, N. Y. 487; Semayne’s
Case, 5 Co. 91, Yelv. Met. ed. 29, 1 Smith
Lead. Cas. 39, Broom Leg. Max. 2d ed.
821; 1 East P. C. 321.
6 Penton v. Brown, 1 Keb. 698; 8.¢.
nom. Penton v. Browne, 1 Sid. 186.
7 19 Vin. Abr. 482.
§ Burton v. Wilkinson, 18 Vt. 186, 189.
274
9 Haggerty v. Wilber, 16 Johns. 287.
10 Lee v. Gansel, Cowp. 1; Curtis v.
Hubbard, 1 Hill, N. Y. 336.
11 Curtis v. Hubbard, 1 Hill, N. Y. 336,
4 Hill, N. Y. 437; People v. Hubbard, 24
Wend. 369.
12 Parke v. Evans, Hob. 62 a; post,
§ 312.
18 Curtis v. Hubbard, 4 Hill, N. Y. 437.
14 Crim. Law, II. § 97; 1 Hawk. P.C.
Curw. ed. p. 181, § 6.
15 Crim. Proced. I. § 200, 201; Lee v.
Gansel, Cowp. 1, 6, 7; Broom Leg. Max.
2d ed. 825; Stedman v. Crane, 11 Met.
295; The State v. Thackam, 1 Bay, 358;
Hubbard v. Mack, 17 Johns. 127; Wil-
liams v. Spencer, 6 Johns. 352.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 291
may break into a dwelling-house, and when not, having no
analogies in the law of burglary.!
§ 291. Other Terms : —
Out-house. — This word occurs in various statutes against arson,
larceny, and house-breaking. It denotes a building contributory
to habitation, separate from the main structure, either within or
without the curtilage, and so by the common-law rules either
parcel of the dwelling-house or not ;* yet not one not thus con-
tributory, or one too remote. A rude structure —for example,
a thatched pigsty — may be an out-house, yet it must be in some
sense a complete building.‘
Out-house where People resort.—It having been made in Ala-
bama an offence to play at cards in any ‘“ out-house where people
resort,” an unoccupied storehouse, constituting one of a con-
tinuous line of buildings fronting on the street, was held to be
within the statute.®
1 See, as to these rules, De Graffen-
reid v. Mitchell, 8 McCord, 506; Walker
v. Fox, 2 Dana, 404; Curtis v. Hubbard,
1 Hill, N. Y. 386; The State v. Thackam,
supra; Platt v. Brown, 16 Pick. 653;
Keith v. Johnson, 1 Dana, 604; Oystead
v. Shed, 18 Mass. 520; Isley v. Nichols,
12 Pick. 270.
2 The State v. Brooks, 4 Conn. 446;
Rex v. North; 2 East P. C. 1021; Reg. v.
White, 2 Crawf. & Dix C. C. 479; Rex v.
Winter, Russ. & Ry. 295; Rex v. Stallion,
1 Moody, 398; Reg. v. Janes, 1 Car. & K.
303; s.c. nom. Reg. v. Jones, 2 Moody,
308. And see Jones v. Hungerford, 4 Gill
& J. 402; Hiles v. Shrewsbury, 3 East,
457.
3 Rex v. Haughton, 5 Car. & P. 555;
Rex v. Parrot, 6 Car. & P. 402; Elsmore
v. St. Briavells, 8 B. & C. 461; Anony-
mous, 1 Lewin, 8; Rex v. Ellison, 1
Moody, 386; Rex v. Woodward, 1 Moody,
323, 8325; The State v. Bailey, 10 Conn.
144, overruling The State v. O’Brien, 2
Root, 616. Yet.in The State v. Brooks,
4 Conn. 446, 448, 449, one of the judges,
after observing that “a barn is an out-
house, and not the less so because it is
so remote from the mansion-house as not
to be deemed parcel of it,” added: “Its
contiguity or remoteness enters not into
the idea whether it is an out-house, but
merely into the question whether it is
parcel of the mansion.”
* Reg. uv. Jones, 2 Moody, 308; 8. c.
nom. Reg. v. James, 1 Car. & K. 303;
Rex v. Ellison, 1 Moody, 336; Rex v.
Stallion, 1 Moody, 398; Rex v. Parrot, 6
Car. & P. 402.
5 Swallow v. The State, 20 Ala. 80.
And see Wheelock v. The State, 15 Texas,
260; The State v. Norton, 19 Texas, 102,
205. Within Protection of Dwelling. —
As to what is an out-house “within the
protection” of the dwelling-house, see
Bryant v. The State, 60 Ga. 358. Sta-
ble. — As to what is a “stable,” see Rex
v. Haughton, 5 Car. & P. 555; Reg. v.
Colley, 2 Moody & R. 475; Orrell v. Peo-
ple, 94 Ill. 456. Erection — Shed. — For
what is an “erection,” see Reg. v. Whit-
tingham, 9 Car. & P. 284; McGary ».
People, 45 N. Y. 153; “shed,” “erec-
tion used in carrying on trade,” Reg. v.
Amos, Temp. & M. 422, 2 Den. C. C. 65,
15 Jur. 90, 20 Law J. wn. s. M. C. 103,
1 Eng. L. & Eq. 592; Reg. v. Colley, 2
Moody & R. 475. Cottage.—For the
meaning of the word “ cottage,” see Rex
v. Pattle, 1 Stra. 405. Appurtenances.
— For “ appurtenances,” Commonwealth
v. Estabrook, 10 Pick. 298. Premises. —
For “premises,” Swan v. The State, 11
Ala. 594; The State v. Black, 9 Ire. 378;
275
§ 294 SPECIAL INTERPRETATIONS. [Book Itt.
§ 292. Building. — The word building, in a statute, will almost
always depend for its meaning in some degree on the particular
subject and its connection with other words. But ordinarily it
does not require an absolutely finished structure.' Yet if the
statute specifies a building erected for a purpose named, it must
be in a reasonable degree completed to be within the terms.?
And, within limits familiar in jury trials, the question whether the
structure is sufficiently complete is of fact for the jury, to be
decided under instruction from the court.’
§ 293. Warehouse. —In popular language, and by the better
opinion in legal, this word signifies an apartment or building for
the temporary deposit of goods. Therefore a cellar wherein
they are kept to be removed when wanted for sale,® or a railroad
depot for the reception of goods and passengers,§ is a warehouse.
And that goods are sold from it does not prevent its being such.”
§ 294. Storehouse.— Of a similar meaning to warehouse is
*¢ storehouse.”
been adjudged not to be an equivalent for either.
room is not necessarily either a storehouse or warehouse.” 8
The word ‘“storeroom,” in an indictment, has
“A store-
In
North Carolina, “storehouse” was held to include a building
wherein are kept goods to be sold at retail.®
Downman v. The State, 14 Ala. 242;
Brown v. The State, 31 Ala. 353; Daly
v. The State, 33 Ala. 431; Sandy v. The
State, 60 Ala. 18; post, § 878, 1011, 1060-
1063.
1 Commonwealth v. Squire, 1 Met.
258; Rex v. Worrall, 7 Car. & P. 516;
Reg. v. Manning, Law Rep. 1 C. C. 338;
Stevens v. Gourley, 7 C. B. n. 8. 99.
2 McGary v. People, 45 N. Y. 153,
160. Said Allen, J.: “A building is a
fabric or edifice constructed for use. To
erect, when used in connection with a
house, or church, or factory, is to build;
and neither can be said to be erected un-
til they are built, completed.” p. 161.
And see Reg. v. Labadie, 32 U. C. Q. B.
429.
3 Commonwealth v. Squire, supra, p.
259; McGarry v. People, 2 Lans. 227.
See further, as to what is a building, Rex
v. Norris, Russ. & Ry. 69; Rex v. Parker,
1 Leach, 4th ed. 820, note, 2 East P. C.
592; Rex v. Hickman, 1 Leach, 4th ed.
818, 2 East P. C. 593; Langdon ». Fire
276
The Alabama court
Department, 17 Wend. 234; Orrell ov.
People, 94 Ill. 456; Commonwealth v.
Horrigan, 2 Allen, 159. Addition. — For
what is an “addition to a building,” see
Updyke v. Skillman, 3 Dutcher, 131;
The State v. Parker, 5 Vroom, 352.
4 See Owen v. Boyle, 22 Maine, 47;
Allen v. The State, 10 Ohio State, 287;
Wilson v. The State, 24 Conn. 57.
5 Reg. v. Hill, 2 Moody & R. 458.
See, however, Rex v. Godfrey, 2 East
P. C. 642, 1 Leach, 4th ed. 287.
8 The State v. Bishop, 61 Vt. 287, 290.
7 Ray v. Commonwealth, 12 Bush, 897;
Rex v. Godfrey, supra. And see further,
as to what is a warehouse, Hagan v. The
State, 52 Ala. 373; Bennett v. The State,
62 Ala. 370; The State v. Walker, 28 La.
An. 636; The State v. Wilson, 47 N. H.
101.
8 Hagar v. The State, 35 Ohio State,
268, 270.
% The State v. Sandy, 3 Ire. 570.
And see Ray v. Commonwealth, 12 Bush,
397.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 295
adjudged, that the upper room in a building of two rooms, one
above the other, accessible only by outside steps, and used for
sleeping by one of two proprietors who jointly retailed spirituous
liquors in the lower room, was within the statutory prohibition
of gaming at a storehouse for retailing spirituous liquors.1
§ 295. Shop— Store.— The words “shop” and “store” are
not in all respects perfectly defined in adjudication; nor, it is’
believed, are their meanings exactly uniform in all localities.
Alike in England and in our respective States, a structure or
room wherein goods are kept and sold at retail is a shop,? but
not one in which they are simply deposited. A mere workshop,
like a blacksmith’s shop, was by one of the English judges ruled
not to be a shop, because goods were not sold from it;* but Lord
Denman, C. J. refused to follow this ruling, and held that a
blacksmith’s shop is a shop within the statute against breaking
into shops and stealing therefrom. With us, a shop for the sale
of goods is often termed a store,° and “shop” and “store” are
used almost as equivalents.’ But they are not absolute equiva-
lents.$ No one, for example, would deem a blacksmith’s shop to
be properly designated as a store. ‘“ We do not always,” said the
New Hampshire court, “ mean a store when we use the word
‘shop.’” ® The connection in which the word stands in the
statute has something to do with the question. Under the words
“a shop wherein goods, wares, and merchandise are deposited,”
the cabin of a vessel has in Connecticut been held to be in-
cluded; but some of the judges have disapproved of this, and
probably if the question were new it would not now be so
decided.
! Johnson v. The State, 19 Ala. 527.
2 Barth v. The State, 18 Conn. 482;
Rex v. Stone, 1 Leach, 4th ed. 334, 2 East
P. C. 643; Reg. v. Sanders, 9 Car. & P.
79; Wooster v. The State, 6 Baxter, 533;
Commonwealth v. Annis, 15 Gray, 197;
Commonwealth v. Riggs, 14 Gray, 376.
3 Rex v. Stone, supra.
* Reg. v. Sanders, supra.
5 Reg. v. Carter, 1 Car. & K. 173.
* Commonwealth v. Annis, supra.
7 Barth v. The State, supra.
8 Sparrenberger v. The State, 58 Ala.
481.
9 The State v. Canney, 19 N. H. 135.
And see Commonwealth v. Lindsey, 10
Mass. 153; Commonwealth v. McMon-
agle, 1 Mass. 517.
10 The State v. Carrier, 5 Day, 131;
Rex v. Humphrey, 1 Root, 68. See also
Wilson v. The State, 24 Conn. 57; The
State v. Bailey, 10 Conn. 144. And see
Wiltshire v. Baker, 11 C. B. n. 8, 287. A
charge of breaking into a store where
goods are kept for use, sale, and deposit,’
is not sustained by proof of breaking into
a mere counting-room. People v. Marks,
4 Parker C. C. 153. Counting-house. —
As to the meaning of the word “count-
ing-house,” see Reg. v. Potter, 2 Den.
C. C. 235, 15 Jur. 498, 20 Law J. Nn. 8.
M. C. 170, 4 Eng. L. & Eq. 575.
277
§ 297 SPECIAL INTERPRETATIONS. [Book I.
§ 296. Junk-shop.— A city by-law having forbidden the unli-
censed keeping of a ‘‘junk-shop,”’ it was defined by the court to
be “a place where odds and ends are purchased or sold.” !
§ 297. Inn — Tavern — Hotel. — These words, in their original
use, differed. But they have been gradually approaching one
another in meaning ; and now, though they may not perhaps be
under all circumstances equivalents in pleading,? and though
“inn” is the most nicely technical of the terms, they are for
most purposes in legal signification identical.2 An inn, tavern,
or hotel, therefore, is a place for the general entertainment of all
travellers and strangers who apply, paying a suitable compensa-
tion. It may, but need not be, for the accommodation also
of their horses and carriages. A coffee-house® is not an inn;
neither is a restaurant,® or a private boarding-house,’ or a House
for private lodgers ;8 nor is one for entertaining company occa-
sionally,® as at a watering-place during a portion of the year;
nor a steamship carrying for hire passengers who pay a round sum
for transportation, board, and lodging." A license neither makes
its possessor an innkeeper nor prevents his being such.“ One to
be a tavern-keeper need not sell intoxicating liquor,!’— a ques-
tion on which the Ohio court divided, and the majority in
1 Charleston v. Goldsmith, 12 Rich.
470.
2 Jones v. Osborn, 2 Chit. 484.
3 Hall v. The State, 4 Harring. Del.
132, 140; Crown Point v. Warner, 3 Hill,
‘N. Y. 150, 156, 157; Carpenter v. Taylor,
1 Hilton, 193; St. Louis v. Siegrist, 46
Misso. 593; People v. Jones, 54 Barb. 311;
Bouv. Law Dict. Tavern; Webster Dict.
Hotel. The case of Reg. v. Rymer, 2 Q.
B. D. 136, 18 Cox C. C. 878, would seem
to indicate that “tavern” has not yet at-
tained the meaning of “inn” or “hotel ”
in England. Said Kelly, C. B., “An inn
is a place ‘instituted for passengers and
wayfaring men.’ Calye’s Case, 8 Co. 32.
A tavern is not within the definition.”
p. 140 of Q. B. D.
4 Thompson »v. Lacy, 3 B. & Ald. 283;
Dickerson v. Rogers, 4 Humph. 179; Rex
v. Ivens, 7 Car. & P. 213; Fell v. Knight,
8 M. & W. 269; Kisten v. Hildebrand, 9
B. Monr. 72; People v. Jones, supra;
Walling v. Potter, 35 Conn. 183; Reg. v.
Rymer, supra; Commonwealth v. Weth-
erbee, 101 Mass. 214; Krohn v. Sweeney,
278
2 Daly, 200; Cromwell v. Stephens, 2
Daly, 15; Wintermute v. Clark, 5 Sandf.
242
5 People v. Jones, 54 Barb. 311; Car-
penter v. Taylor, 1 Hilton, 193.
6 Pitt v. Laming, 4 Camp. 73, 76.
7 Willard v. Reinhardt, 2 E. D. Smith,
148; Kisten v. Hildebrand, 9 B. Monr.
72; The State v. Mathews, 2 Dev. & B.
424.
8 Parkhurst v. Foster, 1 Salk. 387,
Carth. 417.
9 The State v. Mathews, 2 Dev. & Bat.
424. See Commonwealth v. Wetherbee,
supra.
{0 Bonner v. Welborn, 7 Ga. 296; Kis-
ten v. Hildebrand, 9 B. Monr. 72; South-
wood v. Myers, 3 Bush, 681.
11 Clark v. Burns, 118 Mass. 275.
12 Norcross v. Norcross, 53 Maine, 163.
18 St. Louis v. Siegrist, 46 Misso. 593;
Pinkerton v. Woodward, 88 Cal. 557, 596.
But see, under a Georgia statute, Bonner
v. Welborn, 7 Ga. 296, 304.
14 Curtis v. The State, 5 Ohio, 324.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 298
South Carolina once held the other way.! A sign is not essen-
tial.?
House of Entertainment.— The words “ house of entertainment,”
in the Georgia statute of 1791, were adjudged to be synonymous
with “tavern ;” meaning the same as inn at common law.
§ 298. Public Place. — As seen in other connections, an affray ,*
or an exposure of the person,> to be indictable at the common
‘law, must be in a “public place.” But the inquiry what is a
public place most frequently arises in our States under stat-
utes against gaming; sometimes, also, under other statutes. A
specimen enactment is an Alabama one to punish gaming “at
any tavern or inn, or store-house for retailing spirituous liquors,
or house or place where spirituous liquors are retailed or given
away, or in any public house or highway, or at any other public
place, or at any out-house where people resort.”"® Whatever be
the general doctrine as to statutory terms overlying one another
in meaning,’ plainly. the word “other,” in a statute like this,
limits the term “ public place” to places not specified. So that,
for example, a “highway” is not within the expression “ any
other public place.”® But aside from this peculiarity of the,
language, and in a statute where the term is in no manner
limited by other words, a highway is a public place, though
not necessarily such in every sort of inhibition; for the ques-
tion will vary with the subject in contemplation and the con-
nected statutory words.2 And a road which is not a highway
may, under the other requisite circumstances, be a public place.”
So a place may be such which is merely within view of a travelled
way.” In holding an enclosed lot, ninety feet from a street from
which it is visible, to be at common law a public place wherein
1 The State v. Chamblyss, Cheves,
220. See The State v. Hix, 3 Dev. 116;
The State v. Cloud, 6 Ala. 628.
2 Parker v. Flint, Holt, 366; Dicker-
son v. Rogers, 4 Humph. 179.
3 Bonner v. Welborn, 7 Ga. 296.
4 Crim. Law, II. § 1, 2.
5 Crim. Law, I. § 1128.
§ Coleman v. The State, 13 Ala. 602.
The statutory language as given in the
later case of Windham v. The State, 26
Ala. 69, differs slightly from this.
7 Ante, § 246 c-248; The State v.
Plunket, 2 Stew. 11; Reg. v. McCully, 2
Moody, 34; s. c. nom. McCully’s Case, 2
Lewin, 272. And see post, § 326.
8 Bush wv. The State, 18 Ala. 415; s. Pp.
Windham v. The State, 26 Ala. 69; Mc-
Cauley v. The State, 26 Ala. 135.
9 The State v. Weekly, 29 Ind. 206;
Moffit v. The State, 43 Texas, 346; Wil-
liams v. The State, 64 Ind. 553; Carter v.
Abshire, 48 Misso. 300; The State v.
Baker, 83 N. C. 649; The State v. Mori-
arty, 74 Ind. 103.
10 Mills v. The State, 20 Ala. 86.
1 Henderson v. The State, 59 Ala. 89.
And see Bandalow »v. People, 90 Ill. 218.
279
'§ 298 SPECIAL INTERPRETATIONS. [BOOK In.
an affray may be committed, A. J. Walker, C. J. said: ‘The
street being, per se, public, a place ninety feet from the street,
and at the time visible from it, must, we think, be also public.
At the distance of ninety feet, in the absence of any intervening
obstacle, the tumult of the fight could be heard, and its exciting
scenes witnessed ; and persons passing by would be within reach
of missiles thrown by the combatants.” ! The manner in which :
the place was used at the precise time of the offence is impor-‘
tant ;? as, for example, a shop or store to which people go to buy
goods or medicines is a public place when open, but not while
locked up at night. So are a court in session,* and a licensed eat-
ing-house when open,° public places. In general, the place must
be one to which people are at the time privileged to resort with-
out an invitation.6 And there must be a publicity about it; for
persons concealed gaming in bushes and briers, though on land
owned by the county for supporting its poor, are not in a public
place.* On the other hand, any place may be made public by a
temporary assemblage ;® and the exclusion of a few persons will
not alone prevent its being such.? Moreover, “ we must look at
the character of the place, the manner of ingress to it, and the
number of persons” assembling.” Any place to which people
are privileged to go at pleasure may be, when the privilege is
availed of, public;" even, under special circumstances and for
some purposes, a private dwelling-house may be,” though gener-
ally it is not. A steamboat is a public place.
1 Carwile v. The State, 35 Ala. 392,
893.
2 Sewell v. Taylor, 7 C. B. x. 8. 160.
8 Commonwealth v. Feazle, 8 Grat.
585; Clarke v. The State, 12 Ala. 492;
Windsor v. Commonwealth, 4 Leigh, 680.
And see Roquemore v. The State, 19 Ala.
528. Houses of public worship are ordi-
narily and prima facie public places for
posting a notice calling a town meeting.
Scammon v. Scammon, 8 Fost. N. H. 419.
4 Summerlin v. The State, 3 Texas Ap.
444.
5 Neal v. Commonwealth, 22 Grat. 917.
° Clarke v. The State, supra; Roque-
more v. The State, supra; Burdine v. The
State, 25 Ala. 60; Sherrod v. The State,
25 Ala. 78.
7 Commonwealth v. Vandine, 6 Grat.
689; Bythwood v. The State, 20 Ala. 47.
280
See also Smith v. The State, 23 Ala. 29.
In Alabama, a privy belonging to and in
the same enclosure with a school-house is
not, in vacation, a public house, public
place, or out-house where people resort,
within Code, § 3248. McDaniel v. The
State, 35 Ala. 390.
8 Campbell v. The State, 17 Ala. 369.
See Taylor v. The State, 22 Ala. 15.
* Campbell v. The State, supra.
10 Coleman v. The State, 20 Ala. 51.
11 Smith v. The State, 52 Ala. 384.
12 Cahoon v. Coe, 57 N. H. 556.
13 The State v. Sowers, 52 Ind. 311.
And see The State v. Waggoner, 52 Ind.
481; People v. Bixby, 67 Barb. 221, 4
Hun, 636.
14 Coleman v. The State, 13 Ala. 602.
For further illustrations of what is a pub-
lic place, see Farmer v. Commonwealth,
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 2994
§ 299. Public House.— There are connections in which the
term “public house” is a synonym for inn.’ But generally, in
our statutes, its meaning is similar to “ public place,” just ex-
plained. Thus, in a statute against gaming, the office of a jus-
tice of the peace is a public house. “ The reason is,” said Rice,
C. J.“ that, by the very nature of the business to which it is
appropriated, every person who has, or desires to have, any offi-
cial transaction with such officer, or who has any interest in
examining his official books, is, in legal contemplation, invited or
licensed to go to his office.” And a lawyer’s office is the same.3
So, within such a statute, an apartment wherein goods are sold
appears to be deemed a public house even though the playing is
at night when doors and windows are closed, and only the players
are present. But if no others could gain admittance, would not
the holding of it to be such contravene the doctrine of the last
section? The books furnish other illustrations, but they need
not be minutely traced.5
§ 299 a. Town.— The meaning of the word “town” will vary
more or less with the connection and subject.
It may include
cities® and incorporated villages;7 and, on the other hand, a
8 Leigh, 741; Walker v. Commonwealth,
2 Va. Cas. 515; Flake v. The State, 19
Ala. 551; Shihegan v. The State, 9 Texas,
430; Purcell v. Commonwealth, 14 Grat.
679.
1 St. Louis v. Siegrist, 46 Misso. 593.
2 Burnett v. The State, 30 Ala. 19;
Huffman v. The State, 29 Ala. 40. See
also Arnold v. The State, 29 Ala. 46.
3 Smith v. The State, 37 Ala. 472.
# Skinner v. The State, 380 Ala. 524.
And see Huffman v. The State, 30 Ala.
632. Said Walker, J. in this case: “The
fact that the room in which the gaming
occurred was used by one of the proprie-
tors of the store, a single man, engaged
in the business of the store, as a bedroom,
and was used for no other purpose, does
not so disconnect that room from the ad-
joining room, in which a public store was
kept, as to take it out of the prohibition
which, prima facie, extends to the entire
house, made a public house by the fact
that a store was kept init.” p. 534. See
also Sheppard v. The State, 1 Texas Ap.
3804.
5 Moore v. The State, 80 Ala. 550;
Wilson v. The State, 31 Ala. 371; Smith
v. The State, 37 Ala. 472; Redditt v. The
State, 17 Texas, 610. A saddler’s shop,
including a back room in the second
story, accessible only by an external stair-
way, and used by a journeyman of the
saddler as a sleeping-room, was held in
Alabama to be a “ public house,” within
the meaning of § 8243 of the Code, pro-
hibiting gaming. Bentley v. The State,
82 Ala. 596. Where the room in which
cards were played was a part of a tavern-
house, but, having been let by the month
for a shoe-shop, was not under the con-
trol of the landlord, it was held not to be
within the North Carolina Rev. Code,
§ 75, c. 34. The State v. Keisler, 6 Jones,
N. C. 73.
6 Flinn v. The State, 24 Ind. 286; The
State v. Goldstucker, 40 Wis. 124; Kit-
tredge v. Milwaukee, 26 Wis. 46; Beau-
dette v. Fond du Lac, 40 Wis. 44; The
State v. Parsons, 11 Vroom, 1; Whitall
v. Gloucester, 11 Vroom, 302; New York
v. McGurrin, 6 Daly, 349. ~
7 Peck v. Weddell, 17 Ohio State, 271.
281
§ 302 SPECIAL INTERPRETATIONS. [Book III.
mere congregation of dwelling-houses+ not incorporated. Or it
may denote a civil division of contiguous territory.”
§ 300. Plantation, —in a statute, has been defined to mean, as
in common parlance, “any body of land consisting of one or sev-
eral adjoining tracts, on which is a planting establishment.” ? It
is practically synonymous with farm.*
§ 301. Bridge. — A ‘“ bridge” is a structure for persons or
vehicles to pass upon, spanning a stream or other obstruction to
travel. While commonly it is over water, it need not be, either
wholly, or even in part.> Ordinarily, but not necessarily, it is a
part of a highway ; or, more accurately, a public bridge ® is such.’
A structure not accessible at either end is not a bridge,’ nor is one
not finished for travel.®
The abutments, finished for travel, and
giving access to what is primarily the bridge, are parcel of the
bridge.¥
§ 801 a. Ferry.— A ferry is a water transportation, or the
franchise therefor, of passengers and vehicles, for toll, between
two points of land.¥
§ 802. River. — A river is a stream of flowing water, of greater
magnitude than a rivulet or brook. It may be navigable or not;
1 London, &. Railway v. Blackmore,
Law Rep. 4H. L. 610,615; Reg. v. Cottle,
16 Q. B. 412; Collier v. Worth, 1 Ex. D.
464. See Murray v. Menefee, 20 Ark.
561; Truax v. Pool, 46 Iowa, 256.
2 Chicago, &c. Railway v. Oconto, 50
Wis. 189; Smith v. Sherry, 50 Wis. 210;
Harris v. Sehryock, 82 Til. 119.
3 The State v. Blythe, 3 McCord, 363.
See also Sanderlin v. The State, 2 Humph.
315; Molett v. The State, 33 Ala. 408.
* Attorney-General v. Judges, 38 Cal
291.
5 The State v. Gloucester, 11 Vroom,
302; Sussex r. Strader, 3 Harrison, 105;
The State v. Gorham, 37 Maine, 451;
Reg. v. Derbyshire, 2 Q. B. 745, 2 Gale
& D. 97, 6 Jur. 438, and the authorities
there cited. See Rex v. Oxfordshire, 1
B. & Ad. 289; The State v. Hudson, 1
Vroom, 137, 147. Some appear to have
deemed that a structure, to be a bridge,
must be adapted to travel by foot pas
sengers and ordinary vehicles; so that,
for example, a mere railroad bridge is not
a bridge. Proprietors of Bridges v. Ho
boken Land, &. Co. 2 Beasley, 508. But
282
the contrary, as to a railroad bridge, has
also been held, and such would seem to be
the better doctrine. Enfield Toll Bridge
v. Hartford, &c. Railroad, 17 Conn. 40.
& Rex vc. Northampton, 2 M. & S. 262;
Rex v. Devon, Ryan & Moody, N. P. 144;
Rex c. Buckingham, 4 Camp. 189.
* People r. Buffalo, 4 Neb. 150; Ma-
lone v. The State, 51 Ala. 55; Penn v.
Perry, 28 Smith, Pa. 457.
§ Sussex v. Strader, supra, at p. 112.
° Penn v. Perry, supra.
19 Sussex r. Strader, supra; Tolland v.
Willington, 26 Conn. 578. And see Rex
v. West Riding of York, 7 East, 588;
West Riding of Yorkshire r. Rex, 2 Dow,
1; Reg. v. Lincoln, 8 A. & E. 65; London,
&c. Railway v. Skerton, 5 B. & 8. 559. +
Attorney-General v. Boston, 123
Mass. 460, 463; Parrot v7. Lawrence, 2
Dil. 332; The State v. Wilson, 42 Maine,
9; Munroe v. Thomas, 5 Cal 470; Ward
v. Gray, 6 B. & S. 345; Newton v. Cubitt,
12 C. B. xs. s. 32; Letton c. Goodden, Law
Rep. 2 Eq. 123, 180; Giles ». Groves, 12
Q. B. 721; Aikin v. Western Railroad, 20
N. Y. 370.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 303
the right to use it may be purely public, or it may be private
property; may arise from streams, or constitute the outlet of a
lake ; bear the appellation of river, or be known by some other
name, — these particulars not being material to its legal character
as a river.}
§ 303. Navigable River — Navigable Waters. — A “ navigable
river” is one practically available for floating commerce by any
of its methods,? or for travel. In England, where the rivers are
short and small compared with ours, the ebbing and flowing of
the tide therein establishes prima facie their navigability, but it
is not conclusive. With us, a river found navigable by this
English test is so also.2 But the test is not commonly applicable.
“Some of our rivers,” observed Field, J. in the Supreme Court
of the United States, “are as navigable for many hundreds of
miles above as they are below the limits of tide water, and some
of them are navigable for great distances by large vessels, which
are even not affected by the tide at any point during their entire
length.” When, therefore, “ they are used, or are susceptible of
being used, in their ordinary condition, as highways for com-
merce, over which trade and travel are or may be conducted in
the customary modes of trade and travel on water,” they are
navigable rivers. ‘And they constitute navigable waters of the
United States within the meaning of the act of Congress, in con-
tradistinction from the navigable waters of the States, when they
form in their ordinary condition by themselves, or by uniting
with other waters, a continual highway over which commerce is
or may be carried on with other States or foreign countries in
the customary modes in which commerce is conducted by water.”
Within this distinction, Grand River, in Michigan, was held to
constitute a portion of the “navigable waters of the United
States.”® And such also is the general doctrine in our State
1 Webster Dict. River; Bouv. Law
Dict. River; The State v. Gilmanton, 14
N. H. 467. Navigable Stream.— As to
-what is a “navigable stream,” see Munson
v. Hungerford, 6 Barb. 265; Dawson v.
James, 64 Ind. 162.
2 The Montello, 20 Wal. 480; Mc-
Manus v. Carmichael, 3 Iowa, 1; Tomlin
v. Dubuque, &c. Railroad, 32 Iowa, 106.
8 Attorney-General v. Woods, 108
Mass. 436.
4 Miles v. Rose, 5 Taunt. 705; Murphy
v. Ryan, fr. Law Rep. 2 C. P. 143; Lynn
v. Turner, Cowp. 86; Vooght v. Winch, 2
B. & Ald. 662; Rex v. Montague, 4 B. &
C. 598.
5 People v. Tibbetts, 19 N. Y. 523;
Commonwealth v. Chapin, 5 Pick. 199;
Cobb v. Davenport, 8 Vroom, 369; Vea-
zie v. Dwinel, 50 Maine, 479; Flanagan
v. Philadelphia, 6 Wright, Pa. 219.
8 The Daniel Ball, 10 Wal. 557, 563.
283
§ 304 SPECIAL INTERPRETATIONS. [BOOK III.
tribunals.!_ Even a river capable only of floating logs to market,
and used for the purpose, has been adjudged navigable.2 The
Mississippi is navigable at St. Paul. Fox River, in Wisconsin,
not originally navigable, has been made so by artificial improve-
ments.* Interruption by falls does not prevent a river being
navigable above.®
§ 304. High Seas.—In England, for giving jurisdiction to the
Central Criminal Court under 4 & 5 Will. 4, c. 36, § 22, wherein,
to the words “high seas,” are added “and other places within
the jurisdiction of the admiralty of England,” a British vessel off
Whampoa in China, stated in the case to be twenty or thirty
miles from the sea on a river, and no evidence appearing whether
or not the tide flowed there, was held to be covered by the stat-
ute. Our own courts have had occasion to consider the mean-
ing of the term “high seas” standing in somewhat different
relations. It includes, under our national legislation, waters of
our own and foreign coasts within the marine league of tlie
shore, and therefore parts of the adjoining territory, when with-
out the boundaries of counties; but not, on our own coast, when
within such boundaries.‘ Nor does it extend to our great lakes.
With us, an American vessel off the before-mentioned Whampoa,
said in the case to be on the river Tigris thirty-five miles from
its mouth, was adjudged not to be on the high seas.’ It is oth-
erwise with one lying in a harbor, fastened by cables to the shore,
and communicating by her boats with the land, yet not within
any enclosed dock, or at any pier or wharf.!° Waters of a bay
Houck ».
1 McManus r. Carmichael, 3 Iowa, 1;
Tyler v. People, 8 Mich. 320; Depew »v.
Wabash and Erie Canal, 6 Ind. 8;
Diedrich v. Northwestern Union Railway,
42 Wis. 248; Wilson v. Forbes, 2 Dev.
30; Ingram v. Threadgill, 3 Dev. 59; Stu-
art v. Clark, 2 Swan, Tenn. 9; Hickok v.
Hine, 23 Ohio State, 523.
2 Olson v. Merrill, 42 Wis. 203. And
see Veazie v. Dwinel, 50 Maine, 479.
But compare with Peters v. New Orleans,
&c. Railroad, 56 Ala. 528; Ross v. Faust,
64 Ind. 471; American River Water Co.
rv, Amsden, 6 Cal. 442; Wethersfield v.
Humphrey, 20 Conn. 218.
8 Castner v. Franklin, 1 Minn. 73.
The Illinois Court, rejecting the common
American doctrine, has held the Missis-
284
sippi not to be navigable.
Yates, 82 Ill. 179.
4 The Montello, 20 Wal. 430.
5 Spooner v. McConnell, 1 McLean, 387.
6 Rex v. Allen, 7 Car. & P. 664, 1
Moody, 494. See also Rex v. Depardo,
1 Taunt. 26.
7 United States v. Pirates, 5 Wheat.
184, 200; United States v. Smith, 1 Ma-
son, 147; United States v. Ross, 1 Gallis.
624; United States v. Grush, 5 Mason,
290; Johnson v. Merchandise, 2 Paine,
601.
8 Miller’s Case, 1 Brown Adm. 156.
9 United States v. Wiltberger, 5 Wheat.
76.
10 United States v. Seagrist, 4 Blatch.
420.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 306
entirely landlocked and enclosed by reefs,! and an enclosed dock
in a foreign port, are respectively deemed not of the high seas.
“ The admiralty,” said Story, J. “has never held that the waters
of havens, where the tide ebbs and flows, are properly the high
seas, unless those waters are without low-water mark.” 2 But an
open roadstead is such.2 And —
Sea.— There appears to be a sense in which, relating to other
questions than those now in contemplation, the word “ sea”’ com-
prehends all waters extending inland as far as the tide flows.
§ 805. Sea-shore. — The “‘ sea-shore” is, in the words of Par-
sons, C. J. ‘all the ground between the ordinary high-water
mark and low-water mark.” ®
III. The Thing done.
§ 306. Utter — Uttering. — To “utter” is a verb of common
use in the law of crimes, particularly in forgery, counterfeiting,
and the like.’ It means to offer by some overt act; as, one who
thus offers another a forged instrument or a piece of counterfeit
coin, intending it shall be received as good, utters it, whether
accepted or not. The offer, it is said, need not proceed to a
tender.’ Hence the word “ utter”’ is far from being the equiva-
1 United States v. Robinson, 4 Mason,
307.
2 United States v. Hamilton, 1 Mason,
152.
8 United States v. Pirates, 5 Wheat.
184, 200; United States v. Ross, 1 Gallis.
624. See United States v. Davis, 2 Sum-
ner, 482.
4 Thackarey v. The Farmer, Gilpin,
524, 1 Curt. Com. § 38. Beyond Seas.—
For “beyond seas,” see ante, § 2616;
Campbell v. Rankins, 2 Fairf. 103; Mason
v. Johnson, 24 Ill. 159.
5 Storer v. Freeman, 6 Mass. 485, 439;
8 Kent Com. 431. And see Common-
wealth v. Charlestown, 1 Pick. 180, 182.
Beach. —‘“ By a beach is to be under-
stood the shore or strand.” Weston, C.J.
in Cutts v. Hussey, 15 Maine, 237, 241;
8. Pp. East Hampton v. Kirk, 6 Hun, 257.
Yet it it is said to have no such inflexible
meaning as necessarily to denote the land
between high and low watermark. Mer-
win v. Wheeler, 41 Conn. 14.
6 Crim. Law, I. § 359, 437, 765; IT. § 286,
288, 605-608; Crim. Proced. II. § 259 7,
261, 263, 271, 425, 426, 442, 447, 452, 453,
460, 482.
7 Reg. v. Welch, 2 Den. C. C. 78, 1
Eng. L. & Eq. 588, 15 Jur. 136; 8s. c.
nom. Reg. v. Welsh, Temp. & M. 409;
Rex v. Arscott, 6 Car. & P. 408; Reg. ».
Ion, 2 Den. C. C. 475, 14 Eng. L. & Eq.
556; Reg. v. Radford, 1 Car. & K. 707, 1
Den. C. C. 59; Rex v. Martin, 1 Moody,
483, 7 Car. & P. 549; United States v.
Mitchell, Bald. 366; People v. Brigham,
2 Mich. 650. Said Tilghman, C. J. in
Commonwealth v. Searle, 2 Binn. 382,
339, “To utter and publish is to declare or
assert, directly or indirectly, by words or
actions, that a note is good. To offer in
payment would be an uttering or pub-
lishing ; but it is not passed until it is
received by the person to whom it is of-
fered.” See, however, Rex v. Shukard,
Russ. & Ry. 200.
285
§ 808 SPECIAL INTERPRETATIONS. [Book II.
lent of “pass.”1 But there must be a complete attempt to do
the specific forbidden thing ;? though there may be a conditional
uttering, as well as any other, which will be criminal.2 One
utters a threatening letter who puts it where the person ad-
dressed will be likely to see and read it, or another to find it,
and it is found and conveyed to such person. So to place on
record a forged deed of land is to utter the deed.®
In what County — (Analogous to Attempt). — The majority of
the English judges held, that one who gave his innocent servant
forged stamps, to be transmitted by him to another person in
another county, might be treated as having uttered them where
he thus passed them out of his manual possession.6 As this de-
livery to the servant, who, in these circumstances, was the inno-
cent agent’ of the master, could have no greater effect than the
putting of them into a letter-box properly addressed,’ this case,
if sound, shows how absolutely the doctrine of uttering is within
that of attempt.
§ 807. Put off? — The words “ pay or put off,” ina statute,
are not satisfied by a mere uttering, or by a tender; there must
be an acceptance. One who had bargained away and counted
out counterfeit coin, but the transfer was not complete when he
was arrested, was held not to have put off the coin.
§ 808. Passing — a thing of real or assumed value is putting it
off in payment or exchange.!! More than an offer is meant, it
must be received.“ But a concurrent agreement to take it back
should it not prove good will not prevent the act from consti-
tuting a passing? A mere pledge was by the majority of the
Tennessee judges held not to be adequate.* Yet how, in prin-
1 People v. Tomlinson, 35 Cal. 503.
See United States v. Nelson, 1 Abb. U.S.
1365.
2 See and compare Reg. v. Loughran,
8 Crawf. & Dix C. C. 333; Rex v. Colli-
cott, Russ. & Ry. 212, 4 Taunt. 300; Reg.
v. Heywood, 2 Car. & K. 352; The State
v. Beeler, 1 Brev. 482.
3 Reg. v. Cooke, 8 Car. & P. 582; Rex
v. Birkett, Russ. & Ry. 86.
4 Reg. v. Jones, 5 Cox C. C. 226. See
Crim. Law, IT. § 1200.
5 United States v. Brooks, 8 McAr.
315.
6 Rex v. Collicott, Russ. & Ry. 212, 4
Taunt. 300.
286
+ Crim. Law, I. § 310, 651.
8 Crim. Proced. I. § 53, 61.
9 See Crim. Law, II. § 288, 608.
10 Rex v. Wooldridge, 1 Leach, 4th ed.
307, 1 East P. C. 179. And see Rex v.
Giles, 1 Moody, 166; Rex v. Palmer,
Russ. & Ry. 72, 1 New Rep. 96, 2 Leach,
4th ed. 978.
1l United States v. Mitchell, Bald. 366;
United States v. Nelson, 1 Abb. U. S.
135.
22 Ante, § 306, note.
13 Perdue v. The State, 2 Humph. 494.
4 Gentry v. The State, 3 Yerg. 451.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 311
ciple, does the “ passing” of a thing in pledge differ from the
like in conditional payment ?
§ 309. Show forth in Evidence.— These words, in a statute,
refer to a judicial proceeding, wherein the thing shown forth is
offered in evidence. They are not, therefore, an equivalent for
“utter” or “ publish.” !
§ 310. Burn — Burning. — The word “burn” enters into the
definition of arson at the common law; and it occurs in many
statutes.2. It means to consume by fire. To blacken the wood
without wasting any of the fibres is not to burn it, yet there need
be no blaze.3 And the burning of any part, however small, com-
pletes the offence, the same as of the whole. Thus, to char
‘the floor in a single place, so as to destroy any of the fibres of
the wood, is a sufficient burning in arson.®
§ 311. Set Fire to. — As the wasting of any particles of the
wood, to however small an extent, constitutes a burning, and as
the setting of fire thereto without such wasting is a physical im-
possibility, there can be no wide difference between the terms
“burn” and “set fire to.” And in the books they are generally
regarded as substantially or absolutely synonymous.’ To consti-
tute the setting of fire to a building there need not be a flame
visible,’ yet there must be some consumption of the wood,’ — the
precise description of the meaning of the word burn. Yet it
does not necessarily follow, that, where the indictment is on a
statute the word wherein is ‘ burn,” it may employ the substan-
tially synonymous term “set fire to.”® On this question, judicial
opinion is divided. So also a difference may be wrought by
1 The State v. Britt, 3 Dev. 122; The
State v. Stanton, 1 Ire. 424. Having in
Possession. — As to “having in posses-
sion,” see Commonwealth v. Whitmarsh,
4 Pick. 233; Commonwealth v. Morse, 2
Mass. 128; Rex v. Rowley, Russ. & Ry.
110.
2 Crim. Law. I. § 559; II. § 8, 17;
Crim. Proced. II. § 46, 47.
8 Crim. Law, II. § 10; Commonwealth
uv. Tucker, 110 Mass. 403; Reg. v. Rus-
sell, Car. & M. 541; Reg. v. Parker, 9
Car. & P. 45; Rex v. Stallion, 1 Moody,
398; People v. Simpson, 50 Cal. 304.
4 Commonwealth v. Van Shaack, 16
Mass. 105; The State v. Mitchell, 5 Ire.
350.
5 Reg. v. Parker, supra; The State v.
Sandy, 83 Ire. 570; Commonwealth v.
Betton, 5 Cush. 427; People v. Cotteral,
18 Johns. 115; People v. Butler, 16 Johns.
203.
6 2 East P. C. 1020; Commonwealth
v. Van Shaack, 16 Mass. 105; The State
v. Babcock, 51 Vt. 570; Lockett v. The
State, 63 Ala. 5.
7 Rex v. Stallion, 1 Moody, 398.
8 Rex v. Taylor, 1 Leach, 4th ed. 49, 2
East P. C. 1020.
9 Crim. Proced. I. § 612.
10 Tb. § 613; II. § 47; The State v.
Taylor, 45 Maine, 322; Howe v. Com-
monwealth, 5 Grat. 664; Mary v. The
State, 24 Ark. 44, 47; Cochrane v. The
State, 6 Md. 400, 405.
287
§ 312 SPECIAL INTERPRETATIONS. [BOOK IL.
varying the expression; as, in Vermont, where the statutory
words are, “ wilfully and maliciously set fire, with intent to burn,
to the dwelling-house of another.” And they are held not to
require any consumption of the wood of the building. The Eng-
lish doctrine was admitted to be otherwise; but, said the court,
“Our statute contains the important qualifying words, ‘ with in-
tent to burn, which are not contained in any of the English stat-
utes; most clearly implying, that the offence intended to be
covered by the statute was something short of an actual burn-
ing.” The expression may “ reasonably and fairly be understood
the same as put fire to, or place fire upon, or against, or put fire in
connection with.” Thus the language and intent of the enact-
ment are brought into harmony.}
§ 312. Break — Breaking.”— The verb “to break” occurs in
various connections in our legal language. But its chief use,
whence mainly we derive its meanings, is in the law of burglary
and the analogous statutory breakings.4 Applied to a building,
it signifies to make an opening, or way of admission, into it, and
it does not necessarily require any destruction of parts. It is a
breaking, for example, to lift the latch or draw the bolt of a door
not otherwise fastened,’ to push upward or lower a window held
by a pulley-weight,® or to raise a door constructed to be kept
down simply by its own gravitation.’ So it is a breaking of a
corn-crib to bore into it a hole whence to draw out the kernels.§
Nor is it less a breaking if the way to the place to be entered is
1 The State v. Dennin, 32 Vt. 158, 164,
165.
2 Crim. Law, IT. § 91.
3 As, in the law of arrest, ante, § 277,
290 ; Crim. Proced. I. § 194-204; and
prison-breach. Crim. Law, IT. § 1070-1083.
And see Ryan v. Shilcock, 7 Exch. 72;
Samanni v. Commonwealth, 16 Grat. 543.
4 Crim. Law, I. § 559; II. § 90, 91,
118 and note.
5 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.
437; Bass v. The State, 1 Lea, 444; Mc-
Court v. People, 64 N. Y. 583; Rex v.
Robinson, 1 Moody, 327; The State v.
Robertson, 32 Texas, 159; Owen’s Case,
1 Lewin, 35. And see The State v. New-
begin, 25 Maine, 500; Rex v. Bailey, 1
288
Moody, 23; Lowder v. The State, 63 Ala.
143 ; ante, § 290.
6 Rex v. Haines, Russ. & Ry. 451;
Rex v. Hall, Russ. & Ry. 355; The State
v. Carpenter, 1 Houst. Crim. 367; Dennis
v. People, 27 Mich. 151; The State »v.
Tutt, 63 Misso. 595. And see Rex v.
Robinson, 1 Moody, 327; Rex v. McKear-
ney, Jebb, 99; Rex v. Bailey, Russ. & Ry.
341; Reg. v. Bird, 9 Car. & P. 44.
7 Rex v. Russell, 1 Moody, 377; Rex
v. Brown, 2 East P. C. 487, 2 Leach, 4th
ed. 1016, note. But if fastenings are in-
tended to be put upon a trap-door, it has
been held that lifting it up is not a break-
ing. Rex v. Lawrence, 4 Car. & P. 281.
And see Rex v. Callan, Russ. & Ry. 157;
Hunter v. Commonwealth, 7 Grat. 641;
Roscoe Crim. Ev. 341.
8 Walker v. The State, 63 Ala. 49.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 312
made by fire! Or a constructive breaking, as it is termed, suf-
ficient in burglary, occurs where one procures by craft,? or by
threats and intimidation,’ a person within the building to open
the door. To push open a closely fitting door, which has no
lock, latch, or other fastening, is to break the place. And the
removal of a portion of the building, however small, as a pane of
glass, or any part of a shutter, is sufficient.6 Even the cutting
and tearing down of a netting of twine, nailed at the top, bottom,
and sides of a window purposely left open at night, so that an
entry could be effected, has been adjudged a breaking in bur-
glary. “It makes no difference,” observed the court, “ 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 the party accused of burglary be not tempted to enter.
Shutting 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.” ® But if a door or win-
dow is open a little way, it is not a breaking to push it further
open.’ The thing displaced must be a part of the freehold.®
Yet as the chimney is never to be shut, an entrance there is a
breaking, though nothing is moved. It is no breaking to walk
into an open door or window,” or crawl through a sufficient hole."
1 White v. The State, 49 Ala. 344, 349.
2 Crim. Law, II. § 91; Rolland v. Com-
monwealth, 1 Norris, Pa. 306; Johnston
v. Commonwealth, 4 Norris, Pa. 54;
Parke v. Evans, Hob. 62a; Rex v. Haw-
kins, 2 East P. C. 485; Ducher v. The
State, 18 Ohio, 308; Rex v. Bigley, 1
Crawf. & Dix C C. 202; The State v.
Carter, 1 Houst. Crim. 402; Clarke v
Commonwealth, 25 Grat. 908. But see
The State v. Henry, 9 Ire. 463.
8 Rex v. Swallow, 1 Russ. Crimes, 3d
Eng. ed. 793.
a : Finch v. Commonwealth, 14 Grat.
5 Rex v. Perkes, 1 Car. & P. 300; Reg.
», Bird, 9 Car. & P. 44; Anonymous, 1.
Anderson, 115; Gibbon’s Case, Foster,
107; Rex v. Bailey, Russ. & Ry. 341, 1
Moody, 23; Rex v. Davis, Russ. & Ry.
499; Rex v. Hughes, 1 Leach, 4th ed. 406,
2 East P. C, 491.
® Commonwealth v. Stephenson, 8
19
Pick. 354, opinion by Parker, C. J. And
see People v. Nolan, 22 Mich. 229.
« Rex v. Smith, 1 Moody, 178, Car.
Crim. Law, 3d ed. 293; Commonwealth
v. Steward, 7 Dane Abr. 136. The ma-
jority of the Scotch judges held, that it
is not house-breaking to enter by means
of a key left in the door locked on the
outside. Alston’s Case, 1 Swinton, 433.
§ Commonwealth v. Trimmer, 1 Mass.
476; Rex v. Paine, 7 Car. & P. 185; ante,
§ 281.
9 Rex v. Brice, Russ. & Ry. 450; The
State v. Boon, 13 Ire. 244; Stone v. The
State, 63 Ala. 115, 119; Walker v. The
State, 52 Ala. 376. :
W The State v. Boon, supra; Rex »v.
Lewis, 2 Car. & P. 628; Commonwealth
v. Steward, 7 Dane Abr. 186; Anony-
mous, J. Kel. 70; The State v. Wilson,
Coxe, 439; Pines v. The State, 50 Ala.
163.
11 Stone v. The State, supra.
289
§ 314 SPECIAL INTERPRETATIONS. [Book Im.
§ 318. Forcibly Break. —In Ohio, under a statute making it
criminal to ‘ forcibly break and enter” a building, actual force
is 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.?
Separation of only the cuticle or upper membrane of the skin is
not sufficient, all of it must be parted; yet the injury need not
extend into the flesh, and there need not be effusion of blood.3
Without such parting of the skin, it seems, there can be no
wounding ; for a man was held not to be wounded when his per-
son was bruised, and his collar-bone fractured Yet a disrup-
tion of the internal skin —as, that within the mouth,® or the
membrane lining the urethra ®— will suffice. Moreover, in the
adjudged law, the meaning of the word has been considerably
varied by the subject, and-the connection in which it stands.
Under 9 Geo. 1, c. 22, § 1, making punishable those who should
“unlawfully and maliciously kill, maim, or wound any cattle,”
&e., it was held that driving a nail into the frog of a horse’s foot
was a wounding, — “ which word ‘wound,’” the court said,
“appears to be used as contradistinguished from a permanent
injury, such as maiming.”* Statutes which: a good while pre-
vailed in England were 9 Geo. 4, c. 81, § 12, and 7 Will. 4&1
Car. & P.173. And see Reg. v. Price, 8
1 Crim. Law, II. § 118, note; Ducher v.
The State, 18 Ohio, 308; Timmons v. The
State,34 Ohio State, 426. Forcible Pass-
ing.— The passing of a toll-gate, after
the keeper’s refusal because of the non-
payment of toll, is a “forcible passing.”
Camden, &c. Turnpike v. Fowler, 4 Zab.
205. Damaging. — As to what is a “dam-
aging,” see Reg. v. Whittingham, 9 Car.
& P. 284; Rex v. Tracy, Russ. & Ry. 452;
Reg. v. Norris, 9 Car. & P. 241; Reg. v.
Fisher, Law Rep. 1 C. C. 7, 10 Cox C. C.
146.
2 “Tn criminal cases, the definition of
a wound is an injury to the person by
which the skin is broken.” The State v.
Leonard, 22 Misso. 449, 451.
8 Reg. v. McLoughlin, 8 Car. & P. 635;
Rex »v. Beckett, 1 Moody & R. 526; Com-
monwealth v. Gallagher, 6 Met. 565;
Moriarty v. Brooks, 6 Car. & P. 684; Rex
v. Wood, 1 Moody, 278; Reg. v. Smith, 8
290
Car. & P. 282.
4 Rex v, Wood, 4 Car. & P. 381.
5 Reg. v. Smith, 8 Car. & P. 173; Reg.
v. Warman, 1 Den. C. C. 183.
6 Reg. v. Waltham, 3 Cox C. C, 442,
See Reg. v. Jones, 3 Cox C. C. 441.
7 Haywood’s Case, 2 East P. C. 1076,
1077. According to the report of this
case by Russell and Ryan (Rex vu. Hay-
wood, Russ. & Ry. 16), the sole question
submitted to the judges was, whether an
injury not permanent is within the stat-
ute. Even according to the other report,
as the injury was to a part where nature
has provided no skin, or where perhaps
the hoof may be deemed the skin, the de-
cision is not absolutely in conflict with
the general doctrine. Still perhaps the
particular wording of this statute required
the term “wound” to be construed as
meaning something different from what
it does in the other statutes. -
CHAP. XXVII.] PARTICULAR WORDS AND. PHRASES. § 315
Vict. c. 85, § 4, superseding it, the. words whereof are ‘stab,
cut, or wound;” and it was decided, not,.without some differ-
ences 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 inflicted with the teeth, as
in biting off the finger, ear or nose, is not within the statute.?
The kind of instrument was immaterial; a blow. from a hammer,3
from the but-end of a gun,‘ from a bludgeon,® or a kick with a
shoe,® parting the skin, being as good in law asa cut froma
sharp weapon. Nor was it any objection that the instrument,
instead of inflicting the wound directly, fell on some other thing,
—for example, the injured person’s hat, — and the latter broke
or cut the skin.’ But oil of vitriol, thrown on the face, was not
deemed an instrument to make the injury a wound within the
statute. The later enactments of 24 & 25 Vict. c. 97, § 40,
employing the words “ kill, maim, or wound any cattle,” and 24
& 25 Vict. c. 100, § 11, the expression wherein is “ wound, or
cause any grievous bodily harm to, any person,” are differently
construed. They do not require, to inflict a “* wound,” the use
of any instrument. Thus, under the former, a wound in the
mouth of a horse may be created by drawing out its tongue with
the hand.
§ 315. cut — Cutting — Stab — Stabbing. — Where the words
“cut or stab’ are used as in the before-mentioned English stat-
utes,!° they ‘relate only to such wounds as are made by an
instrument capable of stabbing or cutting ; stabbing being prop-
erly 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 distinction must be at-
\
1 See ante, § 245.
2 Jenning’s Case, 2 Lewin, 180; Elms-
ly’s Case; 2 Lewin, 126; Rex v. Stevens,
1 Moody, 409 ; Rex v. Harris, 7 Car. & P.
446.
3 Reg. v. Smith, 8 Car. & P. 173; Rex
v. Withers, 1 Moody, 294, 4 Car. & P. 446;
Rex v, Hughes, 2 Car. & P. 420.
4 Rex v.. Sheard, 2 Moody, 18, 7 Car.
& P. 846,
5 Rex v. Payne, 4 Car..& P. 558,
® Rex v. Briggs, 1 Moody, 318, 1
Lewin, 61.
7 Rex v. Sheard, 2 Moody, 18, 7 Car.
& P. 846.
8 Rex v. Morrow, 1 Moody, 456 ; Hen-
shall’s Case, 2 Lewin, 135. And see 1
Russ. Crimes, 31 Eng. ed. 731.
9 Reg. v. Bullock, Law Rep. 1 C. C.
115, 11 Cox C. C. 126,
10 Ante, § 314.
291
SPECIAL INTERPRETATIONS.
§ 316 [Book III.
tended to in the indictment.” 1 Yet cutting or stabbing need
not have been the purpose for which the instrument was manu-
factured. For example, a blow from the sharp claw of a ham-
mer,? or the sharpened point of an iron crow,’ may inflict a cut;
but not from the blunt end of a hammer,’ or from a square iron
bar producing a contused or lacerated gash,® or from the scabbard
of a sword,® or from the handle of a windlass.’ It was held in
New Jersey, that, if the nose is bitten off, it is cut off,’ —a con-
clusion not in accord with the English doctrine. Under 1 Jae.
1, c. 8,§ 2, employing the words “stab or thrust any person,”
Hawkins says, “ the killing 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.” 1° The knife, to
stab, need not do more than penetrate the skin and draw blood ;
at least, a depth of a quarter of an inch is enough.!!
§ 816. Maim — Maiming. — The word “maim” is not, accord-
ing to the better use, a synonym for mayhem, which is a particu-
lar sort of aggravated maim.” But, like mayhem, it implies a
permanent injury * or crippling,* certainly when employed with
reference to cattle.’ And such appears to be its general legal
meaning.® Mayhem, not unfrequently termed maim of the per-
son, signifies more when we are speaking of the common law;
namely, such a bodily injury as renders the sufferer less able in
11 Russ. Crimes, 3d Eng. ed. 728;
ante, § 298; Rex v. McDermot, Russ. &
Ry. 356. See, however, ante, § 247, 243;
post, § 326.
2 Rex v. Atkinson, Russ. & Ry. 104,
1 Russ. Crimes, 3d Eng. ed. 728.
3 Rex v. Hayward, 1 Russ. Crimes, 3d
Eng. ed. 729, Russ. & Ry. 78. And see
Wilson v. Commonwealth, 3 Bush, 105.
4 Rex v. Atkinson, supra.
5 Rex v. Adams, 1 Russ. Crimes, 3d
Eng. ed. 728.
6 Rex v. Whitfield, 1 Russ. Crimes, 3d
Eng. ed. 728.
7 Anonymous, 1 Russ. Crimes, 3d Eng.
ed. 728.
8 The State v. Mairs, Coxe, 453.
9 See Rex v. Harris, 7 Car. & P. 446;
ante, § 314.
10 1 Hawk P.C. Curw. ed. p. 90, § 8.
And see Wilson v. Commonwealth, 3
Bush, 105.
11 Ward v. The State, 56 Ga. 408.
292
22 Crim. Law, IL § 1001, 1005; Toml.
Law Dict. Maihem. But sometimes we
find the word maim employed in the
sense of mayhem; as, in 1 Hawk. P. C.
Curw. ed. p. 107, § 1-3. And the indict
ment for mayhem appears properly to
employ the expression “did feloniously
maim,” as an equivalent for the Latin
Jelonice mayhemavit. Crim. Proced. II.
§ 852; 1 Chit. Crim. Law, 244 ; Common-
wealth v. Newell, 7 Mass. 245, 247; 3 Inst.
118; 2 Hawk. P. C. Curw. ed. p. 249,
§ 77.
13 The State v. Briley, 8 Port. 472.
144 Turman v. The State, 4 Texas Ap.
586.
15 Tb.; Roscoe Crim. Ev. 375, 376;
Reg. v. Jeans, 1 Car. & K. 539; ante,
§ 314. And see Baker v. The State, 4
Pike, 56. :
1% The State ». Briley, 8 Port. 472,
where the same meaning was given to
the word “ disabling,” in the statute.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 319
fighting to defend himself or annoy his adversary.!_ Under a stat-
ute making it a misdemeanor to cut off the ear with intent to
maim, the court observed, that the word was used in the popular
sense of mutilate, and not as synonymous with mayhem? An-
other statute provided in terms, that maiming should consist in
“unlawfully disabling a human being, by depriving him of the
use of a limb or member, or rendering him lame, or defective in
bodily vigor.” ® And there are still other statutory definitions
in our States. The English judges held, that pouring acid into
the eye of a mare, and thereby blinding her, is a maiming within
7 & 8 Geo. 4, c. 30, § 16, which made it felony to “unlawfully
and maliciously kill, maim, or wound any cattle.”
§ 817. Slit the Nose®— These words are answered by any
division, perpendicular or transverse, of the flesh or gristle.’
§ 818. Grievous Bodily Harm. — This “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 per-
manent injury.”’* Much less need they put in hazard the life.
It is, for example, a grievous bodily harm to a female child to
cut her private parts so as to enlarge them for the time, though
the wound is not deep or dangerous, and the hymen is not
broken.1°
IV. The Objects acted upon and the Instrumentalities.
§ 319. Tool — Instrument — Implement. — These words, com-
monly connected in statutes, are nearly but not exactly identical
in meaning.” They severally denote some inanimate, physical
! Crim. Law, II. § 1001; 1 Hawk. P.C. 8. c. nom. Rex v. Carrol, 1 East P. C.
Curw. ed. p. 107, § 1, 2; Roscoe Crim.
Ev. 785.
2 Commonwealth v. Newell, 7 Mass.
245, 249.
8 Baker v. The State, 4 Pike, 56.
4 The State v. Briley, 8 Port. 472;
The State v. Simmons, 8 Ala. 497. Dis-
figuring. — As to the word “ disfiguring,”
see Crim. Law, II. § 995, 1001; The State
v. Smith, Cheves, 157.
5 Rex v. Owens, 1 Moody, 205.
6 See Crim. Law, II. § 1003; Crim.
Proced. IT. § 855.
7 Rex v. Carroll, 1 Leach, 4th ed. 55;
394.
8 Archb. New Crim. Proced. 264; Reg.
v. Ashman, 1 Fost. & F. 88.
9 Reg. v. McNeill, 1 Crawf. & Dix C.
C. 80. And see Rex v. Phillips, 1 Crawf.
& Dix C. C. 164; Reg. v. Caruthers, 3
Crawf. & Dix C. C. 891; Rex v. Hunt, 1
Moody, 98; Roscoe Crim. Ev. 786.
Great Bodily Harm, and Serious Bod-
ily Harm, — in the law of self-defence,
are substantial equivalents. Lawlor v.
People, 74 Ill. 228.
W Rex v. Cox, Russ. & Ry. 862.
1 See Atwood v. De Forest, 19 Conn.
513; Coolidge v. Choate, 11 Met. 79.
298
§ 820 ‘[Book 11.
SPECIAL INTERPRETATIONS.
thing, which can be’ used manually in the way of labor, skill, or
chicanery. For example, a game-cock, which acts of its own
volition, is not an implement.! Nor is a printing-press, with the
types and forms, which are serviceable only in combination with
it, sufficiently light and exclusive for the hand to be a tool.? Also,
‘within statutes exempting property of debtors from-attachment,
the following are not tools: cart-wheels, and other parts or the
whole, of vehicles drawn by horses or by oxen;? a mill-saw
worked by water-power ;* the moulds of a paper manufacturer ;
a portable machine for spinning and manufacturing cloth; of the
sort used ‘in factories, even though propelled by the hand; ® and,
it has been adjudged, a peg-machine operated by the hand-power
of a single person.’ So, in the criminal law, a crucible or other
pot for melting or boiling is not a tool or instrument for counter-
feiting.® Buta press,® and likewise a mould for coinage, have
been held to be such within the English statutes; wherein, how-
ever, the meaning of these words is perhaps enlarged by their
connection. Moreover, a collar, as it is called, employed for
marking the edge ofa counterfeit coin, the process being to-force
the coin through it by machinery, is an edger, edging tool, instru-
ment, or engine: Of course, if the statute speaks of an instru-
ment for a purpose named, it must be meant to be used for the
purpose; yet its adaptation need not be exclusive. Keys, for
example, are instruments of house-breaking, or not, according to
the intent of the person having them.”
§ 820. Deadly Weapon.— The term “deadly weapon” occurs
in the common law of homicide ¥ and in various statutes. It is a
weapon likely to produce death or great bodily injury.4 Ina
case of doubt, the manner in which it was used may be taken
1 Ante, § 216; Coolidge v. Choate,
supra.
2 Buckingham v. Billings, 13 Mass. 82;
Danforth v. ‘Woodward, 10 Pick. 423;
Spooner v. Fletcher, 3 Vt. 183. Contra,
Patten v. Smith, 4 Conn. 450.
8 Daily v. May, 5 Mass. 313.
4 Batchelder v. Shapleigh, 1 Fairf.
135.
5 Burbank v. Reed, cited 2 Vt. 406.
6 Kilburn v. Demming, 2 Vt. 404.
7 Knox v. Chadbourne, 28 Maine, 160.
8 The State v. Bowman, 6 Vt. 594.
See Wetherby v. Foster, 5 Vt. 186.
294
9 Rex v. Bell, 1 East P. C. 169, Foster,
430.
10 Rex v. Lennard, 2 W. BI. 807, 1
Leach, 4th ed. 90, 1 East P. C.'170.
11 Rex v.-Moore, 1 Moody, 122, 2 Car.
& P. 235.
12 Reg. v. Oldham, 2 Den: C. C. 472,
14 Eng. L. & Eq. 568. And see Rex »v.
Palmer, 1 Moody & R. 70; Rex v. John-
son, Russ. & Ry. 492.
13 Crim. Law, II. § 680, 681, 690, 698;
Foster, 294; Rex v. Howlett, 7-Car. & P.
274.
44 The State v. Jarrott, 1 Ire. 76, 87;
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 321
into the account in determining whether or not it was deadly.!
Aud when the facts are all established, the question whether a
particular weapon was deadly or: not is of law for the court ;?
yet practically, as in most instances the establishment of the
facts awaits the rendition of the verdict, the jury must pass upon
this question under instructions from the court.’
Dangerous Weapon. — Some of the statutes employ the term
“dangerous weapon.” * It is a milder term than the other, yet
otherwise of the same meaning. A weapon may.be dangerous
without being deadly. Upon an-indictment for robbing the mail
and putting the mail-carrier’s life in jeopardy, it was considered
that a sword or pistol in the hand of the robber, through terror
whereof the robbery was effected, is a ‘“‘dangerous weapon,”
though the'sword is not drawn or the pistol not pointed. And
a pistol may be a dangerous weapon, even without proof of its
being loaded.’
§ 321. Offensive Weapon. — These words occur in some former
and perhaps present English statutes, forbidding the doing of
things by one “armed with fire-arms or other offensive arms or
‘weapons,’ ® “carrying offensive arms or weapons,”® “with an
offensive weapon or instrument,” and the like.
exact definition of the term ‘offensive weapon.”
Rex v. Howlett, supra; Macklin’s Case,
2 Lewin, 225; Briggs v. The State, 6
Texas Ap. 144, 146; McReynolds v. The
State, 4 Texas Ap. 827 ;. Commonwealth
v. Branham, 8 Bush, 387.
1 Crim. Law, II. § 681; Hunt v. The
State, 6-Texas Ap. 663; Skidmore v. The
State, 43 Texas, 93.
2 Crim. Law, II. § 680; The State v.
Collins, 8 Ire. 407; The State v. Cesar,
a 391; The State v. Craton, 6 Ire.
164.
§ Kouns v. The State, 3 Texas Ap. 13;
Flournoy v. The State, 16 Texas, 31.
Curtis; J. speaking to a case where the
statutory word was “dangerous,” said:
“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 itis practicable, it is matter of law,
and the court must take the responsi-
bility of so declaring. But where the
question is, whether an assault with a
We have no
But it includes
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 attempted 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 com-
mitted, was with a dangerous weapon.”
United States v. Small, 2 Curt. C. C.
241, 248. See also The State v. Jarrott,
1 Ire. 76; Rex v. Grice, 7 Car. & P. 803;
The State v. Dineen, 10 Minn. 407; Skid-
more v. The.State, supra ; Commonwealth
v. O’Brien, 119 Mass. 342.
4 Filkins v. People, 69 N. Y. 101.
5 Pinson v. The State, 23 Texas, 579.
6 United States ». Wood, 3 Wash. C. C.
440.
7 United States v. Wilson, Bald. 78.
8 9 Geo. 2, c. 35, § 10; 6 Geo. 4, c. 108,
§ 56.
93&4 Will. 4, c. 53, § 60.
10 7 Geo. 2, c. 21.
295
§ 825 SPECIAL INTERPRETATIONS. [Book mM.
guns and other instruments of war; with bludgeons, clubs, and
other things employed only in private encounters ;! and heavy
walking-sticks, crutches, and the like, being offensive or not
according to the intent with which they are used or carried.?
On the other hand, a horsewhip ;* bats, which are long poles
wherewith smugglers convey away tubs of spirits ;* and large
sticks, three feet in length, with some prongs, the natural growth
of the timber, and knobs at the ends,® have severally been ad-
judged not to be offensive weapons. And the judicial impres-
sions seem to have been, that a weapon to be offensive must be
dangerous.®
§ 822. Loaded Arms.— A pistol loaded with gunpowder and
ball, yet having its touch-hole so plugged that it cannot be fired,
is not “loaded arms” within the English statute of 9 Geo. 4,
ce. 81, §11 and 12;7 the words of which are, — “shall, by drawing
a trigger, or in any other manner, attempt to discharge any kind
of loaded arms at any person.” And one who sent to another, to
destroy him, a tin box containing three pounds of gunpowder,
and two detonators to ignite it when the box should be opened,
was held not to have attempted to discharge at him loaded arms.®
§ 323. Weapon drawn. — A snead has been deemed a “* weapon
drawn ;”® so likewise has a pot, thrown at another.”
§ 324. Destructive Matter.— Boiling water is “ destructive
matter,” within 7 Will. 4 & 1 Vict. c. 85, § 5, making it punish-
able to “‘cast or throw upon, or otherwise apply to, any person
any corrosive fluid or other destructive matter.”
§ 325. Words indicating Classes of Written Instruments : —
In General. — There are numerous statutes, English and Ameri-
can, present and repealed, making punishable the forgery, the
larceny, or the like, of any “bank-bill, promissory note, or bill
of exchange,” — of any “ warrant, order, or request for the pay-
1 Cosan’s Case, 1 Russ. Crimes, 3d 6 And see 1 Russ. Crimes, 8d Eng. ed.
Eng. ed. 119, 1 Leach, 4th ed. 342, note. 119, 120; Rex v. Grice, 7 Car. & P. 808.
2 Rex v. Palmer, 1 Moody & R. 70; 7 Rex v. Harris, 5 Car. & P. 159.
Rex v. Johnson, Russ. & Ry. 492, 1 Russ. 8 Rex v. Mountford, 7 Car. & P. 242, 1
Crimes, 3d Eng. ed. 120; Rex v. Fry, 2 Moody, 441.
Moody & R. 42; ante, § 219. ® Keat’s Case, Skin. 666, 668.
8 Rex v. Fletcher, 1 Leach, 4th ed. 23, 10 Rex v. Hunter, 3 Lev. 255. ‘But
342, note, 2 Stra. 1166. when he had thrown it out of his hand
4 Rex v. Noakes, 5 Car. & P. 826. without hurt, and out of his reach, he
5 Rex v. Ince, 1 Leach, 4th ed. 342, had no weapon drawn.” Ib. p. 256.
note. M Reg. v. Crawford, 2 Car. & K. 129, 1
Den. C. C. 100.
296
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 826
ment of money,” —of any “deed, bond, or writing obligatory,”
and so on; their forms being various. How to interpret the
present American ones becomes a practical inquiry of much im-
portance, to the answering of which the decisions on the English
and the repealed are nearly as serviceable as any other.
§ 826. Overlying of Meanings. — We have seen what are flie
conflicting rules on the decisions, and what is the true one in
reason, for interpreting statutory words which overlie one an-
other in meaning.! If formerly, and by some American opinions
at the present day, the word “sheep,” for example, was taken to
mean an animal of either sex when standing alone, but only a
male when the expression is “sheep or ewe,” ? the distinction is
now substantially discarded in England,? while there is no very
distinct ground for saying that it is recognized in this country
beyond one or two States. In the class of statutes now in con-
templation, it seems never to have had in either country much
influence; for the courts appear to have given each of the sev-
eral terms embraced in them substantially the same meaning as
if it had stood alone, so that sometimes a writing may be equally
well indicated by any one of several alternative statutory names.*
Yet where one section provided a particular penalty for passing
counterfeit bank-bills, and another a different one for passing
counterfeit promissory notes, it was held that, though the words
“promissory notes” would on general principles include bank-
bills, they did not here ; because to construe them so would ren-
der the sections repugnant.6 Again, —
Foreign Securities. — Though statutes are not given an extra-
territorial force,6 so that those now in contemplation do not
extend to wrongs committed abroad, they do comprehend as well
written securities issued under the laws of foreign States and
1 Ante, § 148, 246 c-248. Rex v. Shepherd, 2 East P. C. 944; 8. c.
2 Ante, § 247; Rex v. Cook, 1 Leach,
4th ed. 105, 2 East P. C. 616.
® Reg. v. McCulley, 2 Moody, 34; 8. c.
nom. McCully’s Case, 2 Lewin, 272. And
see Reg. v. Spicer, 1 Car. & K. 699; Rex
v. Teague, 2 East P. C. 979, Russ. & Ry.
83; ante, § 247.
4 Reg. v. Williams, 2 Car. & K. 51;
Rex v. Mitchell, 2 East P. C. 936; 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;
nom. Rex v. Sheppard, 1 Leach, 4th ed.
226; Reg. v. Smith, 2 Moody, 295; Reg.
v. Gilchrist, Car. & M. 224; The State v.
Wilkins, 17 Vt. 151; The State v. Wilson,
8 Brev. 196; Reg. v. White, 9 Car. & P.
282.
5 The State v. Ward, 6 N. H. 529.
For the same principle, see also People
v. Howell, 4 Johns. 296. And see ante,
§ 168.
6 Ante, § 141.
297
§ 328 _ SPECIAL INTERPRETATIONS. [BooK 111.
countries, if of current value in the locality where the elenoet is
committed, as domestic.
- § 327. Order— (For Payment of Money— Delivery of Goods).2—
An “order” is in its principal elements the same, whether it is
“for the payment of money” or “for the delivery of goods.’
How: defined. By reason of differences of judicial opinions
and statutory terms, there can be no definition of an “ order”
in the correctness whereof all will concur. According to what
seemed once to be, and probably is, the English doctrine, not
universally concurred in with us, an order is a written direction
from one who either has in fact, or in the writing professes to
have, control over a fund or thing, to another who either pur-
ports in the writing to be under obligation to obey or who is
in fact under: such obligation,.commanding some arpsepeaton
thereof. And, —
Two kinds. — According equally to this definition and to the
opinions of all the tribunals, orders are of two kinds, — those
which are such on their face and those which may be shown to
be orders by averment and proof. Following now the judicial
expositions which accord with this.definition we have, —
§ 328. No Funds — What on Face an Order. — If: on the face of
the writing there is all that belongs to an order, the law regards
it as such, though in fact the drawer had no funds, and the
drawee was under no obligation to respond.6 The question
whether or not particular words bring a case within this branch
of the definition may be nice and delicate. The tests are, that,
looking simply at the writing, there must appear on its face to
be a drawer, having a disposing power over the fund or goods, a
1 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, 311;
Rex v. McKeay, Car. Crim. Law, 3d ed.
190, 1 Moody, 130. And see Rex v. Gold-
stein, 7 Moore, 1, 3 Brod. & B. 201, 10
Price, 88, Russ. & Ry. 473; Rex v. Dick,
1 Leach, 4th ed. 68, 2 East P. C. 925;
Lewis v. Commonwealth, 2 S. & R. 551;
ante, § 205; post, § 340.
2 See Crim. Law, IL § 560, 785;
Crim. Proced. II.-§ 473, 474.
8 Dakin v. Graves, 48 N. H. 45; Hin-
nemann v. Rosenback, 39 N. Y. 98, 100.
4 But see Reg. v. Tuke, 17 U. C.Q, B.
298
296, 299, and cases referred to; namely,
Reg. v. Carter, 1 Cox C. C. 170, 172, [1
Den. C. C. 65, 1 Car. & K. 741]; Reg. v.
Dawson, 5 Cox C. C. 220, [2 Den. C. C.
75]; 2 East P. C. 940; Reg. v. Vivian,
1 Den. C. C. 35, [1 Car. & K. 719].
post, § 330 and note.
5 Rex v. Lockett, 1 Leach, 4th ed. 94,
2 East P. C. 940; Reg. v. Carter, 1 Car.
& K. 741; Rex v. Clinch, 1 Leach, 4th
ed. 540, 544; People v. Way, 10 Cal. 336.
And see Rex v. Froud, 7 Price, 609, 1
Brod. & B. 300, Russ. & Ry. 389; 8. c.
nom. Rex v. Fraude, 3 Moore, 645; Reg.
v. Iidge, 2 Car. & K. 871, 875.
CHAP. XXVII.] PARTICULAR. WORDS AND PHRASES. § 329
person under obligation to obey,! and one to whom delivery or
payment is to be made,? sufficiently described to exclude uncer-
tainties of meaning,® though there is doubt whether he must be
mentioned by name. The writing need not concern commercial
transactions ;> and it is no objection that the payee purports to
be merely the agent of the drawer, to convey the thing drawn to
him. Though the drawer should be-a married woman, if the
form is such as apparently to bind her separate estate, it will
suffice.?
Checks and Bills as Orders. — A check in common form on
bankers is an order, and so is a bill of exchange; and, if the
check is postdated, this makes no difference.® But —
§ 329.. Not Order on Face.— The following instruments were
held not to be orders, where there was no external proof to make
them such: “Mr. A, please to let B have a thirty-five dollar
watch, and you will please your friend, Charles Young.” “ Mr.
A, let B have the amount of five dollars in goods, and I will
settle with you next week. Violet Pond.” ™! «Messrs, A & Co.,
Bankers, Please to advance the bearer, B, the sum of two hun-
1 The State v. Lamb, 65 N.C. 419;
Walton v. The State, 6 Yerg. 877; Rex
v. Baker, 1 Moody, 281; Rex v. Clinch, 1
Leach, 4th ed. 540, 544; Rex v. Mitchell,
2 East P. C. 9386; 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; Reg. rv. Morrison, Bell C. C.
158, 162, 163; The State v. Leak, 80
N.C. 403; 2 Russ. Crimes, 3d Eng. ed.
516, 519, 520, 522. ae
2 Rex v. Richards, Russ. & Ry. 193.
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.
3 People v. Farrington, 14 Johns. 348.
* And see Reg. v. Gilchrist, Car. & M.
224, 2 Moody, 233. It is sufficient made
payable to bearer, People v. Brigham, 2
Mich. 550; or, what is equivalent, pay-
able to “this man.” Thomas v. The
State, 59 Ga. 784. And see The State v.
Keeter, 80 N. C. 472; The State v. Lane,
80 N. C. 407. It need not, in New York,
be addressed to any one. Noakes v. Peo-
ple, 25 N. Y. 880. And see Peete v. The
State, 2 Lea, 513; The State v. Baumon,
52 Iowa, 68; post, § 335.
5 Rex v. Graham, 2 East P. C. 948, 2
Russ. Crimes, 8d Eng. ed. 514; Reg. v.
Lonsdale, 2 Cox C. C. 222; The State v.
Baumon, 52 Iowa, 68; ante, § 206.
6 The State v. Nevins, 23 Vt. 519.
7 Wilcoxson v- The State, 60 Ga. 184.
8 Rex v. Willoughby, 2 East P. C.
944; Rex v. Shepherd, 2 East P. C. 944;
s. c. nom. Rex v. Sheppard, 1 Leach, 4th
ed. 226; People v. Howell, 4 Johns. 296;
2 Russ. Crimes, 3d Eng. ed. 515.
9 Reg. v. Taylor, 1 Car. & K. 213.
Words transposed. — Where the words
of a check were transposed, —as, “pay
A. B. seventeen or bearer pounds,” — it
was still ruled, in a case of forgery, to
be a check and order for the payment of
money. Reg. v. Boreham, 2 Cox C.C. 189.
10 Walton v. The State, 6 Yerg. 377.
1 Horton: v. The State, 53 Ala. 488.
And see Evans v. The State, 8 Ohio State,
196; Carberry v. The State, 11 Ohio
State, 410.
299
§ 829 SPECIAL INTERPRETATIONS. [Book II.
dred and fifty pounds, and place the same to my account. Mor-
gan Thomas.”! ‘Mr. A, Sir, You will please to pay the bearer,
for B, three pounds, for three weeks due to him a country mem-
ber, and you will much oblige, Yours, &c. J. Beswick;” the
drawer not appearing to have any disposing authority over the
fund.2 So, “ Please to send 10/. by bearer, as I am so ill I can-
not wait on you.”? “Mr. A, I desire you to let this woman
have six yards of ordinary stuff, one pair of stockings, one shift,
one apron, one handkerchief; and I will see it all paid for. Wit
ness my hand, George May.” * So, *‘ Mr. A, 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 cwt. I have about one ton now. Yours, Thomas Davis.’ 5
On the other hand, —
Order on Face. — Without the aid of external proofs, the follow-
ing have been adjudged orders: “ Mr. A, Sir, Please to pay to B
the sum of 18/., by order of Christopher Sadler, Thornton-le-
Moor, brewer. I shall see you on Monday. Your obliged, Chr.
Sadler. The District Bank.” ® ‘ Please to deliver my work to
the bearer,” signed and addressed ; the objection that the writ-
ing did not sufficiently specify the articles to be delivered being
overruled.’ “Credit the person
sum of 5/., and debit the same
named in my letter of advice the
to this office,’ —signed by the
postmaster of Shrewsbury, and addressed ‘To the Post-office,
London.” 8
1 Reg. v. Williams, 2 Car. & K. 51.
2 Rex v. Baker, 1 Moody, 231.
8 Rex v. Ellor, 1 Leach, 4th ed. 323, 2
East P. C. 938.
4 Rex v. Mitchell, 2 East P. C. 936.
5 Reg. v. Roberts, 2 Russ. Crimes, 3d
Eng. ed. 522. For other illustrations,
see Rex v. Rushworth, Russ. & Ry. 317,
2 Russ. Crimes, 8d Eng. ed. 517, and see
note; Reg. v. Curry, 2 Moody, 218; Reg.
v. Reopelle, 20 U. C. Q. B. 260.
6 Reg. v. Carter, 1 Car. & K. 741, 1
Den. C. C. 65. Sadler was proved to be
a customer of the bank, but the decision
seems not to have proceeded on thie fact.
7 Rex v. Jones, 1 Leach, 4th ed. 53, 2
East P. C. 941. There was, however, in
this case some extrinsic proof, though
800
probably it did not vary the result. An
order for the payment of money need
not specify the sum to be paid. MclIn-
tosh’s Case, 2 East P. C. 942. Yet con-
cerning the sum, see, as to a receipt, post,
§ 341.
8 Reg. v. Gilchrist, Car. & M. 224, 2
Moody, 233. For further cases in which
the writing was held to be an order, see
Rex v. McIntosh, 2 East P. C. 942, 956, 2
Russ. Crimes, 3d Eng. ed. 515, 516; 8. c.
nom. Rex v. Mackintosh, 2 Leach, 4th ed.
888; Rex v Bamfield, 1 Moody, 416;
Reg. v. Anderson, 2 Moody & R. 469;
Reg. v. Dawson, 1 Eng. L. & Eq. 589, 2
Den. C. C. 75, Temp. & M. 428; Rex v.
Richards, Russ. & Ry. 193; Rex v. Har-
ris, 6 Car. & P. 129; Reg. v. McConnell,
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 330
§ 330. Exceptions to the Foregoing. — Not in all our States are
the foregoing interpretations strictly held. Thus, in Massachu-
setts, the following writing was adjudged to be an order for the
delivery of goods, though it affirmatively appeared that the per-
son purporting to be the drawer had no goods in the hands of
the drawee: ‘ Mr. A, Sir, deliver my son one pair of walking-
shoes, and charge the same to me. Yours, James Fisher.” The
court was aware that the decisions in England were contrary to
this; but said, that in favor of life the 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.” 1 The like conclusion appears to have been arrived
at in Connecticut,? New York,? South Carolina,* and Georgia.
Even some of the English judges have expressed opinions in
favor of the doctrine which regards as unnecessary any right in
the maker of the order.6 And our neighbors across the St. Law-
rence, while following, as they deemed, the English authorities,
have held the words, ** Mr. A, please let the bearer, B, have the
amount of ten pounds, and you will oblige me, B. B. Mitchell,”
to be an order for the payment of money.’ On the other hand,
the doctrine which in the foregoing sections is assumed to be the
English is not without American support.’
1Car. & K. 371; Reg. v. Raake, 2 Moody,
66, 8 Car. & P. 626; Reg. v. Autey, Dears.
& B. 294, 7 Cox C. C. 329.
1 Commonwealth v. Fisher, 17 Mass.
46, 49; Commonwealth v. Kepper, 114
Mass. 278. See ante, § 199.
2 The State v. Cooper, 5 Day, 250.
3 People v. Shaw, 5 Johns. 236. And
see People v. Farrington, 14 Johns. 348;
People v. Krummer, 1 Buf. 549.
4 The State v. Holley, 1 Brev. 35. As
to Vermont, see The State v. Nevins, 23
Vt. 519.
5 Hoskins v. The State, 11 Ga. 92, the
court observing: “The strict construc-
tion adopted in relation to this English
statute never has obtained in the Ameri-
can courts. . . . It arose wholly in the
mother country from the penalty which
was to follow a conviction, namely,
death.” Lumpkin, J. p. 101. See John-
son v. The State, 62 Ga. 299; Thomas v.
The State, 59 Ga. 784. See also The
. State v. Baumon, 52 Iowa, 68.
6 Sir Sidney Stafford Smythe, in Rex
v. Mitchell, 2 East P. C. 936, 937.
* Reg. v. Tuke, 17U.C.Q.B. 296. Said
Robinson, C. J.: “It has been held lately
in England that the true criterion is
whether, if the instrument were genuine,
and the person to whom it was directed
paid it, he could recover the amount.
Now this instrument was in fact ten-
dered as an order, and paid accordingly,
and no doubt, if it had been genuine,
Mr. Mitchell could have been sued by
Warren for money paid by his order.
We therefore think the conviction was
legal. We refer to [&c. See Ante, § 327,
note]. There have been, no doubt, many
decisions which are inconsistent with
these, and which must be considered as
having been overruled by them.” p. 299.
8 American cases cited ante, § 327~
329; The State v. Lamb, 65 N.C. 419;
The State v. Leak, 80 N. C. 403; Horton
v. The State, 53 Ala. 488 (see Jones v.
The State, 50 Ala. 161; Walton v. The
301 ,
§ 332 SPECIAL INTERPRETATIONS. - [Book I.
§ 831. Order shown by Averment and Proof. — Where sufficient
does not appear on the face of an instrument to make it an order,
the defect may sometimes be supplied by averment and proof, as
already indicated.1 It is not easy to lay down, in a word, how
extensively this may be done ; for the decisions have not been so
numerous as to give material for an exact rule.2 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 Payment of Money — Delivery of Goods).
— Passing by those meanings of the word ‘‘ warrant”’ which are
not within the scope of these discussions, a “ warrant for the
payment of money” or “for the delivery of goods” is the same
as an “order” for the like purpose, except that the latter implies
a command, and the former a. bare authority.4 Thus the words,
«Messrs. A & Co., Please to advance the bearer, B, the sum of
two hundred and fifty pounds, and place the same to my account.
Morgan Thomas,” supplemented by proof that Thomas had a
deposit account, not a drawing one, with A & Co., were held
to constitute a warrant, yet not an order. Contrary to this
view, some earlier cases appear to have regarded “ warrant” and
“order” as synonymous. And by some English opinions the
word now under consideration implies, like the other, that the
drawer has a disposing power over the fund or goods, to appear
either on the face of the writing or by averment and proof.’ Yet
later decisions indicate that this 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 sign-
6 Rex v. Mitchell, 2 East P. C. 936;
State, 6 Yerg.377. Compare with Tyler
Rex v. Clinch, 1 Leach, 4th ed. 540, 544,
v. The State, 2 Humph. 37).
1 Ante, § 327.
2 See Reg. v. Atkinson, Car. & M. 325;
Reg. v. Vivian, 1 Den. C. C. 35, 1 Car. &
K. 719; The State v. Lane, 80 N. C. 407.
8 Post, § 335.
4 Reg. v. Morrison, Bell C. C. 158, 162,
163, 8 Cox C. C. 194; Reg. v. Williams,
2 Car. & K. 61; Reg. v. Dawson, supra ;
Rex v. Crowther, 5 Car. & P. 316.
5 Reg. v. Williams, 2 Car. & K. 61.
802
2 East P. C. 938, 940.
7 Rex v. Mitchell, supra; Rex v.
Clinch, supra; Reg. v. Thorn, 2 Moody,
210, Car. & M. 206.
8 Reg. v. Vivian, 1 Car. & K. 719, 1
Den, C. C. 36; Reg. v. Rogers, 9 Car. &
P. 41; Reg. v. Roberts, 2 Russ. Crimes,
8d Eng. ed. 522, note; Reg. v. Dawson,
1 Eng. L. & Eq. 589, 2 Den. C. C. 75,
Temp. & M. 428.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 334
ing it has, at the time, funds-in-the hands of the party to whom
it is addressed or not.” And such, we may infer from what
was said under the word “order,” will be the opinion most cur-
rent in our American courts.”
§ 333. Illustrations of Warrants.— The following was held to
be a warrant from Luke Lade, who kept cash with A & Co.,
bankers, for the payment of money to B: “To A & Co. Pay to
my order, two months after date; to B, the sum of 80/., and
deduct the same out of my account.” It was not signed; but
across its face was written, ‘“‘ Accepted, Luke Lade;” :and, on
the back, the name of B, with his address, appeared.’ So.a let-
ter of credit,’ a bill of exchange, a post-office money order, and
generally whatever may be described by the word “ order,”’’ are
warrants.§
.§ 334. Request — (For Payment of Money — Delivery of Goods).
— There are no decisions from our own courts as to the meaning
of the word “request”’ in the connection now under contempla-
tion. We can look only to the English.? It is more comprehen-
sive than “‘ warrant” and “order.” Therefore the following was
held to be a request: “Please to let bearer, B, have spillshoul
and grafting tools for me.” !0 And such also is a writing asking
for a loan of money, while yet it is not an order.!! For the per-
son requesting need not appear to have, or have in fact, any
interest in, or control over, the fund or goods. Nor need the
writing be in words to charge him.” Yet if it purports to charge
him, it will not therefore be the less a request.
1 Reg. v. Vivian, supra; Reg. v. Fer-
guson, 1 Cox C. C. 241. In Reg. v.
Thorn, supra, some of the judges said,
that, if this question were res integra, they
should so hold.
2 Ante, § 880; The State v. Holley, 1
Brev. 35.
8 Reg. v. Smith, 1 Car. & K. 700, 1
Den. C. €. 79.
4 Reg. v. Raake, 8 Car & P. 626, 2
Moody; 66.
5 Rex v. Willoughby, 2 East P. C.
681.
§ Reg. v. Gilchrist, Car. & M. 224.
7 Ante, § 882; Rex v. Beard, Jebb, 9.
8 See also the cases cited to the last
section, and Reg. v. Anderson, 2 Moody’
& R. 469; Reg. v. Harris, 2 Moody, 267,
1 Car. & K.179; Reg. v. McConnell, 1
Car. & K. 371, 2 Moody, 298; Reg. v.
Autey, Dears. & B. 294, 7 Cox C.C. 329;
Reg. v. Pilling, 1 Fost. & F. 324; Reg. v.
Mitchell, 2 Fost. & F. 44.
9 For a full statement of English cases
under this word, see 2 Russ. Crimes, 3d
Eng. ed. 526-531.
10 Reg. v. James, 8 Car. & P. 292. And
see Reg. v. Newton, 2 Moody, 59; Reg. v.
Roberts, 2 Maody, 258; Reg. v. Thorn, 2
Moody, 210.
1 Reg. v, Reopelle, 20 U. C. Q. B. 260.
1 Rex v. Thomas, 2 Moody, 16, 7 Car.
& P. 841.
18 Reg. v. White, 9 Car. & P. 282; Reg.
v. Walters, Car. & M. 588.
803
§ 336 SPECIAL INTERPRETATIONS, [Book It.
§ 335. Supplementing by Extrinsic Evidence — (Order — War-
rant — Request). — Within limits not well defined, a writing
which is not on its face an order, warrant, or request may be
shown by oral evidence to be such.) For example, the omission
of the name of the person to whom is addressed a request,” or a
warrant,? or an order + may be thus supplied.» And evidence is
admissible of a course of dealing between the parties whereby a
writing acquires a character of which otherwise it would come
short.6 In this way the words, —“ August 3, 1839 — one 16-in.
helmet scoop, one 4-qt. kettle — James Hayward,” — were inter-
preted to be a request for the delivery of goods.’ And where,
between two persons, the method was for one of them to make a
list of names, with a sum against each, on sight whereof the
other would furnish them severally with goods to the amounts
specified, — the writing, illumined by this extrinsic fact, was held
to be a request, though otherwise it would come short. Where
also, by the course at a bank, a depositor who takes an account-
able receipt for his money draws it out with interest on indors-
ing his name on the face of the receipt, such receipt thus indorsed
becomes an order for the payment of money.® Likewise the facts
that there is a fund, and that the drawer has a disposing power
over it, may be established orally to make an instrument an
order, where these particulars do not sufficiently appear on its
face.” Such are some illustrations of a general doctrine which
necessarily has its limits, but what its limits are the books do not
render certain. The extrinsic matter must appear by averment
in the indictment, as well as by proof at the trial.1!
§ 336. Promissory Note.2— A ‘promissory note” has been
defined to be “a written promise, by one person to another, for
1 Ante, § 327, 331.
2 Rex v. Carney, 1 Moody, 351; Reg.
v. Pulbrook, 9 Car. & P. 37: Rex v. Cul-
len, 6 Car. & P. 116, 1 Moody, 300.
3 Reg. v. Rogers, 9 Car. & P. 41.
4 Reg. v. Snelling, Dears. 219, 23 Law
J.n.s.M.C. 8, 17 Jur. 1012, 22 Eng. L.
& Eq. 597.
5 And see ante, § 328.
6 Reg. v. Walters, Car. & M. 588; Rex
v. Cullen, 1 Moody, 300, 5 Car. & P. 116;
Reg. v. Pulbrook, 9 Car. & P. 37; Reg. v.
Atkinson, Car. & M. 825; Reg. v. Rogers,
9 Car. & P. 41; post, § 342.
304
7 Reg. v. Pulbrook, 9 Car. & P. 37.
8 Reg. v. Walters, Car. & M. 588.
® Reg. v. Atkinson, Car. & M. 325.
10 Reg. v. Vivian, 1 Den. C. C. 35, 2
Car. & K. 719; Reg. v. Williams, 2 Car.
& K. 51. See, for a further illustration,
Reg. v. Illidge, Temp. & M. 127, 13 Jur.
643, 18 Law J. w.s. M. C. 179, 1 Den.
C. C. 404, 2 Car. & K. 871.
11 Carberry v. The State, 11 Ohio State,
410; post, § 341, 342.
1 See Crim. Law, I. § 578; IL § 157,
768, 785, 787.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 336
the payment of money at a specified time, absolutely and at all
events.”! . Negotiability is not essential,2 even under a criminal
statute, as one against forgery. But a written promise on con-
dition is not a promissory note;* nor is one payable in what is
not money,’ — as, for example, in current bank bills,6— though
there. may be statutes under which it will be such.? The words,
“Due B one dollar on settlement this day,” &c.,— written on
paper, were held to be a note for the payment of money. In
general, .a-bank-bill, whether of our own State or of any other, is
a promissory note;* though, of course, not every promissory note
is a bank-bill.9 Yet a statute may be in terms to render it inad-
missible to describe in an indictment a bank-bill as a promissory
note.!4_ The name of a payee, or something from which to ascer-
tain to whom payment: is to be made, is essential ; 2 but it will
suffice that the name is left in blank, because # the holder is au-
thorized to fill it-in.4 A promise to pay to one’s own order is
good when endorsed; but, until then, it is not complete as a
promissory note.’ For further particulars, the reader is referred
to the books on Bills and Notes.”
1 3 Kent Com. 74.
2 Story Bills, § 60; Bates v. Butler, 46
Maine, 387; Sibley v. Phelps, 6 Cush.
172; People v. Bradley, 4 Parker C. C.
245; Arnold v. ‘Sprague, 34 Vt. 402;
Smith v, Kendall, 6 T. R. 123.
8 Rex-v. Box, Russ. & Ry. 300, 6
Taunt. 325. But see The‘State v. Brower,
30 Ohio State, 101.
{ Corbett v. The State, 24 Ga. 287;
Reg. v. Howie, 11 Cox C. C. 320; Syra-
cuse Bank v. Armstrong, 25 Minn. 580;
Robins v. May, 11 A. & E. 213.
5 Post, § 346; Bunker v. Athearn, 35
Maine, 864; Wallace ». Dyson, 1 Speers,
127; Carleton v. Brooks, 14 N. H. 149.
6 Wolfe v. Tyler, 1 Heisk. 313; Kirk-
patrick v. McCullough, 8 Humph. 171;
Leiber v. Goodrich, 5 Cow. 186; McCor-
mick v. Trotter, 10S. & R. 94.
7 Fink v. Maples, 15 Ind. 297; People
v. Bradley, 1 Buf. 576.
8 People v. Finch, 5 Johns. 287.
3 Hobbs. v. The State, 9 Misso. 855;
Commonwealth v. Paulus, 11 Gray, 305;
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.
20
10 The State v. Wilson, 3 Brev. 196.
And see The State v. Wilkins, 17 Vt. 151;
The State v. Ward, 6 N. H. 529; ante,
§ 326; The State v. Tillery, 1 Nott &
McC. 9; The State v. Cassados, 1 Nott &
McC. 91.
11 Commonwealth v. Dole, 2 Allen, 165.
See Commonwealth, v. Simonds, 14 Gray,
59.
12 Cowie v. Stirling, 6 Ellis & B. 333;
Yates v. Nash, 8 C. B. ny. s. 581; Holmes
v. Jaques, Law Rep. 1 Q. B. 876; Mussel-
man v. Oakes, 19 Ul. 81; Tittle v. Thom-
as, 30 Missis. 122.
13 Harding v. The State, 54 Ind. 359,
363.
lt Cruchley v. Clarance, 2 M. & S. 90;
Atwood ». Griffin, 2 Car. & P. 368.
16 Scull v. Edwards, 8 Eng. 24; Smith
v. Lusher, 5 Cow. 689, 712; Plets v.
Johnson, 8 Hill, N. Y. 112, 115; Abso-
lon v. Marks, 11 Q. B. 19; Brown v. De
Winton, 6 C. B. 336; Wood v. Mytton,
10 Q. B. 805. But see Flight v. Maclean,
16 M. & W. 51.
16 Commonwealth v. Dallinger, 118
Mass. 439.
17 And see, as decided under the crimi-
nal law, Rex.v. Elliott, 2 East P. C. 591;
305
§ 339 SPECIAL INTERPRETATIONS. [Book III.
§ 337. Bank-bill — Bank-note.!— These terms are in meaning
identical. And we have just seen that a ‘‘ bank-note ” is also a
promissory note. But not every promissory note is a bank-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 commercial paper other
than bank-bills and bank-notes was not included. ‘ The phrase
‘bank bill or note’ means bank-bill or bank-note.” 4
§ 338. Bill of Exchange.t— Similar in legal meaning to the
term promissory note is “bill of exchange.” It is “a written
order or request by one person to another for the payment of
money, at a specified time, absolutely and at all events.” > Like
a promissory note,® it is generally negotiable, not necessarily so.’
It is considerably explained in “ Criminal Law;”® and further
expositions do not seem necessary, beyond what appear in the
books on Bills and Notes.°
§ 339. Undertaking for Payment of Money.°— A promissory
note, bank-note, or bill of exchange is an “ undertaking for the
payment of money,” but the expression signifies more.”
Wilcock’s Case, 2 Russ. Crimes, 3d Eng.
ed. 497; Rex ev. Clark, Russ. & Ry. 181;
8.c. nom. Rex v. Clarke, 2 Leach, 4th ed.
1036; Rex v. Treble, 2 Leach, 4th ed.
1040, 2 Taunt. 328, Russ. & Ry. 164;
Butler v. The State, 22 Ala, 48; Reg.
v. John, 18 Cox C. C.100. An indorse-
ment of a promissory note is a ‘‘con-
tract.” Poage v. The State, 3 Ohio State,
229.
1 See Crim. Law, I. § 578; Il. § 411,
417, 601, 785.
2 The State v. Hays, 21 Ind. 176;
Roth v. The State, 10 Texas Ap. 27;
Low v. People, 2 Parker C. C. 87; Mun-
son v. The State, 4 Greene, Iowa, 483.
3 The State v. Stimson, 4 Zab. 9, 29.
But as to Vermont, see The State v. Wil-
kins, 17 Vt. 151. See, also, on the sub-
ject of this section, The State v. Watson,
4 Ind. 595; Rex v. Sadi, 2 East P. C.
601.
+ See Crim. Law, IT. § 562, 785.
5 3 Kent Com. 74; Rice v. Ragland, 10
Humpbh. 546.
6 Ante, § 336.
7 Story Bills, § 3, 60.
® Crim. Law, II. § 562.
9 See, for decisions under the criminal
306
Thus, a
law, Rex v. Hart, 6 Car. & P. 106; Reg.
v. Butterwick, 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. Cur-
ry, 2 Moody, 218; Rex v. Szudurskie, 1
Moody, 429; Rex v. McIntosh, 2 East
P. C. 942, 956, 2 Leach, 4th ed. 883;
Warner v. Commonwealth, 1 Barr, 154;
Reg. v. Harper, 7 Q. B. D. 78. Accept-
ance.— As to what is an “ acceptance of
a bill of exchange,” see Reg. v. Cooke, 8
Car. & P. 582; Reg. v. Rogers, 8 Car. &
P. 629; The State v. Morton, 27 Vt. 310.
Indorsement.— As to what is an “in-
dorsement,” see Crim. Law, II. § 5704;
Rex v. Arscott, 6 Car. & P. 408; The
State v. Davis, 53 Iowa, 252; Rex ». Bigg,
1 Stra. 18. Draft. — What a “draft for
the payment of money,” Crim. Law, IL.
§ 785; Rex v. Pooley, 3 B. & P. 311,
Russ. & Ry. 81.
10 Crim. Law, II. § 563, 785.
1! Reg. v. Reed, 2 Moody, 62, 8 Car. &
P. 623, 2 Lewin, 185; Reg. v. Stone, 1
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 341
written guaranty against loss from a third person, not exceeding
a sum named, is such undertaking, though it does not belong to
the other of these classes.1_ No consideration need appear on the
face of it; therefore a simple “I. O. U.” is an undertaking.
§ 840. Security — (For Money — Valuable Security — Securi-
ties and Effects).2—— There are statutes containing such words as
“securities for money,” ‘valuable securities,” ‘securities and
effects,’ &c. The meanings of these terms are obvious, and
something of them is said elsewhere.’ The reader may like to
see in a note® a reference to some of the cases. A recorded judg-
ment is an illustration of a “ valuable security.”® Anda writing
may be such while resembling a promissory note, yet lacking
some essential element.’ So the certificate of a foreign railway
company is a “valuable security,” even under a statute which
adds the words, “in the funds of any body corporate, company,
or society, or to any deposit in any savings bank.” §
Deea.® — This term is elsewhere explained.”
example, is a deed.¥
A mortgage, for
Book of Accounts.'2—A mere small memorandum book, and
not of original entries, may, as well as the large and the original
ones, be a ** book of accounts.”
And a city assessment roll is a
book of accounts kept in a public office."
§ 841. Receipt — (For Money — For Goods). — A receipt is a
written 16 acknowledgment, by the maker, of something delivered
him from another.”
Den C. C. 181, 2 Car. & K. 364; The
State v. Humphreys, 10 Humph. 442;
Reg. v. Thorn, Car. & M. 206.
1 Reg. v. Reed, supra; Reg. v. Joyce,
Leigh & C. 576.
2 Reg. v. Chambers, Law Rep. 1 C. C.
341. As to whether any consideration is
necessary, see Thompson v. Blanchard, 3
Comst. 335.
8 Crim. Law, IT. § 570 }, 785; ante,
§ 217.
4 See the places cited in the last note.
5 Rex v. Hart, 6 Car. & P. 106; Rex
v. Yates, 1 Moody, 170, Car. Crim. Law,
8d ed. 273, 883; Rex v. Aslett, Russ. &
Ry. 67, 2 Leach, 4th ed. 958; Reg. v.
Heath, 2 Moody, 88; Rex v. Bakewell, 2
Leach, 4th ed. 943; Reg. v. Greenhalgh,
Dears. 267, 25 Eng. L. & Eq. 570; Reg. v.
Tatlock, 2 Q. B. D. 157, 13 Cox C. C. 328.
Illustrations of writings adjudged, without
6 West Ham Union v. Ovens, Law Rep.
8 Ex. 87.
7 Reg. v. John, 18 Cox C. C. 100.
8 Reg. v. Smith, Dears. 561, 7 Cox
C. C. 93, 33 Eng. L. & Eq. 569. See ante,
§ 326.
9 Crim. Law, IT. § 567, 770, 785; ante,
§ 205, note.
10 Ib. And see Rex v. Fauntleroy, 1
Moody, 52, 2 Bing. 413, 1 Car. & P. 421.
11 People v. Caton, 25 Mich. 888.
2 Crim. Law, II. § 786.
18 Commonwealth v. Williams, 9 Met.
278.
14 Turbeville v. The State, 56 Missis.
793.
15 Crim. Law, II. § 546, 564, 785, 787.
16 The State v. Bibb, 68 Misso. 286.
MW Krutz v. Craig, 63 Ind. 561.
307
§ 342 SPECIAL INTERPRETATIONS. [Book II.
extrinsic proof, to be receipts are, ‘‘ Received the contents above
by me, Stephen Withers,” !— ‘settled 47. Samuel Hughes,” ? —
‘‘ paid sadler,” Sadler being shown to be a person’s name, though
written with a small ,?— severally placed below bills of parcels.
_A writing in the words “ Received from Mr. Bendon, due to Mr.
Warman, 17s. Settelled,” no signature being added below, was
held to be Bendon’s receipt, it being shown to have been uttered
as such.! And a ticket issued by a turnpike company, indicating
that the holder has. passed the toll-gate and paid the toll, is a
receipt.> But an acknowledgment in the form of a recital, intro-
ductory to something else, seems to come short.6 And so did
the following: ‘* William Chinnery, Esq., paid to X tomson, the
som of 8 pounds, feb. 13, 1812;” because it was an assertion,
not an acknowledgment, that Chinnery had paid. the money.’
Moreover, the writing, to be a receipt for money, must show
what sum, or at least that a sum, was received, and: perhaps from
whom ;® and a scrip receipt for money paid on stock subscribed
to a bank is not a receipt if the blank for the subscriber’s name
is not filled.2. The word “settled,” at the foot of a bill of par-
cels, does not make it a receipt without. averments to this effect
in the indictment.”
§ 342. Extrinsic Proof in Aid of Receipt.— An instrument, not
1 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.
2 Rex v. Martin, 7 Car. & P. 549, 1
Moody, 483, overruling Rex v. Thomp-
son, 2 Leach, 4th ed. 910.
3 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.
4 Reg. v. Inder, 2 Car. & K. 685, 1 Den.
C. C. 325.
5 Reg. v. Fitch, Leigh & C. 159, Cox
C. C. 160. For other writings, adjudged
to be receipts, see Reg. v. Meigh, 7 Cox
C. C. 401; Reg. v. Hill, 2 Cox C. C. 246.
Accountable Receipt. — For account-
able receipt, see Crim. Law, II. § 564.
The entry of money by the cashier in the
bank-book of a creditor is an account-
able receipt. Rex v. Harrison, 1 Leach,
308
4th ed. 180, 2 East P. C. 926. For an-
other illustration, see Rex v. Rice, 6 Car.
& P. 634.
® Reg. v. West, 2 Car. & K. 496, 1
Den. C..C. 258; Clark v. Newsam, 5
Railw. Cas. 69, 1 Exch. 181.
7 Rex v. Harvey, Russ. & Ry. 227.
8 Yet see, as to an order, ante, § 329,
note.
® Rex v. Lyon, 2 Leach, 4th ed. 597, 2
East P. C. 933.
10 Rex v. Thompson, 2 Leach, 4th ed.
910. See also, on the general subject,
The State v. Martin, 9 Humph. 55; Peo-
ple v. Hoag, 2 Parker C. C. 36; Reg. v.
Rodway, 9 Car. & P. 784; Reg. c. Framp-
ton, 2 Car. & K. 47; Reg. v. Smith, 2
Den. C. C. 449, 9 Eng. L. & Eq. 532;
People v. Loomis, 4 Denio, 880; Com-
monwealth v. Williams, 9 Met. 273; Reg.
v. Inder, 1 Den. C. C. 325, 2 Car. & K.
635; Rex v. Hope, 1 Moody, 444; Reg.
v. Pringle, 2 Moody, 127; Kegg v. The
State, 10 Ohio, 75.
CHAP. XXVII.] PARTICULAR WORDS AND’ PHRASES. § 344
on its face sufficiently full to be a receipt, may be explained -to
be such! by the extrinsic evidence of a course of dealings
between the parties wherein it was so treated. This matter
must also be averred.?_ And care should be taken that the evi-
dence goes the necessary length, and not merely shows the writ-
ing to have been an order, or something else other than a receipt.3
Precisely how far the criminal law permits these. deficiencies to
be thus supplied the authorities do not define; but, while the -
doctrine may go further* than is thus expressed, it no doubt has
limits. -
§ 343. Acquittance.— The word “ acquittance” is commonly
employed in statutes in conjunction with “receipt,” and it is
nearly synonymous.’ It is perhaps sufficiently explained in
“Criminal Law,” but.a further reference to authorities may be
convenient for the reader.’
§ 844. Other Words :—
Goods — Chattels.8 — In statutes and legal writings these words
are generally found combined ; thus, “goods and chattels.” In
significance they are nearly alike. Chattels is. the more techni-
cal word, and it‘appears to ‘be somewhat. the larger in meaning ;
for we speak of “chattels real,” but. not of goods real. Both
are specially elastic, as liable to be varied in extent of meaning
by the subject.and context.!? In their largest sense, each, and
especially chattels, signifies all property other 'than real estate.
But in the criminal law, — as, for example, in statutes against
larceny, — these words seldom or never have so wide a meaning.
Here, in general, neither comprehends choses in action ; as, bank-.
1 Ante, § 835. .
2 Rex v. Hunter, 2 Leach, 4th ed. 624,
2 East P. C. 928, 977. .
3 Reg. v. Cooper, 2 Car. & K. 586.
4 See Rex v. Barton, 1 Moody, 141;
The State v. Davis, 53 Iowa, 252; Bishop
Con. § 63-65; and some cases mentioned
in the last section.
5 See ante, § 335. :
§ Crim. Law, II. § 565; Reg. v. Hill, 2
Cox C. C. 246; The State v. Shelters, 51
Vt. 102.
T Rex v. Martin, 7 Car. & P. 549; The
State v. Martin, 9 Humph 65; People v
Hoag, 2 Parker C. C. 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.
Discharge for Money.— A receipt in
full of all demands is a ‘discharge for
money.” Commonwealth v. Talbot, 2
Allen, 161.
8 Crim. Law, II. § 358, 785; Crim.
Proced. II. § 699, 736.
9 1 Bishop Mar. Women, § 183.
10 For example, see Ford’s Case, 12 Co.
1, 2. ‘
ll 2 Bl. Com. 885; 2 Kent Com. 342;
Wilson v. Rybolt, 17 Ind. 391; Pippin
v- Ellison, 12 Ire. 61; Weston vr. Mc-
Dowell, 20 Mich. 858; Gibbs v. Usher, 1
Holmes, 848; Ayres v. French, 41 Conn.
142; Chamberlain v. Western Transp. Co.
44.N. Y. 305.
309
§ 344 [Book II.
SPECIAL INTERPRETATIONS.
notes,! mortgage-deeds,? and the like,? not being the subjects of
larceny at the common law. So likewise a dog, whereof larceny
cannot be committed at the common law,’ is not within the term
“goods and chattels ’’ in statutory larceny.> By a part of differing
judicial opinions, or opinions founded on differing statutes, these
words do not include money coin.’ By other opinions, or opin-
ions rendered on other statutes, they do.’ Some of the differ-
ences, and perhaps all, are reconcilable by considerations of the
differing connections in which the words stand in the respec-
tive statutes. Thus, under an enactment against the larceny of
“any goods, wares, or merchandise, in any vessel upon any navi-
gable river,” the word “goods” was construed not even to
extend to dollars, or Portugal money, not current by proclama-
tion; but the reason appears to have been, that, as it was con-
nected in the clause with ‘wares or merchandise,” the latter
limited its meaning.’ By a familiar rule of statutory interpreta-
tion,® there is no objection to giving these words a larger and
even their largest meaning, when the legislative will sufficiently
appears. And in a case where the term “ personal goods” was
held to embrace all coin, though circulating as money, the court
intimated, contrary to what we have seen to be the general doc-
trine, that under the phrase “ goods and chattels’ may be com-
prehended bank-bills, since they circulate as currency; but not
other choses in action, such as promissory notes.4 Not only ar-
ticles of merchandise in a shop, but oats, rye, and corn, the
1 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. Sadi, 1 Leach, 4th ed. 468,
2 East P. C. 748; The State v. Jim, 3
Murph. 3.
2 Reg. v. Powell, 14 Eng. L. & Eq. 575,
2 Den. C. C. 403.
8 And see The State v. Foster, 3 Mc-
Cord, 442. .
4 Crim. Law, II. § 773.
5 Findlay v. Bear, 8S. & R. 571; The
State v. Lymus, 26 Ohio State, 400.
8 2 East P. C. 643, 748; Rex v. Guy,
1 Leach, 4th ed. 241, 2 East P. C. 748;
Rex v. Davidson, 1 Leach, 4th ed. 242,
note; The State v. Parker, 1 Houst.
Crim. 9. And see the observations of
Story, J. in United States v. Moulton, 5
310
Mason, 537. According to one case, if
an act of Parliament vests the property
of “goods, chattels, furniture, clothing,
and debts,” in certain persons, the prop-
erty in money and securities for money is
not thereby transferred. Rex v. Beacall,
1 Car. & P. 310, 454.
7 Hall v. The State, 8 Ohio State, 575;
The State v. Boston, 2 Harring. Del. 529.
8 Rex v. Leigh, 1 Leach, 4th ed. 52;
Rex v. Grimes, 1 Leach, 4th ed. 53, note,
2 East P. C. 647, Foster, 79, note. And
see ante, § 245.
® Ante, § 204.
0 Hall v. The State, supra.
1! United States v. Moulton, 5 Mason,
537. And see Rex v. Dean, 2 Leach, 4th
ed. 693, 2 East P. C. 749; Rex v. Mead,
4 Car. & P. 535.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 346
produce of a man’s farm, and lying in his barn, are “ goods,
wares, and merchandise ;”! the luggage of a passenger going to
a steamboat is “goods and merchandise ;’’? and a railroad pas-
senger ticket is a “chattel; ”’® as are also sheep, fowls, and other
animals. Now, —
§ 345. Further of Choses in Action as Goods and Chattels. — Not
only, as just seen, in reason, but on authority, the term “ goods
and chattels,” in a criminal statute, may include even choses in
action when such legislative meaning sufficiently appears. They
have been held to comprehend United States treasury notes.®
And where the stealing of promissory notes was a statutory lar-
ceny, 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
within the latter act;® yet substantially a contrary doctrine was
laid down in New Jersey.’ In England, the halves of country
bank-notes, sent in a letter, are adjudged goods and chattels ;®
and a bank-note is within the words “ money, goods or chattels,
wares or merchandises,” of 12 Anne, stat. 1, c. 7, § 1, concerning
stealing from a diavelling-house ;° but the Virginia court denied
that such note was included under words similar to those last
mentioned. On the whole, therefore, in States where further
inquiry on this question is not precluded by adjudication, the
courts are permitted to follow what they may deem the leadings
of judicial reason.
§ 3846. Money.!!— The word “money” means, in these stat-
utes, only what is legal tender." It was even adjudged in Texas
to extend simply to metallic coin, and not to include our national
! The State v. Brooks, 4 Conn. 446.
2 Rex v. Wright, 7 Car. & P. 159.
8 Reg. v. Boulton, 1 Den. C. C. 508, 2
Car. & K. 917, 13 Jur. 1034.
42 East P. C. 748. Asses and pigs
have been held to be “ cattle,” within
Stat. 9 Geo. 1, c. 22. Rex v. Chapple,
Russ. & Ry. 77; Rex v. Whitney, 1
Moody, 3.
5 Sallie v. The State, 39 Ala. 691;
Collins v. People, 39 Ill. 283.
6 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.
7 The State v. Calvin, 2 Zab. 207.
8 Rex v. Mead, 4 Car. & P. 535.
® Rex v. Dean, 2 Leach, 4th ed. 693, 2
East P. C. 646, 749.
10 Commonwealth v. Swinney, 1 Va.
Cas. 146,151. And see Rex v. Hill, Russ.
& Ry. 190.
11 Crim. Law, II. § 357, 482, 785; Crim.
Proced. II. § 703, 704; ante, § 217; post,
§ 874, 901.
12 1 East P. C..147, 149. And see Hale
v. The State, 8 Texas, 171; Colson ».
The State, 7 Blackf. 590. In England,
foreign coin is considered mere bullion,
unless made current by proclamation. 1
East P. C. 149. As to “ bullion,” see also
1 East P. C. 188.
811
§ 8474 SPECIAL INTERPRETATIONS. ‘[BOOK IIL.
greenbacks.! . Therefore it does not comprehend bank-bills, though
they pass current,? or United States treasury warrants,? or county
claims,‘ or orders of a railroad company on its treasurer,> or mere
promissory notes,‘ or bills-of exchange,’ or bank-checks,? or ordi-
narily anything which is a mere representative of money®
§ 847. Jewelry.— A watch and chain are not jewelry,” but
plain gold rings and ear-knobs are.U
V. The Proceedings.
§ 347 a. Elsewhere.— Words and phrases indicating the pro-
cedure are chiefly explained in other connections in this series of
works. But something remains for this place; as, —
Trial. — By the expression “ trial’ of a criminal cause; the pro-
ceedings in open court after the pleadings are finished and it is
otherwise ready, down to and including the rendition of the ver-
dict, are commonly meant.2 Not extending, on the one hand, to
such preliminary steps as the arraignment and giving in of the
’ Block v. The State, 44 Texas, 620.
And see Kennedy ». Briere, 45 Texas, 305.
Paul v. Ball, 31 Texas, 10; Stoughton v.
Hill, 3 Woods, 404; Munson »v. The State,
4 Greene, Iowa, 483.
2 The State v. Jim, 3 Murph. 3; Rex
v. Hill, Russ. & Ry. 190; Commonwealth
v. Swinney, 1 Va. Cas. 146, 151; McAuly
v. The State, 7 Yerg. 526; Johnston v.
The State, Mart. & Yerg. 129; Johnson
v. The State, 11 Ohio State, 324. Valu-
able Thing. — But a bank-note is a “ valu-
able thing.” Rex v. Robinson, 2 Leach,
4th ed. 749, 2 East P. C. 1110, 1114
Compare with The State v. Walls, 54 Ind.
561. As to the meaning of the word
“bank-note,” in a statute, see Pomeroy
». Commonwealth, 2 Va. Cas. 342. Law-
ful Money — (Extortion). — Bank-notes
are not properly described as “lawful
money.” Thus, an indictment for extor-
tion set out, “that the defendant, by color
of his office as clerk, demanded and re-
ceived four dollars forty-three and three-
fourths cents, lawful money of the State
of Tennessee, for taking probate and cer-
tifying a deed of conveyance, containing
two hundred acres of land, in five tracts,
register’s fees inclusive; whereas in fact
the lawful fee was two dollars and forty-
312
five cents, and no more, for the services
aforesaid.” And proof of the receipt of
the before-mentioned sum in bank-notes
was held not to sustain the allegation.
Garner v. The State, 5 Yerg. 160.
3 Williams v. The State, 12 Sm. & M.
58. Or United States bonds., Waterman
v. Waterman, 34 Mich. 490.
4 Tucker v. The State, 16 Ala. 670.
5 Grummond v. The State, 10 Ohio,
510. And see Robinson v. The State, 6
Wis. 585.
6 The State v. Foster, 3 McCord, 442;
Tate v. The State, 5 Blackf. 174.
+ Rex v. Major, 2 East P. C. 1118.
8 Lancaster v. The State, 9 Texas Ap.
393.
9 See distinctions post, § 874. And
see Rex v. Dean, 2 Leach, 4th ed. 693, 2
East P. C. 646, 649.
10 Bernstein v. Sweeny, 33 N. Y.
Super. 271; Ramaley v. Leland, 43 N. Y.
539,
1 Commonwealth v. Stephens, 14 Pick.
370, 373.
12 Crim. Proced. I. § 269-274; The
State v. Overton, 77 N. C. 485; United
States v. Curtis, 4 Mason, 232; Jenks v.
The State, 89 Ind, 1. And see Galpin v.
Critchlow, 112 Mass. 389.
CHAP. XXVII.] PARTICULAR WORDS AND PHRASES. § 348
pleas,! it does'not comprehend, on the other hand, a hearing on
appeal.? But where a statute containing this word is for the
ease of the accused person, and so is to be liberally construed,?
the word may in some connections include steps after verdict ;
as, a motion in arrest of judgment.
§ 348. Conviction — Attaint.— Ordinarily the word “ convic-
tion” signifies the finding of the jury, by verdict, that the de-
fendant is guilty. It does not mean also that sentence against
‘him has been rendered.’ Likewise one’s plea of guilty consti-
tutes a conviction of him. Coke distinguishes thus: “The dif-
ference between a man attainted and convicted is, that a man is
said convict before he hath judgment; as, if a man be convict by
confession, verdict, or recreancy. And when he hath his judg-
ment upon the verdict, confession, or recreancy, or upon the out-
lawry or abjuration, then he is said. to be attaint.”7 But the
word “conviction,” in a statute, is very easily extended -by the
context or the subject to denote also the final judgment. Where
the proceeding is civil in form, for the recovery of a fine, there
cannot be what in law is called a conviction.2 It has likewise
some other significations; according to one of which, “a convic-
tion is defined to be a record of the summary proceedings upon
1 United States v. Curtis, supra. And
see, for “ before trial,” St. Anthony Falls
Waterpower Co. v. King Bridge, 23 Minn.
186; Mansfield v. Fleck, 23 Minn. 61;
Winship v. People, 51 Ill. 296.
2 The State v. Overton, supra.
3 Ante, § 196, 227, 239.
* Reg. v. Martin, 3 Cox C. C. 447, 448.
Some of the other reports of this case do
not contain this point.
5 4 Bl. Com. 362; Crim. Proced. I.
§ 252, 2538; Crim. Law, I. § 903; . United
States v. Gilbert, 2 Sumner, 19, 40; The
State z. Overton, 77 N. C. 485; The State
v. Applewhite, 75 N.C. 229; York v. Dal-
housen, 9 Wright, Pa. 872; Common-
wealth v. Lockwood, 109 Mass. 328 ;
Blair v. Commonwealth, 25 Grat. 850;
Williams v. United States, 12 Ct. of Cl.
192. And see The State v. Valentine, 7
Tre. 225; Commonwealth v. Williamson,
2 Va. Cas. 211; Skinner v. Perot, 1
Ashm. 57; The State v. Fuller, 1 Mc-
Cord, 178; Reg. v. Faderman, 4 New
Sess. Cas. 161, Temp. & M. 286, 1
Den. C. C. 565; Co. Lit. 8905; Bur-
gess v. Boetefeur, 8 Scott, N. R. 194;
The State v. Anderson, 5 Harring. Del.
493.
§ People v. Goldstein, 32 Cal. 432.
7 Co. Lit. 390. “ A verdict, however,
is not always necessary to a conviction,
which may be by a judgment upon a de-
murrer, or upon a confession of guilt, or
upon a proceeding in outlawry, as well
as by a verdict of a jury on a plea of not
guilty. The word ‘conviction,’ in its or-
dinary sense, may therefore be said to
mean the ascertainment of the fact of
guilt in a criminal prosecution, in the
mode prescribed by law, which mode,
most generally, is a verdict of a jury on
a plea of not guilty.” Blair v. Common-
wealth, supra, at p. 857.
_8 Dwar. Stat. 2d ed. 683; Keithler v.
The State, 10 Sm. & M. 192; Common-
wealth v. Gorham, 99 Mass. 420; Faunce
v. People, 51 Ill. 311.
9 The State v. White, 18 La. An. 573.
313
§ 850 SPECIAL INTERPRETATIONS. [Book Il.
any penal statute, before one or more justices of the peace, or
other persons duly authorized, in a case where the offender has
been convicted and sentenced.” !
§ 849. Term of Years. — This expression, in a statute pro-
viding the punishment, has been defined to mean not less than
two years ;? and, on the other hand, to include a sentence for
life.
§ 850. Action. — The word “action,” familiarly used to denote
a civil suit at law, is sometimes applied, and properly, to a crimi-
nal suit.t Also it may,® but does not necessarily,® include a suit
in equity.
1 Holthouse Law Dict., Conviction. 4 Co. Lit. 2846; 2 Inst. 40; The
And see Hartley v. Hindmarsh, Law Rep. State v. Carr, 6 Oregon, 133.
1C. P. 553; Reg. v. Hyde, 7 Ellis & B. 5 Coatsworth v. Barr, 11 Mich. 199;
860. Kramer v. Rebman, 9 Iowa, 114.
2 Ex parte Seymour, 14 Pick. 40. 6 Ex parte Hewitt, 40 Ala. 300.
3 Commonwealth v. Evans, 16 Pick.
448.
314
CHAP. XXVIII. | ALREADY EXPLAINED. § 855
BOOK IV.
THE PROCEDURE ON WRITTEN LAWS.
CHAPTER XXVIII.
WHAT HAS BEEN ALREADY EXPLAINED.
§ 351. Written and Unwritten, one System. —In the foregoing
discussions of this volume, we have seen that the written and
unwritten laws are interpreted together into one system,! and we
have had numerous illustrations of the doctrine. Hence, —
§ 352. Procedure follows Like Rules. —In the main, the pro-
cedure on a written law is the same as on the unwritten.. So
that the expositions of it in “Criminal Procedure,” and elsewhere
in this series of works, are, even where they are primarily on the
common law, necessarily expositions of the same on statutes,
Moreover, —
§ 353. Indictments on Statutes. — The doctrine of indictments
on statutes is especially set forth in a chapter in “ Criminal Pro-
cedure.”? And —
§ 354. Mingling with Common-law Expositions. — Throughout
the discussions in this series of works, the procedure on the stat-
utes, and the variations of the common-law procedure which stat-
utes have created, are kept in view and laid before the reader
with the rest. So that, in one way or another, the entire doctrine
has been explained, except as to the —
§ 855. Topic of Next Chapter. — Though seldom are judicial
steps on a private statute necessary, and legislation has in most of
our States greatly simplified the procedure on municipal by-laws,
something of these subjects is important to be known by prac-
titioners, and the explanations will be given in the next chapter.
1 Ante, § 86-90, 113 5-121, and numerous other places.
2 Crim. Proced. I. § 593-642.
315
§ 396 PROCEDURE ON WRITTEN LAWS. [BOOK Iv.
CHAPTER XXIX.
PROCEEDINGS ON PRIVATE STATUTES AND MUNICIPAL BY-
LAWS.
§ 394. Introduction. a. 4
395-402. Indictment on Private Statutes.
403-408. Procedure on Municipal By-law.
§ 394.1 Bow Chapter divided. — We shall consider, I. The
Indictment on Private Statutes; II. The Procedure upon Mu-
nicipal By-laws.
I. The Indictment on Private Statutes.
§ 395. Not recite Public Statute. — We have seen elsewhere
that an indictment on.a public statute need not recite the stat-
ute ;* though, if it does, the recitation should be correct, else it
may in some circumstances be pronounced ill.4 But, — .
§ 396. Recite Private Statute. — Since the courts do not take
judicial notice of private statutes,‘ «the parts,” says Chitty,> * of
a private act upon which an indictment is framed must be set
out specially,® the same as other facts; and a variance, if prop-
erly shown to the court, will be fatal.’ Bunt the error must
be properly shown to the court by the defendant; for they will
1 § 356-393 omitted from this edition.
2 Crim. Proced. L § 608; Wright v.
Gerrard, Hob. 306, 310; Crawford »v,
Planters, &c. Bank, 6 Ala. 289; The
State v. Cobb, 1 Dev. & Bat. 115.
8 Ib.; Say v. Stephens, Cro. Car. 185;
Platt v. Hill, 1 Ld. Raym. 381, 382;
Boyce v. Whitaker, 1 Doug. 93a; Pal-
grave v. Windham, 1 Stra. 212, 214; Rex
v. Marsack, 6 T. R. 771; Vander Plunken
v. Griffith, Cro. Eliz. 236; Farr v. East,
Cro. Eliz. 186; Whitton v. Marine, 1 Dy.
95a; Walgrave’s Case, 2 Dy. 2034; Pelles
v. Saunderson, 2 Dy. 170 6, 1714; Rex v.
Hill, Cro. Car. 232, 233.
316
4 Ante, § 37; Hailes v. The State, 9
Texas Ap. 170; Toledo, &c. Railroad v.
Nordyke, 27 Ind. 95; Perry v. New Or-
leans, &c. Railroad, 55 Ala. 413.
5 1 Chit. Crim. Law, 276-281; Crim.
Proced. I. § 609.
6 The American annotator refers here
to Goshen, &c. Turnpike v. Sears, 7 Conn.
86, 92; 1 Stark. Ev. 5th Am. ed. 197,
notes; The State v. Cobb, 1 Dev. & Bat.
115; Cochran v. Couper, 1 Harring. Del.
200.
71 Sid. 856; 2 Hale P. C. 172; 2
Hawk. P. C. c. 25, § 103; Bac. Abr. Ind.
i. 2; Burn. Just. Ind, [X.
CHAP. XXIX. ] PRIVATE. STATUTES AND BY-LAWS. § 400
presume the statute, of which they cannot ex officio take notice,
to be correctly recited! . . .
~«§ 897. Recital of Date.— ‘It. is in no case necessary to set
forth the day on which the statute was enacted. And, there-
fore, it is: better altogether to omit it ;? for a mistake.in this
respect: will frequently prove fatal,? though under various cir-
cumstances it will not.! an et
§.398. Repugnancy in. Recital. of Date. — “A repugnancy in
setting forth the time when the Parliament was holden —as, if
astatute be recited to have been made in the first and second
year of the king — will vitiate the proceedings under it.”® And
it is the same of-a date which could not have been true.®
§ 399. Title and Preamble. — ‘‘ The title’ and preamble ° of the
act need not in any case be recited, for they form no part of the
law.” ® It:would seem to follow that a misrecital of either of
these will do, no harm, but on this question opinions differ.”
. § 400; Accuracy in Recital of Purview.— As to the recital of
the purview, Chitty continues, mingling the doctrine of public
statutes with that of private: “If any material part be omitted
or misrecited, the indictment will be bad; because it will, in the
case of a public act, judicially appear to the court that the charge
is :professedly grounded. upon a vicious foundation"... It
seems to be a general and established rule, that a variance which
does not alter the sense of a material part of the statute will not
vitiate.2 . . . For the present rule seems to be, that, if the vari-
ance consists in the introduction or alteration of words purely
“12 Hawk. P. C. c. 25; § 103; Bac.
Abr. Ind. H. 2; Burn Just. Ind. IX.; 1
Chit. Pl. 4th ed. 197. See post, § 401.
2 Walgrave’s Case, 2 Dy. 203 a; 2
a P. C. c. 25,.§ 104; Bac. Abr. Ind.
«eB
8 Ford v. Hunter, Cro. Jac. 111;
Anonymous, Skin. 110, 111; 2 Hawk.
P.C. c. 25, § 104.
4 Read v. Potter, Cro. Jac. 188; Oliver
v. Collins, Yelv. 126, 127; Owen v. Evans,
2 Keb. 34.
5 Sir F.. Moore, 302; 2 Hawk. P. C. c.
25, § 104; Bac. Abr. Ind. H.2. And see
Birt v. Rothwell, 1 Ld. Raym. 210, 243.
6 Rann v. Green, Cowp. 474. And
see East v. Wilson,. Cro. Eliz. 106.
T Ante, § 44-47,
® Ante, § 48-51.
» Eckert v. Head, 1 Misso. 593.
10 Shaftsbury v. Digby, 3 Keb. 647,
648, T. Jones, 49, 51; Mills v. Wilkins,
Holt, 662, 6 Mod. 62, 2 Salk. 609, 3 Salk.
331; The Nancy v. Fitzpatrick, 3 Caines,
38, 41; People v. Walbridge, 6 Cow. 512;
2 Hawk. P. C. c. 25, § 107.
11 Cromwell’s Case, 4 Co. 128, 18;
Hall v. Gaven, Cro. Eliz. 807; Rex +.
Green, 1 Vent. 171, 172; Boyce ». Whita-
ker, 1 Doug. 98 a, 97; Palgrave v. Wind-
ham, 1 Stra. 212, 214; Platt v Hill, 1
Ld. Raym. 381, 382; Eden’s Case, Cro.
Eliz. 697; 2 Hawk. P..C. c. 25, § 101;
Bac. Abr. Ind. H. 2.
. 2 The American editor refers here to
The Nancy v. Fitzpatrick, 3 Caines Cas.
38.
31T
§ 402 PROCEDURE ON WRITTEN LAWS. [BOOK Iv.
superfluous and unnecessary, it will not be material, unless in-
deed the alteration render the whole repugnant to the intent
of the statute; for then the superfluous words cannot be re-
jected.?
§ 401. Continuea.— ‘If any defect arise in the recital of a
public statute, which there was no occasion to set out, and, the
indictment would be good without it, if the indictment conclude
generally ‘contrary to the form of the statute in such case made
and provided, ... the recital may be rejected as surplusage,
and judgment may be given against the defendant; but, if it be
referred to as the said statute, the proceedings will be altogether
defective.2 As it is necessary to recite private statutes, the same
rule will not apply to them, and the omission of the word ‘said’
cannot aid them. And yet in one respect it is more dangerous
to misrecite a public than a private statute; for, in the former
case, the court, being bound ez officio to take cognizance of all
public laws, will of themselves notice the variance, whereas in
the latter it must be specially pleaded or given in evidence under
a plea of nul tiel record, for the court will presume the recital to
be correct until the contrary is formally shown.”? Here the
learned author appears to have fallen into the mistake of apply-
ing to the indictment an inapplicable rule of civil pleadings. On
principle, where the prosecutor relies on a private statute, he
must prove it at the trial, like any other averred fact; and,
should there be a variance between the allegation and proof,
there can be no conviction.
§ 402. Modifications of Doctrine. — The doctrines of the fore-
going sections are directly or indirectly modified or superseded
by statutes in some of the States. One provision is, that a pri-
vate statute may be pleaded by its title and date Another is,
that an allegation of the existence of a corporation shall be taken
as true unless it is denied on oath.6 An indirect modification
consists of enlarging the class of statutes deemed public. And,
in like manner, a private statute recognized by a public, becomes
12 Hawk. P. C. c. 25, § 109; Crom- Car. 232, 288; 2 Hale P. C. 172, 173; 2
well’s Case, 4 Co. 12, 13; Goodwin v. Hawk. P. C. c. 25, § 104.
West, Cro. Car. 522, 523. 8 Platt v. Hill, 1 Ld. Raym. 381, 382;
2 Ante, § 395; Boyce v. Whitaker, 1 Rex v. Wilde, 1 Doug. 97, in note.
Doug. 93 a, 94; Fost. 872; Palgrave v. £ The State v. Loomis, 27 Minn. 521.
Windham, 1 Stra. 212, 214; Platt v. Hill, 5 Hixon v. George, 18 Kan. 253.
1 Ld. Raym. 381, 382; Rex v. Hill, Cro. 6 Ante, § 42 a,
818
CHAP. XXIX.] PRIVATE STATUTES AND BY-LAWS. § 404
therefore public, and it need not be pleaded and proved.! So if
a statute of a private nature contains a clause declaring it to be
public, the courts will take notice of it as public.?
II. The Procedure upon Municipal By-laws.
§ 403. How formerly. — We have already seen what are the
powers of a municipal corporation to make by-laws, and inciden-
tally something of the procedure under them.’ By the law of
England as it was when we received thence our unwritten law,
such corporation could not, by a by-law, authorize an indictment
or a summary prosecution before a magistrate ; nor could it pro-
vide either imprisonment or disfranchisement for disobedience.!
Therefore the ancient by-laws used to direct, that, for a breach
of a provision, the offender forfeit a sum named. The forfeiture
was not recoverable in the court of the corporation, at least an
action in the name of the mayor and commonalty could not be
brought in the mayor’s court; for the principle, that no man
shall be a judge in his own case,° forbade. The method mostly
employed for recovering the penalty was by an action of debt, or
sometimes of assumpsit, in some one of the other courts, com-
monly one of the courts at Westminster Hall. But, —
§ 404. Modern Changes. —In modern times, the reader is aware,
city ordinances and other like by-laws are usually enforced by
summary proceedings,’ before a court sitting within the bounds
of the municipal corporation ;* and the penalty is a fine, or im-
prisonment, or both. These changes are wrought, directly or
indirectly, by statutes, both in England and in our States gen-
1 Rogers’s Case, 2 Greenl. 301; La- 5 Broom Leg. Max. 2d Eng. ed. 84;
valle v. People, 6 Bradw. 157; People v.
‘Wilson, 3 Bradw. 368.
2 Brookville Ins. Co. v. Records, 5
Blackf. 170; People v. Wilson, supra;
Ingram v. Foot, 12 Mod. 611, 618. And
see United States ». Porte, 1 Cranch C.C.
869; Duncan v. Duboys, 3 Johns. Cas.
126.
8 Ante, § 18-26,
4 Clark’s Case, 5 Co. 64 a, and Fra.
ser’s note; 8. c, nom. Clerk’s Case, Sir F.
Moore, 411; Wood v. London, 1 Salk.
897 ; Glover Mun. Corp. 812. And see
Rex v. London, 2 Lev 200; Clark’s Case,
1 Vent. 827; Harscott’s Case, Comb. 202.
Darby’s Case, 12 Co. 114; Anonymous, 1
Salk. 396; Great Charte v. Kennington, 2
Stra. 1173; Grand Junction Canal v.
Dimes, 12 Beav. 62; Ex parte Medwin,
1 Ellis & B. 609.
61 Saund. Wms. ed. 812 c, note;
Glover Mun. Corp. 60; Wood v. London,
supra; Bodwic v. Fennell, 1 Wils. 233;
London v. Bernardiston, 1 Lev. 14; Ad-
ley v. Reeves, 2M. & S. 53; Barber Sur-
geons of London v. Pelson, 2 Lev. 252.
7 The State v. White, 76 N.C. 15; The
State v. Threadgill, 76 N. C. 17.
8 The State v. Wells, 46 Iowa, 662;
People v. James, 16 Hun, 426.
319
§ 406 PROCEDURE ON WRITTEN LAWS. '[BooK Iv.
erally. The ancient: methods are ill adapted to the later manners
and necessities.
§ 405. As to Act of Incorporation. — The charter, or act of in-
corporation, is, by the greater number of modern opinions, a
public statute. Yet by some it is deemed: private.2 Where it
is private, the elucidations of the last sub-title explain, that it,
or.so much of it as shows the power of the corporation to make
the. by-law in. question, must be pleaded, then proved.’ If the
power relied on is such only as springs incidentally from the
existence of the corporation,* not much of allegation under this
head will be needed; but, in fact, all our acts creating municipal
corporations contain, it is believed, more or less express power.
Then, should the authority to make by-laws be committed by
the charter to a body separate from the entire corporation, — as,
to the mayor and common council,—this part of the charter
must be set out; else the court cannot see that the by-law which
this body ordained is valid. So, if the by-law provides a punish-
ment not competent without express legislative authorization, the
private statute giving the authority must appear in allegation
and proof. But generally in our States matter of this sort is not
required, because either the court will hold the incorporating
statute to be public, or the act itself will direct that it be judi-
cially noticed.®
§ 406. Setting out and Proving By-law. — Always, by the com-
mon-law rules, the by-laws of municipal corporations are private,
not public laws, and they must be averred in pleadings upon
them, and proved like other facts at the hearing.’ And this is
so even though the act of incorporation is deemed public,$ or a
1 Ante, § 42 b.
21Ib.; Dwar. Stat. 464. See Dwar.
Stat. 464,465; People rv. O’Brien, 38 NrY.
193; People v. Hills, 85 N. Y. 449; Gas-
kin v. Meek, 42 N.Y. 186; People v.
Davis, 61 Barb. 456.
3 Feltmakers v. Davis, 1 B. & P. 98;
Schott v. People, 89 Ill. 195.
4 Ante, § 18.
5 Rex v. Lyme Regis, 1 Doug. 149;
Feltmakers v. Davis, supra, where it was
observed, per curiam, that the “ power of
making by-laws is incident to every cor-
poration, either by the body at large or
by a select part; and it is in the latter
case only that the power need be shown.”
820
p- 100. And see Rex v. Bird, 13 East,
367. :
6 See The State v. McAllister, 24
Maine, 189; The State v. Soragan, 40
Vt. 450; Clark v. Janegville, 10 Wis.
186; The State v. Merritt, 83 N C. 677.
7 Porter v. Waring, 69 N. Y. 250;
Stevens v. Chicago, 48 Ill. 498; Laviosa
v, Chicago, &c. Railroad, 1 McGloin,
299; Winona v. Burke, 238 Minn. 254;
Green v. Indianapolis, 25 Ind. 490 (but
contra by subsequent statute, Hunting-
ton v. Pease, 56 Ind. 305); People »v.
Special Sessions, 12 Hun, 65, 66.
5 The State v. Soragan, 40 Vt. 450.
CHAP. XXIX.] PRIVATE STATUTES AND BY-LAWS. § 407
statute requires the courts to notice it judicially. The allegation
must contain, at least, so much of the substance of the by-law as
is relied on ;! and such further matter as will enable the court to
see ‘that it. proceeded from a body having the power, by the act
of ‘incorporation, to make by-laws.2 Then a by-law which ap-
pears.from the records of this body to have been regularly or-
dained will-be presumed to have been so in the absence of proof
to the contrary.? But largely, in our States, yet not universally,
more convenient methods are established by statutes, or the
courts are required to notice by-laws or some classes of them ju-
dicially like general laws, thus avoiding the necessity of setting
out and proving them. A provision of this sort pertains to the
remedy, therefore it. may be made applicable as well to. past
offences as to future.®
' How Complaint conclude. — The complaint or information should
conclude both against the form of the by-law,® and also against
the form of the statute ;7 because it rests both upon the by-law
and upon the statute. But, — :
§ 407. Formalities diverse.—In the formal parts, the proceed-
ing upon by-laws, varying with the statutes and the general
practice of the States, is so far from uniform as to render a
minute elucidation of it out of place here.®
1 Ante, § 405; People v. Special Ses-
sions, 12 Hun, 65.
2 Feltmakers v. Davis, 1 B. & P. 98.
See Miller v. Anheuser, 2 Misso. Ap. 168.
3 Lexington v. Headley, 5 Bush, 508.
And see Stevens v. Chicago, 48 Ill. 498;
Commonwealth v. Patch, 97 Mass. 221.
4 Huntington v. Pease, 56 Ind. 305;
Goldthwaite v. Montgomery, 50 Ala. 486.
And see Schrumpf v. People, 14 Hun, 10.
Wilde, J. in the Massachusetts court, ob-
serving on a case in which it was con-
tended that the complaint ought “to
have set out the by-law at large,” said:
“But if the statute dispensing with the
necessity of thus incumbering the record
is a valid law [which the court held it to
be], this objection must fail. Perhaps,
even without the.aid of the statute, the
court below, being composed of citizens
of Boston, were bound to take notice of
the by-law; though generally, no doubt,
a by-law must be pleaded.” Common-
wealth v. Worcester, 3 Pick. 462, 473.
21
An indictment,
5 Commonwealth v. Bean, Thacher
Crim. Cas. 85.
®§ Commonwealth v. Worcester, supra ;
Lewiston v. Fairfield, 47 Maine, 481.
7 Crim. Proced. I. § 602, note; Com-
monwealth v. Gay, 5 Pick. 44; The State
v. Soragan, supra. But see Winooski v.
Gokey, 49 Vt. 282, 286.
8 A reference to some of the cases
may be convenient; as, Fink v. Milwau-
kee, 17 Wis. 26; People v. James, 16 Hun,
426; The State v. Herdt, 11 Vroom, 264 ;
The State v. Gordon, 60 Misso. 383 ; Peo-
ple v. Manistee, 26 Mich. 422; People v.
Cox, 76 N. Y. 47; Jenkins v. Cheyenne,
1 Wy. Ter. 287; Platteville v. Bell, 48
Wis. 488; The State v. Decker, 46 Conn.
241; Cooper v. People, 41 Mich. 403;
Hoyer v. Mascoutah, 59 Ill. 137; The
State v. Stearns, 11 Fost. N. H. 106;
Davenport v. Bird, 34 Iowa, 524; Brown-
ville v. Cook, 4 Neb. 101; Jaquith v.
Royce, 42 Iowa, 406; New York v
Walker, 4 E. D. Smith, 258; Roberson
821
§ 408
PROCEDURE ON WRITTEN LAWS.
[BOoK Iv.
founded on the principles of the common law, will not lie for the
violation of a municipal by-law.)
But by force of a statute and
the by-law, such violation may be made indictable.”
§ 408. The Allegations — should conform to the rules of gen-
eral pleading as established in other classes of causes.3
For ex-
ample, an information 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.
v. Lambertville, 9 Vroom, 69; Common-
wealth v. Fahey, 6 Cush. 408; Graham :
v. The State, 1 Pike, 79; Kansas v. Flan-
agan, 69 Misso. 22; The State v. King,
37 Iowa, 462; The State v. Merritt, 83
N. C. 677; Alton v. Kirsch, 68 Ill. 261;
Van Buskirk v. Newark, 26 Ohio State,
87; The State v. Soragan, 40 Vt. 450.
1 Rex v, Sharples, 4 T. R. 777.
822
2 The State v. Strauss, 77 N. C. 500.
3 Petition of Began, 12 R. I. 309; Hunt-
ington v. Pease, 56 Ind. 305; Roberson v.
Lambertville, 9 Vroom, 69; Byars v. Mt.
Vernon, 78 Ill. 11; The State v. Bacon,
40 Vt. 456; Goldthwaite v. Montgomery,
50 Ala. 486.
4 The State v. Goulding, 44 N. H. 284.
CHAP. XXX.] ENLARGEMENTS OF LARCENY. § 418
BOOK V.
STATUTORY EXTENSIONS OF THE COMMON-LAW OFFENCES.
CHAPTER XXX.
STATUTORY ENLARGEMENTS OF THE COMMON-LAW LARCENY.
§ 409-411. Introduction.
412-416. Purely and partly Statutory.
417-424. Larceny under Bailment.
425-429. Larcenies of Animals.
§ 409. Elsewhere. — In ‘Criminal Law” and “Criminal Pro-
cedure,” under the titles “« Larceny,” and “* Larceny, Compound,”
the extensions of the offence by statutes are largely explained.
There also is discussed the statutory larceny called “ Embezzle-
ment.”
§ 410. Here — we shall follow out the departures of the stat-
utes from the common law, into details which it seemed best
there to postpone.
§ 411. How Chapter divided. We shall consider, I. In Gen-
eral of Larcenies purely and partly Statutory ; II. Larcenies
under Bailments; III. Larcenies of Animals.
I. In General of Larcenies purely and partly Statutory.
§ 412. Degrees of Departure from Common-law.— The statutes
of our States differ considerably in this, that, by some of them, a
statutory larceny is scarcely distinguishable from one at common
law, by others the difference is very broad, and between these
extremes there is every variety. Perhaps the widest departure
from the common law is in —
§ 413. texas. —In this State, the word “theft” takes the
place of the common-law term larceny; and it “ includes,” to
323
§ 415 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
quote from the Code, “swindling, embezzlement, and all unlaw-
ful acquisitions of personal property punishable by the Penal
Code.” The consequence of which and other provisions is, that
theft has there become a crime of degrees; that, for example,
swindling is an inferior degree of it; and that, on an indictment
for theft, the conviction may be for swindling. So it may be
for receiving,? or for removing without consent another’s live
stock from its accustomed range. There are various statutory
provisions, but the one indicating its ordinary form declares it to
be ‘the fraudulent taking of corporeal personal property belong-
ing to another, from his possession, or from the possession of
some person holding the same for him, without his consent, with
intent to deprive the owner of the value of the same, and. to ap-
propriate it to the use or benefit of the person taking.” +
§ 414. How the Indictment — (Expositions of Definition). —
Under a statute like this Texas one, an indictment in the com-
mon-law form for larceny is wholly inadequate. It must allege,
for example, that the goods were taken “from the possession ”’
of one mentioned,® “ with intent to deprive the owner of the
value of the same,’’® and “ without his consent,” * and the proofs
must negative the consent,6— no one of which particulars is
essential at the common law. On the other hand, as this statu-
tory definition omits the “carried away” of the common-law
definition, the asportation, which the common-law indictment
alleges, may be omitted from that on the statute° But, though
the statute has wrought these and some other departures from the
common-law doctrines, still, —
.§ 415. Pollowing Common Law. —In particulars not provided
for by the statute, the courts, in
1 Mathews v. The State, 10 Texas Ap.
279, 284; Martin v. The State, 9 Texas
Ap. 293.
2 Vincent v. The State, 10 Texas Ap.
330.
3 Marshall v. The State, 4 Texas Ap.
549; Powell v. The State, 7 Texas Ap.
467; Turner. v. The State, 7 Texas Ap.
696; Counts v. The State, 37 Texas, 593.
"4 Quitzow v. The State, 1 Texas Ap.
65, 68; Berg v. The State, 2 Texas Ap.
148, 149.
5 Watts v. The State, 6 Texas Ap.
824
giving bounds to the statutory
263; Castello v. The State, 36 Texas,
324.
6 Ridgeway v. The State, 41 Texas,
231.
7 Johnson v. The State, 39 Texas, 393.
See Berg v. The State, 2 Texas Ap. 148;
Jackson v. The State, 7 Texas Ap. 363.
3 Crim. Proced. II. § 752a; Stewart v.
The State, 9 Texas Ap. 321.
® And see The State v. Jones, 7 Nev.
408; Burns v. The State, 35 Texas, 724.
10 Musquez v. The State, 41 Texas,
226; Hall v. The State, 41 Texas, 287;
Austin v. The State, 42 Texas, 345.
CHAP. XxXX.] ENLARGEMENTS OF LARCENY. § 418
theft, follow, alike as to the law, the pleading, and the evidence,
the rules of common-law larceny.!
§ 416. Simply providing Punishment. — If a statute merely de-
clares, as many of our statutes do, that one “ guilty of larceny ”
shall be punished in a way pointed out,? the offence created dif-
fers in no respect from larceny at the common law, The rule as
to all offences is so. For example, —
Attached to Freehold, &c. — Under such a statute, it is not lar-
ceny to take and carry away, with a felonious mind, copper pipe
which was attached to the freehold ; because it would not be lar-
ceny at the common law.* But there are statutes in terms to
include things of this sort and other things partaking of the
realty, —-as explained in other connections.® In all these and
other like cases, the indictment must charge, in the terms of the
statute, besides following the common-law form, whatever else the
statute has added to the common-law definition of the offence.®
II. Larcenies under Batlments.
§ 417. The Trespass in Larceny.— Trespass is an element in
every larceny at the common law.’ -And the common-law form of
the indictment — “ did steal, take, and carry away ” § — charges,
among other things, a trespass. Now, —
§ 418. Statute dispensing with Trespass, — If a statute pro-
vides, that, in circumstances which it points out, one’s wrongful
appropriation of another’s goods shall be larceny though there
is no trespass, a rule of pleading brought to view in the last sub-
title requires the circumstances to be set out, in an indictment
for the statutory offence. The mere common-law form is inade-
quate. So it was held in Tennessee, not only on common-law
principles, but the court added, that, to accept the mere common-
1 Roth v. The State. 10 Texas Ap. 27;
Landin v. The State, 10 Texas Ap. 63;
Wright v. The State, 10 Texas Ap. 476;
Looney v. The State, 10 Texas Ap. 520;
Walker v. The State, 9 Texas Ap. 38;
and multitudes of other cases, showing
such to be the judicial practice.
2 La. Rev. Stats. of 1870, § 812.
3 Crim. Proced. I. § 610; United States
v, Jones, 8 Wash. C. C. 209; United
States v. Wilson, Bald. 78; Burk v. The
State, 27 Ind. 430, 442; The State v. Tay
lor, 29. Ind. 517.
4 The State v. Davis, 22 La. An. 77.
5 Crim. Law, II. § 783, 784; Crim.
Proced. II. § 733.
6 Reg. v. Trevenner, 2 Moody & R.
476 ; Reg. v. Rice, Bell C. C. 87; Reg. v.
Jones, Dears. & B. 655; Reg. v. Gooch, 8
Car. & P. 293; United States v. Davis, 5
Mason, 356; The State v. Scott, 68 Ind. 267.
7 Crim. Law, II. § 758, 799-839.
8 Crim. Proced. II. § 697.
825
§ 420 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
law form would violate the provision of the constitution of the
State, securing to an accused person the right “to demand the
nature and cause of the accusation against him.” On this prin-
ciple proceeds the doctrine, that, though a statute of embezzle-
ment declares it to be larceny, it cannot be indicted as such, but
the allegation mnst be special.2 Now, —
§ 419. Whether Larceny by Bailee. — A bailment of goods, hon-
estly received by the bailee, transmits to him a special property
in them, rendering a trespass, therefore a larceny, impossible ex-
cept in circumstances which terminate the bailment, as explained
in “ Criminal Law.” 3- If he obtains a thing originally by fraud,
even though not intending to steal it,— as, where he gets pos-
- session of a horse to drive to a particular place, and be absent a
- specified time, meaning to go to another place and be gone
longer, —the bailment does not attach, and, like a servant in
custody, he commits larceny of it by appropriating it to himself
with felonious intent.*
§ 420. Statutory Larceny by Bailee. — To do away with the
necessity of a trespass in cases of bailees in possession, and place
them as to larceny on like ground with servants and others who
have a mere custody of the thing, statutes have been enacted in
England and pretty generally with us. Thus, in England, by
24 & 25 Vict. c. 96, § 8, “ Whosoever, being a bailee of any
chattel, money, or valuable security, 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 oth-
erwise determine the bailment, shall bé guilty of larceny, and
may be convicted thereof upon an indictment for larceny ;”’* the
latter clause not having been in the earlier enactment of 20 & 21
Vict. c. 54,§ 4. The statutes of our States are similar to these,
\yet in terms not absolutely uniform.®
1 Hall v. The State, 3 Coldw. 125.
Perhaps, if the statute should declare the
* The State v. Coombs, 55 Maine, 477,
480.
element of trespass never to be necessary,
the case would be different, and the com-
mon-law form would suffice; the allega-
tion of trespass being deemed surplusage.
Prim v. The State, 32 Texas, 157.
2 Crim. Proced. II. § 316, 317.
3 Crim. Law, IL. § 809, 813, 833, 834, 836,
857-871; Abrams v. People, 6 Hun, 491,
492.
326
5 Reg. «. Henderson, 11 Cox C. C.
698. :
6 Crim. Law, II. § 863; Common-
wealth v. Williams, 3 Gray, 461; Com-
monwealth v. Maher, 11 Philad. 425; The
State v. Small, 26 Kan. 209; The State
v. Broderick, 7 Misso. Ap. 19; The State
v. Stone, 68 Misso. 101.
CHAP. XXX.] ENLARGEMENTS OF LARCENY.
§ 422
§ 421. How the Indictment — (In England — On Principle). —
We have just seen, that, by the present English statute, the
“indictment for larceny” is expressly made sufficient in these
cases.2 But the foregoing discussions have disclosed, that, in
the absence of such a provision, and on the principles of sound
pleading, it is not adequate. Under the earlier English enact-
ment, a single jury case occurred, wherein, the indictment being
in form as for a common-law larceny, and concluding against the
statute, the presiding judge with some hesitation sentenced the
prisoner thereon. Yet it seems not to have satisfied the profes-
sion ; for, in the subsequent cases which the author has observed,
the indictment was special, with a count added as for larceny at
the common law.t| And —
§ 422. With us. — Such decisions also as our own books afford
require the allegation to be special, on the statute.’ Therefore,
as in other indictments on statutes, the statutory terms must be
so far pursued as to identify the statute and comprehend the
offence in full.6 The bailment must be averred; but, on prin-
ciple, the particulars of it need not be, because it is matter of
inducement, and so the mere general allegation will suffice.’
Yet, contrary to this, the California court has required the facts
out of which the bailment arises to be stated.’
1 Ante, § 420.
2 Reg. v. Bunkall, Leigh & C. 371;
Reg. v. Henderson, 11 Cox C. C. 593.
8 Reg. v. Haigh, 7 Cox C. C. 403.
* Reg. v. Hassall, Leigh & C. 58, 8
Cox C. C. 491; Reg. v. Robson, Leigh &
C. 98, 9 Cox C. C.29; Reg. v. Loose, Bell
C. C. 259, 8 Cox C. C. 302.
5 People v. Jersey, 18 Cal. 387; The
State v. Stone, 68 Misso. 101, 104; Gad-
dy v. The State, 8 Texas Ap. 127; Snell
v. The State, 50 Ga. 219; Hoyt v. The
State, 50 Ga. 313; Alderman v. The State,
57 Ga. 367; Carter v. The State, 53 Ga.
826; Keeller v. The State, 4 Texas Ap.
627. .
® Crim. Proced. I. § 611,612; The State
v. Smith, 20 N. H. 399.
* Crim. Proced. Il. § 555; post, § 602.
8 People v. Poggi, 19 Cal. 600. In this
case, Norton, J. speaking for the court,
said: “The indictment states that the
defendant ‘ was the bailee of one hundred
and thirty ounces of gold dust,’ which he
The gravamen of
converted to his own use, With intent to
steal the same; ‘the said gold dust be-
ing then and there the property, goods,
and chattels of one Francisco Gallardo.’
There are no other averments showing.
the character or circumstances of the
bailment, or that the defendant was in
fact a bailee of gold dust. It was decided
in the case of The People v. Cohen, 8 Cal.
42, that an indictment like this was in-
sufficient, and the case of The People v.
Peterson, 9 Cal. 818, was decided in the
same way upon the authority of the for-
mer case. The remarks of the judge
upon this point in the case of The People
v. Cohen 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
827
§ 4238 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
the offence is the conversion; it, therefore, must be distinctly
charged. But the analogies of the indictment for embezzlement!
explain, that even this allegation need not be expanded beyond
the statutory terms; as, for example, it is sufficient to say that
the defendant did ‘convert the same to his own use.” ?
§ 423. What the Bailment. — The bailment, in these cases, is
‘the same as in others in the law.3 We saw, in another connec-
tion, that it takes place where, and only where, the specific thing
delivered is to be returned — this is the test *— either in a form
to which it is to be changed, or in the form received, when the
object of the trust is accomplished.® The contract of bailment
may be express or implied.’ If, by it, the title passes with the
thing, there is no bailment.’ The conditional purchase and sale
of an article on instalments, the ownership to remain in the vendor
and possession to be in the vendee until all the payments are
made, and in case of default. the thing. to be restored to its origi-
bailee, in the statute last referred to, in a
limited sense, as designating hailees ‘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 undoubtedly be
indicted for larceny under that statute.
The decision that the indictment was in-
sufficient was, however, correct, for the
reason that it did not set forth the neces-
sary facts to show that the defendant
was a bailee of the property. The facts
-and circumstances which are necessary
to constitute a complete offence must
be stated with directness and certainty.
Proof of the circumstances constituting
the bailment must be made at the trial,
and the essential facts to be proved
should be stated in the indictment. So
are the precedents of indictments under
statutes substantially the same. 3 Chit.
Crim. Law, 967; Commonwealth v. Mer-
rifield, 4 Met. 468. By the same prece-
dents it appears that it is sufficient to
state the fact of the conversion with in-
tent to steal in the language of the stat-
ute, without specifying any particulars
of the mode of conversion.” p. 600, 601.
As to the authorities referred to by the
Jearned judge, near the close of this
quotation, I cannot see that they are
pertinent to the point, but perhaps I am
828
mistaken. If, as precedents, they cov-
ered the precise point, I should adapt to
the occasion the words of Seawell, J.
sitting in the North Carolina court: “ Al-
though it is true that precedents are high
authority as to what the law is, yet, in
this case, they only prove that they con-
tain these words; for it is certain that
most of them contain many things which
never were essential, and some they retain
which long since have become useless.”
The State v. Sparrow, N. C. Term R. 93,
94.
1 Crim. Proced. II. § 322, 323.
2 People v. Poggi, supra. But see
Snell v. The State, supra; Hoyt v. The
State, supra.
8 See the long note to the last section ;
Reg. v. Hassall, Leigh & C. 58, 8 Cox
C. C. 491; Krause v. Commonwealth, 12
Norris, Pa. 418.
4 Powder Co. v. Burkhardt, 97 U. S.
110; Marsh v. Titus, 6 Thomp. & C. 29,
3 Hun, 550; Mallory v. Willis, 4 Comst.
76.
5 Crim. Law, IT. § 857; Grier v. Stout,
2 Bradw. 602; Foster v. Pettibone, 3 Seld.
433; Reg. v. Hoare, 1 Fost. & F. 647.
6 Phelps v. People, 72 N. Y. 334, 357;
Bohannon v. Springfield, 9 Ala. 789; New-
hall v. Paige, 10 Gray, 366.
1 Krause v. Commonwealth, aupra.
CHAP. Xxx. ] ENLARGEMENTS OF LARCENY.
§ 424
nal possessor,. constitute a bailment.! And the forms of bail-
ment are numberless. Whether or not a married woman can be
a bailee, within these criminal statutes, is perhaps an open ques-
tion, but probably she can be.2, Even at the common law, she
could always receive property, though in some circumstances
only to transmit the ownership to her husband.? She could be an
agent. And she could commit the offence of common-law lar-
ceny® It is difficult, therefore, to perceive any just ground to
preclude her from being a bailee for the statutory larceny, and
committing it of the goods in her possession. The recorder of
London in one case intimated and perhaps ruled, that there can-
not. be a bailment which is procured by the bailee’s fraud.6 And
this accords with other rulings where the facts are open to in-
quiry.’? But in just principle, apart from. the adjudications, it
would not be unreasonable to refuse to permit a man to set
up one fraud as a ground of escape from the consequences of
another.®
§ 424. Bailee’s Act of Larceny.— The elements of larceny at
the common law are stated in another connection.2 Those of
larceny by a bailee are in reason the same, except that in his
case the statute dispenses with the trespass. It was once ruled
by a single judge to be necessary to show some act of conversion
inconsistent with the purpose of the bailment." This doctrine
has been both affirmed and denied by other judges; but, where
. 1 Whitney v. McConnell, 29 Mich. 12;
Dunlap v. Gleason, 16 Mich. 158; Henry
v. Patterson, 7 Smith. Pa. 346. But see
and compare Krause v. Commonwealth,
supra.
2 Reg. v. Denmour, 8 Cox C. C. 440;
Reg. v. Robson, Leigh & C. 93, 9 Cox C.C.
29.
3 1 Bishop Mar. Women, § 699, 700.
4 1Ib. 701; 2 Ib. 400.
5 Crim. Law, I. § 361-363; 1 Hale
P. C. 514, 516.
5 Reg. v. Hunt, 8 Cox C. C. 495.
7 Ante, § 419.
8 And see Crim. Law, IL § 264, 768.
See further as to what is a bailment, Reg.
v. Loose, Bell C.C. 259; Reg. v. Bunkall,
Leigh & C. 371, 9 Cox C. C. 419; Reg. e.
Davies, 14 W. R. 679, 14 Law Times, n. 8.
491; Hunt v. Wyman, 100 Mass. 198;
Becker v. Smith, 9 Smith, Pa. 469; Reg.
v. Cosser, 13 Cox C. C. 187; Zschocke v.
People, 62 Ill. 127; Reg. v. Oxenham, 13
Cox C. C. 349; Hutchison v. Common-
wealth, 1 Norris, Pa. 472; Coldwell v.
The State, 3 Baxter, 429. A man on the
ground, partly intoxicated and partly
asleep, saw another, with whom he was
acquainted, take from his pocket his
watch, and made no effort to prevent it,
believing the object to be to preserve the
watch for him; this was ruled to consti-
tute a bailment, subjecting the bailee,
who converted it to his own use, to indict-
ment under the statute. Reg. v. Reeves,
6 Jur. n. s. 716.
9 Crim. Law, I. § 757 et seq.
10 And see The State v. Stone, 68 Misso. -
101; Krause v. Commonwealth, 12 Nor-
ris, Pa. 418.
11 Reg. v. Jackson, 9 Cox C. C. 505.
829
§ 425 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
one gave money to another to buy, and bring in the latter’s cart,
coals for hire, and the person so entrusted bought them in his
own name, and on his way with them abstracted some for his own
use, it was held, that, whichever view of the above point be
taken, the conversion here, there being deemed to be a bailment
of the coals, was adequate.!. And a carrier who undertakes to
deliver, to persons named in a list, a boat’s load of coals in his
own cart, commits larceny as a bailee if he fraudulently sells
some of them and appropriates the money to himself.2_ In another
case it was laid down, that a carrier, receiving money to procure
goods, becomes guilty of larceny of the money as bailee, if he
fraudulently converts it to his own use, though he obtains and
delivers the goods.
III. Larcenies of Animals.
§ 425. At Common Law.— As seen in another connection,
most, not absolutely all, animals of which there may be owner-
ship at the common law are the subjects also of common-law lar-
ceny.t| There is, therefore, no such urgent occasion for the
statutes within this sub-title as for those within the last, and
they have not wrought consequences so wide.
The Statutes. — The present English enactment on this subject,
condensing the prior ones, is 24 & 25 Vict. c. 96, § 10, —“* Who-
soever 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.6 The South Carolina statute makes punishable “ any
person found guilty of the larceny of any horse, mule, cow, hog,
or any other live stock.”® And similar to these two, yet differ-
ing more or less from them and from one another, are the enact-
ments in our other States.’
1 Reg. v. Bunkall, Leigh & C. 371, 9
Cox C. C. 419.
2 Reg. uv. Davies, 14 W. R. 679, 14 Law
Times, n. 8. 491.
3 Reg. v. Wells, 1 Fost. & F. 109.
4 Crim. Law, IL. § 771-779.
5 The prior statute of 7 & 8 Geo. 4, c.
29, § 25, was in nearly the same words.
But there were earlier enactments in
forms perhaps less compact. See 2 East
P. C. 614-617.
830
8 The State v. Corley, 13 S. C. 1, 4.
™ The State v. Buckles, 26 Kan. 237;
Hunt v. The State, 65 Ala. 188; Laven-
ner v. The State, 60 Ala. 60; Watson vw.
The State, 65 Ala. 150. In Texas, the
words, differing from the earlier form
(ante, § 248), are, “If any person shall
steal any cattle, he shall be punished,”
&c. Duval v. The State, 8 Texas Ap.
370, 371.
CHAP. Xxx. ] ENLARGEMENTS OF LARCENY.
§ 426
§ 426. Word to designate in Indictment the Animal.! — In de-
termining by what statutory word to designate the animal in
the indictment, some discussions in an earlier chapter will be
helpful.2, For example, the term “horse,” primarily denoting
the male, includes also, if it stands alone, mares and geldings.
So, therefore, by the better opinion, it does in the statutory ex-
pression “horse, mare, or gelding.”* But some would here
restrict it, holding, under this expression, an indictment which
employs the word ‘ horse’’ not sustained by proof of a “mare”
or a “gelding.”® While this rule prevailed in England, a charge
of stealing a “‘cow” was adjudged not to be sustained by proof.
of the larceny of a heifer. But in localities and circumstances
not governed by this rule, the word designating an animal in-
cludes the young with the old; as, a mare filly is a “ mare,” 7a
pig is a “ hog,”’§ a heifer is a “cow,” ® and a calf is within the
term “cattle.” 10 Under the present Texas statute, the words of
which are simply “any cattle,” the allegation need not contain
this word “cattle,” but merely to designate the animal by its
species — as, a‘ calf,” “steer,” “ox,” or the like —is sufficient.
Un the other hand, if the pleader chooses, he may say, instead of
this, ** one head of neat cattle,” ! “ one beef cattle,” or the like.*
He must not create a variance ; and it will be such if the allega-
tion is of one “‘ beef steer,” and the proof is of only a “steer,” ©
or of a “cow” and the evidence shows the animal to have been
a “bull,” 16 or if he misdescribes the color." The words “a year-
ling,” and no more, are not sufficient.
1 And compare with post, § 440-442.
2 Ante, § 246 c-248.
8 Baldwin +. People, 1 Scam. 304;
Reg. v. Aldridge, 4 Cox C. C. 143.
* Ante, § 246 c-248, People v. Butler,
2 Utah, 504; People v. Sensabaugh, 2
Utah, 473. Mule.— That this word will
includea “mule,” see Allison v. Brookshire,
38 Texas, 199; that it will not, see Com-
monwealth v. Edwards, 10 Philad. 215.
5 The State v. Buckles, 26 Kan. 237.
In Georgia, the code requires the sex to
be designated. Taylor v. The State, 44
Ga. 263. See ante, § 248; Marshall v.
The State, 31 Texas, 471.
8 Rex v. Cook, 1 Leach, 4th ed. 105, 2
East P. C. 616.
* Rex v. Welland, Russ. & Ry. 494.
3 Ante, § 247, note.
9 Parker v. The State, 39 Ala. 365. And
see Watson v. The State, 55 Ala. 150.
10 Grant v. The State, 3 Texas Ap. 1.
11 Tb. at p. 5; Robertson v. The State,
1 Texas Ap. 311. And see post, § 440.
12 The State v. Murphy, 39 Texas, 46.
18 Duval v. The State, 8 Texas Ap.
870. See Hubotter v. The State, 32
Texas, 479.
44 That the word “cattle” alone would
be too indefinite, see post, § 440.
18 Cameron v. The State, 9 Texas Ap.
332.
13 The State v. McMinn, 34 Ark. 160.
17 Courtney v. The State, 3 Texas Ap.
257; Wolf v. The State, 4 Texas Ap. 332.
18 Stollenwerk v. The State, 55 Ala.
142. And see Rivers v. The State, 57 Ga.
28; Alderman v. The State, 57 Ga. 367.
831
§ 428 STATUTORY EXTENSIONS OF OFFENCES. [BOOK -V.
§ 427. value. — A rule pervading the entire procedure in lar-
ceny is, that the value of the thing stolen must be alleged and
proved when the punishment or its degree depends on value;
but, when it does not, it need not be. And within this rule are
the larcenies now under consideration; under most of the stat-
utes the value is not material, under some it is. When not ma-
terial, it is often in practice alleged, — mere surplusage which
does no harm.
Against Form of Statute. — Of course, where the statute affects
any thing more than the punishment,” the indictment concludes
against the form of the statute. But where, in England, the lar-
ceny of a mare, saddle, and bridle was alleged, and the conclu-
sion was simply as at the common law, it was held, that, since
the stealing of the mare, as well as of the saddle and bridle, was
a common-law felony, not even altered by the statute, this would
suffice, and the statutory punishment attach to the stealing of
the mare.?
§ 428. Other Particulars.— In most other particulars, the pro-
cedure, and the law, under these statutes, conform to the common
law. Thus, —
Joinder. — Counts charging larcenies of animals and larcenies
at the common law may be joined.!
Ownership — (Mark or Brand). — The ownership of the animal
stolen must be alleged and proved conformably to the common-
law rules.’ In Texas, and perhaps some other States, by reason
of statutory regulations, there are special considerations con-
nected with the mark or brand, recorded, and on the animal.®
1 Crim, Proced. I. § 541, 567; II. § 718,
714, 786, 751, 764-767; The State v. Pedi-
go, 71 Misso. 443; McDowell v. The
State, 61 Ala. 172; Williams v. The
State, 10 Texas Ap. 8; Wells v. The
State, 11 Neb. 409; Adams v. The State,
60 Ala. 52; The State v. Corley, 18 S. C.
1; The State v. Daniels, 32 Misso. 558 ;
Sheppard v. The State, 42 Ala. 631.
2 Ante, § 166, 167.
3 Williams v. Reg. 7 Q. B. 250.
4 Barton v. The State, 18 Ohio, 221.
And see The State v. Nutting, 16 Vt.
261. «.
5 Grant v. The State, 3 Texas Ap. 1;
Wells v. The State, 11 Neb. 409; Tur-
ner v. The State, 7 Texas Ap. 596; Burt
382
i
. The State, 7 Texas Ap. 578; Wilson
. The State, 3 Texas Ap. 206; Butler
. The State, 3 Texas Ap. 48; The State
. France, 1 Tenn. 434.
6 Lockhart v. The State, 3 Texas Ap.
567; Jones v. The State, 8 Texas Ap. 498;
Smith v. The State, 1 Texas Ap. 183;
Wilson v. The State, supra ; Poag v. The
State, 40 Texas, 151; [Hutto v. The State,
7 Texas Ap. 44; Allen v. The State, 8
Texas Ap. 360; Spinks v. The State 8
Texas Ap. 125; Renfro v. The State, 9
Texas Ap. 229; Smith v. The State, 8
Texas Ap. 141; Grant v. The State, 3
Texas Ap.1; Stoneham v. The State, 3
Texas Ap. 594; Robinson v. The State,
6 Texas Ap. 519; Fisher v. The State, 4
ees
CHAP. XXX.].... ENLARGEMENTS OF LARCENY. § 429
Trespass and Asportation — (Accustomed Range).— The tres-
pass and asportation must be charged and shown according to
the rules of the common law; or, in a State, for example, like
Texas,! where a statute has changed the common-law limits of
larceny and no asportation is required, the trespass only will
suffice as to this part of the case.2 In our new and grazing
States, domestic animals simply on their accustomed range
are deemed, for purposes of larceny, in the possession of their
owners.? :
§ 429. Felonious Intent. — The same felonious intent must ap-
pear as in other larcenies.* If, for example, one stealing other
property takes a horse simply to get off with the other things,
then turns it loose, he does not commit larceny of the horse.°
Texas Ap. 181; Wolf v. The State, 4
Texas Ap. 332; Sweat v.The State, 4
Texas Ap. 617; Beyman v. Black, 47
Texas, 558.
1 Ante, § 418, 414.
2 Harris v. The State, 62 Ga. 337;
Fowle v. The State, 47 Wis. 545; Jack-
son v. The State, 7 Texas Ap. 363; Burt
v. The State, 7 Texas Ap. 578; Turner
v. The State, 7 Texas Ap. 596; McPhail
v. The State, 9 Texas Ap. 164, and Hall
v. The State, 41 Texas, 287, compared
with The State v. Butler, 65 N. C. 309, as .
to killing the animal; The State v. Mans-
field, 83 Texas, 129.
-. 8 Moore v. The State, 8 Texas Ap.
496 ; Deggs v. The State, 7 Texas Ap.
369; Jones v. The State, 3 Texas Ap.
498.
4 The State v. Thomas, 30 La. An.
600; Spinks v The State, 8 Texas Ap.
125; McPhail v. The State, 9 Texas Ap.
164;. Brown v. The: State, 9 Texas Ap.
81; The State v. Murphy, 84 N. C. 742.
5 Rex v. Crump, 1 Car. & P.658. And
see Dove v. The State, 37 Ark. 261.
333
§ 431 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
CHAPTER XXXI.
STATUTORY ENLARGEMENTS OF THE COMMON-LAW MALICIOUS
MISCHIEF.
§ 430. Introduction.
431,432. Generally of the Statutes.
432 a-437. Nature of the Malice.
438-447 b. Indictment and Evidence.
448, 449. Further of the Offence.
§ 480. Elsewhere — (Common Law). —In “Criminal Law”
and “Criminal Procedure,” the unwritten law of this offence,
with some explanations of the statutes, and the procedure for
punishing it, are given.!
Here, and how divided. —In this chapter we shall consider,
I. Generally of the Statutes ; II. The Nature of the Malice;
III. The Indictment and Evidence; IV. Further of the Offence.
I. Generally of the Statutes.
§ 431. English Legislation. — The early English statutes on this
subject are numerous, diversified, and complicated. There is an
excellent view of them in East’s Pleas of the Crown.? But no
one of them appears ever to have had any common-law force with
us.2 In 1827, all were in England digested into the forty-three
sections of 7 & 8 Geo. 4, c. 30, which superseded them, covering
a wide range. Thence onward legislation accumulated; till, in
1861, came 24 & 25 Vict. c. 97, in seventy-nine sections, “ to
consolidate and amend the statute law of England and Ireland
relating to malicious injuries to property.” Of the early statutes,
the most noted is 9 Geo. 1, c. 22, known as the —
Black Act.—It took its name from the occasion of making it,
and from the recitation in the preamble, that “several ill-design-
1 Crim. Law, IT. § 983 et seq., and the 2 2 East P. C. 1045-1108.
places in Vol. L there referred to; Crim. 8 Crim. Law, II. § 999.
Proced. IL. § 837 et seq.
334
CHAP, XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS. § 4324
ing and disorderly persons have of late associated themselves
under the name of blacks.” It extends to some other subjects in
addition to malicious mischief. A part of the first section is:
“Tf 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, &.,
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.”
§ 432. American Legislation. — The legislation of our States
differs; yet mainly copying, more or less closely, the English.
We saw something of it in ‘“‘ Criminal Law.’’! Tllustrative
American expressions are: “ Wilfully and wantonly kill, maim,
&c..any horse, &c. of another, with intent to injure the owner
thereof ;”?? “wilfully or maliciously kill or destroy or wound
the beast of another;”% “maliciously or mischievously destroy -
or injure... any property of another, or any public prop-
erty ;”* “wilfully and maliciously enter any orchard, nursery,
garden, or cranberry meadow, and take away, mutilate, or de-
stroy any tree, shrub, or vine, or steal, take, and carry away any
fruit or flower, without the consent of the owner thereof; ’ 5
“wilfully and maliciously commit an act whereby the real or per-
sonal property of another shall be injured;”® “kill [omitting
‘ wilfully,’ &c.] or abuse any horse, cow, hog, &c. the property
of another.’”’* And the diversified forms might be greatly aug-
mented by quotations from the reports, or from the statute-books,
were it desirable.
II. The Nature of the Malice.
§ 432 a, Evil Intent.— Whatever be the terms of any one of
these statutes, interpretation restricts it — for so it does all crimi-
1 Crim. Law, II. § 986-990, 995, 999, The State v. Slocum, 8 Blackf. 315.
1000. “ Any tree, stone, timber, or other valu-
2 The State v. Rector, 34 Texas, 565; able article.” Bates v. The State, 31 Ind.
slightly different in Uecker v. The State, 72.
4 Texas Ap. 234. And see The State v. 5 Commonwealth v. Dougherty,6 Gray,
Abbott, 20 Vt. 537. 349. :
8 Taylor v. The State, 6 Humph. 285. 6 The State v. Webster, 17 N. H. 543.
4 The State v. Merrill, 3 Blackf. 346; 7 The State v. Simpson, 73 N. C. 269.
8385
§ 483 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
nal statutes '!—to what is done with the law’s criminal intent.?
For example, an act performed under a bona-fide claim of right,3
or in the discharge of an official duty,‘ or in the lawful defence of
one’s property,® is not an indictable malicious mischief, however
completely within the words of a statutory inhibition. If the form
of the criminal intent is specified in the enactment, it, exactly,
will be required by the courts, nothing more will be, and no sub-
stitute will suffice. But where its form is not thus defined, it
will take a form indicated by the nature of the case, compared
with the law of the criminal intent in general, and in particular
with what is special therein to this offence at the common law.’
Such is the doctrine of judicial reason, on which also the cases
evidently proceeded, though perhaps not appearing in just these
words among the judicial utterances. Thus, —
§ 433. Malice against Owner. — As explained in “ Criminal
Law,” the evil intent in common-law malicious mischief must,
by the predominating opinion, consist of malice against. the owner
of the property injured or destroyed; instead of, for example,
where an animal is the subject of the mischief, malice against
the property. Thereupon, under the English statutes, it became,
as East expresses it, ‘‘ 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; ” ®
though the reasons for this doctrine are not quite apparent in the
mere language of the English cases. Now, as to the —
1 Ante, § 132, 231.
2 The State v. Simpson, 73 N. C. 269;
Dawson v. The State, 52 Ind. 478.
38 Reg. v. James, 8 Car. & P. 131
(compared with James v. Phelps, 11 A.
& E. 483, and Fletcher v. Calthrop, 6
Q. B. 880, 887, 888); Reg. v. Matthews,
14 Cox C.C.5; Windsor v. The State,
13 Ind. 875; The State v. Crosset, 81
N. C. 579. Connected with this ques-
tion are various modifications of doc-
trine, depending on the diverse reasons
of cases and the terms of different stat-
utes ; as, see Castleberry v. The State,
62 Ga. 442;-Derixson v. The State, 65
Ind. 385 ; Jenkins v. The State, 7 Texas
Ap. 146; Daniel v. Janes, 2 C. P. D.
851; The State v. Jackson, 2 Harring.
Del. 542 ; Commonwealth v. Wilder, 127
Mass. 1.
836
4 Schott v. The State, 7 Texas Ap.
616.
5 Williams v. Dixon, 65 N. C. 416.
And see Lott v. The State, 9 Texas Ap.
206; Chappell v. The State, 35 Ark. 345.
6 Jones v. The State, 9 Texas Ap.
178; Reg. v. Fisher, Law Rep. 1 C. C. 7,
10 Cox C. C. 146; Branch v. The State,
41 Texas, 622; Brown v. The State, 26
Ohio State, 176, 184; The State v. Parker,
81 N.C. 548; The State v. Arnold, 89
Texas, 74; The State v. Hussey, 60 Maine,
410; Duncan »v. The State, 49 Missis. 331.
* See the two notes next preceding the
last; The State v. Walters, 64 Ind. 226;
The State v. Bush, 29 Ind. 110.
5 Crim. Law, II. § 996.
® 2 East P. C. 1072.
10 The following are the principal Eng-
lish cases on this head: Rex v. Austen,
CHAP. XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS.
§ 434
§ 484. Terms of old English Statutes. — The cases to this doc-
trine having all risen under the Black Act, East derives it from
the preamble.
And he deduces the same result from the earlier
enactment of 87 Hen. 8,c¢. 7. The word “maliciously” alone!
he deems inadequate to signify this restricted form of malice.?
It seems to the present writer, that, while he is plainly correct
as to the effect of the word “ maliciously,” he is mistaken in sup-
posing that the preamble® of the Black Act furnishes any just
foundation for the doctrine. So that, unless the reason sug-
Russ. & Ry. 490, holding that malice
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. 1073; s. c. nom. Rex v. Hean,
1 Leach, 4th ed. 527, note; Rex v. Shep-
herd, 1 Leach, 4th ed. 539, 2 East P. C.
1073; Anonymous, 2 East P. C. 1073, 1
Leach, 4th ed. 540, note; in which sev-
eral cases malice or resentment toward
the animal was adjudged insufficient ; it
must be against the owner.
1 The exact words are “unlawfully
and maliciously.” Ante, § 431. For the
legal meaning of ‘‘ maliciously ” see Crim.
Law, I. § 429.
2 2 Hast P. C. 1062, 1063, 1071, 1072.
For example, Stat. 22 & 23 Car. 2, c. 1,
§ 7, makes punishable any one who, “on
purpose and of malice aforethought, and
by lying in wait, shall unlawfully cut out
or disable the tongue, &c. of any subject,
with intention in so doing to maim or dis-
figure him;” and this author observes,
that the malice need not “be directed
against any particular 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 con-
nected with the general malignant intent,
so as for the statute to attach upon the
offenders. This is necessarily to be in-
ferred from Carroll’s Case [Rex v. Car-
roll, 1 Leach, 4th ed. 55; s. c. nom. Rex
v. Carrol, 1 East P. C. 394], who was an
entire stranger to. the gentleman whom
he thus assaulted, and who could not
22
have been personally in his contempla-
tion till the occasion occurred on the sud-
den. So, if a blow be intended to maim
one, and by accident maim another, the
party is equally liable to be indicted
or appealed for such maim.” 1 East
P. C. 396. The same doctrine, it may be
added, is applied to the “malice afore-
thought” of murder. Crim. Law, I.
§ 3828; II. § 675 et seq.
8 As to how a preamble is to be re-
garded in interpretation, see ante, § 48-51,
82, 200.
4 The preamble is: “ Whereas several
ill-designing and disorderly persons have
of late associated themselves under the
name of blacks, and entered into confed-
eracies to support and assist one another
in stealing and destroying of deer, rob-
bing of warrens and fish ponds, cutting
down plantations and trees, and other
illegal practices, and have, in great num-
bers, armed with swords, fire-arms, and
other offensive weapons, several of them
with their faces blacked, or in disguised
habits, unlawfully hunted in forests be-
longing 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 letters in ficti-
tious names to several persons, demand-
ing venison and money, and threatening.
some great violence if such their un-
lawful demands should be refused, or if
they should be interrupted in or pros-
ecuted for such their wicked practices,
and have actually done great damage
B8T
§ 436 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
gested in the last section is the true one, the doctrine itself is
inherently unsound.
§ 435, With us, as to Malice against Owner. — There are, in our
American statutes, differences in terms requiring diversities of
decision.!. But whether, where a general expression is simply
qualified by the word “maliciously,” or “wilfully and mali-
ciously,” as in the English Black Act, interpretation will, with
us, restrict the malice to such as has for its object the owner, in
analogy to the malicious mischief of the common law, or will
give to the word “maliciously” the full meaning which it bears
in the other departments of the law of crime, is a question
whereof we appear to have no judicial discussions of real value,
yet whereon judicial opinion differs. Or perhaps nice diversities
of statutory expression may in a measure account for apparent
differences ; so that, in legal fact, the question depends partly on
the particular language of the statute, and partly -on differing
views of judges.2, Now, —
§ 436. In Reason, — there can be no malice toward a mere in-
animate object ; and malice against a lower animal will be inade-
quate, because, by the common law, the animal has no recognized
rights.2 Under a statute simply silent as to the mental condition
of the perpetrator,' the malice of the common law of this offence
will be required, in obedience to the rule that statutes in general
terms are to be interpreted by
to several persons, who have either re-
fused to comply with such demands or
have endeavored to bring them to jus-
tice, to the great terror of his majes-
ty’s peaceable subjects.” This ques-
tion could not have arisen in England
since 1827, when, by the consolidating
act of 7 & 8 Geo. 4, c. 30, § 25, it was ex-
pressly made immaterial “whether the
offence shall be committed from malice
conceived against the owner of the prop-
erty in respect of which it shall be com-
mitted, or otherwise.” For the interpre-
tation whereof, see Reg. v. Tivey, 1 Den.
Cc. C. 63, 1 Car. & K. 704. This pro-
vision is continued in the present act of
24 & 25 Vict. c. 97, § 58.
1 Irvin v. The State, 7 Texas Ap. 78;
Rountree v. The State, 10 Texas Ap. 110;
Johnson v. The State, 61 Ala. 9; Reg. v.
838
the common law. But where
Prestney, 3 Cox C. C. 505; The State v.
Rector, 34 Texas, 565.
2 Hobson v. The State, 44 Ala. 380,
881; Johnson v. The State, 37 Ala. 457;
The State v. Pierce, 7 Ala. 728; The
State v. Enslow, 10 Iowa, 115; Moseley
v. The State, 28 Ga. 190; Wright v. The
State, 30 Ga. 325; The State v. Hamble-
ton, 22 Misso. 452; Chappell v. The State,
35 Ark. 845; Nutt v. The State, 19 Texas,
840; Brown v. The State, 26 Ohio State,
176; Stone v. The State, 3 Heisk. 457;
Gaskill v. The State, 56 Ind. 550; The
State v. Linde, 54 Iowa, 189; The State
v. Lewis, 10 Rich. 20; The State v. Web-
ster, 17 N. H. 643; Commonwealth v. Wil-
liams, 110 Mass. 401.
8 Crim. Law, I. § 594-597 a.
4 Ante, § 432 a.
5 Ante, § 7, 75, 82, 88, 117, 119, 131-
144, 155, 482 a.
CHAP. XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS. § 487
the specific “ maliciously” is employed, the evil intent is legisla-
tively defined ;1 and the question is, whether is meant the
restrictive malice of this offence, or the general malice of the law
of crime. In a statute merely affirming the common law as to
the act of mischief, the former might well be taken to be the
meaning of “ maliciously ;”’? but where, as in most of our enact-
ments on this subject, the range is wider, evidently departing from
the restricted common law as to the act, the same legislative pur-
pose should be inferred as to the intent, giving the word “ mali-
ciously ” its ordinary meaning.
§ 487. Ilustrative Points. — Some illustrations of what has been
held are, that, —
Passion with Animal — Bestiality. — Where the killing or maim-
ing of an animal is in a passion against it,? or it is maimed to
make it quiet while bestiality is being committed with it,* the
transaction lacks the sort of malice required in malicious mis-
chief. In like manner, —
Trespassing Animal. — One who shoots an animal in the habit
of trespassing on his fields and destroying his crops, while in
the act of trespass, not from malice but to preserve his crops,
does not commit this offence, though he incurs a civil liability.
Again, —
Malice against Owner presumed. — As observed by Chitty,® ‘it
is not necessary to give evidence of express malice against the
owner, which will be presumed until the contrary 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 holden that this intent was sufficient
to bring the case within the act, and the defendant was con-
1 Ante, § 482 a. ‘ liams v. Dixon, 65 N. C. 416; Lott v. The
2 As see, perhaps, Commonwealth v.
Williams, 110 Mass. 401, 402.
3 Rex uv. Kean, 2 East P. C. 1073;
Rex v. Shepherd, 1 Leach, 4th ed. 539,
2 East P. C. 1073; Anonymous, 2 East
P. C. 1078.
* Rex v. Pearce, 1 Leach, 4th ed. 527,
2 East P.C. 1072. Compare this with
Reg. v. Welch, 1 Q. B. D. 23, 13 Cox C.C.
121.
5 Wright v. The State, 30 Ga. 825;
Chappell v. The State, 85 Ark. 345. And
see Daniel v. Janes, 2 C. P. D. 861; Wil-
State, 9 Texas Ap. 206; Bass v. The
State, 63 Ala. 108; Jones v. The State, 3
Texas Ap. 228; Gaskill v. The State, 56
Ind. 550; Thomas v. The State, 80 Ark.
483, 485; McDaniel v. The State, 5 Texas
Ap. 475.
8 3 Chit. Crim. Law, 1087, note.
7 2¥ast P. C. 1074. The American
editor refers also to The State v. Council,
1 Tenn. 305. ‘To the same effect see also
Chappell rv. The State, supra; The State
v. Linde, 54 Iowa, 139.
339
§ 440 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
victed.” !_ But where the proven facts rebut the presumption of
malice, the result is otherwise.”
Ill. The Indictment and Evidence.
§ 438, In General. — Something was just said of the evidence.?
The indictment follows the rules explained in ‘ Criminal Pro-
cedure” governing all indictments, and adapts itself to the special
facts and the particular statutory terms. Thus, —
§ 439. “Feloniously.” — Where, as under the Black Act,* and
some other of the English statutes, the offence is a felony, the
indictment must lay it to have been committed “ feloniously.” ®
But under most of our American enactments it is misdemeanor,
and then this word is not required.®
§ 440. Word to designate Animal.— Some discussions of this
question in the last chapter will be helpful here.’ Under the
before-quoted section of the Black Act, the expression being
‘‘any cattle,” ® a form in Chitty designates the animal simply as
“one black gelding;’’® and this, either with or without the
superfluous “ black,’ !° is adequate, both by the English and
American authorities. There is no need to add, what the court
will take notice of, that the gelding is “cattle.” And this prin-
ciple applies to the indictment on all the statutes of this general
sort. Nor will the generic term of the statute alone suffice in
the indictment, —as, for example, “certain cattle,’"— the spe-
cies under it being required for identification.’ But to weave
into the allegation the statutory word indicating the genus is
harmless and proper, if the pleader chooses ;}3 as, the statutory
word being “ beast,” to say a “ horse beast.” 4
1 Dawson’s Case, MS. The indict- Tivey, 1 Den. C. C. 63; Taylor v. The
ment is given 3 Chit. Crim. Law, 1088. State, 6 Humph. 285, 286; The State ».
2 Reg. v. Pembliton, Law Rep. 2C.C. Abbott, 20 Vt. 537; The State v. Enslow,
119, 12 Cox C. C. 607, 9 Eng. Rep. 501. 10 Iowa, 115; The State v. Hambleton,
3 Ante, § 437. 22 Misso. 452; The State v. Pearce, Peck,
4 Ante, § 431. 68; The State v. Slocum, 8 Blackf. 315 ;
5 Reg. v. Gray, Leigh & C. 365. Swartzbaugh v. People, 85 Ill. 457; Riv-
6 Crim. Proced. I. § 533-537. ers v. The State, 10 Texas Ap. 177.
7 Ante, § 426. 12 Crim. Proced. I. § 568, 570, 619;
8 Ante, § 431. Rex v. Chalkley, Russ. & Ry. 258. And
® 8 Chit. Crim. Law, 1087. compare with ante, § 426.
10 Post, § 443. 13 The State v. Clifton, 24 Misso. 376.
11 Ante, § 426; Crim. Proced. I. § 619; 14 The State v. Pearce, Peck, 66. Un-
Rex v. Paty, 2 W. Bl. 721; Reg. v. der thestatutory term “ cattle,” the words
340
CHAP. XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS. § 443
- § 441. Overlying in Meaning. — The conflicting views as to
statutory terms overlying one another in meaning, already con-
sidered, should be duly heeded by the pleader.1 Now, whatever
be the true doctrine on this subject, —
Specific followed by General. — If the statute, after enumerating
animals by their species, adds a term indicating a genus, — as,
“horse, mare, ewe, sheep, or other beast,” * — the indictment for
an injury to one not within the enumeration yet within the
genus must designate it by its species. It is immaterial that the
word for the species is not in the statute ; nor need the statutory
word for the genus be woven into the allegation, though, if the
pleader chooses, it may be. Such is the deduction of reason from
the doctrines of the last section, or the doctrine itself.
§ 442. cattle. — The word “ cattle,” in these statutes, includes
horses, mares, colts, geldings, and the like,’ pigs,* asses,> sheep,®
a steer,’ and probably many other specific animals.’ It has been
held not to include a buffalo, though domesticated.?
Beast. — Evidently the word “beast” includes whatever “ cat-
tle” does, and probably something more. For example, a horse
is a beast,!° so is a cow,!! and so is a hog.”
§ 443. Color. — The color of the animal need not be alleged ;
and commonly it is not, in good pleading at the present day." If
averred, though thus needlessly, it must, to avoid a variance, be
proved ; for it cannot be rejected as surplusage.4 And the same
rules apply to the color of an inanimate object injured ; as, for
example, a tree.!
Ownership. — Under most statutes and by most opinions, the
ownership of the animal or other property injured must be
“a certain horse beast, to wit, one mare,” 5 Rex v. Whitney, 1 Moody, 3.
were held to be adequate. The State v.
Hambleton, 22 Misso. 452.
1 Ante, § 246 c-248, 426; Crim. Proced.
I. § 620; Rex v. Beaney, Russ. & Ry.
416.
2 Ante, § 245-246 b.
8 The State v. Hambleton, 22 Misso.
452; Rex v. Paty, 1 Leach, 4th ed. 72,
2 Fast 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. 63, 1
Car. & K. 704; ante, § 440.
4 Rex v. Chapple, Russ. & Ry. 77.
6 Rex v. Hughes, 2 Car. & P. 420.
7 The State v. Abbott, 20 Vt. 537.
8 Ante, § 212, 426.
9 The State v. Crenshaw, 22 Misso.
457.
10 The State v. Pearce, Peck, 66.
11 Taylor v. The State, 6 Humph. 285.
12 The State v. Enslow, 10 Iowa, 115.
13 Taylor v. The State, 6 Humph. 285;
The State v. Hambleton, 22 Misso. 452;
Commonwealth v. Sowle, 9 Gray, 304.
14 Crim. Proced. I. § 486.
15 Commonwealth v. Butcher, 4 Grat.
544.
841
§ 445 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
alleged, or the allegation excused by due averments, and it must
be proved.! In malicious mischief to a sheep, the ownership may
be laid in the agistor, the same as it could be in larceny.2 And
the ownership of a maliciously-injured dwelling-house may be
laid in the tenant at will. It has been held that the dog of a
minor son, who lives with his father, cannot, in an indictment
for killing it, be charged as the father’s.‘ The cases in which
this allegation is dispensed with are exceptional, as elsewhere
explained.®
§ 444. Value — differs from ownership ; and, except where
special reasons require,® the value of the property injured need not
be averred.? But every indictment, for whatever offence, must
set out all the facts which, in law, in distinction from judicial dis-
cretion, may influence the punishment.® Therefore, for example,
under a statute which provides that one injuring “any tree, &c.
on the land of another person,” shall, on conviction, “ be fined in
five times the value of such property,” the value must be alleged
in the indictment. But the amount of damage to the owner is
immaterial to the punishment, therefore there need be no aver-
ment of it.2 On the other hand, —
§ 445. Damage to Property.— There are statutes which make
the sum wherein the property is damaged by the mischief an
element in the punishment, as, for example, one in Indiana sub-
jects the offender to a fine “not exceeding two-fold the value of
the damage done, to which may be added imprisonment not ex-
ceeding twelve months.” An indictment on such a statute is
not required to allege the value of the property, but it must the
damage ; and, to justify a particular punishment, so much of the
alleged damage as by the statute is essential to it must be proved,
1 Crim. Proced. I. § 488 6, 581, 583;
IL. § 848, 850; The State v. Smith, 21
Texas, 748; Rex v. Patrick, 2 East P. C.
1059; The State v. Jackson, 7 Ind. 270;
Bass v. The State, 63 Ala. 108; Davis v.
Commonwealth, 6 Casey, Pa. 421. And
see The State v. Brant, 14 Iowa, 180;
The State v. Shadley, 16 Ind. 230; Peo-
ple v. Horr, 7 Barb. 9.
2 Rex v. Woodward, 2 East P. C. 653.
8 The State v. Whittier, 21 Maine, 341.
See The State v. Mason, 18 Ire. 341.
4 The State v. Trapp, 14 Rich. 203.
6 Crim. Proced. IL. § 843; Darnell v.
842
The State, 6 Texas Ap. 482; The State
v. Mathes, 3 Lea, 36. And see Smith »v.
The State, 63 Ga. 168,
6 Ante, § 427, and places there re-
ferred to.
7 The State v. Jones, 33 Vt. 443; Har-
ness v. The State, 27 Ind. 425; Caldwell
v. The State, 49 Ala. 34.
8 Crim. Proced. I. § 77 et seq., 538-
542, 571, 578-580; II. § 48, 177, 565, 572.
® The State v. Shadley, 16 Ind. 280.
And see Commonwealth v. Cox, 7 Allen,
577; McKinney v. People, 32 Mich. 284;
The State v. Allen, 72 N. C. 114.
CHAP. XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS. § 447
yet no more need be.) Direct damage is meant, consequential
cannot be added. Thus, in England, a statute makes punishable
malicious injuries to trees, if it exceeds £5; and, where a dam-
age of £1 was shown to some trees in a hedge, and a repair of
the mischief would require the stubbing up of the hedge and
planting of a new one at an outlay of over £4, the offence was
held not to be committed. ‘ There is,” said Pollock, C. B. deliv-
ering the opinion of the court, “a consequential injury exceeding
£5, but that is not sufficient.” Yet the damage is not limited
to what is done at a single impulse or to one tree; all the results
of one continuous transaction may be combined to make the £5,*
those of two separate transactions cannot be.®
§ 446. Allegation of Injury. — The principles on which the
allegation of the injury proceeds are stated in “Criminal Pro-
cedure.” ® Some of the statutory words are sufficient alone, oth-
ers require more of detail. Thus, —
“Kil” — Under a statute making it punishable to “kill” an
animal belonging to another, an indictment is sufficient which
charges that the defendant did “ kill” it, not specifiying the man-
ner of the killing.” So—
“ Destroy,” — applied to inanimate property, includes all minor
injuries, and the particulars or means employed® need not be
stated.?
Under the statutory words “cut, injure, or destroy,”
the allegation that the defendant ‘did cut, injure, and destroy”
was adjudged adequate.”
But, —
§ 447. “Injure.”1!— Under the single statutory word “ injure,”
the same word and no more in the indictment is not adequate.”
It is too indefinite.
1 Harness v. The State, 27 Ind. 425;
Uecker v. The State, 4 Texas Ap. 234;
The State v. Heath, 41 Texas, 426; Street
v. The State, 7 Texas Ap. 5; Nicholson
v. The State, 3 Texas Ap. 31.
2 7&8 Geo. 4, c. 30, § 19, superseded
by 24 & 25 Vict. c. 96, § 82, and 24 & 25
Vict. c. 97, § 51.
3 Reg. v. Whiteman, Dears. 353, 6
Cox C. C. 370, 25 Eng. L. & Eq. 590.
4 Reg. v. Shepherd, Law Rep. 1C. C.
118, 11 Cox C. C. 119; Reg. v. Thoman,
12 Cox C. C. 54.
5 Reg. v. Williams, 9 Cox C. C. 338.
See post, § 447 0.
6 Crim. Proced. II. § 841, 846.
But a charge that the defendant injured an
7 Taylor v. The State, 6 Humph. 285;
Commonwealth v. Sowle, 9 Gray, 304;
Hayworth v. The State, 14 Ind. 590; The
State 7. Hambleton, 22 Misso. 452; The
State v. Painter, 70 N. C. 70.
8 The State v. Merrill, 3 Blackf. 346.
9 The State v. Watrous, 13 Iowa, 489.
And see Jarnagin v. The State, 10 Yerg.
529.
10 The State v. Jones, 83 Vt. 443. And
see The State v. Hockenberry, 11 Iowa,
269; Brewer v. The State, 5 Texas Ap.
248; Crim. Proced. I. § 629 and note.
11 See post, § 449.
12 And see Crim. Proced. I. § 629.
343
§ 4176 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
omnibus, “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 omni-
bus, the said panel was broken in pieces, and the said omnibus
was otherwise greatly injured,” was adjudged sufficient.1 And
so was the allegation of an injury to a wagon, “by then and
there removing from the ends of the axletrees of said wagon the
uuts or taps on the same, and by then and there removing the
hammer and neck yoke of said wagon where the said Kennedy
could never find them the said taps, hammer, and neck yoke.” #
On the other hand, the averment did not pass the judicial scru-
tiny, that the defendant maliciously injured, &c. the personal
goods and chattels, to wit, fifty head of cattle, of, &c. by then
and there maliciously and mischievously dogging and hunting
the said cattle. Yet there was another objection on which the
decision more distinctly turned.2 So, —
“Torture.” — Under the statutory words ‘“ maim, beat, or tor-
ture,” * torture” alone in the indictment has been held to be
insufficient. But, —
§ 447 a. Allegation on Disjunctive Words. — Where words are
introduced thus disjunctively into a statute, the indictment need
not, unless the pleader chooses, do more than cover, in due form,
one of the words. Finally, —
§ 447 b. Cover all other Statutory Terms.— It must in all other
respects fully cover the statutory terms, and in special circum-
stances be expanded beyond them, according to the rules laid
down in the first volume of “ Criminal Procedure.”® And —
1 Commonwealth v. Cox, 7 Allen, 577. Ap. 234; The State v. Allisbach, 69 Ind.
2 The State v. Williams, 21 Ind. 206.
And see Jay v. The State, 69 Ind. 158.
3 The State v. Jackson, 7 Ind. 270.
* Crim. Proced. I. § 629; The State v.
Pugh, 15 Misso. 509.
5 Ante, § 244; The State v. Batson,
81 Misso, 343.
6 Maskill v. The State, 8 Blackf. 299;
Commonwealth v. Dougherty, 6 Gray,
849; Commonwealth v. Bean, 11 Cush.
414; Parris v. People, 76 Ill. 274; Allan
v. Kirton, 2 W. Bl. 842; 8. c. nom. Allen
v Kirton, 3 Wils. 318; The State v. War-
ren, 13 Texas, 45; Bates v. The State, 31
Ind. 72; Uecker v. The State, 4 Texas
344
50; Rivers v. The State, 10 Texas Ap.
177; Commonwealth v. McLaughlin, 105
Mass. 460; The State v. Arnold, 39 Texas,
74; The State v. Hussey, 60 Maine, 410;
Rountree v. The State, 10 Texas Ap. 110;
The State v. Walters, 64 Ind. 226; The
State v. Thorne, 81 N. C. 555; The State
v. Parker, 81 N. C. 548; Swartzbaugh v.
People, 85 Ill. 457; Birdg v. The State,
31 Ind. 88; Thompson v. The State, 51
Missis. 353; The State v. Simpson, 73
N.C. 269; The State v. Rector, 34 Texas,
565; The State v. Pennington, 3 Head,
119; The State v. Purdie, 67 N. C. 326.
CHAP. XXXI.] MALICIOUS MISCHIEF ENLARGEMENTS. § 449
How Much in One Count. — The whole mischief of one transac-
tion,! but not two transactions,? should be included in a single
count. For example, a malicious injury to two animals, inflicted
at the same time, is but one offence.*
IV. Further of the Offence.
§ 448. Meanings of Words. — The meanings of most of the
words employed in the statutes to indicate this offence have been
explained in other connections.®
“Maim” and “ Disfigure,” distinguished. — ‘“‘ Maim,” and in some
measure “disfigure,” have been thus considered. Under the
words ‘kill, maim, or disfigure,” in an lowa statute, the court
said, that to “maim” a domestic animal implies a permanent
injury; to “‘disfigure” requires only what will lessen its value
to an extent however slight. “Thus,” observed Baldwin, 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 de-
stroy 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 lessen the value of the animal to the
owner, and shows the malicious intention of the person com-
mitting the act, we think, under the statute, the offence is
complete.” *
§ 449. “Injure,” —already spoken of,’ has not been much dis-
cussed by the courts. It is an “injuring” of a horse to cut off
closely its mane and the hair of its tail;® or of a dress, to do
what will render it unfit for further use as such.”
Timber. — Fence rails have been adjudged not to be “ timber.”
>
1 Rex v. Mogg, 4 Car. & P. 364; The
State v. Moultrieville, Rice, 158; Smith
v. The State, 63 Ga. 168.
2 Burgess v. The State, 44 Ala. 190.
& See ante, § 445.
+ Hayworth v. The State, 14 Ind. 590;
Rex v. Mogg, supra.
5 As to which, the reader should con-
sult the index to this volume. And see
Crim. Law, IL § 985-990, 994, 995.
6 Ante, § 316 and note; Crim. Law,
II. § 995.
7 The State v. Harris, 11 Iowa, 414.
8 Ante, § 447.
9 Oviatt v. The State, 19 Ohio State,
573.
10 Commonwealth v. Sullivan, 107
Mass. 218. And see Ashworth v. The
State, 63 Ala. 120; Commonwealth v.
Falvey, 108 Mass. 304.
345
§ 449 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
They are “ made from timber.”’! Yet under the words “ timber,
wood, and trees,” in a statute permitting the removal by owners
of obstructions from highways, buildings aud parts of buildings
are included.?
1 McCauley v. The State, 43 Texas, 42. And see Simpson v. Woodward, 5
374. i Kan. 671.
2 Commonwealth v. Noxon, 121 Mass.
346
CHAP. XXXII. ] ENLARGEMENTS OF CHEAT. § 453
CHAPTER XXXII.
STATUTORY ENLARGEMENTS OF THE COMMON-LAW CHEAT.
§ 450, 451. Introduction.
452,453. Unlawful Driving of Cattle.
454-461. Fraudulent Marking and Altering of Marks.
462-464. Violations of Estray Laws.
§ 450. Elsewhere — False Pretences. — The most prominent ex-
tension of the common law of cheats consists of the familiar stat-
utes against the obtaining of goods by false pretences. They,
and various statutes in affinity with them, are considered in other
volumes of this series.1
$451. Here, and how divided. — It would be useless to bring
together here all the minor enactments having a possible relation
to this subject. We shall simply consider, I. The Unlawful Driv-
ing of Cattle; II. The Fraudulent Marking and Altering of the
Marks of Cattle; III. Violations of Estray Laws.
I. The Unlawful Driving of Cattle.
§ 452. Offence.—In Texas, one’s driving of another’s cattle
out of the county, or out of their accustomed range, without the
latter’s authority or written authority, is, because in a large graz-
ing country specially adapted to defraud the “stock-raisers,”
made by statute indictable? The offence is complete whenever
the full statutory terms are covered by acts of violation,’ with
the requisite criminal intent.*
§ 453. Procedure. — One driving of cattle, though of various
owners, constitutes one offence only, and all may be charged in
one count.’ The indictment need not describe the range, or
1 Crim. Law, II. § 164, 166, 409 et 8 Rogers v. The State, supra.
seq.; Crim. Proced. II. § 157 et seq. 4 Smith v. The State, 41 Texas, 168;
2 Rogers v. The State, 9 Texas Ap. Wills v. The State, supra.
43; Long v. The State, 43 Texas, 467; 5 Long v. The State, 48 Texas, 467.
Smith v. The State, 43 Texas, 433; Wills And see Crim. Law, I. § 1060-1064.
v. The State, 40 Texas, 69.
347
§ 457 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
allege the distance driven. Perhaps it need not aver the owner-
ship; but, if it does, the averment must be proved.2 It must
negative whatever the general rules of pleading on statutes
require ;? as, for example, the owner’s written consent and the
defendant’s ownership.!
II. Fraudulently Marking and Altering of the Marks of Cattle.
§ 454. In General — (Common Law). —In some localities,
owners of cattle liable to be mixed with those of other owners
have a practice of putting on their own a uniform mark to dis-
tinguish them. And the statutes in some of our States authorize
the recording of this mark. Then, if a man effaces from another’s
cattle the mark, or alters it, or puts on them his own mark, in-
tending, by the help of this device, to convert them to his own use,
evidently, as a question of just legal principle, though the author
does not call to mind any case directly to the point, he commits
either actual or attempted larceny at the common law. And,—
§ 455. Statutes. — Further to protect the owners in their prop-
erty, the statutes of some of our States have made it a distinct
offence for one, with a fraudulent intent specified, to mark, or
alter the mark of, an animal of another. The statutory terms
are not absolutely uniform. ®
§ 456. Ordinary Rules. — The cases under these statutes are
governed by the rules of law and procedure ordinarily prevailing
in other classes of criminal cases ;® as, —
§ 457. Ownership. — The offence may be committed on an ani-
mal the ownership whereof is unknown.’ Where it is known to
the grand jury it should be alleged, and the proofs should sus-
tain the averment.8 An allegation that the animal belonged to
‘an estate” was held to be insufficient.?
1 Darnell v. The State, 43 Texas, 147. to the Mississippi statute, see Murrah v.
2 Smith v. The State, 43 Texas, 483. The State, 51 Missis. 652.
And see Crim. Proced. I. § 488 b. 6 Reynolds v. The State, 24 Ga. 427;
% Crim. Proced. I. § 631-642. The State v. King, 84 N. C. 7387; The
£ Covington v. The State, 6 Texas Ap. State v. Nichols, 12 Rich. 672; Murrah v.
512; Long v. The State, 6 Texas Ap. 642. The State, 51 Missis. 675; West v. The
And see Wills v. The State, 40 Texas, State, 32 Texas, 651; The State v. Davis,
69. 2 Ire. 153.
5 Morgan v. The State, 13 Fla. 671; 1 The State v. Haws, 41 Texas, 161.
The State v. Nichols, 12 Rich. 672. As 8 Mayes v. The State, 83 Texas, 340.
3 People v. Hall, 19 Cal. 425.
348
CHAP. XXXII. ] ENLARGEMENTS OF CHEAT. § 464
§ 458. “Fraudulently ” — (“ Wilfully and Feloniously”).— Under
a statute making it punishable ‘if any person shall fraudulently
alter or change the mark or brand of any animal,” an indictment
which omitted the word “ fraudulently’ was held to be insuffi-
cient, though in place of it the pleader had inserted the two
words “ wilfully and feloniously.”’ For, said Randall, C. J. “the
gist of the offence is the intent to defraud the owner.” !
§ 459. Averment of Mark. — According to the one decision
which we have, in charging the offence of altering a mark it is
not necessary to say what was the mark before the alteration.
But it is enough, for example, to allege that the defendant “ un-
lawfully, knowingly, and wilfully did alter the mark of a certain
cow, the property of Martha Benson.” 2
§ 460. Proving Mark.— On this question, probably different
results come from differing terms of statutes. In Texas, the
owner’s mark, to be admissible in evidence, must be recorded.?
It may, in North Carolina, be proved by parol.*
§ 461. “Altering” Brand. — A brand, it has been held, is “al-
tered’ when a new one is put on the animal without defacing
the old.’ Or the offence may be committed by clipping the hair
at the original brand.®
III. Violations of Estray Laws.
§ 462. Elsewhere. — Something concerning the larceny of
estrays is given in ‘‘ Criminal Law.”7
§ 463. Protection of Owners. — The protection of owners, in
respect of their stray animals, is variously provided for by stat-
utes in most, or perhaps all, of our States. And,—
§ 464. Taking up and Using. — In some of our States, the taking
up and using of an estray, without complying with the estray
laws, is made by statutes a crime. In Texas, the punishment
1 Morgan v. The State, 13 Fla. 671.
And compare with Crim. Proced. I. § 613.
See also The State v. Roberts, 3 Brev.
139; Rex v. Ogden, 6 Car. & P. 631.
2 The State v. O’Neal, 7 Ire. 251.
3 Allen rv. The State, 42 Texas, 517.
4 The State v. King, 84 N. C. 737.
5 Atzroth v. The State, 10 Fla. 207.
6 Slaughter v. The State, 7 Texas Ap.
122,
7 Crim. Law, II. § 876, 882, note.
8 The State v. Armontrout, 21 Texas,
472; People v. Martin, 52 Cal. 201; The
State v. Moreland, 27 Texas, 726; The
State v. Anderson, 84 Texas, 611; The
State v. Carabin, 33 Texas, 697; The
State v. Dunham, 34 Texas, 675; The
State v. Meschac, 80 Texas, 518; Ash-
croft v. The State, 32 Texas, 108; Davis
v. The State, 2 Texas Ap. 162, in which
849
§ 464 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
depends in some degree on the value of the animal. Therefore
an indictment on the statute must allege its value! But it need
not set forth its age, color, sex, or brands.? For an animal to be
an estray, the owner must be unknown to the person taking it
up ;3 but it is no objection that he is afterward known, or known
to the grand jury finding the indictment.‘
cases appear various points not stated in 1 The State v. McCormack, 22 Texas,
the text. As to the suspension of the 297; ante, § 427.
Texas statute during the Secession War, 2 The State v. Crist, 32 Texas, 99.
see The State v. Spillers, 30 Texas, 517; 3 Roberts v. Barnes, 27 Wis. 422.
Nichols v. The State, 30 Texas, 615. 4 The State v. Fletcher, 35 Texas, 740.
850
CHAP. XXXII. ] STATUTORY HOMICIDES. § 467
CHAPTER XXXIII.
STATUTORY HOMICIDES.
§ 465, 466. Introduction.
467-470. Making the Civil Wrong indictable.
471-477. Felonious, purely or partly Statutory.
§ 465. Elsewhere.—JIn the several chapters on Homicide in
“Criminal Law” and “Criminal Procedure,’”’! statutory homi-
cides in general are explained in connection with those at the
common law. Indeed, the old common law having simply drawn
the bound between the indictable and unindictable taking of
human life, the division into murder and manslaughter was made
by statutes now worn into the common law and become parcel
of it, and the later divisions into degrees are statutory ; all of
which are elucidated in those other connections. Something
also is there said of the various changes in the bounds of indict-
able life-taking, created by statutes in a few of our States.
§ 466. Here, and how divided. — We shall in this chapter sim-
ply add a few explanations and enlargements of the subject; as
to, I. Statutes making the Civil Wrong indictable; II. Feloni-
ous Homicides purely and partly Statutory.
I. Statutes making the Civil Wrong indictable.
§ 467. In General. — In some of the States, there are statutes
which give to the surviving representatives of passengers and
others killed by the negligence of railroad corporations, an in-
dictment for the recovery of a penalty.2, Thereupon its allega-
tions must follow the rules of criminal pleading; as, for example,
where by the statute the penalty goes to the ‘* widow if no chil-
dren, and to the children if no widow, if both to her and them
1 Crim. Law, IT. § 618 et seq.; Crim. 2 Crim. Law, I. § 531 and cases there
Proced. II. § 495-663. And see the title cited; The State v. Maine Central Rail-
Duelling” in those volumes. road, 60 Maine, 490.
351
§ 471 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
equally,” it should aver that the deceased left a widow or heirs
or both, and state their names.’ But, if the penalty goes to the
executor, those names need not be averred ; his, must be. The
names of the servants of the corporation are not required.? As
to the —
§ 468. Procedure.— In other respects, and in general, where
the law provides an indictment for the enforcement of a civil
right, the procedure, as we saw in another connection,’ conforms
rather to the common course in the civil than in the criminal
department. So, therefore, it does in these cases;* as, for
example, —
§ 469. New Trial. — Contrary to the course in the purely crim-
inal law, new trials may be granted in cases of this class, very
much on the principles which prevail in civil causes, to the gov-
ernment or plaintiff after the acquittal of the defendant, though
the court may be more reluctant than in cases purely civil.6
§ 470. “Passenger.” — Within these statutes, it was held by
the majority of the court, that, where a railway train passed,
without fully stopping, the station to which a passenger was
ticketed, and, while it was in motion, he got safely off, and in
going to the depot was killed by another train approaching, he
had ceased to be a “ passenger,” and so the corporation was
relieved from criminal responsibility. This decision would be
more clearly right if the cars had stopped, as they ought, at the
station, or if the passenger had left them before arriving there,
or if he had got off when he could not in safety. Under the
facts, it violates a rule of our jurisprudence by permitting the
corporation to set up its own wrong in excuse for the non-fulfil-
ment of its undertaking to deliver the passenger at the depot.
II. Felonious Homicides purely and partly Statutory.
§ 471. Created by Common-law Name or Description. — Within
a principle already explained,’ if a statute simply makes indict-
1 The State v. Grand Trunk Railroad, sell, 3 Ellis & B. 942; 3 Russ. Crimes, 5th
60 Maine, 145. Eng. ed. 320, referring also to Reg. v.
2 Commonwealth ». Boston, &c. Rail- Chorley, 12 Q. B. 515, and Reg. v. Leigh,
road, 11 Cush. 512, 517, 618. 10 A. & E. 398.
3 Crim. Law, I. § 38, 1074-1076. § Commonwealth v. Boston, &. Rail-
4 Ib. § 631. road, 129 Mass. 500.
5 Crim. Law, I. § 993; Reg. ov. Rus- 7 Ante, § 416.
852
CHAP. XXXIII.] STATUTORY HOMICIDES. § 473
able “ murder,” or ‘‘ manslaughter,” employing thus the common-
law term, the offence it creates does not differ from murder or
manslaughter at the common law.) And the indictment for it is
the same as at the common law, except in the conclusion “ against
the form of the statute.” Nor is it otherwise, though the stat-
ute, instead of using the common-law name, describes the offence
by its common-law definition. Again, —
§ 472. Varying from Common Law. — Where a statutory homi-
cide varies in its bounds from the common-law offence, the judi-
cious pleader, whose aim is accuracy, will bring his allegations
within the statutory words. Yet as less than the best may be
good, and the substance of the statutory language will suffice,*
the mere common-law forms will in this class of cases be some-
times adequate; because, within limits explained in ‘“ Criminal
Procedure,” > an indictment on a statute departing from the
statutory words may be tolerated. But the allegations of the
common law will not be sufficient, nor do our constitutional
guaranties permit the legislature to make them such, under every
statute. This question will vary with the statute, and practi-
cally with differing opinions of judges. It would not be a judi-
cious use of the limited space available in this volume to trace
minutely the somewhat tortuous line of adjudications which the
books reveal on this question; but the following, in brief, may
assist one wishing to trace the line for himself.
§ 473. New York. — The Revised Statutes of New York de-
fined murder and manslaughter in terms differing somewhat from
those of the common law, and made four degrees of the latter.’
Later statutes added two degrees of the former.’ In the interval
between these two legislative steps, it was held that an indict-
ment for murder, drawn after the common-law model, and con-
cluding against the form of the statute, was sufficient.® And
since it was divided into two degrees, the same form of the in-
dictment has been adjudged adequate to sustain a conviction of
murder in either the first or second degree. Now, —
1 The State v. Mullen, 14 La. An. 570. 6 Conner v. Commonwealth, 18 Bush,
2 Crim. Proced. I. § 610. 714. See Crim. Proced. II. § 582, 583.
8 Sutcliffe v. The State, 18 Ohio, 469. 7 See Crim. Law, II. § 720, 721.
And see Territory v. Bannigan, 1 Dak. ® Dolan v. People, 64 N. Y. 485.
451. ® People v. Enoch, 18 Wend. 159;
4 The State v. Moses, Minor, 393; Lake v. People, 1 Parker C. C. 495. See
People v. Murray, 10 Cal. 309. People v. White, 24 Wend. 520.
5 Crim. Proced. I. § 611, 612. 10 Fitzgerrold v. People, 37 N. Y. 413,
23 853
§ 475 STATUTORY’ EXTENSIONS OF OFFENCES. [BOOK V.
§ 474. As ‘to which. — The latter doctrine, both as it pre-
vails in New York and in some of the other States, is ex-
plained in “ Criminal Procedure.” 1 The reader will there ‘see,
that it is subversive both of the common-law rules of criminal
pleading and of our constitutional guaranties, that the arguments
against it were never even attempted to be answered by any
judge or jurist who took the pains to understand them, and that
it furnishes a wild and weird illustration of the confusion which
comes from courts shutting their eyes and leaping in the dark
after each other’s ill-considered decisions. As to the former doc-
trine, — namely, that the allegations in common-law murder suf-
ficiently charge murder under the Revised Statutes of New
York, — it appears to be founded on the idea, that the statute
merely gives shape and form to the common law, or merely de-
fines it; and so an averment within the terms of the one comes
also within those of the other.2. Whether this conclusion is cor-
rect in principle or not will depend on a comparison, not proposed
here to be made, of the statute and the common law, in connec-
tion with the rules of pleading on statutes. If we accept it as
correct,? it is not necessarily a guide under statutes differently
expressed.
§ 415. Ohio.—In Ohio, an indictment upon the statute for
manslaughter, framed after the approved common-law precedents,
is good; because the common law and the statute, in defining
this offence, coincide.t But they do not coincide in their defini-
tions of murder. In the words of Bartley, C. J. ‘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 distinguish-
ing 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.” So
dissenting opinion by Bacon, J. 685; Ken- 3 “The propriety of the decision ‘itself
nedy v. People, 39 N. Y. 245; Keefe v. isnot beyond question.” Paine, J. in The
People, 40 N. Y. 348. And see Dolan v. State v. Duvall, 26 Wis. 415, 420.
People, 64 N. Y. 485. . 4 Sutcliffe v. The State, 18 Ohio,
1 Crim. Proced. II. § 560-596. 469. :
2 People v. Enoch, 18 Wend. 159, be-
fore cited. :
354
CHAP. XXXIIE] -''
STATUTORY HOMICIDES. °
$477
that the common-law allegations of murder are not sufficient to
set out the offence in either degree under the Ohio statutes.
§ 476. Other States. — The doctrines thus brought to view,
and illustrated by the statutes and decisions in New York and
Ohio, have their applications also in some of the other States,
Further as to which, a mere reference to decisions will suffice.?
-§ 477. Statutory Manslaughter — Degrees in Manslaughter. — On
these subjects we have some statutes. and :few adjudications.
Heretore only a reference to cases will be given.?
1 Fouts v. The State, 8 Ohio State,’ 98,
111, 112; Hagan v. The State, 10 Ohio
State, 459 ; Kain v. The State, 8 Ohio
State, 806; Robbins v. The State, 8 Ohio
State, 131; Loeffner v. The State, 10
Ohio State, 598. And see Wareham v.
The Staite, 25.Ohio State, 601, 606. .
2 Cordell v. The State, 22 Ind. 1; The
State ‘v. Murphy, 21 Ind. 441; Finn ve
The State,-5 Ind. 400; “Dukes v., The
State, 11 Ind. 557; Conner v Common-
wealth, 18 Bush, 714; United States v.
Warner, 4’ McLean, 463; The State v.
8 4
Duvall, 26 Wis. 415; Perry v. The State,
44 Texas, 478; People v. Dolan, 9 Cal.
576; People v. Wallace, 9 Cal. 80; Peo-
ple v. Coleman, 10 Cal. 334; The State v.
Feaster, 25 Misso. 824; Jordan v. The
State, 22 Ga. 545. -
3 United States v. Warner, 4 McLean
463; Thomas: v. The State, 388 Ga. 117;
Walters v. Commonwealth, 8 Wright, Pa.
ae: People v. Butler, 3 Parker. C. C.
377 ;. Reed v. The State, 8 Ind. 200;
Welch v. The State, 50 Ga. 128; Bruner
v: The State, 58 Ind. 159,
855
§ 480 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
CHAPTER XXXIV.
STATUTORY RAVISHINGS AND CARNAL ABUSE.
§ 478, 479. Introduction.
480-482. Statutory Modifications of Rape.
483-491. Statutory Carnal Abuse.
492-499. Attempts.
§ 478. Common-law and Statutory Rape, distinguished. — The
offence of rape, as an English author would view it, is, at least
in part, statutory. But the early statutes are old, and they are
common law with us; so that, when we speak of common-law
rape, we mean rape as defined by them.1
§ 479. Hlsewhere — Here —- How Chapter divided. — Rape and
Carnal Abuse, as common-law offences within this distinction,
are treated of in ‘“‘ Criminal Law” and “ Criminal Procedure.” ?
We shall here consider the American statutes and their effect as
to, I. Statutory Modifications of the Common-law Rape; II. The
Statutory Carnal Abuse of Children; III. Attempts.
I. Statutory Modifications of the Common-law Rape.
§ 480. Generally — “ Against Will” — “Not Consent.” — Gener-
ally our statutes against rape are in the terms of those old Eng-
lish ones which are common law with us. So that the offence
under them does not differ from the common-law rape.? Still
they oftener have the words “against her will” than the old
statutory expression “ where she did not consent,’ —a distinc-
tion explained in “Criminal Law.”* When they have, proba-
bly the indictment ought to contain, as in practice it commonly
1 Crim. Law, IT. § 1108. 4 Crim. Law, I. § 1108-1115. In
2 Crim. Law, II. § 1107 et seq.; Crim. Texas, the statutory expression is “ with-
Proced. II. § 947 et seq. out her consent.” Williams v. The State,
3 Ante, § 471; Commonwealth v,Sug- 1 Texas Ap. 90, 91.
land, 4 Gray, 7; Anderson v. The State,
34 Ark, 287.
856
CHAP. XXXIV.] CARNAL RAVISHINGS AND ABUSE. § 482
does, the same words, “‘against her will,” instead of “ without
her consent,” 1!— a question explained in ‘‘ Criminal Procedure.” ?
For though the former are a permissible substitute for the latter,3
it is not so plain that the latter are such for the former.*
§ 481. “Daughter or Sister,” or “other Woman,” distinguished. —
An Ohio statute made it, in one section, rape, and punishable in
a particular way, for a man to have “carnal knowledge of his
daughter or sister, forcibly and against her will;” and, in the
next section, rape, punishable less heavily, to have “carnal
knowledge of any other woman, or female child, than his daughter
or sister as aforesaid, forcibly and against her will.’® And the
court observed, that here “are distinct and separate crimes, and
not merely different grades of the same crime;’’ adding, and
apparently holding, 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.” ® Whether this
decision is sound or not, certainly not all tribunals will follow it.
For it is a principle pervading the entire criminal law, that the
prosecuting power can call an offender to account or not, or take
notice of a particular element of his wrong or not,’ as it chooses.
So that, where the injured female is the “ daughter or sister,”
the grand jury is not compellable to take notice of the fact.
They may frame the indictment as though she was not, and the
conviction will be for the milder offence. For a defendant can-
not escape by showing that he is more guilty than he is charged
with being. Then, where the woman is not the “daughter or
sister,” this fact is simply matter of defence against the higher
charge. And it is a rule of criminal pleading that matter of
defence, though inserted in a statute, need not be negatived in
the indictment thereon. Within this principle, —
§ 482. Age.— Where a statute makes punishable any person
‘‘who shall ravish and carnally know any female of the age of
ten years or more by force and against her will, or shall unlaw-
fully and carnally know and abuse any woman child under the
1 And see Anderson v. The State, su- 5 Swan Stats. 269; Warren Crim. Law,
pra; Greer v. The State, 50 Ind. 267; 8d ed. 246.
The State v. Erickson, 45 Wis. 86. 6 Howard v. The State, 11 Ohio State,
2 Crim. Proced. IT. § 949, 951. 828.
8 Tb. § 951. 7 Crim. Law, I. § 784, 786, 791 et seq.
# Crim. Law, II. § 1114 and note. 8 Crim. Proced. I. § 614-618, 638.
357
§ 484 STATUTORY EXTENSIONS OF OFFENCES.: .[BOOK .
age of ten years,’ an indictment which is silent: as.to the age is
good under the former clause.! And, as general doctrine, the
female’s age in rape, not:speaking of the carnal abuse‘of a' woman
child, need not be averred.2 Nor, indeed, though she is below
the statutory age, is the forcible ravishment of her the less rape.?
Nor need the age of the defendant be set out, though the statu-
tory words are “any person of the age of fourteen years and
upward, who shall have carnal knowledge.” If he is below four-
teen, it is simply matter for defence.+
Il. The Statutory Carnal Abuse of Children.
§ 483. Blsewhere. — In “ Criminal Law,” we saw what is the
common law on this subject.®
§ 484. Incapacity for Consent in Rape. — Some of our American
courts, deriving from nature and from our common law (which,
we saw elsewhere, rests on early English statutes ®), the doctrine
that a girl under ten (or possibly under twelve) is incapable of
consenting’ to the carnal act, have held it to be rape, in the ordi-
nary sense, for a man to have carnal intercourse with such a girl
though outwardly, and in the common meaning of the expression,
she consents. And they have even permitted the jury to infer,
from an exceptional want of physical development at a somewhat
greater age, the like incapacity, with the like consequence.’ On
this question, we have the analogies of the law which makes it
rape to penetrate a woman too profoundly asleep or insane to
give consent. But the indictment on those English statutes,
parts of our common law, which punished the carnal knowledge
of consenting girls, was distinct from that for ordinary rape, and
it charged: that the girl was below the age, for example, of ten
1 Commonwealth v. Sugland, 4 Gray, 7. 5 Crim. Law, II. § 1133.
2 Crim. Proced. II. § 954.
8 Crim. Law, II. § 1118; Reg. »v.
Dicken, 14 Cox C. C. 8; The State v.
Worden, 46 Conn. 849; The State v.
Storkey, 63 N. C. 7; O’Meara v. The
State, 17 Ohio State, 515; Charles v. The
State, 6 Eng. 389; Reg. v. Neale, 1 Car.
& K. 691; Vasser v. The State, 65 Ala.
264.
+ Crim. Proced. II. § 954; People v.
Ah Yek, 29 Cal. 575, 576; Common-
wealth v. Scannel,.11 Cush. 647.
858
6 Tb. § 1108-1115, 1133.
* Stephen v. The State, 11 Ga. 225, 238 ;
Gosha v. The State, 56 Ga. 86; Joiner
v. The State, 62 Ga. 560, 562; McMath v.
The State, 55 Ga. 303; The State »v.
Tilman, 20 La. An. 1249; Dawson v. The
State, 29 Ark. 116, 120; Williams v. The
State, 47 Missis. 609, 612; Anschicks v.
‘The State, 6 Texas Ap. 524. See Reed’s
Ga. Crim. Law, 332-334.
8 Crim. Law, IIL. § 1121-1123.
CHAP. XXXIV.] CARNAL RAVISHINGS AND ABUSE. § 486
years.! -Qne: cannot. well see how, from-such a source, can be
drawn the doctrine that, in point of law, the child is incapable of
consenting in ordinary rape, under another statute. All will
recognize the fact, that, as an. intellectual and moral process of
the mind and will, she may consent, though the prompting. may
be something else than lust. Therefore the better doctrine in
principle is believed to extend no further than as stated in an-
other place,” that, in rape proper, less positive opposition will be
required from an immature girl than from an adult.’
§ 485. Our Statutes — (Name of Offence ).— Most of our statutes
either include the carnal abuse of female children under the name
of “rape,” or so connect it in a single sentence with rape proper,
that the courts call it by this name.! Specimen enactments are :
“Tf any person carnally know a female of the age of twelve years
or more, against her will, by force, or carnally know a female
child under that age, he shall be, at the discretion of the jury,
punished by death, or confined in the penitentiary not less than
ten nor more than twenty-years,”5 ‘Every person who is con-
victed, in due course of law, of ravishing and carnally knowing
any female of the age of ten years or more, by force and against
her will, or who is convicted in like manner of unlawfully and
carnally knowing and abusing any female child under the age of
ten years, shall suffer death.”® The statutes differ, as do these
two, in some making the age ten and others twelve. . And there
are some other differences. The punishments are not. generally
so heavy as the above.
§ 486. Indictment.— One cannot be convicted of this offence
on an indictment in the ordinary form as for a rape on an adult.’
There must be an allegation of the age;* which means the age
1 3 Chit. Crim. Law, 814, 815.. Still,
the statute which made punishable the
carnal act with a woman child was sim-
ply silent as to the consent. It is 18 Eliz.
c. 7, § 4,—“carnally know and abuse
any woman-child under the age of ten
years.” Crim. Law, II. § 1112.
2 Crim. Law, II. § 1124.
8 People v. Special Sessions, 18 Hun,
830, 382; Reg. v. Woodhurst, 12 Cox
C. C. 443. .
4 The State v. Johnston, 76 N. C. 209;
Mayo v. The State, 7 Texas Ap. 342;
Mosely v. The State, 9 Texas Ap. 187;
Givens v. Commonwealth, 29 Grat. 830;
Greer .v. The State, 50 Ind. 267; Law-
rence v. Commonwealth, 30 Grat. 845.
5 Givens v. Commonwealth, supra.
6 The State v. Dancy, 83 N. C. 608.
7 Greer v. The State, 50 Ind. 267;
Vasser v. The State, 55 Ala. 264. And
see Williams v. The State, 1 Texas Ap.
90.
83 Ante, § 484; Commonwealth v. Sug-
land, 4 Gray, 7; Mosely v. The State,
9 Texas.Ap. 187; Rex v. Wedge, 5 Car.
& P. 298; Reg. v. Nicholls, 10 Cox C. C.
476; The State v. Storkey, 63 N.C. 7;
359
[BOOK v.
§ 488 STATUTORY EXTENSIONS OF OFFENCES.
at the time of the commission of the offence, not at the time of
the finding of the indictment.1 Such averments as “ with force,”
“against her will,” and “ravish” are unnecessary ;* though, if
inserted, they may be treated as surplusage.? In other respects,
the statutory words should be pursued according to the rules
governing other indictments on statutes,* and no more will be
required.é
§ 487. “Carnally know” — “Abuse.” — Plainly, if the statute
has the words, in the alternative, ‘“‘carnally know or abuse,”
either of them in the indictment, or both connected by and, will
suffice.6 ‘ Abuse,” in this connection, means an injury to the
genital organs and no other.’ The expression “ carnally know,”
therefore, referring to a girl of this tender age, includes all that
is meant by “abuse,” and more. So that, under the English
statute of 24 & 25 Vict. ec. 100, § 50, the words of which are
“carnally know and abuse,” it is adjudged sufficient for the in-
dictment to say simply “‘ carnally know.’ 8
§ 488. What the Carnal Knowledge.— The carnal knowledge
required in this offence is the same as in rape proper, explained
in another connection. There must be res in re, but to no par-
ticular depth, and the hymen need not be broken.” ‘T shall
leave it,” said Parke, B., “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 pene-
tration.”1! The jury may infer the penetration from circum-
O’Meara v. The State, 17 Ohio State, 515;
Reg. uv. Martin, 9 Car. & P. 215. See
Reg. v. Shott, 3 Car. & K. 206; Bowles
v. The State, 7 Ohio, 2d pt. 243.
1 Monoughan ». People, 24 Ill. 340.
2 The State ». Black, 63 Maine, 210;
The State v. Smith, Phillips, N. C. 302;
The State v. Jarger, 66 Misso. 173.
8 McComas ». The State, 11 Misso.
116. And see The State v. Erickson, 45
Wis. 86.
# Crim. Proced. I. § 611, 612.
5 The State v. Black, supra. And see
O’Rourke v. The State, 8 Texas Ap. 70.
Where the words of the statute were
“shall have carnal knowledge of any
female child under the age of ten years,
3860
either with or without her consent,” it
was adjudged sufficient to allege that the
defendant, on, &c. at, &c. “did unlaw-
fully and feloniously have carnal knowl- :
edge of a femaie child, named 4, 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. 675.
6 Ante, § 244. And see Dawkins v.
The State, 58 Ala. 376.
7 Dawkins v. The State, 58 Ala. 876.
8 Reg. v. Holland, 16 Law T. y. s. 636,
16 W. R. 879, 10 Cox C. C. 478.
® Crim. Law, IT. § 1127-1132.
10 Brauer v. The State, 25 Wis. 418.
11 Reg. v. Lines, 1 Car. & K. 393.
CHAP. XXXIV.] CARNAL RAVISHINGS AND ABUSE. § 491
stances, without direct proof... A court that deems emission
essential in rape will hold it to be so also in carnal abuse,? unless
the statute provides the contrary.’
§ 489. What the “Abuse."— The meaning of the words “ car-
nal abuse” we have already seen.! Most of the American stat-
utes, and the English, connect them to “carnal knowledge” by
the copulative “‘and;” so that, without the carnal knowledge,
there is no more than an attempt, whatever the “abuse ” which
comes short. But evidently, where, as in some of our States,
the disjunctive “or” occurs in the statute, there may be the
complete offence though the effort at penetration was unsuc-
cessful.5
§ 490. Mistake of Girl's Age. — While, within principles ex-
plained in another connection, no one is ever punishable for any
act in violation of law whereto, without his fault or carelessness,
he was impelled by an innocent mistake of facts,® this rule does
not free a man from the guilt of this offence by reason of his
believing, on whatever evidence, that the girl is above the statu-
tory age.’ His intent to violate the laws of morality and the
good order of society, though with the consent of the girl, and
though in a case where he supposes he shall escape punishment,
satisfies the demands of the law,§ and he must take the con-
sequences.
§ 491. Proof of Girls Age.— The age, which, we have seen,?
must be averred, must also be proved.!? The girl may be a wit-
ness to her own age." Or her mother may testify to it.!2 Or the
records of births and of baptisms may be resorted to, with accom-
panying evidence of identity.® Or, in the absence of better proof,
there may be introduced family discussions’ and even expert
evidence.
1 Brauer v. The State, supra. 10 Crim. Proced. Il. § 976; Rex v.
2 The State v. Gray, 8 Jones, N.C. Wedge, 5 Car. & P. 298; Reg. v. Weaver,
170. Law Rep. 2 C. C. 85, 12 Cox C. C. 527.
8 Waller v. The State, 40 Ala. 325. 11 Weed uv. The State, 55 Ala. 13; Hill
# Ante, § 487. v. Eldridge, 126 Mass. 234.
5 Dawkins v. The State, 58 Ala. 376. 12 Reg. v. Nicholls, 10 Cox C. C. 476.
6 Crim. Law, I. § 801-310, and see 18 Rex v. Wedge, supra; Reg. ».
particularly the long note at § 303 a. Weaver, supra.
7 Lawrence v. Commonwealth, 30 Grat. 14 Reg. v. Hayes, 2 Cox C. C. 226;
845, one judge dissenting; The State v. Bain v. The State, 61 Ala. 75.
Newton, 44 Iowa, 45. 18 The State . Smith, Phillips, N.C.
® Crim. Law, I. § 327, 3380-334. 802. And see The State v. Griffith, 67
5 Ante, § 486. Misso. 287; 1 Greenl. Ev. § 104, 116, 493.
861
§ 496 STATUTORY EXTENSIONS OF OFFENCES: [BOOK V.
III. Attempts.
.§ 492. Statutory, in Rape proper. — Though the attempt to com-
mit. a rape, whether under a statute or the common law, is a
common-law misdemeanor,! some of our States. have: likewise
statutes under which it is punishable. The indictment must, as
in other cases,? substantially cover the essential terms of the stat-
ute? But, —
§ 493. “Commit.” — The omission of the word ‘ commit,” which
is in the California enactment, has been adjudged not to be fatal.*
And —
§ 494. Actual Violence. — Where the statutory terms were,
“with actual violence make an assault upon the body of any
female with intent to commit a rape,” it was held sufficient to
allege, that the. defendant, with force and arms, did make an
assault on B, 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. The idea of
“actual” violence was sufficiently conveyed without the word.®
§ 495. In Carnal Abuse — (Consent).— The carnal act, com-
mitted on a female child, is carnal abuse where she consents,’
but it is ordinary rape where she does not.’ Still, in the former
case, the same as in the latter, there may be an indictable at-
tempt ;° as, for example, where the man’s effort at penetration
fails.® But, —
§ 496. Assault with Intent.— While the common form of at-
tempt to commit the ordinary rape is by an assault with such
intent, and on an indictment for rape there may be a conviction
of assault if no technical rule prevents," in matter of principle,
1 Crim. Law, I. § 727, 728, 738, 736,
746, 762, 772; I. § 1136. 3
2 Ante, § 486.
3 Crim. Proced. II. § 976. And see
Greer v. The State, 50 Ind. 267.
4 People v. Girr, 58 Cal. 629.
5 The State v. Wells, 31 Conn. 210.
6 Ante, § 485, 486; Lawrence v. Com-
monwealth, 30 Grat. 845; People v. Mc-
Donald, 9 Mich. 150; Givens v. Common-
wealth, 29 Grat. 830.
7 Ante, § 482; The State v. Worden,
46 Conn. 349.
362
8 Crim. Law, I. § 762; Reg. v. Beale,
Law Rep. 1 C. C. 10; Williams v. The
State, 47 Missis. 609; The State v. John-
ston, 76 N. C. 209, 211; Givens v. Com-
monwealth, supra.
9 Ante, § 488, 489.
10 Crim. Law, I. § 733, 736, 746, 766.
11 Reg. v. Guthrie, Law Rep. 1 C. C.
241. That is, where the indictment con-
tains, as it commonly does, an allegation
of assault. See Reg. v. Allen, 2 Moody,
179, 9 Car. & P. 621.
CHAP. XXXIV.]°.CARNAL: RAVISHINGS "AND .ABUSE. ‘§ 499
and by the better;jndicial determinations, there cannot be, under
the common-law rules, an assault: with intent to have the crimi-
nal. carnal knowledge of a girl. with her consent; because, by
the common law, violence: consented. to, is not an assault,! and
the statute which makes her consent immaterial in defence of the
carnal’ knowledge does not extend also to.the assault.? Still, in
respect of the evidence, on the question of. an assault, youth, in-
experience, and subjection in the child will be taken into the
account ; and often a very small circumstance will be permitted
to overcome the apparent consent.2 And a consent procured by
fraud is no defence ; so that, when a man who had venereal dis-
ease, and knew it, induced a girl of thirteen, ignorant of his con-
dition, to consent to a connection by which she was infected,
this was ruled to a jury to be an indecent assault.! A fortiori, a
consent obtained by intimidation will be no defence And,—
§ 497. Statutory Changes. —In England, a statute passed in
1880 * makes it ‘‘no defence to a charge or indictment for an
indecent assault on a young person under the age of thirteen
to prove that he or she consented to the act of indecency.”
Moreover, —
§ 498. Contrary Doctrine. — Some of our American courts,
without express statutory aid, have held that the girl’s legal in-
capacity to consent to the carnal act extends also to render her
incapable of consenting to the violence which, in the absence of
her consent, would by all be deemed to constitute an indecent
assault. So that, by these opinions, there may be a conviction
for assault with intent to commit carnal abuse.” Still, —
§ 499. Punishable as Attempt. — Though, by what we have
seen to be the better doctrine, the law does not term this act an
assault, by reason of the girl’s consent, it is, in States where
1 Crim. Law, I. § 260; II. § 35, 36.
? Rex v. Cockburn, 3 Cox C. C. 543;
The State v. Pickett, 11 Nev. 255; Reg.
v. Roadley, 14 Cox C. C. 463; Reg. v.
Guthrie, Law Rep. 1 C. C. 241; Reg. v.
Martin, 2 Moody, 123, 9 Car. & P. 213;
Reg. v. Johnson, Leigh & C. 632, 10 Cox
C. C. 114; Reg. v. Day, 9 Car. & P. 722;
Reg. v. Read, 2 Car. & K. 957, 1 Den. C. C.
377, 3 Cox C. C. 266; Smith v. The State,
12 Ohio State, 466.
3 Crim. Law, II. § 36; Reg. v. Day, 9
Car. & P. 722; Reg. v. McGavaran, 6 Cox
C. C. 64.
+ Reg. v. Bennett, 4 Fost. & F. 1105.
5 Reg. v. Woodhurst, 12 Cox C. C.
443.
8 43 & 44 Vict. c. 45, § 2.
* People v. McDonald, 9 Mich. 150,
152, 153; The State v. Dancy, 83 N. C.
608; The State v. Johnston, 76 N. C. 209;
Hays v. People, 1 Hill, N. Y. 351; Singer
v. People, 13 Hun, 418; Brown v. The
State, 6 Baxter, 422.
863
§ 499 STATUTORY EXTENSIONS OF OFFENCES. [BOOK V.
there are common-law crimes, indictable as an attempt to commit
the substantive offence.1. But in a State where there are no com-
mon-law crimes, it is not so indictable; and, in the absence of a
statute to meet the case, the offender must escape.”
1 Ante, § 495; Reg. v. Martin, 2 2 Smith v. The State, 12 Ohio State,
Moody, 123, 9 Car. & P. 218; Reg. v. 466.
Beale, Law Rep. 1 C. C. 10; Reg. v. Ry-
land, 11 Cox C. C. 101.
3864
‘
CHAP. XXXV.] STATUTORY ASSAULTS AND BATTERIES. § 518
CHAPTER XXXV.
STATUTORY ASSAULTS AND BATTERIES.
§ 500. In General. — Under statutes in most of our States, the
assault or battery which they create or define does not differ
from the same at the common law. And then plainly enough
the indictment is good which follows the common-law form, ex-
cept in concluding against the statute. But, —
§ 501. Statutes differing from Common Law. —In two or three.
of our States, and perhaps more, there are statutes considerably
departing from the common-law definitions of these offences.
Thus, —
§ 512.) Indiana. — In Indiana, “ An assault is an unlawful at-
tempt, coupled with a present ability, to commit a violent injury
on the person of another,” &c.? ‘* Every person who in a rude,
insolent, or angry manner, shall unlawfally touch another, shall
be deemed guilty of an assault and battery,’ &c.3 Here the
departures from the common law are considerable. For example,
under the common law, any unlawful touching of one against his
will and with intent to injure constitutes a battery ;* but not so
under this statute. The statutory battery occurs only where the
touching is rude, or is insolent, or is angry. Again, the present
ability to inflict an injury is not necessary to an assault at the
common law,° but it is indispensable in this statutory assault.’
Therefore —
§ 518. Indictment in Indiana. — The courts of this State hold
the common-law form of the indictment to be inadequate under
this statute. ‘Since the legislature,” said Downey, J. ‘has
1 § 502-511 omitted from this edition. * Crim. Law, II. § 72.
2 Act of Dec. 2, 1865, 3 Ind. Stats. 5 The State v. Wright, supra; How-
258 ; The State v. Hubbs, 58 Ind. 415. ard v. The State, 67 Ind. 401; Slusser
32 Gav. & H. 459,§ 7; The State v. v. The State, 71 Ind. 280.
Wright, 52 Ind. 807. Compare these defi- § Crim. Law, II. § 32.
nitions with Crim. Law, II. § 23 and note, 7 Howard v. The State, supra; Cutler
70. uv. The State, 59 Ind. 300.
865
§ 515 .. sTATUTORY. EXTENSIONS OF OFFENCES. [BOOK V.
furnished a definition 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 stat-
ute.”1 For example, the present ability must be alleged.2 And
a battery must be averred to have been. rude, or insolent, or
angry, —a part of the statute which cannot be omitted.? In
general, it will suffice: to follow simply the statutory terms.’
Now, —
§ 514. On Principle, — this Indiana doctrine,.as to the allega-
tion,. would. seem just in a. State into whose jurisprudence the
common law did not enter as an element.: But the common law
-has made it'a sufficient allegation of the act in this offence, that,
as to the assault, the defendant ‘did make an assault?’ on a person
named ; and, as'to the. battery, “‘did beat, wound, and -ill-treat”
him.’ This form of the allegation, dispensing with the particu-
lars, and .not following a definition, the common. law has, to
repeat, made adequate.: And':there is in principle no different
or greater reason why the allegation should be required to pursue
the terms of this statutory definition, where the offence is under
it, than the terms of the common-law definition where. the offence
is at common law. To say that the defendant “did make an
assault’? would. mean, that: he did what. the law deems to be
such; and, even under the common law, the allegation would
differ in'its meaning in’ our different States according ‘to the
varying opinions of the tribunals. In Indiana, it would signify
an assault as:defined by the statute under the interpretation of
the courts. And this kind of doctrine pervades our: American
procedure. Where the common law requires the indictment to
follow 'a definition, or otherwise specifically set out the act, the
question is of another sort, —‘already considered...
§ 515. In Texas,— there is a similar statute. By it, the abil-
1 Adell v. The State, 34:Ind. 543, 546, 4 Malorie v: The State; :14 Ind: 219;
646. 95 The State v. Bougher, 3 Blackf. 307.
2 The State v. Hubbs, 58 Ind. 415,416; And: see Long v. ‘The State, 46 Ind. 582 ;
Howard v. The State, 67 Ind. 401. The State v. Prather, 54 Ind. 63.
3 The State v. Wright, 62 Ind. 307; ‘6 Crim. Proced. IL. § 55, 56.
McCulley. -v. The State, 62 Ind, 428; .«® Ante, §47letiseq. «.
Slusser v. The State, 71 Ind. 280.
366
CHAP. XXXxvV.] STATUTORY ASSAULTS AND BATTERIES.
§ 515
ity to commit a battery was once, as in Indiana, an element in
assault ;! but it has been eliminated by a subsequent revision.?
The author has not observed that the Indiana form of the in-
dictment has been required ;* and, indeed, the common-law form
appears to have been adjudged sufficient.*
It is not deemed
important to enter further into the particulars of this enact-
ment.®
1 McKay v. The State, 44 Texas, 43;
Jarnigan v. The State, 6 Texas Ap. 465;
Spears v. The State, 2 Texas Ap. 244.
2 Kief v. The State, 10 Texas Ap. 286.
3 Atkins v. The State, 11 Texas Ap.
8, 12; McGee v. The State, 5 Texas Ap.
492. :
4 The State v. Hartman, 41 Texas,
562.
5 Johnson v. The State, 43 Texas, 5765
Donaldson v. The State, 10 Texas Ap« ...
807; Chamberlain v. The State, 2 Texas
Ap. 451; Bingham v. The State, 6 Texas
Ap. 169; Hudson v. The State, 6 Texas
Ap. 565; Lewallen v. The State, 6 Texas
Ap. 475; Young v. The State, 7 Texas
Ap. 75; Cato v. The State, 4 Texas Ap.
87; McGregor v. The State, 4 Texas Ap.
599; Schenault v. The State, 10 Texas
Ap. 410; Bowden v. The State, 2 Texas
Ap. 56.
367
§ 579 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
BOOK VI.
OFFENCES MORE PURELY STATUTORY.
CHAPTER XXXVI.
POLYGAMY.
§ 577, 578. Introduction.
579-597. Law of the Offence.
598-613. The Procedure.
§ 577.1 Name of Offence — (Bigamy Polygamy). — The offence
now to be treated of, consisting of a formal entering into of a
marriage while a former one remains undissolved, is by some
termed bigamy. In the canon law, a bigamist was one who mar-
ried a second time, whether the former consort were living or
not, or married a widow; and there were seven distinct connec-
tions by which it might be committed, so as to create an inca-
pacity for orders.2 It is better, therefore, in writing of the
different offence now to be explained to employ the equally
appropriate word polygamy.®
§ 578. How Chapter divided. — We shall consider, I. The Law
of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 579, Under Unwritten Law.— By ‘the common law, it was
not punishable to marry a second time during the life of the
matrimonial partner, or to cohabit under such second marriage.*
Yet it was a canonical offence. And, —
1 § 516-576 omitted from this edition. Bishop Mar. & Div. § 296; Gise v. Com-
2 Poynter Mar. & Div. 142; 4Bl.Com. monwealth, 31 Smith, Pa. 428, 482.
163, note. + Crim. Law, I. § 501, 502.
3 Shelford Mar. & Div. 224; 1 East 5 Poynter Mar. & Div. 144. Eastsays,
P. C. 464; 20 Howell St. Tr. 358, note; 1 that until 1604 it was of “doubtful tem-
368
CHAP. XXXVI] POLYGAMY. § 581
Harly Statute.—In 1604, it was by 1 Jac. 1, c. 11, made a felony
when committed “within his majesty’s dominions of England
and Wales.” ‘The statute exempted out of its operation four
classes of persons, — those 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 ; per-
sons “divorced by any sentence had, &c. in the ecclesiastical
court ;”! persons whose marriages should be declared void by
such court; and, lastly, those who, when married, were * within
age of consent.”
§ 580. As Common Law with us.— The date of this statute is
two years anterior to the earliest colonial settlement in this coun-
try, —that at Jamestown, Virginia, in 1606.2. In substance, it
supplied a need which was the same in the colonies as in the
mother country. But by its terms, it was local to England and
Wales, and the efficacy of a part of its provisions depended on
the action of ecclesiastical courts, which were never established
with us; so that, on general reasoning, it is difficult to place
it among the laws which came to us from the mother coun-
try. Still it was so accepted in the Maryland Colony, there
having been prosecutions under it as early as 1682. Afterward,
in 1706, a colonial statute expressly made it of force ;? and thus
it became law in the District of Columbia. Elsewhere, in our
States, we appear to have no judicial recognition of it. For
example, it is not mentioned by the judges among the British
statutes in force in Pennsylvania.
§ 581. Later English Legislation — has cured some defects in
this early statute. The present one is 24 & 25 Vict. c. 100, § 57;
but it differs in nothing essential from 9 Geo. 4, c. 31, § 22, which
it supersedes. Its terms are, quoting from the statute of George,
that, “if any person, being married, shall marry any other person
during the life of the former husband or wife, whether the second
marviage shall have taken place in England or elsewhere, every
such offender, and every person counselling, &c. shall be guilty
poral cognizance ;” but so early as Stat. State, 50 Md. 161,168. It is modified,
4 Edw. 1, c. 5, de bigamis, it was treated but not repealed, by the act of 1809, c.
as a capital offence, and ousted of clergy 138. Ib. at p. 169.
by that statute. 1 East P. C. 464. * United States v. Jennegen, 4 Cranch
T Rex v. Lolley, Russ. & Ry. 287. C. C. 118; Crim. Law, I. § 203.
2 Bishop First Book, § 56. 5 Report of Judges, 3 Binn. 599, 622,
3 Kilty Rep. Stats.170; Barber v. The 623.
24 869
§ 585 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
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 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 mar-
Tying a second time whose husband or wife shall have been con-
tinually 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.”
§ 582, American Legislation — on this subject has substantially
copied the later English. There may be minor diversities, and
it is not absolutely identical in our States. There is no need to
give specimen statutes here, but something will be seen of them
as we proceed.
§-583. “Divorce.” — This word, in the statute of James, was
held to mean divorces from bed and board as well as from the
bond of matrimony; ‘notwithstanding,’ observes Hawkins,
“there be not the word divortiamus, but only the word sepa-
ramus, in the sentence; because the statute, being penal, shall
be construed favorably, and such separations are taken for di-
vorces in common understanding.” ! Later enactments, in both
countries, are in terms to avoid this construction.
§ 584. “Within Age of Consent.” What is the age of consent
to marriage the author has explained elsewhere.? This excep-
tion, in the statute of James, was held to protect as well the
party above the age as within it; ‘“‘because the power of disa-
greeing to such marriage is equal on both sides.” 8
§ 585. Place of First Marriage. — Marriage being both a domes-
tic institution, and also within the jurisdiction of the law of
nations and therefore international, so that the courts of every
country take cognizance of the marriages in every other, the
1 1 Hawk. P. C. Curw. ed. p. 686, § 5. 570; Beggs v. The State, 55 Ala. 108;
21 Bishop Mar. & Div. § 143-153. Cooley v. The State, 55 Ala. 162.
And see Walls v. The State, 32 Ark. 565, 31 Hawk. P. C. Curw. ed. p. 686, § 6.
3870
CHAP. XXXVI. ] POLYGAMY. § 587
place where the first marriage was celebrated, whether at home
or abroad, is immaterial ;! * because,” says Hawkins, * it is the
latter marriage that makes the offence.”? But, —
§ 586. Place of Second Marriage.— Since the offence consists
of the second marriage, it, like any other criminal act,’ must
transpire within the locality of the indictment: * as, says Hale,
if ** A takes B to husband in England, and after takes C to hus-
band in Ireland, she is not indictable in England; because the
offence was committed out of this kingdom.”* So that, with
us, where nothing in the statute otherwise provides, there can
be no criminal prosecution out of the State and county where-
in the second marriage was solemnized.6 But this conclusion
has been, in most localities, avoided by legislative devices.
Thus, —
§ 587. Punishing Marriage celebrated abroad. — In England, the
modern statutes expressly make it immaterial, as we have seen,‘
“whether,” in the case of a British subject, ‘the second mar-
riage shall have taken place in England or elsewhere.” And, to
obviate the common-law want of jurisdiction, they permit the
offence to be dealt with “in the county where the offender shall
be apprehended or be in custody.” Therefore, where the two
marriages of an Englishman occurred in Scotland, it was held
that he was properly convicted in England under this provision.
Obviously this statute, thus limited to British subjects, is proper
and just, and conformable to the law of nations. Were it not
thus limited in terms, the courts would limit it by interpreta-
tion ;° for, by the law of nations, one government cannot punish
the subjects of another for what they do on foreign soil? The
author has not observed much of this sort of provision in our
~ American legislation. And perhaps, in some of the States, it
11 Bishop Mar. & Div. § 351, 353,
355, 861; Anonymous, J. Kel. 79; Com-
monwealth v. Johnson, 10 Allen, 196;
Commonwealth v. Kenney, 120 Mass.
887; Reg. v. Savage, 13 Cox C. C. 178.
2 1 Hawk. P. C. Curw. ed. p. 687, § 7.
3 Crim. Proced. I. § 45-67.
*# Anonymous, J. Kel. 79; United
States v. Jernegan, 4 Cranch C. C. 1;
People v. Mosher, 2 Parker C. C. 195;
Putnam »v. Putnam, 8 Pick. 485; 1 Hawk.
P. C. Curw. ed. p. 687, § 7.
5 1 Hale P. C. 692.
6 The State v. Barnett, 83 N. C. 615;
Walls o. The State, 32 Ark. 565; Beggs
v. The State, 55 Ala. 108; Scoggins v.
The State, 32 Ark. 205; Williams v. The
State, 44 Ala. 24.
7 Ante, § 581.
8 Reg. v. Topping, Dears, 647, 7 Cox
C. C. 103, 36 Eng. L. & Eq. 614.
9 Ante, § 141.
W Crim. Law, I. § 109-123 and notes,
particularly the note to § 115, par. 7-9;
People v. Mosher, 2 Parker C. C. 195.
871
§ 589 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
would be constitutionally objectionable,! particularly as respects
the —
Place of Trial — The Arkansas court has held, that, under the
constitution of the State, the legislature can direct this offence
to be prosecuted only in the county of the polygamous second
marriage, not in another wherein the arrest took place.? And,
in New York, where the statute, after providing a punishment
for “every person having a husband or wife living who shall
marry any other person,” added, that the “indictment may be
found . . . in the county in which such person shall be appre-
hended ; and the like proceedings, trial, judgment, and convic-
tion may be had in such county as if the offence had been
committed therein ;’’® the court, construing the provision, deemed
it to be a mere regulation of the venue. So that, when a man
who had a wife living in Pennsylvania married another woman
in Canada, and came and cohabited with her in New York, his
case was adjudged, by a tribunal not of the last resort, yet doubt-
less correctly, not to be within the statute.+ But—
§ 588. Continuing to Cohabit.— The difficulty may be met, and
in the greater number of our States it is, by making a continu-
ance of cohabitation under the void second marriage a separate
offence, or separate form of offence. For example, the Tennes-
see enactment declares punishable every person who, ‘“ 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.” So that, while the constitution secures to
those indicted under the former clause the right to decline trial
in any county other than the one in which the second marriage
took place,® the latter clause is violated in whatever county there
is a cohabitation under the forbidden marriage, and there the
trial may be.®
§ 589. Validity of First Marriage. — The first marriage, whether
1 As to the power of a State to punish 195. For another view of the proper
what is done outside of its territory, see
Crim. Law, I. § 152, 153.
2 Wall v. The State, 32 Ark. 565. See
The State v. Sweetsir, 53 Maine, 438.
And compare with Crim. Proced. I. § 47,
50, 64-67. .
32 R. S. 687, 688, § 8,10; 2 Edm.
Stats. 709, 710.
4 People v. Mosher, 1 Parker C. C,
372
’
proceeding on facts like these, see post,
§ 693.
5 Ante, § 587; Crim. Proced. I. § 50.
6 Finney v. The State, 3 Head, 544;
to the like effect in Alabama, Brewer v.
The State, 59 Ala. 101. And see ante,
§ 260 a; The State v. Sloan, 55 Iowa, 217;
Commonwealth v. Bradley, 2 Cush. 553;
The State v. Palmer, 18 Vt. 570.
CHAP. XXXVI.] POLYGAMY.
§ 590
domestic or foreign,! must be, within the contemplation of the
domestic law, valid; and it is immaterial to this proposition
whether it is valid or void by the foreign law.2_ There are vari-
ous circumstances in which a marriage may be good in the place
of its celebration abroad, and void in another country or State
wherein its validity is drawn in question; and the reverse.? Yet,
for reasons explained by the present author in another work, a
first marriage defective in the peculiar way termed voidable by
the special rules which we brought from England as a part of
our unwritten law, is sufficient as the foundation of an indict-
ment for this offence of contracting a second marriage while it is
undissolved.*
§ 590. validity of Second Marriage. — The second marriage is,
of course, void.? Still the Irish court held, that it must be such
as, but for the impediment of the first, would be good.® This
doctrine is repudiated in England; as, for example, if, were the
first marriage not subsisting, the second would be void by reason
of too near an affinity, the offence of polygamy is not the less
committed. The verb “to marry,” and its participle, in the
phrase “if any person being married shall marry another,” &c.'
cannot have the same meaning in both places ;% but it denotes a
valid marriage in the one, and a void form in the other. The
latter is a departure from its common signification. And, in such
a case, “the true rule of construction,” said Cockburn, C. J.
speaking for the whole court, “‘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
purpose of the enactment, the
1 Ante, § 585.
2 Madison’s Case, 1 Hale P. C. 693;
The State v. Moore, 3 West. Law Jour.
184; Halbrook v. The State, 34 Ark. 511;
The State v. Goodrich, 14 W. Va. 834;
Weinberg v. The State, 25 Wis. 370;
Hayes v. People, 25 N. Y. 890; Reg. v.
Willshire, 6 Q. B. D. 366, 14 Cox C. C.
641; Reg. v. Cresswell, 1 Q. B. D. 446,
13 Cox C.C. 126; Hull v. The State, 7
Texas Ap. 593; King v. The State, 40
Ga. 244; Reg. v. Wilson, 3 Fost. & F.
119; Oneale v. Commonwealth, 17 Grat.
682; People v. Baker, 76 N. Y. 78;
Shafher v. The State, 20 Ohio, 1.
used before, but to look to the
mischief to be prevented, and
* 1 Bishop Mar. & Div. chapter be-
ginning at § 848; 2 Ib. a series of chap-
ters beginning at § 113; and § 742-764.
41 Bishop Mar. & Div. § 104 a, 105,
116; Beggs v. The State, 55 Ala. 108;
Cooley v. The State, 55 Ala. 162; People
v. Baker, supra; Rex v. Lolley, Russ. &
Ry. 287.
5 1 Bishop Mar. & Div. § 115, 120, 299,
800; Johnson v. The State, 61 Ga. 305.
§ Reg. v. Fanning, 17 Irish Com. Law,
289, 10 Cox C. C. 411.
7 Ante, § 581. -
8 Ante, § 95 a.
373
§ 592 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
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 cere-
mony which the law allows to be applied only to a legitimate
union, to a marriage at best but colorable and fictitious, and
which may be made, and too often is made, the means of the
most cruel and wicked deception. It is obvious that the outrage
and scandal involved in such a proceeding will not be less,
because the parties to the second marriage may be under some
special incapacity to contract marriage. The deception will not
be the less atrocious, because the one party may have induced
the other to go through a fori of marriage known to be generally
binding, but inapplicable to their particular case.” 1
§ 591. Limit of Doctrine. —It had before been ruled to a jury,
in England, to be no defence that the parties had undertaken to
conceal their second marriage by having the banns published in
a wrong name; though, had there been no impediment, the
irregularity would, under a statute, have rendered the marriage
void.2 Further as to the scope of this doctrine we appear to have
no English determinations.
§ 592. With us,—so far as adjudication has spoken, it accords
rather with the English than with the Irish exposition. Thus,
in Michigan, a second mairiage between a negro man and a
1 Reg. v. Allen, Law Rep. 1C. C. 367,
374, 375, 12 Cox C. C. 198. The learned
judge said in conclusion: “ In thus hold-
ing, 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. wn. 8. P.& M. 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 un-
authorized person, or in an unauthorized
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 description when
it arises. It is sufficient for the present
purpose to hold, as we do, that, where a
person already bound by an existing mar-
374
riage goes through a form of marriage
known to and recognized by the law as
capable of producing a valid marriage,
for the purpose of a pretended and fic-
titious marriage, the case is not the less
within the statute by reason of any special
circumstances, 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 inappli-
cable to their individual case.” p. 376.
The point adjudicated in this case had
before been held by a single judge. Reg.
v. Brawn, 1 Car. & K. 144.
2 Rex v. Penson, 5 Car. & P. 412.
And see Rex v. Allison, Russ. & Ry. 109;
Reg. v. Rea, Law Rep. 1 C. C. 365, 12
Cox C. C. 190; Reg. v. Asplin, 12 Cox
. 891; Rex v. Edwards, Russ. & Ry.
283.
CHAP. XXXVI.] POLYGAMY. § 594
white woman was adjudged to be within the statute against
polygamy, though marriages of this sort are by another statute
forbidden and declared void.1 But, —
Formalities at Second Marriage.— If what was done in the way
of celebrating the second marriage was such as in no sense and
under no circumstances to constitute matrimony, and was not
meant by either of the parties to be such, the crime of polygamy
is not committed, —a doctrine the exact limits of which are not
quite apparent.2. In a State where mutual consent alone consti-
tutes matrimony,? as with the first marriage, so with the second,
no added formalities need be shown.? Likewise in localities
where marriage is good though celebrated by an unauthorized
person, a polygamous marriage of the like kind will sustain an
indictment.6 Or, if a married man, meaning seduction, conceals
from his victim the fact of his prior marriage, and thus enters
into what would be a valid marriage were it not for the impedi-
ment, he commits polygamy.5 And it is the same whatever be
the defect in the ceremony, if it is not such as in other cases
would make the marriage invalid.’
§ 593. Further of Informal Marriages. — In those States wherein
mere mutual consent constitutes true matrimony, various ques-
tions will arise unknown in England and in the other States.
But it is believed that the author’s expositions in “ Marriage and
Divorce ” will suffice for them.
§ 594. Relations of Competent Party — (Principal of Second De-
gree). — Most of our statutes, like the English,’ declare punish-
able only the previously-married party, being silent as to the
other. Nor, plainly, by their construction, is the other to be
punished if ignorant of the impediment.? But we have seen,!
that the common-law principle which imputes criminality to the
participants in a crime extends to statutory offencés; therefore
it has been adjudged, that a third person, an unmarried man,
who is present abetting a friend in the commission of polygamy,
may be convicted thereof as principal in the second degree."
1 People v. Brown, 34 Mich. 339. 6 Hayes v. People, 25 N. Y. 390.
2 Kopke v. People, 43 Mich. 41. * Carmichael v. The State, 12 Ohio
8 1 Bishop Mar. & Div. § 218, 229, State, 553.
279. : 8 Ante, § 581.
* Hayes v. People, 5 Parker C. C. 325, 9 Crim. Law, I. § 301, 308; Reg. v.
25 N. Y. 390. Brawn, 1 Car. & K. 144.
5 Robinson v. Commonwealth, 6 Bush, 10 Ante, § 135, 136.
309. ‘ 11 Boggus v. The State, 34 Ga. 275.
875
§ 596 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Consequently, in reason, if the competent party to a second mar-
riage knew of the impediment in the other, he would be punish-
able as an aider in the other’s crime; unless the statute was in
terms to exclude this consequence.! In the facts of most cases,
the competent party was the dupe of the incompetent, so that
this question does not often arise. In the only case raising it,
now before the author, the indictment was on 9 Geo. 4, c. 31,
§ 22,2 which expressly makes punishable persons “ counselling,
aiding, or abetting such offender,” the allegation was of “ coun-
selling,” and both the parties to the polygamous marriage were
convicted.?
§ 595. “Beyond Seas.” — The meaning of the expression
“beyond seas” is explained in another connection. By the
terms of the statute of James,‘ its penalties did not extend “to
any person or persons whose husband or wife shall be continually
remaining beyond the seas by the space of seven years together.”
Consequently, in a case of such absence continued seven years,
a second marriage was not punishable, while yet for civil pur-
poses it was void, though the absent party was, and was known
by the other to be, alive. Some of our American statutes con-
tain the like exception, yet so qualified as not to protect wilful
offenders. Thus, in Massachusetts, the penal consequences
“shall not extend to any person whose husband or wife has
been continually remaining beyond sea, or has voluntarily with-
drawn 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 the last clause was held
to qualify the first as well as the intermediate one; so that, where
aman emigrated from England to Massachusetts leaving a wife
behind, and here married another a year or so afterward, he was
adjudged to have committed polygamy, though the first wife had
always been beyond sea, for he knew her to be living within
seven years.’ i
§ 596. Knowledge of being alive.— The modern form of the
1 Ante, § 145. And see, as illustra- P.C. 65; 1 Hale P. C. 89, 128; 3 Inst. 1,
tive, Hatfield v. Gano, 15 Iowa, 177. 2,9; Eden Penal Law, 3d ed. 125,
2 Ante, § 681. 4 Ante, § 261 5,
8 Reg. v. Brawn, supra; briefly alluded 5 Ante, § 579. -
to, as to this point, in Reg. v. Allen, Law 6 j Hale P. C. 693; 1 East P. C. 466.
Rep. 1 C. C. 367, 370. See, for an illus- 7 Commonwealth v. Johnson, 10 Allen,
trative case, under 25 Edw. 3, stat. 5,c 2, 196,
Crim. Law, I. § 659; referring to 1 East
376
CHAP. XXXVI.] POLYGAMY. § 596 4
enactment is in most localities substantially the same which we
have just seen it to he in Massachusetts. In England it is, as to
the knowledge, “and shall not have been known by such person
to be living within that time.”! Now, by the rule of statutory
interpretation that a defendant, to avail himself of a provision in
his favor, need only bring himself within its words, however
much he may have violated its spirit,? if one on trial did not in
fact “know” the former husband or wife to be living, though he
might have known had he chosen to inquire, he is within the
exception of the statute and is to be acquitted.2 Thus it is where
the full statutory absence of, for example, seven years has elapsed.
But, —
§ 596 a. Mistaken Information of Death.— Where the absence
has continued a less time than the statutory seven years, other
considerations govern the case. It is not, to any extent, within
the exception, if, after a period however brief, the absent party
dies. The other is thereby made single, and he may marry, not
by virtue of this exception in the statute of polygamy, but, quite
aside from it, by the same natural and legal right under which
he contracted the first marriage. / And, if information of the
death comes to him, and, acting cautiously and circumspecily,
he, without any fault, believing it, marries, while yet the infor-
mation was erroneous and there was no death, the case has no
more relevancy to the statutory exception than if the information
were correct. He is to be judged by the rule of the unwritten
law, which pervades the entire system of our criminal jurispru-
dence, that, in the absence of carelessness or other fault, men
are exempt from criminal liability who act uprightly on what
appear to them to be the facts, equally when the appearances are
found afterward to be false as when they are true.®
1 Stat. 24 & 25 Vict. c. 100, § 57;
ante, § 581.
2 Ante, § 190 e, 193, 196, 220, 230.
8 Reg. v. Briggs, Dears. & B. 98, 2 Jur.
N. 8. 1195, 26 Law J. ny. s. M. C. 7, 7 Cox
C.C.175. Perhaps a nice criticism may
show that this case does not support my
text; and, indeed, the judges did not rea-
son out the point in the way I have done.
Yet the doctrine of the text is certainly
correct in principle, and in a sense it is
sustained by this case, though not as ab-
solutely as one might wish.
41 Bishop Mar. & Div. § 3, 122, 123,
392.
5 Crim. Law, I. § 301, 308, and par-
ticularly the long note at § 3034. It will
be seen, at the place thus referred to, that
the question has been a good deal mud-
dled in some of the cases. Compactly to
repeat some of the things there said, and
to add others, it may be stated here, that,
not speaking now of the reasoning, the
conclusion of the text is the same which
has been arrived at by the Scotch courts.
McDonald’s Case, 1 Broun, 238; 1 Ali-
3TT
§ 596 b
OFFENCES MORE PURELY STATUTORY.
[BOOK VI.
§ 596 6. Further of Intent.— To constitute this crime, an in-
tent to do what the law forbids is necessary, but no other evil
son Crim. Law, 535, 536, 541. The ques-
tion has been considered in a number of
English cases, and the opinions therein
have greatly preponderated in favor of
this view. On the side which sustains it,
we have Reg. v. Turner, 9 Cox C.C. 144;
Reg. v. Jones, 11 Cox C. C. 358; Reg. v.
Horton, 11 Cox C. C. 670; Reg. v. Moore,
13 Cox C. C. 644. In which cases it has
been deemed by a considerable number
of judges, to be a good defence that, at
the time of the second marriage, the par-
ty marrying bona fide, and on reasonable
ground, believed the former consort to
be dead, though the period of seven years
had not fully run. On the other side, in
two cases,— Reg. v. Gibbons, 12 Cox
C. C. 237, and Reg. v. Bennett, 14 Cox
C. C. 45,—the judges who tried them
laid it down to the jury, that a belief of
the death of the absent party constituted
no defence unless the absence had con-
tinued seven years. So far as the mere
words of these cases go they are directly
in conflict with the others; though, look-
ing into the facts, there may perhaps be
distinctions, as see the foot-notes to the
case last cited. It is to be further noted
of them, as circumstances not inspiring
confidence in their conclusions, that the
judges seemed utterly oblivious to the
familiar rule of statutory interpretation
(ante, § 131-144), that legislative acts
are to be construed in connection with,
and as limiting and limited by, the un-
written law. And, looking on/y at the
statute, as they should not, and taking no
cognizance of the doctrines of the com-
mon law, which they should, they were
so confident in their own superior wisdom
as to refuse, to convicted men, the boon
of laying the question before the judges
in hance, though they knew that other
judges were of opinion contrary to their
own. A frame of mind like this is not
judicial. In Massachusetts, a woman
was adjudged a polygamist for marrying
when her husband, who had been absent
less than seven years, was believed to be
dead. Commonwealth cv. Mash, 7 Met.
472. As to which case see also Crim.
Law, I. § 3034, note, par. 13-16. But
878
this sort of doctrine appears not to pre-
vail to any considerable extent in our
other States. And see the note in Crim.
Law, supra; and specially,on this question,
Dotson v. The State, 62 Ala. 141; Squire
v. The State, 46 Ind. 459; Arnold v. The
State, 53 Ga. 574. In Dotson v. The State,
Brickell, C. J. states the question with
great precision as follows: “The rule of
the common law, of very general applica-
tion, is that there can be no crime when
the criminal mind or intent is wanting.
When that is dependent on a knowledge
of particular facts, ignorance or mistake
as to these facts, honest and real, not su-
perinduced by the fault or negligence of
the party doing the wrongful act, ab-
solves from criminal responsibility. Gor-
don v. The State, 52 Ala. 308; Squire v.
The State, 46 Ind. 459. The principle is
thus stated by Bishop: ‘The wrongful
intent being of the essence of every
crime, the doctrine necessarily follows
that, whenever a man is misled without
his own fault or carelessness, concerning
facts, and, while so misled, acts as he
would be justified in doing were the facts
as he believes them to be, he is legally
innocent, the same as he is innocent mor-
ally.’ 1 Bishop Crim. Law § 803. The
belief must be honest and real, not feigned ;
and whether it is honest or feigned the jury
must determine, in view of all the evi-
dence. Whether there was fault or care-
lessness in acquiring knowledge of the
facts, is also a matter for their determi-
nation. No man can be acquitted of re-
sponsibility for a wrongful act, unless
he employs ‘the means at command to
inform himself.’ Not employing such
means, though he may be mistaken, he
must bear the consequences of his negli-
gence. If he relies on information ob-
tained from others, he should have some
just reason to believe that from them he
could obtain information on which he
may safely rely. It does not appear [in
the case before the court] that the per-
sons informing the appellant of the death
of his first wife had any opportunities of
knowing the fact he did not have; nor
on what their knowledge of the fact was
CHAP. XXXVI. ] POLYGAMY. § 597
intent is! And as a part of the rule, every person is conclusively.
presumed to know the law,? yet not the facts.8 In the case sup-
posed in the last section, the person accused meant to do the
exact thing which the law and good morals approved, not what
either forbade. If he failed therein his mistake was of fact,
which excuses. But one who does what the law condemns, how-
ever his conscience may approve and his religious faith require,
—as, for example, a sincere member of the Mormon church, who
marries a second wife while living with the first, — commits this
offence ; nor is he protected by our written constitutions. The
statute is valid.t
§ 597. Words of Statute.— The exact words of the particular
statute should be attended to. Thus, —
“Voluntarily withdrawn.” — The exceptive clause in the Massa-
chusetts: statute requires the absent party to have “ voluntarily
withdrawn” from the other, as well as remained away seven
years. One, therefore, who for seven years has deserted an
adhering consort cannot in Massachusetts avail himself of this
exception.© Again, —
False Rumor, &c.— The Pennsylvania act of March 13, 1815,
excused the married party whose consort should have been ab-
sent two years, in marrying again, upon any false rumor in
appearance well founded of his death. And it was ruled, that,
to justify a wife in a second marriage, there must be a general
report of the husband having
based. Nor was it shown that he made
inquiries of persons who, from their rela-
tionship or acquaintance with the wife,
would have known whether she was liv-
ing or dead. Bigamy is a violation of
positive law, disturbs the peace of fami-
lies, offends the good order of society,
and involves the legitimacy of children,
the descent and succession to estates. A
degree of diligence commensurate with
the importance of the act —a second
marriage, having had a former wife, not
so long absent and unheard of that the
law presumed her death — the appellant
should have exercised.” p. 144. So,
plainly, a mere absence, continued for
a less time than the statute prescribes,
could never afford justification, accept-
able to the law, for the belief, however
sincere, that death had taken place.
died at some particular place,
Such belief, being made by the statute
illegal, would be void. But a belief
founded on independent facts and cir-
cumstances is of a different. character.
As to this, the statute is silent, and hence’
the rules of the common law must be the
guide.
1 Dotson v. The State, 62 Ala. 141.
2 Crim. Law, I. § 294-800; Davis v.
Commonwealth, 13 Bush, 818.
3 Crim. Law, I. § 301-309.
4 Tb. I. § 309, 344, 345; Reynolds v.
United States, 98 U. S. 145; United
States v. Reynolds, 1 Utah, 226. And
see United States v. Miles, 2 Utah, 19;
Miles v. United States, 103 U. S. 304.
5 Ante, § 595.
8 See the adultery case cf Common-
wealth v. Thompson, 11 Allen, 23.
379
§ 600 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
and by some particular means —as, by shipwreck — which the
report specifies.!
II. The Procedure.
§ 598. Course of Discussion. — We shall consider, First, The
Indictment; Secondly, The Evidence.
First. The Indictment : —
Conforming to Statute. — Since the statutes of our States differ
in their terms, an obvious proposition is, that the indictment
should conform to the particular statute on which it is drawn.
English. — On the before-recited enactment of 9 Geo. 4, c. 31,
§ 22,2 a common English form sets out, that, at a time and place
named, the defendant married one B, and then and there had
her for his wife; and afterward, while he was so married, at a
time and place specified, he “feloniously and unlawfully did
marry and take to wife one C, his former wife being then alive,
against,” &c.3
§ 599. Venue — (And Time).— As in other cases, the venue is
essential ; together with the time, at least, of the marriage which
constitutes the offence, and, by some opinions, of both marriages.$
Therefore, —
Apprehension — Custody. —If the jurisdiction is based on the
fact of the prisoner’s having been apprehended in the county of
the indictment,’ or his being in custody there,® this matter must
be alleged.
§ 600. Different Terms of Statute — (Indiana).— The Indiana
statute is in different words from the English and most other
of the American ones. It makes punishable any person who,
“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.” And it is a good
form, according to the practice in this State, to say, that, ata
time and place named, the defendant, being married to B, and
1 Commonwealth v. Smith, Oyer and
Terminer, Philadelphia, May, 1816, be-
818; The State v. Johnson, 12 Minn. 476;
Williams v. The State, 44 Ala. 24; Com-
fore Rush, President (pamphlet, p. 229),
1 Whart. Dig. 6th ed. 1177.
2 Ante, § 581.
% Archb. Crim. Pl. & Ev. 10th Lond.
ed. 629,
§ Davis v. Commonwealth, 13 Bush,
380
monwealth v. Bradley, 2 Cush. 553; Com-
monwealth v. Godsoe, 105 Mass. 464.
5 Rex v. Fraser, 1 Moody, 407.
" Reg. v. Whiley, 2 Moody, 186. And
see Crim. Proced. I. § 62, note.
CHAP. XXXVI. ]
POLYGAMY. § 602
she being alive, and the bond of matrimony being still undis-
solved, and no legal presumption of B’s death having arisen, did
unlawfully and feloniously marry another woman, to wit, one C,
contrary, &c.! Now, —
§ 601. Allegation of First Marriage — (English Practice). — It is
perceived that the above English form sets out the time and
place of the first marriage, and the Indiana does not. All the
English forms, which the author has observed, are in this respect
like the above.2_ Probably the question was never raised in an
English court, while yet the necessity of the allegation has been
taken for granted. Consistently with either view, it has been
deemed that a variance between allegation and proof in the
name of the first wife would be fatal. Chitty+ says: “ The in-
dictment must state both marriages, and an averment must also
be introduced that the former consort was alive at the time of
the second marriage.
inserted.$
To this statement no venue need be
The first marriage may be laid in the county where it
actually took place, though the venue is laid in another.” *
§ 602. With us. — A part of our American courts hold it to be
1 Bicknell Crim. Pr. 483, referring, for
the statute, to Felony Act, § 46,2 G.&
H. 452; for correctness of the form, to
Hutchins v. The State, 28 Ind. 34. Com-
pare with May v. The State, 4 Texas Ap.
424.
2 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 u.
Edwards, Russ. & Ry. 283. The oldest
form I have seen is in the very entertain-
ing case of Mary Moders, who was in-
dicted on Jac. 1, c. 11 (ante, § 579),
in 1668, and acquitted. It is as follows:
“That she the said Mary Moders, late of
London, Spinster, otherwise 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 Par-
ish of St. Mildred’s in the City of Can-
terbury, in the county aforesaid, did take
to husband the aforesaid Thomas Sted-
man, 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. Bartholomew’s,
in the ward of Farringdon without, felo-
niously did take to husband one Jolin
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. The prisoner had no coun-
sel, and no question was made as to the
sufficiency of the indictment. Rex 2.
Moders, 6 Howell St. Tr. 273. In the
celebrated case of the Duchess of Kings-
ton, the indictment in the first count sim-
ply charged that the defendant, “ being
then married, and then the wife of the
said Augustus John Harvey” did con-
tract the second marriage. But the sec-
ond count set out the first marriage
substantially as in the case of Mary
Moders. Rex v. Kingston, 20 Howell St.
Tr. 355, 371.
3 Reg. v. Gooding, Car. & M. 297. But
see Collum v. The State, 10 Texas Ap. 708.
4 3 Chit. Crim. Law, 719, note.
5 1 East P. C. 469.
6 Stark. 62.
7 Stark. 434, note.
381
§ 602 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
necessary to allege the time and place of the first marriage, and
to whom. It was so laid down in Vermont, as to time and place,
even in a case where the event transpired in another State; be-
cause it is a rule, said Redfield, C. J. “‘ that every traversable fact
must be directly alleged, with time and place. The first marriage,
in prosecutions for bigamy, is always traversable.” 1 The same,
as to time, place, and the name of the first husband or wife, was
held in Kentucky,? overruling a former decision to the contrary.?
On the other hand, the North Carolina court has adjudged it to
be unnecessary to state the place of the first marriage.* And it
is held in Indiana that neither the place and time, nor the maiden
name of the first wife, need be given, but the general allegation
that the defendant “did unlawfully, feloniously, and knowingly,
being married, marry,” &c. is sufficient.®
In Nice Legal Principle, —as derivable from the common law
alone, since the offence consists of the second marriage and the
first is only matter of inducement,’ the general averment, with-
out the particulars of time, place, and venue, would seem to be
enough as to such first marriage.
1 The State v. La Bore, 26 Vt. 765,
767.
2 Davis v. Commonwealth, 13 Bush,
318.
3 Commonwealth v. Whaley, 6 Bush,
266.
4 The State v. Bray, 13 Ire. 289.
5 Hutchins v. The State, 28 Ind. 34.
Said Fraser, J.: “It is objected that the
indictment ought to have alleged 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 alle-
gations 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 par-
ticularity ; and the Vermont case, which,
so far as we are aware, is the only one
where it is adjudged to be necessary [the
Kentucky case is of later date], puts it
382
True, as said in the Vermont
upon that ground exclusively. But our
statute dispenses with needless forms,
and therefore makes this indictment suf-
ficient. 2 G. & H. p. 463, § 59,60. The
absence of the averments alluded to can-
not, it is very certain, ‘ prejudice the sub-
stantial rights of the defendant upon the
merits.’ It was adjudged in North Caro-
lina, even in the absence of such a stat-
ute 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 precedents (2d ed. 993),
gives a form drawn by the Attorney-
General of Pennsylvania, in 1790, in
which the existence of the first marriage
is alleged almost exactly as in the case
before us. Indeed, as the first marriage
is not criminal, but its existence a mere
condition which makes the second mar-
riage a crime, it is of itself a fact, and
there is, as was admitted by the Vermont
court, no substantial reason why the
averment of it should ever have been re-
quired except in general terms.” See
also on this question, Sauser v. People, 8
Hun, 802; The State v. Armington, 25
Minn. 29.
® Ante, § 422.
CHAP. XXXVI. ] POLYGAMY. § 6038
case, the fact is traversable, it must be proved, and hence it
must be alleged. But how minute must the allegation be? The
common law furnishes various parallels. Thus, in larceny, the
ownership of the property stolen, which, like the first marriage
in polygamy, is matter of inducement, while still it is an indis-
pensable element in the crime, for no man can steal his own
goods, must be averred in the indictment and proved at the
trial! But, by universal usage, the averment is only in the like
general terms with that of the first marriage in the Indiana forms.
It does not state when, where, and by conveyance from whom,
the ownership was acquired. Yet, looking beyond the common
law into our written constitutions, we find there what might not
improperly lead to the opposite conclusion. The first marriage
is practically one half of the case, and is often the most nice and
delicate part. Commonly it can be proved only by exhibiting
the particulars. And, in reason, under a constitution declaring,
as some of ours do, that ‘“‘no subject shall be held to answer for
any crime or offence until the same is fully and plainly, substan-
tially and formally, described to him;”’ there is fair ground for
rejecting a mere general allegation of half of the case, as not
complying with this requirement, and for holding the meaning
to be, that what is special to the particular instance, in distinction
from the crime in general, must be set out. On the whole, this
is a sort of question on which uniformity of ee opinion is
hardly to be expected.
§ 602 a. Lawfal.—In Georgia it is necessary to allege that
the first marriage was “ lawful,” or to set forth facts equivalent
to this allegation.2, But the Code has the expression * the law-
ful husband or wife being alive.” In the absence of these or
other like special terms, the word is unnecessary ; for the mere
simple averment of a marriage means a lawful one.*
§ 608. Second Marriage. — The second marriage must be
charged with the particulars of time and place.6 And, added
to this, on principle,® and by the common practice,’ should be
the name of the person to whom. Unless to cover a statutory
word, there is no necessity to aver that it was “unlawful;” the
1 Crim. Proced. II. § 718-726, 752. 5 Ante, § 599.
2 King v. The State, 40 Ga. 244, § Crim. Proced. I. § 104, 570, 571.
8 Reed’s Ga. Crim. Law, 52. 7 Ante, § 598, 600.
4 Kopke v. People, 43 Mich. 41.
883
{BOOK VI.
§ 604 OFFENCES MORE PURELY STATUTORY.
fact of the first marriage being set out, its unlawfulness appears.!
In Vermont, under a statute? making punishable one who, hay-
ing “a former husband or wife living, shall marry another per-
son, or shall continue to cohabit with such second husband or
wife in this State,” it is held that an indictment on the latter
clause, where the second marriage was celebrated in another
State, must charge it to have been unlawful in the State of its
celebration. The Minnesota court has held the contrary.* The
true view, to which, perhaps, an examination of the cases will
show them not to be adverse, is, that in some way the second
marriage must appear to be unlawful. But, if a first marriage is
charged, and then a second while the first subsists, the latter is
invalid with us, and the case is brought within the statute, whether
it was lawful or unlawful at the place of its celebration.®
§ 604. Variance. —The marriage should not be alleged in a
way to create a variance.6 Where the name of the second wife
was given in the indictment as Elizabeth Chant, widow, and at
the trial it appeared she was not a widow, the variance was held
to be fatal; though without this descriptive word the averment
would have been equally good.’
1 Kopke v. People, 43 Mich. 41; The
State v. Johnson, 12 Minn. 476. See
Commonwealth v. Richardson, 126 Mass.
34.
2 Ante, § 588.
® The State v. Palmer, 18 Vt. 570.
Williams, C. J. said: ‘“‘ The second mar-
riage being in the State of New Hamp-
shire, 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 Hamp-
shire, 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, therefore,
have been an allegation that the second
marriage, in New Hampshire, was unlaw-
ful, or the respondent committed no of-
fence by continuing to cohabit with the
woman in this State... . If the second
marriage had been in this State, inasmuch
as it was illegal, the former wife being
884
living and the lawful wife of the person
charged, the illegality of the second mar-
riage would have been apparent, and the
court could have judicially recognized its
illegality.” p. 573. The answer to this
view is, that, if the polygamous marriage
was lawful in New Hampshire, it would
not be so in Vermont; for the courts of
no Christian nation would accept as good
a foreign polygamous marriage, though
it was valid at the place of its celebra-
tion. 1 Bishop Mar. & Div. § 372, 376.
Again, by the doctrine commonly re-
ceived, the Vermont court would pre-
sume polygamy not allowable in New
Hampshire. Ib. § 411-418. /
4 The State v. Johnson, 12 Minn. 476.
5 1 Bishop Mar. & Div. § 372, 376;
Hyde v. Hyde, Law Rep. 1 P. & M. 130;
ante, § 585.
5 Crim. Proced., I. § 484 a—488 e; ante,
§ 601; The State »v. Armington, 25 Minn.
29; United States v. Miles, 2 Utah, 19;
The State v. Williams, 20 Iowa, 98.
T Rex v, Deeley, 1 Moody, 303, 4 Car.
& P. 579.
CHAP. XXXVI.] POLYGAMY. § 607
§ 604 a. Forbidden Marriage after Divorce. — What is not polyg-
amy should not be indicted as such. In some of our States, a
statute makes punishable the party who, after being divorced at
the suit of the other, marries again.' Still such person has
ceased to be a husband or wife,? and his marriage in violation of
the inhibition is not polygamy, however the legislature may term
it. The indictment against him should be drawn, not as for
polygamy, but upon the special statutory provision.3
§ 605. Negativing Exceptions and Provisos. — The rules for neg-
ativing exceptions and provisos in indictments on statutes are
stated in “Criminal Procedure” * and they need not be here
repeated. Now, —
§ 606. Continued. — Doubtless, within these rules, an indict-
ment on a statute in the Indiana form * requires negatives.6 But
one on the English and most of the American statutes does not,
the matter of their exceptions and provisos being in the nature
of defence." ‘If it is reasonable,” said Lord Denman, C. J. in
England, “ 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.”® And, in North
Carolina, to charge that the first wife was alive at the time of
the second marriage is adjudged sufficient ; it need not be added,
that the first marriage was then subsisting. “All the prece-
dents produced are so, except that of the Duchess of Kingston’s
Case.” 9
§ 607. Secondly. The Evidence : —
Burden of Proof. —— In a sense explained in another connection,”
the burden of proof is on the prosecuting power to establish
every particular of its accusation. But this proposition compli-
cates itself with the doctrine of presumptions. Further as to
which, —
1 1 Bishop Mar. & Div. § 304.
21 Ib. § 123; 2 Ib. § 698, and the
places there referred to.
3 Post, § 666 ; Commonwealth v. Rich-
ardson, 126 Mass. 34; Commonwealth v.
Lane, 113 Mass. 458. See Baker v. Peo-
ple, 2 Hill, N. Y¥. 325.
* Crim. Proced. I. § 631-642.
5 Ante, § 600.
6 Bicknell Crim. Pr. 86, 483, referring
to Brutton v. The State,4 Ind. 601. —
* Crim. Proced. I. § 638; The State v.
25
Abbey, 29 Vt. 60; The State v. Williams,
20 Iowa, 98; Commonwealth v. Whaley,
6 Bush, 266; The State v. Johnson, 12
Minn. 476; Stanglein v. The State, 17
Ohio State, 453; Fleming v. People, 27
N. Y. 329; Commonwealth v. Jennings,
121 Mass. 47; Kopke v. People, 43 Mich.
41; Barber v. The State, 50 Md. 161.
® Murray v. Reg. 7 Q. B. 700, 706.
9 The State r. Norman, 2 Dev. 222.
10 Crim. Proced. I. § 1048-1051.
885
§ 609 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Alive. — The State must satisfy the jury beyond a reasonable
doubt, either by direct evidence or through the aid of presump-
tions, that, at the time of the second marriage, the first husband
or wife was alive.! Something as to the presumptions under this
head we shall see further on.?
Seven Years’ Absence and Knowledge thereof. — When the State
has thus shown, that, at the time of the second marriage, the first
wife, for example, was alive, the defendant may rebut this prima-
facie case by proof of her seven years’ absence. Then, if the
State contends, that, nevertheless, he knew her to be alive with-
in this period, it must prove his knowledge; he is not required
negatively to establish his want thereof.t And the jury are to
determine, under all the evidence, what the real fact as to his
knowledge was.® ,
§ 608. Divorce. — When the indicted party relies on a dissolu-
tion of the first marriage by divorce, he should prove it;® or, at
least, bring forward circumstances raising a presumption of it, as
explained by the author elsewhere.’ The validity of a decree
being a question of law, one’s knowledge whereof is conclusively
presumed,® a divorce invalid in law will not avail him.® But,
since men who are duly cautious, and otherwise mentally free
from blame, may lawfully act on facts as they appear,!° the erro-
neous belief of a divorce, founded on proper inquiry conducted
with due care, may be shown in defence the same as though it
truly existed.U
§ 609. Proof of First Marriage. —In another work, the author
has explained at large the proof of marriage in all issues, includ-
ing polygamy.” It is unnecessary, therefore, to enter fully into
the subject here.
Pact of Marriage.!2 It is commonly said, that, in this issue of
1 Reg. v. Lumley, Law Rep. 1 C. C.
196, 198; Squire v. The State, 46 Ind.
459; Hull v. The State, 7 Texas Ap. 593.
2 Post, § 611.
8 Hull v. The State, 7 Texas Ap. 593,
594.
4 Reg. v. Heaton, 3 Fost. & F. 819;
Reg. v. Ellis, 1 Fost. & F. 309; Reg. v.
Curgenwen, 10 Cox C. C. 152; 8. c. nom.
Reg. v. Curgerwen, Law Rep. 1 C. C. 1.
5 Reg. v. Cross, 1 Fost. & F. 510; Reg.
v. Dane, 1 Fost. & F. 323. And see, Reg.
v. Jones, Car. & M. 614; Arnold v. The
386
State, 53 Ga. 574; The State v. Barrow,
31 La. An. 691.
6 The State v. Barrow, supra; Com-
monwealth v. Boyer, 7 Allen, 306; Hull
v. The State, 7 Texas Ap. 593.
7 1 Bishop Mar. & Div. § 514-518.
8 Crim. Law, I. § 294-300.
8 Davis v. Commonwealth, 13 Bush,
318; Rex v. Lolley, Russ. & Ry. 287.
10 Crim. Law, I. § 301-310.
11 Squire v. The State, 46 Ind. 459.
12 1 Bishop Mar. & Div. § 408-549.
18 Th. § 482-502,
CHAP. XXXVI. ] POLYGAMY. § 610
polygamy, a fact of marriage, in distinction from the sort of pre-
sumptive one which suffices in civil causes, must be shown.!
But an examination of the question discloses the principle to be,
that, while commonly in civil causes the proof of marriage is
based on the presumption of morality and obedience to law,
whereby, if parties.are or have been cohabiting as husband and
wife, they are deemed to be honestly and innocently so, therefore
married ; whereas, when this presumption is attempted to be in-
voked in a polygamy case, it comes into conflict with the like pre-
sumption as to the second marriage and living together ; and so,
as presumption nullifies presumption, other proof is required.
And the other proof may be presumptive — that is, founded on
other presumptions — as well as direct.2 This conclusion is, in
some of our States, aided by statutes which have expressly made
circumstantial evidence sufficient in issues of this sort and in
others.
§ 610. Common Proofs, — Commonly the proofs of marriage in
polygamy cases are —
Record. — The marriage record, or in some circumstances the
certificate of the officiating person, supplemented by evidence of
the identity of the parties These proofs are, prima facie, suffi-
cient.5 Again, —
Persons present. —— The testimony of the officiating clergyman,
or of other persons present at the nuptials, is a common method
of proof. In special circumstances, the absence of the record
may create suspicion; but, in matter of law, it is never in-
dispensable. In aid of the proof of identity, a photographic
1 Morris v. Miller, 4 Bur. 2057; s. c.
nom. Morres »v. Miller, 1 W. Bl. 632; Birt
v. Barlow, 1 Doug. 170; Hemmings v.
Smith, 4 Doug. 33; The State +. Hodg-
skins, 19 Maine, 155. And see Reg. v.
Savage, 13 Cox C. C. 178; Jackson »v.
' The State, 8 Texas Ap. 60; Steward v.
The State, 7 Texas Ap. 326; Gaines v.
Hennen, 24 How. U. S. 553.
2 Consult 1 Bishop Mar. & Div. § 434-
449, 487-493; Reg. v. Wilson, 3 Fost. &
F. 119; Buchanan v. The State, 55 Ala.
154; Murphy v. The State, 50 Ga. 150;
Commonwealth v. Jackson, 11 Bush, 679;
Brown v. The State, 52 Ala. 338; Lang-
try v. The State, 30 Ala. 586; Reg. v.
Cresswell, 1 Q. B. D. 446, 18 Cox C. C.
126; Reg. v. Willshire, 6 Q. B. D. 366, 14
Cox C. C. 641; Scoggins v. The State, 32
Ark. 205 ; Wood v. The State, 62 Ga. 406.
3 1 Bishop Mar. & Div. § 548-545;
The State v. Armington, 25 Minn. 29;
Commonwealth v. Johnson, 10 Allen, 196 ;
Case v. Case, 17 Cal. 598.
11 Bishop Mar. & Div. § 460-481;
Rex v. James, Russ. & Ry. 17; Jones v.
Jones, 45 Md. 144, 160; The State v.
Potter, 52 Vt. 83; The State v. Colby,
51 Vt. 291; Jackson v. People, 2 Scam.
231; Moore v. Commonwealth, 9 Leigh,
639; Maxwell v. Chapman, 8 Barb. 679.
5 Reg. v. Hawes, 1 Den. C. C. 270.
6 1 Bishop Mar. & Div. § 494-496 a;
Rex v. Moders, 6 Howell St. Tr. 278;
387
§ 611 OFFENCES MORE PURELY STATUTORY. [BOOK VI:
likeness of the absent party to the marriage may be shown to
the witness.
Foreign Marriage. — Sometimes, where the marriage is foreign,
special considerations may arise. But, on these questions, it is
best the reader should consult the other work.?
Defendant's Admissions. — By the almost universal doctrine,
though there is some dissent, the defendant’s admission or con-
fession of the marriage, whether domestic or foreign, is good evi-
dence of it in this issue.?
§ 611. Presumption of Life. — Though the prosecuting power
must prove, that, at the time of the second marriage, the former
husband-or wife was living,’ it may resort to presumption in aid
of the evidence. If, at a previous time not too remote, such
party is shown to have been alive, the. jury may infer —for the
question is for them — the continuance of the life down to the
time of the second marriage.> Of course, if the existence of such
life could. be, established at no later period than seven years
before the second marriage, the evidence would amount to noth-
ing; if, within the seven years, the presumption of its con-
tinuance would come in conflict with that of the defendant’s
innocence, and, other things being equal, the latter should be
preferred.§ If the second marriage and the life of the first matri-
Reg. v. Manwaring, Dears. & B. 182, 37
Eng. L. & Eq. 609; 8. c. nom. Reg. v.
Mainwaring, 7 Cox C. C. 192; The State
v. Goodrich, 14 W. Va. 834; Bird ». The
State, 21 Grat. 800; The State v. Clark,
64 N. H. 456.
1 Reg. v. Tolson, 4 Fost. & F. 103.
21 Bishop Mar. & Div. § 519-536;
Reg. v. Povey, Dears. 32, 6 Cox C. C. 83;
The State v. Goodrich, 14 W. Va. 834;
Weinberg v. The State, 25 Wis. 370;
Commonwealth v. Kenney, 120 Mass. 387;
Reg. v. Griffin, 14 Cox C. C.308; People
v. Calder, 30 Mich. 85; People v. Lam-
bert, 5 Mich. 849; The State v. Kean, 10
N. H. 347; Oneale v. Commonwealth, 17
Grat. 582.
3 1 Bishop Mar. & Div. § 497-502, 532;
Miles v. United States, 103 U. S. 304,
811; United States v. Miles, 2 Utah, 19;
Oneale v. Commonwealth, 17 Grat. 582;
The State v. Seals, 16 Ind. 352; Squire v.
The State, 46 Ind. 459; Cameron v. The
State, 14 Ala. 546; Halbrook v. The
388
State, 34 Ark. 511; Commonwealth te.
Henning, 10 Philad. 209; Langtry v. The
State, 30 Ala. 536; Cook v. The State, 11
Ga. 53; Murphy ce. The State, 50 Ga.
150; Reg. v. Creamer, 10 L. Canada, 404 ;
Commonwealth v. Jackson, 11 Bush, 679;
Williams v. The State, 24 Ala. 181; Reg.
v. Newton, 2 Moody & R. 508; s. c. nom.
Reg. v. Simmonsto, 1 Car. & K. 164; Rex
v. Trueman, 1 East P. C. 470; Reg. »v.
Flaherty, 2 Car. & K. 782. Contra, Peo-
ple ». Humphrey, 7 Johns. 314; Gahagan
v. People, 1 Parker C. C. 378.
4 Ante, § 607.
5 1 Bishop Mar. & Div. § 453; Reg. o.
Lumley, Law Rep. 1 C. C. 196, 11 Cox
C. ©. 274; Squire v. The State, 46 Ind.
459; Reg. v. Willshire, 6 Q. B. D. 866, 14
Cox C. C. 541; Gorman v. The State, 23
Texas, 646; Hull rv. The State, 7 Texas
Ap. 593. And see Mitchell v. ‘The State,
63 Ga. 222.
6 Bishop Mar. & Diy. and the cases,
supra.
CHAP. XXXVI. ] POLYGAMY. § 613
monial partner were shown to be very near together, —as, for
example, if the former were within a month or two of the latter,
— the jury would be quite justified in finding that the life was
continuing ; but not, in the absence of special circumstances, if
the period was two years,! and there might not improperly be an
acquittal where it was no more than one year. Still this ques-
tion will depend much on the varying circumstances of cases; it
is purely of fact for the jury, yet of a sort particularly open to
be supervised by the court, and new trials granted when they
appear from the verdict to have proceeded on misapprehension.?
§ 612. Proof of Second Marriage. — No special difficulties attend
the proof of the second marriage. It, only, and not also cohabi-
tation under it, is required to be shown; for, without cohabita-
tion, the crime is complete. What is above said of proving the
first marriage, together with some elucidations under our first
sub-title,! will suffice for the second, except as to the —
§ 618. Injured Parties as Witnesses. — The first, or true, hus-
band or wife cannot, for familiar reasons, be a witness, unless by
force of some authorizing statute. And * this rule,” says. Leach,
one of the editors of Hawkins, “ has been so strictly taken that
even an affidavit to postpone the trial, made by the first wife,
has been rejected.” ® Nor does the defending husband’s consent
render her competent.’? Under the common-law rules she can-
not, as in assault and battery by the husband on her, be a wit-
ness by reason of her personal protection requiring it.® But
under a statute permitting the husband or wife to testify against
the other in a criminal proceeding for a crime by one against the
other, she has been adjudged competent.!° Nor, at common law,
can she be a witness to prove her marriage void ; or, a fortiori,
good. But a mere de-facto wife, not lawfully married, is always
1 Squire v. The State, supra. And see
Gorman v. The State, supra.
2 See the elucidations in 1 Bishop
Mar. & Div. § 452-456, and particularly
§ 453.
8 Gise v. Commonwealth, 81 Smith, Pa.
428; Beggs v. The State, 55 Ala. 108;
Scoggins v. The State, 32 Ark. 205; The
State v. Patterson, 2 Ire. 346.
* Ante, § 586, 588, 590-593.
5 Crim. Proced. I. § 1151-1155.
6 1 Hawk. P. C. Curw. ed. 687, § 8.
7 Wilson v. Hill, 2 Beasley, 148.
8 Crim. Proced. I. § 1153; IT. § 69.
® The State v- McDavid, 15 La. An.
403.
10 The State v. Sloan, 55 Iowa, 217,
219, 220. See The State v.Nash, 10 Iowa,
81. Compare with People v. Houghton,
24 Hun, 501, and Kelly v. Drew, 12 Allen,
107.
ll Reg. v. Madden, 14 U. C. Q. B. 588,
591; Peat’s Case, 2 Lewin, 111. And see
Peat’s Case, 2 Lewin, 288.
12 Williams v. The State, 44 Ala. 24;
Griggs’s Case, T.Raym.1 See Brough-
389
§ 613 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
a good witness.1_ Hence, for most purposes in these cases, the
second, or de-facto husband or wife may be called.2_ But such a
witness, whose marriage de facto is conceded, cannot testify to
the nullity of the contested first marriage; for the result of the
evidence would be, and it could be only, to establish its own
inadmissibility. Whence also it results, that such party cannot
be admitted as a witness to testify the other way ; that is, in favor
of the marriage. For a witness is sworn to speak the truth, what-
ever it maybe. Therefore, alike in reason, and, in the language of
Woods, J. in the Supreme Court of the United States, as “‘ the
result of the authorities, . . . as long as the fact of the first mar-
riage is contested, the second wife cannot be admitted to prove
it. When the first marriage is duly established by other evi-
dence, to the satisfaction of the court, she may be admitted to
prove the second marriage, but not the first.” 2 It is perceived,
therefore, that, on this issue, differing from the ordinary case in
which a tendered witness is objected to as being the husband or
wife of one of the parties,4 the course of the hearing seems, in
some degree, to supply the place of the preliminary examination
by the court as to his competency ; hence there may be apparent
differences in the rules as to admitting the witness.
ton v. Harpur, 2 Ld. Raym. 752; Red- v. The State, 61 Ga. 305; Furney v. The
grave v. Redgrave, 38 Md. 93; The State
v. Brown, 67 N. C. 470.
1 Crim. Proced. I. § 1154; The State
v. Brown, 28 La. An. 279.
21 Hawk. P.C. Curw. ed. § 8; The
State v. McDavid, 15 La. An. 403; The
State v. Patterson, 2 Ire. 346; Johnson
390
State, 3 Head, 544.
3 Miles v. United States, 103 U. S. 304,
815.
4 As, for example, in Wakefield’s Case,
2 Lewin, 279; Walter v. People, 32 N. Y.
147; Kelly v. Drew, 12 Allen, 107; Reg.
v. Young, 5 Cox C. C. 296.
CHAP. XXXVII.] FORCIBLE ABDUCTION OF WOMEN. § 616
CHAPTER XXXVII.
THE FORCIBLE ABDUCTION OF WOMEN.
,§ 614, 615. Introduction.
616-621. Law of the Offence.
622-624. The Procedure.
§ 614. Abduction — Seduction — (Distinctions). — The wrong
meant by the word “abduction,” without the adjective, “may
either be by fraud and persuasion, or open violence.” 1 Hence,
with entire propriety, some of the English authors treat, under
the title Abduction, of the offences included both in this chapter
and the next.2 We, in this country, have little to do with for-
cible abduction, as an offence distinct from kidnapping; so, for
convenience, the preliminary explanations relating to it are
placed in this chapter by themselves.
§ 615. How Chapter divided. — We shall consider, I. The
Law of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 616. Old English Statutes.— By 3 Hen. 7, c. 2, A. D. 1486, it
was recited “that women —as well maidens as widows and
wives, having substances, &c. — 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.”. Thereupon it enacted, “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 abetting to the same, and also receiv-
ing wittingly the same woman so taken against her will, and
13 Bl. Com. 139. have the separate title “Seduction.” 1
2 Archb. Crim. Pl. & Ev. 19th Lond. Hawk. P. C. Curw. ed. 125-138.
ed. 756-761; 1 Russ. Crimes, 5th ed. 8 For this statute, and expositions
883-898. The late editions of Hawkins thereon, see 1 Hawk. P. C. Curw. ed. p.
123 et seq. And see Crim. Law, I. § 555.
391
§ 618 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
knowing the same, be felony,” &c. And 39 Eliz. c. 9, deprived
the principals and procurers of clergy.1_ The substance of this
statute, with some alterations, is now comprised in 24 & 25 Vict.
c. 100, § 53.
§ 617. Interpretations. — The word “so,” in the body of the
above statute, was construed to make the preceding recitation a
part of it.2 The taking must be for lucre,? and the woman must
either be an heir apparent or have property. Also force must
be used either at the taking, or at the marriage or defilement,
but not necessarily at both. Both the force, and the marriage
or defilement, must occur in the county of the indictment ;® the
mere taking there, without one or the other of these, not suf-
ficing.’ Yet, within this distinction, a force begun in one county
may be continuing in another, where the marriage or defilement
transpires, and therefore sufficient.2 When the offence has been
thus completed, it will not be purged by a subsequent consent
of the woman.’ Her receivers are principals; those who receive
the takers of her are only accessories after the fact.
§ 618. Whether Common Law with us.— As to whether this
statute is common law in our States, we have no decisions.!!_ The
Pennsylvania judges, in their report of English statutes in force,
do not include this one; and Kilty mentions it among the acts
not found applicable in Maryland.
1 Baker’s Case, 12 Co. 100.
2 Bruton v. Morris, Hob. 182, 183;
Case of Stealing Women, 12 Co. 20.
34 Bl. Com. 208. And see Reg. v.
Barratt, 9 Car. & P. 387.
4 Baker’s Case, 12 Co. 100; 1 Hawk.
P. C. Curw. ed. p. 124, § 4.
5 4 BL Com. 208, 209.
6 1 Stark. Crim. Plead. 2d ed. 2; 1
East P. C. 453; Fulwood’s Case, Cro.
Car. 488.
7 Baker’s Case, 12 Co. 100; Case of
Stealing Women, 12 Co. 20.
8 Fulwood’s Case, Cro. Car. 488.
9 Reg. v. Swanson, 7 Mod. 101, 102.
And see Crim. Law, I. § 733.
10 Baker’s Case, 12 Co. 100; Case of
Stealing Women, 12 Co. 20.
Crim. Law, I. § 555.
12 Report of Judges, 3 Binn. Ap. 595,
617.
13 Kilty Rep. of Stat. 67. He says:
“This offence was generally known in
392
As an abstract question,
England under the term of stealing an
heiress. The statute must be consid-
ered in connection with 39 Eliz. c. 9,
which took away the benefit of clergy.
The question, as to the extension of
these statutes, if considered independent
of what is to be inferred from the records
of the courts, would be open to consider-
able 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, although the provisions are highly
penal, the offence may be viewed as one
of a heinous nature, and as being liable
to be perpetrated in this country, as well
as in England. But I have not been
able to discover any instance of a prose-
cution 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
CHAP. XXXVII.]; FORCIBLE ABDUCTION: OF WOMEN. § 622
this statute was as applicable to our colonies as to the mother
country. But because of the poverty of the early settlers, there
was no temptation to commit the offence, and the occasion for its
enforcement could not arise. This sort of want of occasion is
not generally deemed to exclude from our law a provision of the
English. Still, on the whole, the chances of inducing a court
to accept this enactment as a part of our law would be prob-
lematical. :
§ 619. Aside from this Statute, — this offence may, where suf-
ficient force is employed, amount to common-law kidnapping ; or,
if not technically such, to false imprisonment, or other analogous
misdemeanor.! And an unsuccessful attempt to commit it is in-
dictable. Thus, an English case lays it down, that attempting to
carry away forcibly a woman of great fortune is a great misde-
meanor at the common law; for “sure,” says Lord Holt, ‘“ this
concerns ‘all the people in England who would dispose of their
children well.” 2 .
§ 620. At present, in England, —this whole ground is so cov-
ered by statutes as to leave little occasion for resort to the
unwritten law.3 =
§ 621. With us, — it is so to a slight.extent; so slight, that
whatever of written law we have relating to it will be con-
sidered in our next chapter.
II. The Procedure.
§ 622. Indictment. — The indictment, to follow in substance
Chitty’s exposition,’ sets forth that the woman had lands, or
goods, or was heir apparent ; and was married or defiled. And
it avers the place and manner of the taking ;5 also, that it was
for lucre.6 “ But it is not necessary to state that it was done
with an intention to marry or defile; because this is not re-
quired by the words of the act, nor would the absence of it lessen
statute 4&5 Phil. & M.c. 8 [considered Burrell, Leigh & C. 354; Reg. v. Tim-
under the title Seduction, post, § 627, mins, Bell C. C. 276.
628], for what is termed an inferior de- 43 Chit. Crim. Law, 818, note. And
gree of the same kind of offence.” see Reg. v. Swendsen, 14 Howell St. Tr.
1 Crim. Law, I. § 555; IT. § 746-751. 559; Reg. v. Bayton, 14 Howell St. Tr.
2 Rex v. Pigot, Holt, 758. 597.
8 Stat. 24 & 25 Vict. c. 100, § 58-55; 5 Fulwood’s Case, Cro. Car. 484.
ce. 95, repealing prior statutes. See 6 Bruton v. Morris, Hob. 182; 1 Hawk.
Greaves Crim. Law Acts, 78; Reg. v. P. C. 7th ed.c. 41, § 5.
393
§ 624
OFFENCES MORE PURELY STATUTORY.
[Book VI.
the injury. It seems, however, to be both safe and usual to
insert it.” 2
§ 623. Woman as Witness. — The marriage, effected by force,
does not make the woman a wife, unless afterward, by voluntary
cohabitation or otherwise, she ratifies it.?
a witness against the man at his trial.*
Therefore she may be
Therefore, also, —
On Attempt to debauch. — On an information for attempting to
debauch a young lady, she was very properly admitted to testify
in the defendant’s favor.®
§ 624. In Conclusion, — these cases, like others, will present
general questions of pleading and evidence, not best to be entered
into in a connection like this.®
1 Fulwood’s Case, Cro. Car. 488; 1
Hawk. P. C. 7th ed. c. 41, § 6.
2 1 Hale P. C. 660.
3 1 Bishop Mar. & Div. § 210 et seq.
4 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.
248. Speaking of the last ‘cited case,
Lord Hale’says: “But had she freely
without constraint lived with him that
thus married her, any considerable time,
her examination in evidence might be
more questionable.” 1 Hale P.C. 661.
394
This would make the marriage good by
reason of the subsequent consent thereby
implied. 1 Bishop Mar. & Div. § 214.
Still, it might be a question whether she
should not be received 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 obser-
vations and ruling of Hullock, B. who so
held, in Wakefield's Case, supra, at p. 287,
288 of Lewin.
5 Gray’s Case, Skin. 81.
6 See Reg. v. Barratt, 9 Car. & P. 387 ;
The State v. Tidwell, 5 Strob. 1.
CHAP, XXXVIII.] SEDUCTION OF WOMEN. § 627
CHAPTER XXXVIII.
SEDUCTION OF WOMEN.
§ 625, 626. Introduction.
627-643. Law of the Offence.
644-652. The Procedure.
§ 625. Conspiracy, distinguished. — We are not to treat in this
chapter of conspiracies. But it may be borne in mind that a
conspiracy to bring about the. carnal defilement of a young
woman, or even, if she is under guardianship or the legal re-
straint of parents, being a minor, to procure her marriage with-
_out the consent of those entitled to forbid the nuptials, is, both
in England and this country, indictable at the common law.!
§ 626. What for this Chapter and how divided. — Having in the
last chapter considered only forcible abduction, we shall in the
present take into view most of what is ordinarily contemplated
under the joint heads of Abduction and Seduction ; as to, I. The
Law of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 627. Old English Statute. —In 1557, the statute of 4 & 5
Phil. & M. c. 8, after a long recitation of grievances in § 1, made
it, in § 2, punishable “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 posses-
sion, custody, or governance, and against the will, of the father
of such maid or woman-child, or of such person or persons to
1 Crim. Law, II. § 235; Twitchell v.
Commonwealth, 9 Barr, 211; Anderson
v. Commonwealth, 5 Rand. 627; Respub-
lica v. Hevice, 2 Yeates, 114; Mifflin v.
Commonwealth, 5 Watts & S. 461; Rex
v. Thorp, 5 Mod. 221; Reg. v. Blacket, 7
Mod. 39; Reg. v. Mears, 1 Eng. L. & Eq.
581, 2 Den. C. C. 79, Temp. & M. 414;
Rex v. Ossulston, 2 Stra. 1107. And see
Crim. Law, I. § 501, 502, 767, 768; Grey’s
Case, 9 Howell St. Tr. 127; s. c. nom.
Gray’s Case, Skin. 81; The State ».
Savoye, 48 Iowa, 562.
395
§ 629 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
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, edu-
cation, or governance of such maid or 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.” }
§ 628. Whether Common Law with us.— The date of this en-
actment is prior to the earliest settlements in this country. It
would seem, therefore, to be a part of our common law. Kilty
says it was received in Maryland as such ;? but the Pennsylvania
judges, not inclined to include a large number of English stat-
utes, omit this one in their report. It was made specially of
force in South Carolina; and it is held there not to be restricted
to heiresses and persons of quality, who in the recitations of
grievances in § 1 were particularized.* The Massachusetts Com-
missioners on a Penal Code observe, that its date “‘ would render
it a part of our common 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.” 5 It appears recently to
have been assumed not to be of force in North Carolina.§ —
§ 629. How the Earlier Common Law. — This offence, where
there is no force and no conspiracy, but only the guile of a single
person is resorted to, is, both on reason and authority, not indict-
able by the common law aside from the statute.’
1 See, for the entire provisions, in-
cluding subsequent sections and the ex-
positions, 1 Hawk. P. C. Curw. ed. p. 125
et seq. See also Rex v. Bastian, 1 Sid.
3862; 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. Mankletow,
Dears. 159.
2 Kilty Rep. Stats. 167; ante, § 618,
note.
8 Report of Judges, 3 Binn. 595, 621.
See also Anderson v. Commonwealth, 5
Rand. 627.
4 The State v. Findlay, 2 Bay, 418;
. g.c. nom. The State v. Findley, 1 Brev.
107; The State v. Tidwell, 5 Strob. 1.
396
5 Sup. Report Penal Code, 12.
6 The State v. Sullivan, 85 N. C. 506.
7 Rex ec. Marriot, 4 Mod. 144; The
State v. Sullivan, 85 N. C. 506. See Rex
v. Moor, 2 Mod. 128; 1 Deac. Crim. Law,
6; 1 East P. C. 458, 459. The last three
places referred to may have created some
doubt of this proposition, but a consid-
eration of the principles of our unwritten
law of crimes leaves little room for any.
See Crim. Law, I. § 546, 560-564, 581 et
seq. In The State v. Sullivan, supra,
Ruffin, J. said: “It is true that in a note
to 2 Archbold’s Criminal Practice, 301,
to which our attention was called by the
Attorney-General, it is said that the ab-
duction, or the enticing, or carrying away
CHAP. XXXVIII.] SEDUCTION OF WOMEN. § 631 4
§ 630. Modern Statutes — (Course of Discussion). — The pres-
ent statutes on this subject, in England and this country, are
similar to the older. Yet they are numerous, and in some re-
spects diverse. Assuming that the reader will have before him
those of his own State, the author will here attempt some help-
ful expositions; which, however, can serve as safe guides only as
examined in connection with the statutes,
§ 631. Taking Girl under Sixteen out of Custody. — The present
English statute of 24 & 25 Vict. c. 100, § 55, in like terms with
the earlier one of 9 Geo. 4, c. 31, § 20, and not greatly differing
from 4 & 5 Phil. & M. c. 8, makes it an indictable misdemeanor
to take ‘“‘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.” It is silent as to the purpose of the taking. A cor-
responding ‘provision in Iowa has the words, “ take or entice
away an 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.” 2 Now, —
§ 631 a. Mistaking Girls Age — (England). — The question
whether or not, under these provisions, one who mistakenly be-
lieves the girl, in England, to be over sixteen, or, in Iowa, to be
over fifteen, is punishable for the seduction, is similar to, yet not
of any person by force or fraud, is an
indictable offence at common law; and,
as authority for the position, reference is
made to 1 East P. C. 458, and 1 Russell
on Crimes, 569. But on looking to East,
we find no sort of sanction given to such
a position. On the contrary, it is there
said that by virtue of the general pro-
hibitory clause of the statute of 4 & 5
Phil. & M. c. 8, an indictment for the ab-
duction of a child will lie by the rule of
the common law, which rule, as explained,
is, that, where a thing is prohibited to be
done by a statute and a penalty is affixed
to it by a separate and distinct clause,
the prosecutor is not bound to pursue the
latter remedy, but may proceed under
the prior general clause by indictment
for a misdemeanor. Not a single sugges-
tion, however, is made that such indict-
ment, in the absence of all statutory
provision, can be maintained by force of
the common law alone. And still less
support is given to the proposition by
Russell. He says, that the only reported
case of a prosecution at common law for
such an offence is that against Lord
Gray, to be found in 9 (8) State Trials,
127. [Grey’s Case, 9 Howell’s St. Tr. 127.]
Upon examining into that case, we find
it to be, not an indictment for abduction
at all, but an information lodged against
that lord and five others, by which they
were charged with a conspzracy, the un-
lawful purpose of which was, to entice
Lady [Henrietta Berkley. to quit her
father’s house and custody and live in
secret adultery. And even in that case
the court never proceeded to a judgment,
but a nolle prosequi was entered after a
verdict of guilty, as to all the defend-
ants.” p. 507, 508.
1 Concerning the Michigan statute, see
People v. Bristol, 23 Mich. 118.
2 The State v. Ruhl, 8 Iowa, 447.
897
§ 63814 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the same as, the one of mistaken death, discussed under the title
Polygamy. It was in England, ‘on two several occasions,” to
copy the words of a former edition of this work,? “ruled by
single judges at jury trials, that, if the girl is of precocious
growth and appears to be over sixteen, or if she represents her-
self to be so, this will not avail the prisoner in his defence.’
The reports of these cases do not show on what reasons the doc-
trine, assuming it to be sound, proceeds; but it occurs to the
writer that there are sufficient reasons in the principles of the
common law relating to the intent; though this question lies very
near the line dividing two dissimilar classes of cases, and it is not
quite certain, as we shall see, that other English judges would
decide the question in the same way. It is a principle of the com-
mon law, in respect of crimes requiring only a general evil intent,
and not a specific intent to do a particular forbidden thing, that,
if a man contemplates one evil result, and his act unintended
accomplishes another and a different one, he is punishable the
same as though the act and intent had been the usual and
natural accompaniments of each other. The intent was wrong
and the act was wrong, an evil mind impelled the evil act, there-
fore he ought to be punished. And the doctrine goes to the
extent, that the intent need not be to do a thing which would be
indictable if done; for, in many cases, not all, if what is meant is
a mere civil or a mere moral wrong, yet an unintended wrong of
the indictable sort follows, an indictment will lie Now, in the
cases under consideration, the man meant to commit the civil
and moral wrong of taking away an infant girl from under law-
ful guardianship; and though he might have supposed he should
succeed in dodging the law, it is no stretch of legal doctrine to
hold him to be guilty. The intent which impels the act is quite
different from that which impels a man to sell what he has every
reason to believe, and does believe, to be pure milk, or what on
good ground he believes to be a harmless and unintoxicating
beverage, or to enter into matrimony with one whom he thus
believes to be lawfully entitled to marry.” This extract, from
the author’s previous edition, was written and printed in the
closing part of the year 1872. Early in 1875, a jury having
1 Ante, § 596 a. * Reg. v. Robins, 1 Car. & K. 456;
-* 2 § 369 of the first edition, inachap- Reg. v. Ollifer, 10 Cox C. C. 402.
ter not retained in this revision. 4 Crim. Law, I. § 323-334,
898
CHAP. XXXVIIL.] SEDUCTION OF WOMEN. § 682
found an indicted person guilty, with the qualification, if material
in law, that on reasonable grounds he believed the girl to be over
sixteen years of age, the question was submitted to the Court for
Crown Cases Reserved. So difficult did it there appear, that it
was referred to all the common-law judges of England, and six-
teen heard and passed upon it. Fifteen were of the opinion
above indicated and one dissented.!
§ 631 6. Something of Law Books. — This question is, by the
writer, brought forward in this way for the double purpose, of
explaining the doctrine, and explaining something regarding the
sort of legal treatise to which the present series of volumes be-
longs. Contrary to the views of the class of lawyers who, dis-
cerning no difference between adjudications in accord and in
conflict with just legal doctrine, nor even taking cognizance of
legal doctrine as existing otherwise than in the mere words of
judges, deny the value of books of a higher order than digests,
and relegate all legal questions to one flat, these volumes present,
to the extent to which the author is able within the space at
command, legal things as they truly are. What is plain is set
down.as such. What stands on the border lines of doctrines is
so presented. What is adjudged past recall is not generally dis-
turbed. And, to some extent, within what seems practical, where
it is certain that a lawyer can change the course of decision for
the better if he will take the pains, and exercise skill enough to
make the court understand the question, the path for him is indi-
cated. But, on the other hand, it is not deemed the author’s
duty to impart either the disposition or the industry, or yet the
legal capacity, to counsel or to court.
§ 632. Mistaking Girl's Age, continued — (Iowa). — The doc-
trine reached in England had already been held in Iowa. It was
there adjudged 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 inter-
course 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,
1 Reg. v. Prince, Law Rep. 2 C.C.154, 12 Cox C. C. 281; Reg. v. Mycock, 12
13 Cox C. C. 188. See also Reg. v. Booth, Cox C. C. 28.
399
§ 6324 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
if the defendant enticed the female away, for the purpose of de-
filement or prostitution, there existed a criminal or wrongful
intent, even though she was over the age of fifteen... . The
wrongful intent to do the one act is only transposed to the other.
And though the wrong intended is not indictable, the defendant
would ‘still be liable if the wrong done is so. -1 Bishop Crim.
Law [lst 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.’”? Still, —
§ 632 a. Mistake indicating Innocence. —In this offence, the
same as in any other, there may bea mistake of fact of a sort
showing the accused to be, as to the intent, blameless; and then
the excuse will be available in law. For example, under the
English enactment, the purpose of carnal defilement is not essen-
tial to guilt; thereupon, in the language of Bramwell, B. “if the
taker believed he had the father’s consent, though wrongly, he
would have no mens rea ; so, if he did not know she was in any
one’s possession, nor in the care or charge of any one, [or, more
accurately, if, after due inquiry, he in good faith believed her
not to be]. In those cases, ... he would not know he was
doing an act wrong in itself.”2 So, under the same statute, where
one had promised a father on his death-bed to take care of an infant
daughter, and after the father’s death took her out of lawful cus-
tody, Cockburn, C. J. ‘told the jury, that it was clear the pris-
oner had no right to act as he had done in taking the child out
of Mrs. Barnes’s custody. But inasmuch as no improper motive
was suggested on the part of the prosecution, it might very well
be concluded that the prisoner wished the child to live with him,
and that he meant to discharge the promise which he alleged he
had made to her father, and that he did not suppose he was
breaking the law when he took the child away. This being a
criminal prosecution, if the jury should take this view of the case,
and be of opinion that the prisoner honestly believed that he had
a right to the custody of the child, then, although the prisoner
1 The State v. Ruhl, 8 Iowa, 447, 450, 2 Reg. v. Prince (stated ante, § 632),
451, Law Rep. 2 C. C. 154, 175,
400
CHAP. XXXVIII.] SEDUCTION OF WOMEN. § 634
was not legally justified, he would be entitled to an acquittal
upon this charge.’ And he was acquitted.}
§ 633. From whom taken, &c.— The several statutory words
should be considered. Thus, —
“Father.” — A bastard being, for most purposes, not recognized
in the law as the child of its male parent,? the word “father ”’ is
not in all statutes interpreted to include such parent of a bastard.
But in some it is And though, between the two parents of
such a child, the mother has the better claim to its custody ;°
yet the natural father, in the actual custody of an illegitimate
girl, is a “father” within the statute now in contemplation,
making the taking of her from his custody indictable.®
“Other Person.” — The words, “or other persons having the
legal charge of her person” in the Iowa statute, do not require
the one in possession to have the full measure of a parent’s au-
thority over the girl, or to have been formally appointed her
guardian. Yet, on the other hand, a mere temporary charge,
like that of a schoolmistress or governess, is not sufficient. If,
for example, the parents are dead, those with whom she resides
as a member of the family, wholly under their care and protec-
tion, have “ the legal charge of her person,” within the meaning
of this statute, though holding no appointment of guardianship.’
Within this general sort of doctrine are the not very distinct
English cases.3
§ 634. The Taking — (Consent of Girl — Force — Enticement).
— Plainly, under the statute now in contemplation, the girl’s
consent affords no justification for the taking; though, at one
time in England, there seems to have been doubt on this ques-
1 Reg. v. Tinkler, 1 Fost. & F. 513.
The case of Reg. v. Hibbert, Law Rep. 1
C. C. 184, was decided wrongly, if it pro-
ceeded on the question now under dis-
cussion. Yet evidently the ground of
the decision was that the girl was not
taken out of the father’s possession.
Compare with Reg. v. Green, 3 Fost. &
F. 274, therein cited.
2 1B]. Com. 459; Dorin v. Dorin, Law
Rep. 7 H. L. 568; In re Ayles’ Trusts, 1
Ch. D. 282; Dickinson’s Appeal, 42 Conn.
491.
8 Hard’s Case, 2 Salk. 427.
4 Rex v. Hodnett, 1 T.R. 96, 98; 1
Bishop Mar. & Div. § 315.
26
5 2 Bishop Mar. & Div. § 550; Ex
parte Knee, 1 New Rep. 148.
§ Rex v. Cornforth, 2 Stra. 1162; Rex
v. Sweeting, 1 East P. C. 457.
1 The State v. Ruhl, 8 Iowa, 447.
8 Reg. v. Burrell, Leigh & C. 354; Reg.
v. Tinkler, 1 Fost. & F. 513; Reg. v.
Meadows, 1 Car. & K. 899. Archbold
observes : “ 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. Ratcliffe’s Case, 3 Co.
37 a, 89.... And it is not clear from
the statute whether it would be an offence
401
§ 636
OFFENCES MORE PURELY STATUTORY.
{BOOK VI.
Yet
tion! There need be no force, actual or constructive.”
there must be enticement ;* so that her voluntary going away,
without prompting from the accused, is no offence, though he
receives her.4 Yet nothing more than enticement is required.®
Therefore to entice, on one occasion, a girl who goes away on
another, and then to receive her, is to commit this offence, though
the person doing it does not approve of her going at the time she
does.6
§ 635. Consent of Parent or Guardian. — By the terms of these
statutes, the consent of the person having the custody of the girl
justifies the taking. But it was deemed, on an English trial, and
it would appear correctly, that a consent obtained by fraud is,
‘for this purpose, equivalent to none. And Archbold adds, 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.”® On principle, a parent, like
any other person, has his day for repentance; and, if he revokes
the authority before the taking, the case stands as though it had
not been given. Parents who had encouraged the girl in a lax
course of life, so that they might have foreseen what happened,
were in one case deemed to have thereby consented.?
§ 636. “Possession” of Parent or Guardian. —If a girl, by a pre-
vious arrangement with a man, leaves her father’s house and then
joins him ;/° or, a fortiori, if he puts up a ladder to the window,
and she comes down on it and goes away with him ;” this is a
taking of her out of his possession. And the result should, in
reason, be deemed the same, if, on her daily route to school, he
to take away a girl against the consent
of her parent, but by the consent of one
who has the temporary care of her.
1 East P. C. 457.” Archb. Crim. Pl. &
Ev. 10th Lond. ed. 477, 478.
1 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. 238;
Reg. v. Timmins, Bell C. C. 276, 8 Cox
Cc. C. 401; Reg. v. Robb, 4 Fost. & F.
69.
2 Reg. v. Mankletow, supra; Reg. »v.
Frazer, 8 Cox C. C. 446.
8 Lewis v. People, 37 Mich. 518; The
State v. Crawford, 34 Iowa, 40; Wilson
v. The State, 58 Ga. 328.
402
4 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.
5 But see People v. Parshall, 6 Parker
C. C. 129.
§ Reg. v. Robb, 4 Fost. & F. 59; Reg.
v. Olifier, supra.
7 Reg. v. Hopkins, Car. & M. 254.
8 Archb. Crim. Pl. & Ey. 10th Lond.
ed. 478, referring to Calthrop v. Axtel, 3
Mod. 168; 1 East P. C. 457.
® Reg. v. Primelt, 1 Fost. & F. 50.
10 Reg. v. Mankletow, Dears. 169, 6
Cox C. C. 143.
il Reg. v. Robins, 1 Car. & K. 456.
CHAP. XXXVIU. ] SEDUCTION OF WOMEN. § 638
persuades her to go away with him. Surely a father, to protect
his child, ought not to be obliged to keep his arms clasped con-
stantly around her waist. Unhappily, there seems from some of
the cases to be doubt whether this is the doctrine in England ;!
yet, from others, it appears to be.?
§ 687. How long and far away.—It is not necessary that the
accused person should keep, or intend to keep, the girl perma-
nently from her parents or guardian, or remove her beyond their
immediate neighborhood.2 Where she was taken from her
father’s house for an hour or two, and married, but not defiled,
the absence was adjudged sufficient. A. fortiort it was so
where the defendant had her three days, sleeping with her at
night.5 4
§ 638. “Under Promise of Marriage.’—Some of the statutes,
especially those which make an illicit intercourse indispensable,
require the seduction to be effected ‘under promise of mar-
riage.” ® By construction whereof, if the man is already married
to another, and the woman knows it, so that she could not be
influenced by his promise, the statutory wrong becomes impos-
sible ;* but otherwise if she does not know it,§ because then the
promise may influence her the same as though he was really free.
And it will be even binding on him to the extent of furnishing
her ground for an action for breach of promise.® Yet his liability
to a civil action if he breaks his vow is not strictly necessary ; as,
if he is a minor arrived at puberty, he can commit this offence.”
Or, if the marriage promise was the inducement.to the girl to
yield to him, rendering it void because founded on an immoral
consideration, it is still sufficient as foundation for this indict-
1 Reg. v. Hibbert, Law Rep. 1 C.C.
184; Reg. v. Green, 3 Fost. & F. 274.
2 Reg. v. Mankletow, Dears. 159,
where Jervis, C. J. speaking for the
whole court, said: “A manual posses-
sion is not necessary. If the girl were
a member of the family, and under the
father’s control, there is a sufficient pos-
session. If a girl leaves her father’s
house for a particular purpose, with his
-sanction, she cannot legally be said to be
out of her father’s possession.” p. 165.
And see Reg. v. Burrell, Leigh & C. 354.
3 Slocum v. People, 90 Ill. 274.
£ Reg. v. Baillie, 8 Cox C. C. 288.
5 Reg. v. Timmins, Bell C. C. 276, 8
Cox C.C.401. And see Reg. v. Hopkins,
Car. & M. 254.
6 N. Y. Stats. of 1848, c. 111; Callahan
v. The State, 63 Ind. 198.
7 Callahan v. The State, supra ; Wood
v. The State, 48 Ga. 192.
8 People v. Alger, 1 Parker C. C. 333.
See The State v. Gates, 27 Minn. 52.
9 Bishop Con. § 693; Wild v. Harris,
7 C. B. 999; Millward v. Littlewood, 5
Exch. 775, 1 Eng. L. & Eq. 408; Kelley -
v. Riley, 106 Mass. 339, 342.
10 Kenyon v. People, 26 N. Y. 403.
11 Bishop Con. § 495.
403
OFFENCES MORE PURELY STATUTORY. [BooK VI.
§ 639
ment! Though the parties are already under marriage engage-
ment, if the woman yields, not by reason of the man’s promise of
marriage, but simply for the gratification of a criminal desire, he
does not commit the offence ;? yet the subsistence of the engage-
ment does not render his act the less a crime, if she submits from
reliance thereon. In the words of Bleckley, J.: ‘‘ To make love
to a woman, woo her, make honorable proposals of marriage,
have them accepted, and afterwards to undo her under a solemn
repetition of the engagement vow, is to employ persuasion as well
as promises of marriage.” 3
§ 639. “Previous Chaste Character." Under some of the stat-
utes, the woman, to bring the case within them, must be of “ pre-
vious chaste character.” The meaning is, not that her reputation
must be good, but that she must possess actual personal virtue.
Therefore a single act or a series of acts of illicit connection by
her may be shown on behalf of the defendant,’ but not her bad
reputation for chastity. Nor, after her virtue is destroyed by
the defendant, are the like acts of hers relevant in his defence.®
The required chastity must exist at the time of the seduction ;7
and, though she has been unchaste, if she has reformed, she is
chaste within the meaning of the statute. In reason, therefore,
a single incontinent act does not necessarily, in law, take away a
woman’s ‘ previously chaste character ;”” for she may repent of
it instantly, and not repeat it.
“ Virtuous,” — in a like connection in a statute, used with refer-
ence to an unmarried woman, implies something of purity of
heart and feeling beyond the mere physical fact that she has not
been defiled.°
1 Kenyon ». People, supra; Callahan
v. The State, 63 Ind. 198; Boyce v. People,
65 N. Y. 644.
2 People v. Clark, 33 Mich. 112; Bowers
v. The State, 29 Ohio State, 542.
3 Wilson v. The State, 58 Ga. 328,
331,
4 The State v. Shean, 32 Iowa, 88;
Kenyon v. People, 26 N. Y. 203; Lyons
v. The State, 52 Ind. 426; People v. Clark,
88 Mich. 112.
5 Kenyon v. People, supra; Kauffman
v. People, 11 Hun, 82; People v. Brewer,
27 Mich. 134. Yet reputation has been
deemed admissible to support or discredit
the testimony as to particular acts. The
404
State v. Prizer, 49 Iowa, 531; The State
v. Deitrick, 51 Iowa, 467.
6 Boyce »v. People, 55 N. Y. 644; The
State v. Deitrick, supra.
7 The State v. Gates, 27 Minn. 52.
8 People v. Clark, 33 Mich. 112; Car-
penter v. People, 8 Barb. 603; Crozier rc.
People, 1 Parker C. C. 458; Kenyon uv.
People, 26 N. Y. 203; The State v. Car-
ron, 18 Iowa, 372, 375; Andre v. The
State, 5 Iowa, 389; Boak v. The State, 5
Iowa, 430; Bowers v. The State, 29 Ohio
State, 542, 645; The State v. Dunn, 53
Iowa, 526. See Safford v. People, 1 Par-
ker C. C. 474.
9 Wood v. The State, 48 Ga. 192.
CHAP. XXXVIII. } SEDUCTION OF WOMEN. § 641
“Good Repute.” — The statutory words in Ohio are “of good
repute for chastity.” Under them, specific incontinent acts can-
not be shown, but the question is of the girl’s general reputation !
at the time of the seduction. This event may have made a good
reputation bad ; so that the inquiry cannot be what it is at the
time of the trial.?
§ 640. The Seducing. — In determining whether or not there is
a sufficient seducing, the precise statutory terms should be re-
garded. Aside from such terms, the kind and extent of the
seductive arts appear to depend less on absolute rule than on the
circumstances of the particular case; among them, the character,
age, intelligence, and education of the woman. In general, if in
fact they accomplished the object, they are sufficient in law.3
For example, no more may be required than “ the common blan-
dishments of alover.”* But there must be a holding out of some
sort of inducement.6 And,—
“Inveigle.” — Under the statutory word ‘‘ inveigle,” a woman is
not inveigled away, if she leaves her home purely of her own
volition, whatever is done afterward.®
§ 641. “Purpose of Prostitution” — (“Concubinage ”). — Some of
the statutes require the enticing away to be “for the purpose of
prostitution.” Something more than a single illicit act, or series
of such acts, with the one enticer, must be contemplated. And
we have intimations that the intent must be to make the woman a
“ prostitute ;”’? defined, in one of the cases, to be “a female given
to indiscriminate lewdness for gain.”® It would seem to the
writer, that, while this may be so in some connections in a stat-
ute, it is not necessarily so in all; and that a distinction may be
taken between an act of prostitution and the condition of being
a prostitute. Where, by the statute, the offence consisted in
enticing “ away any unmarried female of a chaste life and con-
1 Bowers v. The State, 29 Ohio State,
542.
word “inveigle,” United States v. Auca-
rola, 17 Blatch. 423.
2 People v. Brewer, 27 Mich. 134.
8 The State v. Higdon, 32 Iowa, 262;
The State v. Groome, 10 Iowa, 308.
+ Archb. Crim. Pl. & Ev. 10th Lond.
ed. 478, referring to Rex v. Twisleton, 1
Lev. 257, 1 Sid. 887, 2 Keb. 482; 1 Hawk
P. C. 7th ed. e¢. 41, § 10.
5 People v. Clark, 33 Mich. 112.
6 Carpenter v. People, 8 Barb. 603.
See further, as to the meaning of the
7 The State v. Ruhl, 8 Iowa, 447;
Commonwealth v. Cook, 12 Met. 93; Car-
penter v., People, 8 Barb. 603; The State
v. Stoyell, 54 Maine, 24; People v. Par-
shall, 6 Parker C. C. 129. See Sheehey
v. Cokley, 48 Iowa, 183; Osborn v. The
State, 52 Ind. 526.
8 The State v. Stoyell, supra, by Ap-
pleton, C. J.
405
§ 643 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
versation from the parents’ house . . . for the purpose of pros-
titution or concubinage,” a married man was held to have
committed it, who induced the daughter of a neighbor to come
from her father’s house to his three or four times a week and
have connection with him, frequently in the presence of his wife,
during a period of nearly nine months. The intent and enticing
away, without the indecency following, would have completed
the crime; and how much less, can be only matter of opinion.
Indeed, to satisfy the word “ concubinage,” in a statute similar
to this, a single illicit act has been adjudged sufficient.?
§ 642. “Seduce and Debauch” — Where the statutory words
were “seduce and debauch any unmarried woman,” with no
qualification as to her previous character, the majority of the
Michigan court held, that, if the defendant has already seduced
the complainant under a promise of marriage, then she yields to
his embraces under a fresh promise, but for which she would not
yield, this subsequent act makes him indictable, though the earlier
is barred by the statute of limitations. Said 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
casé 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 particular case without the
express promise of marriage. To require any higher standard of
virtue would be to nullify the statute, by making seduction im-
possible in any case, as well in reference to the first as to any
subsequent act of intercourse.” 3
§ 642 a. “Procure to have,” &c. — Under a statute which makes
indictable one who “ procures any female to have illicit carnal
connection with any man,” the offence is not committed by a male
person who merely seduces a woman into connection with himself.
The procurement must be to have connection with another.*
§ 643. Distinguished from Rape.— In rape, the copulation must
be effected by force ;° in the present offence, by seductive arts.§
1 Slocum v. People, 90 Ill. 274. Groome, 10 Iowa, 308. As to the Con-
2 The State ». Feasel, 74 Misso. 524. _ necticut statute, see The State v. Bierce,
3 People v. Millspaugh, 11 Mich. 278, 27 Conn. 319.
283. And see People v. Clark, 33 Mich. 4 People v. Roderigas, 49 Cal. 9.
112; People v. Brewer, 27 Mich. 134; 5 Crim. Law, IL. § 1115, 1120, 1121.
The State v. Jones, 16 Kan. 608; People 6 Ante, § 640.
v. Roderigas, 49 Cal. 9; The State v.
406
CHAP. XXXVIII.] SEDUCTION OF WOMEN. § 616
Therefore a rape cannot be also a seduction.1 And it was even
held to be error to charge the jury, that the crime was seduc-
tion although the woman ‘consented partly through fear, and
partly because the defendant hurt her.”? But —
Seduction — Fornication — Adultery — Bastardy.— There is no
antagonism between seduction and fornication, adultery, or bas-
tardy; so that, on an indictment for the first, there may be a
conviction for any one of the others, if included within the alle-
gation.®
II. The Procedure.
§ 644. Course of Discussion. — We shall consider, First, The
Indictment ; Secondly, The Evidence.
First. Zhe Indictment : —
Taking Girl under Sixteen.—It is a good indictment upon the
modern English statute before recited + to say, that the defend-
ant, at a time and place stated, unlawfully did take one C out of
the possession and against the will of B her father, she the said
C being then and there an unmarried girl under the age of six-
teen years, to wit, of the age of fifteen years.° The particular
allegation of “being an unmarried girl ” is said ny Archbold to
be sufficient.®
§ 645. Words of Statute. — In general, it is sufficient to charge
this offence in the words of the statute;’ adding the time and
place, and the names of persons.®
§ 646. “Purpose of Prostitution.” — Where the statute requires
the taking to be “for the purpose of prostitution,” ® this element
of the offence must be alleged. It is inadequate to say “for the
purpose of having illicit sexual intercourse with her;” ! which,
we have seen," is a different thing. But, —
1 The State v. Lewis, 48 Iowa, 578,
579; The State v. Kingsley, 39 Iowa,
Robins, 1 Car. & K. 456; Reg. v. Biswell,
2 Cox C.C.279. For other forms on this
429.
2 Croghan v. The State, 22 Wis. 444,
445. And see Furman v. Applegate, 3
Zab. 28.
3 Wood v. The State, 48 Ga. 192;
Hopper v. The State, 54 Ga. 389; Nichol-
son v, Commonwealth, 10 Norris, Pa.
390.
4 Ante, § 631.
5 Archb. Crim. Pl. & Ev. 10th Lond.
ed. 477. Such was the form in Reg. v.
statute, see Reg. v. Hopkins, Car. & M.
254; Reg. v. Meadows, 1 Car. & K. 399;
Reg. v. Timmins, Bell C. C. 276, 8 Cox
C. C. 401.
® Referring to Rex v. Moore, 2 Ley.
179; Rex v. Boyall, 2 Bur. 832.
7 The State v. Curran, 51 Iowa, 112.
8 West v. The State, 1 Wis. 209.
9 Ante, § 641.
10 Osborn v. The State, 52 Ind. 526.
11 Ante, § 641.
407
§ 649 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
“ Promise of Marriage.” — Where the statutory words were “ un-
der promise of marriage,” it was adjudged not ill to say in the
indictment “by means of a promise of marriage.” }
§ 647. “Previous Chaste Character." —If the statute requires
the female to be ef ‘previous chaste character,” ? the indictment
must aver that at the time of the seduction she was so. And
perhaps, in some cases, it must where these words are not in the
statute.2 In Indiana, an indictment to the effect, that the de-
fendant had illicit carnal intercourse with one C, 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, was held to be
sufficient.*
§ 648. Secondly. The Evidence :—
Previous Chaste Character. — Where the woman’s previous chaste
character is an element in the offence and it must be alleged,® it
must also be passed upon by the jury.6 But—
Presumption of Chastity. — Some courts deem the presumption
of her chastity sufficient to establish it until evidence appears
to the contrary.’ Others hold, that, since also the defendant is
presumed to be innocent,’ and so the two presumptions are in
conflict, some evidence of her chastity must be brought forward
in the first instance.® This conclusion seems better to accord
with the legal analogies and reasons than the other; while yet
ordinarily such evidence can in the nature of things be only
slight and circumstantial. If the woman is a witness, she may
testify to her previous virtue.
§ 649. Proving Woman unchaste. — Similar methods to those
‘explained in the next chapter for proving adultery may be re-
sorted to on this issue. Wanton and indiscreet conduct, for
example, may be shown." If she is a witness, she may be asked, on
cross-examination, whether she has not used indecent language
with other men than the defendant, and been found in bed with
1 Stinehouse v. The State, 47 Ind. 17. State v. Shean, 32 Iowa, 88; Andre v. The
2 Ante, § 639. State, 5 Iowa, 389; Boak v. The State, 5
3 People v. Roderigas,49Cal.9. Com- Iowa, 430.
pare The State v. Jones, 16 Kan. 608. 3 Crim. Proced. I. § 1103-1106.
4 The State v. Stogdel, 13 Ind. 565. ® West v. The State, 1 Wis. 209. See,
5 Ante, § 639, 647. also, Safford v. People, 1 Parker C. C.
6 The State v. Carron, 18 Iowa, 372, 474.
376. 10 Kenyon v. People, 26 N. Y. 203.
7 The State v. Wells, 48 Iowa, 671; 11 The State rv. Bell, 49 Iowa, 440;
The State v. Higdon, 32 Iowa, 262; The People v. McArdle, 5 Parker C. C. 180.
408
CHAP. XXXVIII. } SEDUCTION OF WOMEN. § 651
them.’ But it has been held that improper conduct eight years
before the alleged seduction, when she was only fourteen years
old, is too remote, and it allows too little for the influence of
maturer years and probable reformation.? We shall see that, in
adultery, by the better opinion, libidinous conduct subsequent to
the act charged, as well as before, may be shown in aid of the
proofs of such act.2 But, in this offence, on the issue of a pre-
vious chastity, the reasons are different. Libidinous conduct
after the seduction may be as well traceable to it as to previous
unchastity ; hence it is not admissible.4
§ 650. Supporting Prosecuting Witness. — In one case, a witness
for the defendant testified, that, on two occasions prior to the se-
duction charged, he had committed the unlawful act with the
woman. And by the majority of the court it was held that the
State was properly permitted, in rebuttal of this evidence, to in-
troduce “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.” ‘* The fact,”
said Beck, J. “that a life of purity such as will secure and sus-
tain a reputation for virtue, renders in a degree charges of lewd-
ness 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.” ®
§ 650 a. Further of the Woman as Witness. — The admitting of
the injured woman to testify for the State accords with general
rule.6 But some of our statutes, in diverse terms, require
her to be corroborated by other evidence, to justify a conviction.
For decisions on them, the reader is referred to the note.”
§ 651. Whole Issue.— The whole issue must be proved.’ It
will vary with the statutes; as, under some, the defendant must
1 The State v. Sutherland, 30 Iowa, 7 Crandall v. People, 2 Lans. 309;
570. Kenyon v. People, 26 N. Y. 203; The
2 The State v. Dunn, 53 Iowa, 526, State v. Kingsley, 39 Iowa, 439; The
527. State v. Painter, 50 Iowa. 317; The State
8 Post, § 679-681. v. Smith, 54 Iowa, 748; Boyce v. People,
£ The State v. Wells, 48 Iowa, 671; 55 N. Y. 644; Armstrong v. People, 70
Mann »v. The State, 34 Ga. 1, 5. N. Y. 38; The State v. Curran, 51 Iowa,
5 The State v. Shean, 32 Iowa, 88, 91, 112; The State v. Timmens, 4 Minn. 325.
: 8 For a pretty full case, see Armstrong
6 Crim. Proced. I. § 1188; Bowers v. v. People, 70 N. Y. 38. And see The
The State, 29 Ohio State, 542. Butsee State v. Haven, 43 Iowa, 181.
Cole v. The State, 40 Texas, 147.
409
92.
§ 652 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
be shown to be a married man.!_ Under the greater number,
there must be evidence of seduction and carnal intercourse.?
And under many, there must be established a promise of mar-
riage.?
§ 652. Court or Jury.— The question of the woman’s previous
chastity is for the jury. The meanings of such words: as “se-
duce,”’® “ prostitution,” ® and the like, are of law for the court ;
while the jury deduces the facts from the evidence.
1 West v. The State, 1 Wis. 209. Commonwealth v. Walton, 2 Brews. 487 ;
2 The State v. Curran, 51 Iowa, 112; Cook v. People, 2 Thomp. & C. 404.
Lewis v. People, 37 Mich. 518 ; People v. 4 The State v. Carron, 18 Iowa, 372.
Clark, 83 Mich. 112; The State v. Dan- 5 The State v. Bierce, 27 Conn. 319.
forth, 48 Iowa, 43. 6 Carpenter v. People, 8 Barb. 603.
8 Stinehouse v. The State, 47 Ind. 17;
410
CHAP. XXXIX.]' ADULTERY. § 6544
CHAPTER XXXIX.
ADULTERY.
§ 653. Introduction.
654-668. Law of this Offenoe.
669-690. The Procedure.
§ 653. How Chapter dividea. — We shall consider, I. The Law
of this Offence; II. The Procedure,
I. The Law of this Offence.
§ 654. Scope of this Chapter — Elsewhere. — The subject of
this chapter is simple adultery. The various forms of continuous
and of open adultery and lascivious behavior, indictable under
statutes, or as common-law nuisances, are considered in other
connections.}
At Common Law. — The simple adultery to be treated of in this
chapter is not indictable at the common law.? But, —
§ 654 a. Under Statutes — Their Interpretation. — In a consider-
able number of our States, not all, a single act of adultery is
made by statute indictable. The common form of the provision
is, that one who commits “adultery ” shall be punished in a way
pointed out; and then it becomes a question of law, what is
adultery. . Now, although adultery was not punishable in the
English common-law courts, it was in the ecclesiastical ;3 and it
was ground also for the divorce from bed and board. The word,
therefore, had acquired a precise legal meaning; and, for reasons
already explained,‘ the courts, in interpreting the new statute,
should give it this established meaning. It is—
1 Ante, § 625; post, § 695 et seq., 710 3 Ib. § 38, 89; 2 Burn Ec. Law, 402,
et seq.; Crim. Law, I. § 38, 39, 500, 501, Lewdness; Burgoyne v. Free, 2 Hagg.
1083 et seq., 1125 et seq., 1146. Ec. 456; Watson v. Thorp, 1 Phillim.
2 Crim. Law, I. § 38, 39, 501; Pollard 269.
v. Lyon, 1 Mac. Ar. 296. # Ante, § 96, 97.
411
§ 656 [BooK VI.
OFFENCES MORE PURELY STATUTORY.
Adultery defined. — Adultery is the voluntary sexual inter-
course of a married person with one not the husband or wife.
§ 655. Differing Judicial Views. — Plain as the course of reason-
ing appears thus far, it has not always been in the minds of our
American judges. Largely they have assumed, without inquiry,
that the word “adultery” is new in the law; so that, instead of
referring it to the ascertained legal meaning, they have sought to
define it as a new term. Naturally, discordant opinions have
been the result. Some deem the criminal offence committed
whenever there is an intercourse whence a spurious issue may
proceed ; both parties being guilty of it, though one only is mar-
ried.2 Again, 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.” These are conclusions from the
assumed premises, that the essence of the offence is 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, should
there be any, is not imposed upon the marriage. If this theory
is right, a woman naturally barren or past childbearing might
multiply lovers to any extent without violating the statute. No
such doctrine has been judicially held, and to propose it toa
court would be startling. Again, —
§ 656. Continued.— We find, in the books, language seeming
to favor the proposition, that, where either party is married, the
carnal act is adultery in both;® but probably no adjudication has
affirmed that a single woman commits it by a connection with a
married man. The Virginia court held, that, when the woman
11 Bishop Mar. & Div. § 703; Hel- Hood v. The State, 56 Ind. 263. And
frich v. Commonwealth, 9 Casey, Pa.
68.
2 The State v. Wallace, 9 N. H. 515;
The State v. Pearce, 2 Blackf. 818; The
State v. Armstrong, 4 Minn. 335. And
see the reasoning in Galbraith’s charge
(Pennsylvania), 4 Am. Law Reg. 209.
3 The State v. Hinton, 6 Ala. 864:
Hull v. Hull, 2 Strob. Eq. 174, 187; Tebb’s
Essay, 6,7; 85 Law Mag. 68; Shelford
Mar. & Div. 386; Rees Cyc. tit. Fornica-
tion.
* Galbraith’s Charge, 4 Am. Law Reg.
209; The State v. Lash, 1 Harrison, 380;
412
see The State v. Armstrong, 4 Minn.
335.
5 The State v. Hinton, 6 Ala. 864;
Hull v. Hull, 2 Strob. Eq. 174, 187.
6 The case of The State v. Hinton, su-
pra, appears to be one of living together in
adultery, between which and simple adul-
tery there may be a distinction. The
unmarried woman, however, would be
guilty of the offence under the statute of
Iowa. Post, § 658. Whether she would
be a principal of the second degree, un-
der a familiar common-law rule, see post,
§ 659.
CHAP. XXXIXx.]
ADULTERY.
§ 656
is married and the man is not, it is only fornication in him.!
And this conducts us to what we have seen to be the conclusion
of reason ;? and, let us add, it is also the doctrine deemed best
sustained by the authorities ; namely, that, —
True View. — In all cases where one of the parties to an act of
criminal intercourse is married and the other is not, it is adultery
in the married party and fornication in the unmarried. Such, by
the superior weight of the adjudications, the doctrine is believed
to be 3? and, —
1 Commonwealth v. Lafferty, 6 Grat.
672. In acharge to the grand jury, Gal-
braith, P. J. laid this down as the better
law for Pennsylvania. He considered
that the authorities in this State (see the
next notes) have not established a differ-
ent doctrine. 4 Am. Law Reg. 209. See
post, § 658.
2 Ante, § 654 a.
8 The State v. Buchanan, 55 Ala. 154,
157; The State v. Fellows, 50 Wis. 65;
Commonwealth v. Call, 21 Pick. 509;
Commonwealth v. Elwell, 2 Met. 190;
Respublica v. Roberts, 2 Dall. 124, 1
Yeates, 6; The State v. Hutchinson, 36
Maine, 261; Cook v. The State, 11 Ga.
53, 56; Commonwealth v. Burton, Re-
corder’s Decisions, 83, 85; Territory v.
Whitcomb, 1 Montana, 359; Miner »v.
People, 58 Ill. 59; Hunter v. United
States, 1 Pinney, 91; 2 Greenl. Ev. § 48;
6 Dane Abr. 677; 1 Bishop Mar. & Div.
§ 703; Bouvier Law Dict. tit. Adultery ;
Train & Heard Prec. 22. And see Godol.
Abr. 469-476; Ayl. Parer. 43; The State
v. Way, 6 Vt. 311. In the Scotch Law.
—In Scotland, adultery is a statutory
crime — “heinous, and in some cases cap-
ital ;”— but Hume, who wrote near the
beginning of the present century, re-
marked that it “has not, for many years,
been the subject of a criminal prosecu-
tion.” 1 Hume Crim. Law, 2d ed. 449.
An examination of the modern Scotch
reports shows also an entire absence of
decisions on 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 civilians
and foreign doctors have much 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 expressions 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 husband’s peace, and the
credit and welfare of his family. Yet
our custom perhaps, on the whole, with
a wiser policy and sounder judgment,
though chiefly actuated of old by consid-
eration 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, prescribed
to both one line of duty, and exposed
them to the same hazards.” 1 Hume
Crim. Law, 2d ed. 451. In Erskine’s
Principles of the Law of Scotland, 12th
ed. p. 531, it is said: “This crime [adul-
tery] could, neither by the Roman law
(l. 6, § 1, ad leg. Jul. de adult.) nor the
Jewish (Zev. xx. 10; Deut. xxii. 22), be
committed, but where the guilty woman
was the wife of another. By ours, it is
adultery if either the man or the woman
be married.” Mackenzie says: “ Adulte-
rium est vitiatio alterius thori, the violation
of another’s bed, and is committed by a
married person’s lying with one unmar-
ried, 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 proposition to which he does not as-
sent as belonging to the law of Scotland.
Mackenzie Crim. Law, 118, § 11.
413
§ 659 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 657. Further of Reasons. — However men may differ in their
speculations, our Jaw, from its earliest periods down to the very
time when these adultery statutes were enacted, has placed the
incontinence of husband and wife on an exact level; granting
the same remedy of divorce from bed and board — or, under stat-
utes, from the bond of matrimony — for either ;1 it has had con-
stantly one definition, and no more, of “adultery.” We have
seen what the definition is.2 A court sits to administer the law
which it finds, not the speculations of the incumbents of the bench
or of anybody else. So that, whatever the private views of a
judge may be, he should judicially give to the word “adultery”
in the statutes under contemplation the meaning which the law
had assigned to it, unless the legislature has indicated otherwise.
Still, —
§ 658. Statutory Definings.— In some of our States, the statutes
are in terms to exclude in part or in full these questions, and
settle doubts. Thus, “ When the crime is committed between a
married woman and a man who is unmarried, the man shall be
deemed guilty of adultery.”% Again, “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,” &c.* A form of different
meaning is, “ When the crime is committed between parties only
one of whom is married, both are equally guilty of adultery, and
shall be prosecuted accordingly.” ®
§ 659. Aider at Fact.— If there is a State in which adultery is
made a statutory felony, and at the same time no punishment is
provided for fornication, the unwritten law, by the rules and rea-
sons whereof all statutes are to be construed,® will require the
unmarried party in the unlawful act, where only one is married,
1 In England, a statute passed in 1857
—1 Bishop Mar. & Div. § 65 and note —
has made some distinction. But our
adultery statutes were earlier enacted;
and, in every view, it cannot affect inter-
pretations with us.
2 Ante, § 654 a.
3 Mass. R. S. c. 130, § 1; Gen. Stats.
c. 165, § 3; Commonwealth v. Reardon,
6 Cush. 78; Commonwealth v. Elwell, 2
Met. 190.
4 Pa. Act of March 31, 1860, § 38,
414
Purd. Dig. 9th ed. 223. About the time of
this enactment, the Pennsylvania court
settled the law for the State in accordance
with its terms. Helfrich v. Common-
wealth, 9 Casey, Pa.68. For the Georgia
provisions and their interpretation see
Castleberry v. Kelly, 26 Ga. 606; Cook
v. The State, 11 Ga. 63; Bigby v. The
State, 44 Ga. 344.
5 The State v. Wilson, 22 Iowa, 864.
6 Ante, § 123, 131-144.
CHAP. XXXIX.] ADULTERY. § 661
to be punished for participating with the other as principal in
the second degree;! unless the statute is in terms to exclude
this consequence.2, Even where the offence is a misdemeanor,
the interpretation which imputes legal guilt to the participant
will be required if the punishment is heavy, not if it is light.
But, in most of the States wherein adultery is punishable, fornica-
tion is also, yet less heavily. The statutory terms, therefore, will
take the place of the common-law construction ; and, the unmar-
ried party being punishable for fornication, he will not be also
for participating with the other in adultery.
‘§ 660. Consent. of Non-accused Party — (Adultery — Fornica-
tion — Incest — Rape).— As every offence to be punishable must
be voluntary, so in particular must be adultery. But alike in
adultery,® and, it is believed, in fornication and in incest, where
the crime consists of one’s unlawful carnal knowledge of another,
it is immaterial whether the other participated under circum-
stances to incur guilt or not, — just as sodomy may be committed
either with a responsible human being or an irresponsible one ora
beast.6 Therefore the same act of penetrating a woman who, for
example, is too drunk to give consent, may be prosecuted either
as a rape’ or as adultery, at the election of the prosecuting
power. ‘There are cases which deny this, and hold that adultery,
fornication, and incest can be committed only with consenting
persons, and what is rape cannot be one of the others. But they
are believed to proceed partly, and perhaps entirely, on special
terms of statutes ;° certainly, in principle, they can have no other
just foundation.
§ 661. The Carnal Knowledge — (Incest). — In a case of incest,
in Ohio, the statutory words being ‘sexual intercourse,” the
court deemed them to mean the same thing as “carnal knowl-
edge” in rape. Hence, as in this State emission is essential in
6 Crim. Law, IT. § 1191-1193,
7 Th. § 1121, 1124,
8 Commonwealth v. Bakeman, supra.
9 Speer v. The State, 60 Ga. 881; De
1 Ante, § 185; Crim. Law, I. § 646-
654, 659. .
2 Ante, § 145,594; The State v. Brady,
9 Humph. 74.
3 Ante, § 186, 145, 594; Crim. Law, I.
§ 656-659,
* Ante, § 654 a.
5 Commonwealth v. Bakeman, 181
Mass. 577; The State v. Sanders, 30 Iowa,
682.
Groat v. People, 39 Mich. 124; The State
v. Thomas, 53 Iowa, ‘214; The State v.
Shear, 51 Wis. 460, And see The State
v. Caldwell, 8 Baxter, 676; Baumer »v.
The State, 49 Ind. 544. Compare this
section with ante, § 643.
415
OFFENCES MORE PURELY STATUTORY. [Book VI.
§ 663
rape, it was adjudged to be so in incest.1_ On this basis of reason-
ing, the general American doctrine would hold emission not to
be necessary, and simply res in re to suffice.2 Upon this ques-
tion in adultery we have no decisions, but this indication as to
incest would seem to furnish the rule; for, in principle, the two
offences are not distinguishable.
§ 662. Mistake of Law — (Invalid Divorce — Void Marriage). —-
If a married woman whose husband has gone away and formally
taken another wife, supposes herself to be thereby freed from
him, and even if she is so advised by a magistrate who celebrates
a marriage between her and another man, the mistake is of law,
and it does not excuse her2 A carnal intercourse under such
second marriage will, therefore, be adultery. And the same
consequence follows the like steps after an invalid divorce, how-
ever valid it may be believed by the parties to be.6 Indeed,
whenever a formal marriage is void, sexual intercourse under it
is adultery, fornication, or incest.6 But, —
§ 663. Mistake of Fact. — Where the mistake, instead of being
of law, is of fact, it comes within principles already illustrated in
analogous offences,‘ and explained at large in ‘“‘ Criminal Law.” ®
The victim of rape is not an adulteress;® nor does a married
woman commit this offence, if, deceived by a man who personates
her husband, she admits him to intercourse.° Again, —
Unknown Defect of Fact in Marriage. — Though, as just seen, a
cohabitation under a marriage simply void in daw is adultery or
fornication," yet, if there is a fact unknown to the parties and
not by reasonable care discoverable by them, which renders it void
while they believe it to be good, the cohabitation is not a crime.”
The common instance is where a former husband or wife is
through such mistake of fact deemed to be dead, and a second
1 Noble v. The State, 22 Ohio State,
541.
2 Ante, § 488; Crim. Law, II. § 1127-
1182.
3 Crim. Law, IL § 294-296.
4 The State v. Goodenow, 65 Maine,
80, 33.
5 Hood v. The State, 56 Ind. 263; The
State v. Whitcomb, 52 Iowa, 85. Seel
Bishop Mar. & Div. § 711.
6 Commonwealth v. Munson, 127 Mass.
416
459; Territory v. Corbett, 3 Montana,
50; The State v. Fore, 1 Ire. 378. See
The State v. Pearce, 2 Blackf. 318; post,
§ 663.
7 Ante, § 490, 596 a, 631 a-632 a.
8 Crim. Law, I. § 801-310, and par-
ticularly the long note at § 303 a.
3 Ante, § 660.
10 ] Bishop Mar. & Div. § 710, 711.
11 Ante, § 662.
12 1 Bishop Mar. & Div. § 711.
CHAP. XXXIX.] ADULTERY. § 665
marriage is entered into, —as explained under the title Polyg-
amy.! A case which, contrary to just principle, held that adul-
tery was committed,? is commented on in another connection?
§ 664. Hvil Mind coexisting with Mistake of Fact.—- The reason
why, in the case supposed, the man is free from legal guilt, is
because his steps were prompted by a desire to conform to the
statute, which, in letter, he disobeyed; and he believed himself
to be conforming to it, and to the other laws, and the rules of
good morals. The mistake, which he was not able to avoid, im-
pelled him, and the law does not punish people for what they
cannot prevent. But carefulness is one of the duties of life ;+4
and, consequently, a man may be responsible for mistaking facts,
because he did not use proper caution, or make due inquiry ;5 so
that acts performed under a mistake of fact thus produced are
punishable. If, therefore, parties intermarry contrary to the
letter of a statute, where the obstacle is a mistake of fact, not
caring or exercising any caution as to whether the fact exists or
not, their cohabitation under the void marriage will be criminal ;
and, if the mistake was in believing a pre-existing marriage to be
dissolved, it will be adultery. Yet it will not be, where there
had been an absence rendering the second marriage not violative
of the statute against polygamy.’ Again, —
§ 665. Intending only Fornication.— Where the act of a man
intending one wrong terminates in another unintended, the rule
of the criminal law, subject to exceptions, is, that he is punish-
able for the result the same as though it was specifically meant.
Nor need the purposed wrong be of the indictable sort if the
wrong accomplished is. Hence, should a man and woman, not
intermarrying, yet believing a former husband or wife of one of
them to be dead, commit what both supposed to be fornication,
while, in fact, the death had not occurred, the married party
1 Ante, § 596 a.
2 Commonwealth v. Thompson, 11 Al-
len, 23, Compare with Commonwealth v.
Thompson, 6 Allen, 591.
8 Crim. Law, I. § 308a, note, par. 18.
* Crim. Law, I. § 313 et seq.
5 Rex v. Lediard, Say. 242; Harwood’s
Case, 1 Mod. 79; Barnes v. The State, 19
Conn. 398; Sturges v. Maitland, Anthon,
208; Commonwealth v. Mash, 7 Met. 472,
27
as to which query, and see Alison Crim.
Law, 5385, 536, 541, and McDonald’s
Case, 1 Broun, 238; Crim. Law, I. § 303-
304.
6 Crim. Law, I. § 327 note, 330; 1
East P. C. 102; Barnes v. The State, 19
Conn. 398.
7 Commonwealth v. Thompson, 6 Al-
len, 591.
8 Crim. Law, I. § 823-334.
417
§ 668 [BooK VI.
OFFENCES MORE PURELY STATUTORY.
would thereby become guilty of adultery. The mistake, however
sincere, and made after however much inquiry, did not free the
mind from wrong. His purpose was to commit the lighter offence
of fornication, but the law declared it to be adultery. Such is
the doctrine of principle. In authority, the question seems not
to be settled in our American courts.
§ 666. The Marriage — (Guilty Party after Divorce).— A sub-
sisting marriage is an element inseparable from adultery.? Yet,
while a void marriage will not sustain the accusation,? one void-
able in the sense special to the matrimonial law will.t Ifa single
person is forbidden by law to marry, —as, for example, where a
divorce has taken place, and a statute declares that the party in
fault shall not enter into a second marriage, — still the person so
forbidden does not by any unlawful sexual commerce commit
adultery.© And, as already seen, adultery will not be ‘criminal
where polygamy would not be.®
§ 666 a. Whites and Blacks. —It is competent for legislation,
in our States, to impose a heavier punishment for adultery or
fornication between whites and blacks than between persons of
one race.’
§ 667. Attempts, Conspiracies, &c.— Solicitations and other
attempts, and conspiracies, to commit adultery, or to procure its
commission by others, are within the discussions of “ Criminal
Law.” 8
§ 668. Degree of Offence.—In some of the States—for ex-
ample, Connecticut®—adultery is felony; in others, such as
Pennsylvania» and Vermont,"! it is misdemeanor.
1 See Commonwealth v. Elwell, 2 Met.
190; Delaney v. People, 10 Mich. 241,
244
Commonwealth v. Thompson, 11 Allen,
23.
7 Green v. The State, 58 Ala. 190;
2 Ante, § 654 u, 655; Clay v. The
State, 3 Texas Ap. 499; Tucker v. The
State, 35 Texas, 113.
3 Ante, § 662; People v. Bennett, 39
Mich. 208; 1 Bishop Mar. & Div. § 105.
41 Bishop Mar. & Div. § 104 a, 105,
116.
5 2 Tb. § 700; The State v. Weatherby,
43 Maine, 258, 263,264. And see ante,
§ 604 a.
6 Ante, § 664; Commonwealth v.
Thompson, 6 Allen, 591. Compare with
418
Ford v. The State, 63 Ala. 150; Ellis v.
The State, 42 Ala. 525; Barnes vo. The
State, 48 Ala. 195, overruled. And see
1 Bishop Mar. & Div. § 308 a, 375 and
note; Crim. Law, I. § 894.
5 Crim. Law, I. § 501, 767, 768; IL.
§ 184, 235; Reg. v. Pierson, 1 Salk. 382;
The State v. Avery, 7 Conn. 266; Shan-
non v. Commonwealth, 2 Harris, Pa. 226.
9 The State v. Avery, 7 Conn. 266;
Crim. Law, I. § 501 and note, 768.
10 Crim. Law, I. § 768.
Ul The State v. Cooper, 16 Vt. 551.
CHAP. XXXIX.] ‘ADULTERY. § 672
II. The Procedure.
§ 669. Course of Discussion.— We shall consider, First, The
Indictment ; Secondly, The Evidence.
First. Zhe Indictment : —
Effect of Statutory Terms. — Where, as generally in our States,
this offence is created by the single word “ adultery,” not defined,
the indictment must follow purely common-law principles. If
the statute adds a partial or full definition, so much of allegation
must be supplemented as will cover what is defined, within the
rules of pleading on statutes.!
§ 670. Joint or Separate. — The parties may be indicted sepa-
rately,? or, where the statute or its interpretation makes the act
adultery in both, together,? at the election of the power which
prosecutes. Even where, by reason of special statutory terms,
both parties must be guilty or neither,‘ it is not absolutely neces-
sary that the two be joined in the prosecution.®
§ 671. The Joint Indictment — must show, in some way, that
the defendants committed the offence with each other; because,
if open to the inference that the acts were distinct and with third
persons, it will be bad for duplicity.® It will be good, for ex-
ample, to say, that the defendants, naming them, at a time and
place specified, not being then and there married to each other,
but the woman having a husband living other than the man,
naming the husband, did then and there have carnal knowledge
together, each of the body of the other, and thereby did commit
adultery.’
§ 672. The Several Indictment, — if, against the man, for a
criminal connection with another’s wife, under a statute making
it adultery in him, may aver, that, at a time and place specified,
he committed adultery with a woman named, who was then and
there the wife of a man other than the defendant, to wit, such a
1 Crim. Proced. I. § 610, 611, 629. £ Ante, § 660; post, § 702; Hopper v.
2 The State v. Dingee, 17 Iowa, 282; The State, 19 Ark. 143.
The State v. Wilson, 22 Iowa, 364. 5 Post, § 708.
8 The State v. Bartlett, 53 Maine, 6 Maull v. The State, 37 Ala. 160.
446 ; Commonwealth v. Elwell, 2 Met. 7 And see Commonwealth v. Elwell, 2
190; Frost v. Commonwealth, 9 B.Monr. Met. 190; Commonwealth v. Thompson,
862. 99 Mass. 444.
419
[BOOK VI.
§ 674 OFFENCES MORE PURELY STATUTORY.
person, by then and there having carnal knowledge of her the
said, &c. Or even less may suffice.!
§ 673. Allegation of Marriage.— The marriage being an indis-
pensable element in the offence,? and necessary to be proved,? it
must, therefore, be alleged.+
How, and averring Name. — It is not sufficient simply to charge,
that the person whose marriage made the carnal act adultery was
married ; because this allegation would be supported by proof of
a marriage between the parties implicated. Therefore it must
in some way appear in averment that they were not husband and
wife The common form is, observed Shaw, C. J. that, for ex-
ample, the woman “ 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.””* There may be room for doubt whether
the name of the husband or wife can be omitted. But, on the
whole, there seems to be no principle of criminal pleading ren-
dering it necessary to mention the name of the third person in
such a connection ; and we have forms in which the name is not
mentioned.’
§ 674. “ Adultery” or “Carnal Knowledge.” — Commonly the in-
dictment alleges that the defendant ‘had carnal knowledge,”
&c. But in Pennsylvania it was adjudged sufficient to charge
that he “did commit adultery with a certain” person named.
Said Lowrie, C. J.: “«* Commit adultery’ does not merely imply,
but expresses, carnal knowledge ; for that is its very meaning.” §
In Alabama, also, this form of the allegation appears to be ap-
1 Commonwealth v. Reardon, 6 Cash.
78; The State v. Bridgman, 49 Vt. 202.
And see Tucker v. The State, 35 Texas,
113. .
2 Ante, § 666.
3 Post, § 677; Parks v. The State, 3
Texas Ap. 337.
4+ Tucker r. The State, 35 Texas, 113;
Territory v. Whifcomb, 1 Montana, 359;
Miner v. People, 58 Tll. 69; Clay v. The
State, 3 Texas Ap. 499.
5 Moore v. Commonwealth, 6 Met.,243;
Tucker v. The State, supra; Clay v. The
State, 3 Texas Ap. 499; Commonwealth
v. Corson, 4 Pa. Law Jour. Rep. 271.
420
5 Moore v. Commonwealth, supra, at
p. 244.
* Train & Heard Prec. 23, 24; Whart.
Prec. 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; Collum v.
The State, 10 Texas Ap. 708. The name
was not given in Commonwealth v.
Tompson, 2 Cush. 551, and the indict-
ment was adjudged good on motion in
arrest of judgment.
8 Helfrich v. Commonwealth, 9 Casey,
Pa. 68, 70, 71.
CHAP. XXXIX.] ADULTERY. § 677
proved! It is the common form in the civil suit for divorce.?
Some other analogies favor it; and, though it is a blending of
law and fact hardly consistent with nice pleading,’ it is no more
objectionable than various forms of averment always deemed
sufficient in other cases.
§ 675. Knowledge of Facts. — Though a mistake of the person,
or ignorance of a subsisting marriage, or the like, will in some
circumstances excuse the carnal act,* the indictment need not, in
the absence of special terms in the statute, negative such mistake
or aver knowledge. Matter of this sort is simply for defence.®
§ 676. Then and There.—It was in one case adjudged inade-
quate to say, that the defendant, at a place and on a day named,
committed adultery ‘‘ with one E, the wife of one F, she, the said
E, being a married woman and the lawful wife of the said F”;
because, ‘‘ to the fact that she was a married woman and the wife
of another, no time is averred.”® This is holding a well-known
rule strictly ;‘ and probably, in some of our States, under the
modifying influence of statutes or the liberalization of the judicial
practice, the decision would be the other way.
§ 677. Secondly. The Hvidence : —
‘What prove — (Carnal Act — Marriage). — The two facts to be
established are the carnal act and the marriage.
Elsewhere — Here. — The author, in ‘‘ Marriage and Divorce,”
fully treated of the evidence of both;® including, as to the mar-
riage, what is special to the present criminal issue.? Also, as to
the marriage, in the chapter on polygamy in the present volume
various points are brought forward, applicable as well to this
offence as to that.!° As, in general, the proofs of an issue are the
same in criminal causes and in civil," little remains for this con-
nection but to call attention to what is special to the criminal
issue in the proofs of adultery, and to some other things particu-
larly important to be borne in mind in these cases.
1 The State v. Hinton, 6 Ala. 864;
Lawson v. The State, 20 Ala. 65; Maull
v. The State, 87 Ala. 160.
2 2 Bishop Mar. & Div. § 608.
8 Crim. Proced. I. § 829-3384, 514, 515.
4 Ante, § 663-665,
5 Crim. Proced., I. § 518, 521-525, 637,
638; Commonwealth v. Elwell, 2 Met.
190; Fox v. The State, 3 Texas Ap.
829.
6 The State v. Thurstin, 35 Maine, 205.
* Crim. Proced. I. § 408, 411.
8 1 Bishop Mar. & Div. § 408-545; 2
Ib. § 612-647.
® 1 Bishop Mar. & Div. § 441, 442, 485,
490-502. And see Commonwealth ». Bel-
gard, 5 Gray, 95; The State v. Libby, 44
Maine, 469, 479.
10 Ante, § 607-611.
11 Crim. Proced. I. § 1046.
421
§ 680 [Book VI.
OFFENCES MORE PURELY STATUTORY.
§ 678. Nature of Evidence of Carnal Act.— Though it is legally
competent to prove the carnal act, the same as any other crime,
by an eye witness, such testimony is seldom to be obtained. The
proofs, therefore, are almost always circumstantial.! Still the
evidence must come within established rules;? as, for example,
the confessions of the unindicted accomplice,? the suspicions and
jealousies of the defendant’s husband or wife,‘ reputation in the
neighborhood,’ and the opinion of a witness that adultery was
or was not committed at a time testified to,° are severally inad-
missible.
§ 679. Intent and Opportunity.— One of the common forms of
the circumstantial evidence consists of showing a purpose or in-
clination to commit adultery and the opportunity; that is, an
adulterous mind in the accused, the same in the person with
whom the offence is charged, and a time and place. And the
inference is more or less readily drawn, that what was sought,
and could be, was.’ The path to this conclusion can be trodden
only step by step; while yet, if the last step is not taken, the
preceding ones are of no avail. Some of the steps are, —
‘Woman Unchaste — (Bawdy-house ). — In connection with other
facts, it may be shown that a woman with whom adultery is al-
leged to have been committed is of bad character and reputation
for chastity ;* or, what may be still stronger, that a house visited
by the defendant is a bawdy-house.® Again, —
§ 680. Other like Acts.— Where the attempt is to prove adul-
tery at a particular time and place, familiarities between the same
parties tending thereto, or adultery itself, at a prior time and in
another or the same place, may be shown in aid of the conclu-
sion.!? And, within familiar principles, it is no objection that
12 Bishop Mar. & Div. § 614-620;
The State v. Poteet, 8 Ire. 23; The State
3 Spencer v. The State, 31 Texas, 64;
The State v. McGuire, 50 Iowa, 153.
v. Bridgman, 49 Vt. 202; Commonwealth
v. Franklin, 6 Gray, 346; The State v.
Green, Kirby, 87, 88; Commonwealth v.
Gray, 129 Mass. 474; Richardson v. The
State, 34 Texas, 142; Smelser v. The
State, 81 Texas, 95; Commonwealth v.
Bowers, 121 Mass. 45; The State v.
Waller, 80 N. C. 401; The State v. Way,
6 Vt. 311.
2 Commonwealth .v. O’Connor, 107
Mags. 219; The State v. Crowley, 13
Ala. 172; Lawson v. The State, 20 Ala.
65.
422
And see Gore v. The State, 58 Ala. 391.
' The State v. Crowley, 13 Ala. 172.
5 Overstreet v. The State, 3 How.
Missis. 328.
6 2 Bishop Mar. & Div. § 286; Mc-
Knight v. The State, 6 Texas Ap. 158.
1 2 Bishop Mar. & Div. § 619, 625.
3 Commonwealth v. Gray, 129 Mass.
474; Blackman v. The State, 36 Ala.
295.
® 2 Bishop Mar. & Div. § 625, 626.
10 2 Tb. § 617, 618, 625, 630, 635; 2
Greenl. Ev. § 47; Commonwealth v. Dur-
CHAP. XXXIX.] ADULTERY. § 682
thus another crime than the one charged is also made to appear.!
“But,” to quote from a previous edition of this work,? “strangely
enough the Massachusetts court further held, on an indictment
for adultery, that, if the anterior familiarities extend so far or
are of such character as to show adultery actually committed on
this previous occasion, the evidence of them — that is, of the pre-
vious adultery — is not admissible:* according to which doc-
trine, 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 excluded!” After this criticism appeared, the same tri-
bunal, yielding to its force, reversed the doctrine; but, as is cus-
tomary with a part of this court,t making no acknowledgment or
allusion to the author or his work, that had enabled it to efface,
before becoming indelible, a blot from the jurisprudence of the
State. Again, —
§ 681. Acts subsequent. — The Massachusetts court has denied,
that familiarities or adultery subsequent to the adultery charged
is admissible against the defendant. This doctrine is less palpa-
bly contrary to the authorities ‘ than the other, which was after-
ward abandoned as just stated. And, in reason, the subsequent
ill-conduct is perhaps less conclusive than the prior. But, —
§ 682. Continued. — In the first edition of “Criminal Pro-
cedure,” § in passages transferred to the first edition of the pres-
ent work, the author pointed out, that, in principle, subsequent
acts do tend to prove those charged. And the Massachusetts
fee, 100 Mass. 146; Commonwealth v.
Pierce, 11 Gray, 447; The State v. Mar-
vin, 35 N. H. 22; Commonwealth v.
Lahey, 14 Gray, 91; McLeod v. The
State, 35 Ala. 395; People v. Jenness, 5
Mich. 305, 320; Commonwealth v. Mor-
ris, 1 Cush. 391; Commonwealth v. Mer-
riam, 14 Pick. 518 ; Commonwealth v.
Nichols, 114 Mass. 285; Gaylor v. Mc-
Henry, 15 Ind. 883; The State v. Potter,
52 Vt. 33.
1 Crim. Proced. I. § 1121-1123, 1126;
The State v. Bridgman, 49 Vt. 202.
2 This matter originally appeared in
the Ist ed. of Crim. Proced. I § 17, whence
it was transferred to this work.
3 Commonwealth v. Thrasher, 11 Gray,
450.
4 As, for example, see post, § 682; 1
Bishop Mar. & Div. 6th ed. § 381; Crim.
Law, I. § 752. I might considerably add
to these illustrations were it important.
5 Commonwealth v. Nichols, supra.
§ Commonwealth v. Horton, 2 Gray,
354, 355; Commonwealth v. Pierce, 11
Gray, 447. In Indiana, on a single
charge of incest, which was proved in
time and place as laid, the particeps crimi-
nis, who had testified to this, was not al-
lowed to strengthen the case by testify-
ing also to incest committed at subsequent
times. Lovell v. The State, 12 Ind. 18.
See The State v. Bates, 10 Conn: 372.
7 Crim. Proced. I. § 1128.
8 Crim. Proced. 1st ed. I. § 15-18.
423
§ 682 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
court, following his views, yet not acknowledging their source,
overruled its former decisions. ‘There is in each case,” said the
learned judge who delivered the opinion of the whole court, ‘a
plain misapplication of the rules of evidence to the facts pre-
sented. .. . 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 decla-
rations 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 ordinarily do extend, over a period of time both anterior and
subsequent 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 towards 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 con-
tinuance, the duration and extent of which may be usually meas-
ured by the power which it exercises over the conduct of the
parties. It is this character of permanency which justifies the
inference of its existence, at any particular point of time, from
facts illustrating the preceding or subsequent relations of the
parties. The rule is, that a condition once proved is presumed
to have been produced by causes operating in the usual way,
and to have continuance till the contrary be shown. The limit,
practically, to the evidence under consideration, is, that it must
be sufficiently 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.”! At the time of the present writing, this doctrine —
namely, that subsequent familiarities and adulteries between the
1 Thayer v. Thayer, 101 Mass. 111, 113,114. And see Carotti v. The State, 42
Missis. 334.
424
CHAP. XXXIX. ] ADULTERY. § 685
same parties, equally with the prior ones, are admissible — may
be deemed to be established in all our courts, as respects alike
the divorce suit and the indictment.) Still, —
§ 683. Limiting the Time.— In reason, and in some measure on
authority, the court should exercise a discretion to exclude evi-
dence of familiarities at other dates than the one in question, if
too remote, whether before or after. There can be, in the nature
of things, no exact rule as to this. The special nature of the
familiarities, and how they are connected with the matter in
issue, should enter into the question. In one case, on this
ground, “mere isolated acts” occurring eighteen months after
the finding of the indictment were excluded.?
§ 684. Familiarities with other Persons — than the alleged parti-
ceps criminis, and solicitations of their chastity, tend less directly
to prove the adultery in issue. But, in a chain of circumstan-
tial evidence, there are instances wherein, in reason, they would
strengthen the link of an adulterous intent. Under the practice
of the English ecclesiastical courts in divoree litigation, such evi-
dence was common, and there are instances wherein it has been
received in divorce cases with us, in connection with other testi-
mony. But the question has not been much considered in our
tribunals ; and, for further explanations, the reader is referred to
the work on “ Marriage and Divorce.” 3
§ 685. Time and Place.—In divorce law, the particular time
and place of the adulterous act need not be proved; though the
judge or jury must be satisfied that it occurred at some time and
some place. In criminal causes, it must be shown to have trans-
pired within the county of the indictment. But whether in
other respects the same rule applies in criminal as in divorce
causes we are not distinctly informed by the authorities. In one
case, the trial court refused “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 com-
mitted the crime on some particular day or occasion ; and that it
1 2 Bishop Mar. & Div. § 625; Cole 175. And see The State v. Arnold, 50 Vt.
v. The State, 6 Baxter, 239; The State v. 751. :
Way, 5 Neb. 283; Alsabrooks v. The 32 Bishop Mar. & Div. § 625; also,
State, 52 Ala. 24; The State v. Bridg- § 617, 618.
man, 49 Vt. 202; The State v. Crowley, 4 2 Bishop Mar. & Div. §°613.
13 Ala. 172. 5 Crim. Proced. I. § 384, 385.
2 The State v. Crowley, 13 Ala. 172,
425
§ 687 OFFFNCES MORE PURELY STATUTORY. [BOOK VI.
would not be sufficient for them to be satisfied, from the admis-
sions of the parties, that they committed the crime at some time,
without being able in any way to designate that time.” On the
other hand, it told them, “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.
It would appear never to be required, in a criminal case, that the
jury be satisfied of the precise day of the commission of a crime.
If such day were necessary, then would be the precise hour, or
minute, or second. The last could never be shown; so that, on
this theory, no conviction could ever be had.
§ 686. Confessions. — The divorce law has rules as to confes-
sions special to itself.2 The.rules in criminal causes are also
special, but they are different. One indicted for adultery may
be convicted on his own confessions,‘ and particularly so when
corroborated by circumstances.® Still, if the man and woman are
jointly indicted, in a single count, for one act of adultery, both
cannot be found guilty on the confessions of one to an act com-
mitted at a particular time, and of the other to an act at a differ-
ent 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. The Marriage. We have seen,’ that the proofs of the
marriage have already been fully explained in other connections.
What is technically termed a fact of marriage, in distinction from
proofs by cohabitation and repute, must, except where statutes
have otherwise provided, be shown.? Ordinarily, and by most
opinions, confessions are admissible to the marriage, as to the
other parts of the case. But they must be the confessions of
1 Commonwealth v. Cobb, 14 Gray, 57, 7 Lawson v. The State, 20 Ala. 65;
58. Frost v. Commonwealth, supra.
2 2 Bishop Mar. & Div. § 240-251. 8 Ante, § 677.
3 Crim. Proced. J. § 1217-1262. 9 1 Bishop Mar. & Div. § 442, 482 et
4 The State v. Libby, 44 Maine, 469; seq.; Wood v. The State, 62 Ga. 406;
Lawson v. The State, 20 Ala. 65; Frost Commonwealth v. Holt, 121 Mass. 61;
v. Commonwealth, 9 B. Monr. 362. People v. Bennett, 39 Mich. 208; Com-
5 Commonwealth v. Tarr, 4 Allen, monwealth v. Belgard, 5 Gray, 95.
315. And see Bergen v. People, 17 Ill. 10 | Bishop Mar. & Div. § 497-502, 544,
426. 545; ante, § 609; Cameron v. The State,
6 Commonwealth v. Cobb, 14 Gray, 14 Ala. 546; The State v. Medbury, 8
57. R. I. 548.
426
CHAP. XXXIX.] ADULTERY. § 689
the particular party, not of the other party, or of the particeps
criminis.} .
§ 688. The Witnesses. — The general rules concerning the wit-
nesses in criminal cases? apply in this issue. Thus, —
Husband and Wife.— Under the common law, the husband or
wife cannot testify against the other, either to the illicit conduct,
or the fact of marriage.2 Not even can the married partner of
the unindicted participant in the adultery be admitted to prove
itt And if several persons are proceeded against for a conspiracy
to charge the wife of one of them with adultery, she cannot be
a witness.2 So far is this doctrine carried, that the wife has
even been held incompetent to prefer on oath a complaint before
a magistrate for the husband’s adultery. In some of our States,
by statute, the law is otherwise, and the prosecution can be only
on her complaint;' though, after it is commenced, it can be
carried on without her presence or consent,’ and she need not go
before the grand jury.® Beyond this, we have statutes under
which it is competent for husband and wife to testify against
each other “ in a criminal prosecution for an offence committed
by one against the other ;”
the provision.”
and adultery is deemed to be within
Particeps Criminis. — A mistress is not, like a wife, incompe-
tent ;1! so that an unindicted™ particeps ecriminis may be a wit-
ness.}3
But this witness is an accomplice within the rule re-
quiring the testimony to be corroborated.
§ 689. Province of Jury. — The effect of the testimony, equally
1 Commonwealth v. Thompson, 99
Mass. 444. See The State v. Bowe, 61
Maine, 171.
2 Crim. Proced. I. § 1135-1187.
3 Ib. § 1151; Mills v. United States, 1
Pin. 73; The State v. Armstrong, 4 Minn.
335.
4 The State v. Welch, 26 Maine, 30;
The State v. Gardner, 1 Root, 485; Cot-
ton v. The State, 62 Ala. 12; Common-
wealth v. Gordon, 2 Brews. 569; Com-
monwealth v. Sparks, 7 Allen, 534. See
Crim. Proced. I. § 1019.
5 The State v. Burlingham, 15 Maine,
104; Crim. Proced. I, § 1019.
6 The State v. Berlin, 42 Misso. 572;
Commonwealth v. Jailer, 1 Grant, Pa.
218. See Crim. Proced. I. § 230-232.
7 Crim. Proced. I. § 282; The State v.
Wilson, 22 Iowa, 364; People v. Knapp,
42 Mich. 267.
8 The State v. Baldy, 17 Iowa, 389.
9 The State v. Dingee, 17 Iowa, 282.
1 Roland v. The State, 9 Texas Ap.
277; Morrill v. The State, 5 Texas Ap.
447; The State v. Bennett, 31 Iowa, 24.
11 Crim. Proced. I. § 1154; Dennis v.
Crittenden, 42 N. Y. 542.
2 Crim. Proced. I. § 1019; Rutter v.
The State, 4 Texas Ap. 57. And see
Boothe v. The State, 4 Texas Ap. 202.
18 The State v. Colby, 51 Vt. 291; Peo-
ple v. Knapp, 42 Mich. 267; Ketchingman
v. The State, 6 Wis. 426. See Spencer
v. The State, 31 Texas, 64.
14 Crim. Proced. I. § 1156-1175.
16 Merritt v. The State, 10 Texas Ap.
402.
427
§ 690 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
with its credibility, is, as in other cases, for the jury. It was,
therefore, error for the court on a trial for fornication to instruct
them, that, if they believed the parties were found in bed together,
the room-door closed, no one else present, the woman a prosti-
tute, and the defendant in the habit of visiting her, they were
bound to find him guilty. Conclusive as the evidence was, the
jury, not the court, should draw the inference.1
§ 690. Marriage not proved — (Fornication).— Where fornica-
tion is indictable, and the proof of the marriage fails, there may
be a conviction for this lighter offence,? if the allegations of the
indictment are adequate.?
1 Ellis v. The State, 20 Ga. 438. Alabama. Smitherman v. The State, 27
2 The State v. Cowell, 4 Ire. 231; Ala. 23.
Crim. Law, I. § 795; Respublica v. Rob- 2 Post, § 692, 693; Commonwealth v.
erts, 2 Dall. 124, 1 Yeates,6; The State Murphy, 2 Allen, 163.
v. Hinton, 6 Ala. 864. Otherwise now in
428
CHAP. XL.] FORNICATION AND BASTARDY. § 691
CHAPTER XL.
FORNICATION AND CRIMINAL BASTARDY.
§ 691. What.— Fornication differs from adultery in not requir-
ing the element of a marriage. Bastardy, also, does not require
this element, though it may be committed on a married woman
the same as on an unmarried. It is the carnal act which results
in the birth of an illegitimate child.
At Common Law. — Like adultery,! fornication and bastardy
were punishable under the English ecclesiastical law.2 But, in
the words of Burn, “it is no offence at common law to get a
bastard child, and consequently not punishable.”® There were
early English statutes under which, while the father of the bas-
tard was compelled to support it, he might also be whipped, and
the mother imprisoned, by order of magistrates ;+ but evidently
they are of no force with us. A fortiori, a single act of fornica-
tion, whether inducing pregnancy or not, is not indictable under
the common law of our States.> But, —
Under Statutes. —In some of our States, there are statutes
making fornication indictable.6 Bastardy, in most or all of them,
may be redressed by proceedings, some in the criminal form,’ to
compel the father to contribute to the child’s support ; but they
are generally in effect civil,’ or only quasi criminal.®
1 Ante, § 654 a.
2 Caudrey’s Case, 5 Co. la, 9a; 1
Burn Ec. Law, 182 (refers to Gibs. Codex,
1032).
3 Burn Just. Bastards, iv.
4 Dalton Just. c. 11; Burn Just. Bas-
tards; 18 Eliz. c. 3, &c.; Hardy v. Ather-
ton, 7 Q. B. D. 264, 269.
6 The State v. Rahl, 38 Texas, 76;
Pollard v. Lyon, 91 U. S. 225.
6 The State v. Way, 6 Vt. 311; The
State v. Cox, N.C. Term R. 165; Com-
monwealth v. Jones, 2 Grat. 555.
7 Crim. Law, I. § 32, 388; ante, § 467-
470.
8 Mann v. People, 85 Ill. 467; Lewis
In a few,
v. People, 82 Ill. 104; The State v. Hick-
erson, 72 N. C. 421; Kolbe v. People, 85
Til. 336; The State v. Sullivan, 12 R. I.
212; Petition of Canning, 11 R. I. 257;
Mahoney v. Crowley, 36 Maine, 486;
Smith v. Lint, 37 Maine, 546; Hinman v.
Taylor, 2 Conn. 857; The State v. Worth-
ingtham, 23 Minn. 528; The State v.
Becht, 23 Minn. 1.
9 Cummings v. Hodgdon, 13 Met. 246,
248; Hyde v. Chapin, 2 Cush. 77, 79;
Graham v. Monsergh, 22 Vt. 543; Hol-
comb v. People, 79 Ill. 409; Blankenship
v. The State, 4 Baxter, 383; Crawford
v. The State, 7 Baxter, 41; Baker v. The
State, 47 Wis. 111.
429
§ 693 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the indictment as for crime is permitted, or permitted for a
refusal to support the child.
§ 691 a. Procedure in Bastardy. — The indictment? and evi-
dence? in criminal bastardy are so local to a few States, and in-
volve so little of the general criminal law, that the subject will
be dismissed with a simple reference to a few cases. The same
may be said of the place of the indictment and trial.4
§ 692. Joint or Separate. —In fornication, plainly, as a general
rule, the parties may, the same as in adultery,® be indicted either
separately or together at the election of the pleader.®
Indictment. — The indictment will vary with the statutory
terms, which it must duly cover.’ The elucidations of that for
adultery ° are applicable to this, except as to the allegation of
marriage.
§ 693. Whether negative Marriage. sayniat special statutory
terms,—for example, “if a man commits fornication with a
single woman,® each of them shall be punished,” &c.!°— the in-
dictment has been required to negative a marriage! And, to
make a prima-facie case, some proof should be introduced to this
averment.” It is not absolutely clear that, by a true application
of the rules of pleading on statutes, this negation of marriage
ought to be held essential even on these special words. In the
absence of such words, plainly, in principle, a marriage between
the parties to a carnal act is matter of defence, lying specially
1 Grogan v. The State, 58 Ga. 196;
Shiver v. The State, 23 Ga. 230; Locke
v. The State, 3 Kelly, 534; The State v.
Phelps, 9 Md. 21; Bake vu. The State, 21
Md. 422; Norwood v. The State, 45 Md.
68; Root v. The State, 10 Gill & J. 374.
In England, disobedience to a judicial
order requiring the father of a bastard
child to pay money for its support is in-
dictable. Reg. v. Marchant, 1 Cox C. C.
203; Reg. v. Ferrall, 2 Den.C. C. 51, 4
Cox C. C. 431, 1 Eng. L. & Eq. 575.
2 Locke v. The State, 3 Kelly, 534;
Norwood v. The State, 45 Md. 68; Huff
v. The State, 29 Ga. 424; Walker v. The
State, 5 Ga. 491.
3 The State v. Read, 45 Iowa, 469;
The State v. Britt, 78 N.C. 439; Davis
v. The State, 58 Ga. 170.
4 Huff v. The State, supra; Davis v.
The State, supra; Heikes v. Common-
wealth, 2 Casey, Pa. 513.
430
5 Ante, § 670.
6 The State v. Cox, N. C. Term R.
165.
7 Delano v. The State, 66 Ind. 348;
Robeson v. The State, 8 Heisk. 266; The
State v. Dunn, 26 Ark, 34, 35; The State
v. Lashley, 84 N. C. 754; The State v.
Johnson, 69 Ind. 85.
3 Ante, § 669-676.
® In Texas, the corresponding words
are “both being unmarried.” Wells v.
The State, 9 Texas Ap. 160.
10 Mass. Gen. Stats. c. 165, § 8. The
language of the Revised Statutes was the
same. R.S.c. 130, § 5.
11 Commonwealth v. Murphy, 2 Allen,
163.
12 Wells v. The State, supra; Hopper
v. The State, 19 Ark. 143.
13 For example, see Crim. Proced. I.
§ 614, 615, 617, 638.
CHAP. XL. ] FORNICATION AND BASTARDY. § 694
within the knowledge and power of the defendant, to be shown,
if it exists, by him at the trial, and so not required to be nega-
tived in the indictment. An illustration precisely in point occurs
inrape. If the woman is the man’s wife, no personal penetra-
tion of her by him, whatever the circumstances, will constitute
the offence ;! yet the indictment does not negative a marriage
with her.2_ And so, in fornication, in the absence of special stat-
utory terms, is the little authority which we have.?
§ 694. Other Questions. —In most other respects, this offence
is identical with adultery, treated of in the last chapter. And so
the elucidations there will render unnecessary any thing further
here.
1 Crim. Law, IT. § 1119. ' The State v. Stephens, 63 Ind. 542; Bick-
2 Crim. Proced. II. § 949, 956. nell Crim. Pr. 446-448. See The State
3 The State v. Gooch, 7 Blackf. 468; v. Lashley, 84 N. C. 754.
431
§ 697
OFFENCES MORE PURELY STATUTORY.
[BooK VI.
CHAPTER XLI.
LIVING IN ADULTERY OR FORNICATION.
§ 695. Introduction.
696-698. Law of the Offence.
699-709. The Procedure.
§ 695. Order of Chapter.— We shall consider, I. The Law of
the Offence ; II. The Procedure.
I. The Law of the Offence.
§ 696. Statutes — Relations of Subject.— The subject of this
chapter is a sort of continuation of the discussions of the last
two.
It is adultery and fornication repeated. The statutes are
in terms too diversified to render profitable a minute discussion.
They contain such expressions as “living together and carnal in-
tercourse with each other,” ‘“ habitual carnal intercourse with
each other without living together,” 1 “live together as husband
and wife without being married,” ? “live together in adultery or
fornication,” 3 “living together in unlawful cohabitation.” 4
§ 697. Elements of Offence. — None of these statutes are vio-
lated by a mere single act of carnal commerce,’ and it will not
be otherwise though the act transpires in pursuance of a prior
arrangement. Nor will mere occasional acts, in private, suffice.”
Still, it is legally possible for a ‘living together in adultery” to
1 Edwards v. The State, 10 Texas Ap.
25; Parks v. The State, 4 Texas Ap. 154.
For changes in the Texas provisions, see
Collum v. The State, 10 Texas Ap. 708.
And see Wolff v. The State, 6 Texas Ap.
196.
2 Hopper v. The State, 19 Ark. 143;
Sullivan v. The State, 32 Ark. 187.
3 Hall v. The State, 538 Ala. 463;
Quartemas »v. The State, 48 Ala. 269.
4 Carotti v. The State, 42 Missis. 334.
5 McLeland v. The State, 25 Ga. 477.
4382
6 Smith v. The State, 89 Ala. 554.
* Wright v. The State, 8 Blackf. 285;
Searls r. People, 13 Ill. 597; Collins rv.
The State, 14 Ala. 608; Carotti v. The
State, 42 Missis. 334; Collum v. The
State, 10 Texas Ap. 708; Swancoat uv.
The State, 4 Texas Ap. 105; Parks v.
The State, 4 Texas Ap. 134; Quartemas
v. The State, 48 Ala. 269; Clouser c.
Clapper, 59 Ind. 648; Morrill v. The -
State, 5 Texas Ap. 447.
CHAP. XLI.] LIVING IN ADULTERY OR FORNICATION. § 699
be committed in a single day ; as, if the parties come together in
cohabitation, contemplating its continuance, yet it is broken off
by a prosecution, or fear, or other cause.! The living must be
in the same house, in distinction from two wholly distinct habita-
tions;? but it need not be exclusive and continuous. For ex-
ample, 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 oth-
erwise abandon his own home. To “cohabit together as hus-
band and wife” requires a common habitation, but there need be
no profession of marriage.®
§ 698. “Open and Notorious.” — Some of the statutes require
the adultery or fornication to be “open and notorious.” The
offence they create does not differ greatly from that to be treated
of in the next chapter. There must, under these statutes, be
something like a living together, in distinction from occasional
incontinence.6 And such their cohabitation must be public, in
the face of society.’
II. The Procedure.
§ 699. Course of Discussion.— We shall consider, First, The
Indictment; Secondly, The Evidence.
First. The Indictment : —
The last two Chapters — contain directions equally applicable
there and here. Beyond which —
Follow Statute. — The indictment must duly pursue the special
statutory terms ;° as, —
“ive together,” &c.— Where it is made punishable “if any
man and woman shall live together as husband and wife without
being married,” the allegation against a single defendant that he
did unlawfully and wickedly bed and live with a person named
1 Hall v. The State, 53 Ala. 463. And
see Richardson v. The State, 87 Texas,
846.
2 Quartemas v. The State, 48 Ala. 260;
The State cv. Glaze, 9 Ala. 283. But see
Parks v. The State, 4 Texas Ap. 134.
8 Smith v. The State, supra.
4 Collins v. The State, 14 Ala. 608.
5 Sullivan v. The State, 82 Ark. 187;
Kinard v. The State, 57 Missis. 132.
28
6 The State v. Gartrell, 14 Ind. 280.
7 The State v. Crowner, 56 Misso.
147; The State v. Johnson, 69 Ind. 85;
People v. Gates, 46 Cal. 52.
8 The State v. Johnson, 69 Ind. 85;
The State v. Lashley, 84 N. C. 754; Ed-
wards v. The State, 10 Texas Ap. 25;
Collum v. The State, 10 Texas Ap. 708;
and cases cited to the subsequent sec-
tions.
433
§ 703 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
is inadequate, because not charging a living together as husband
and wife without being married.!
§ 700. Marriage. — The question as to alleging or negativing a
marriage, and of proving either fact, under the differing statutory
terms, is sufficiently discussed in the preceding chapters.”
§ 701. Certainty — (“ Or,” “And”).— On a statute in alterna-
tive words, —as, “adultery or fornication,” —it is not, for rea-
sons explained in another connection,’ good pleading to charge
that the parties lived together in “adultery or fornication.” 4
Nor, it is believed, would it do to say “adultery and fornica-
tion;” for then the count would be incongruous and double.
A ready method of escape from this dilemma, where it is desir-
able to adapt the indictment to either result of the proofs, is to
insert two counts; the one for living in adultery, and the other
for living in fornication. The Alabama court has held, that, on
a single count for living together in adultery, there cannot be a
conviction for so living in fornication ; the offences being differ-
ent, and not included the one in the other. On principle, while
this doctrine may be correct under some forms of the indictment,
it would seem perfectly practicable to draw a count in such terms
as to avoid all objections, whereon the conviction would be for
living in adultery if the marriage was proved, or in fornication if
it was not.
§ 702. “Together.” The word “together,” if in the statute,
must in some way be covered by the allegation. It is insufficient
to say, that the defendants “ did live in a state of adultery,” &c.;
because, observed 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.” &
§ 703. Allegation of Time — (Continuando, or not). — This is a
continuing offence; therefore it may be laid with a continuando,‘
1 Crouse v. The State, 16 Ark. 566;
The State v. Dunn, 26 Ark. 34. And see
Edwards v. The State, supra.
2 Ante, § 673, 687, 693; The State v.
Stephens, 63 Ind. 542; Collum v. The
State, 10 Texas Ap. 708; Tucker v. The
State, 85 Texas, 113; Hopper v. The
State, 19 Ark. 143; Wells v. The State,
434
9 Texas Ap. 160; The State v. Gooch, 7
Blackf. 468.
3 Crim. Proced. I. § 585-592.
4 Maull v. The State, 37 Ala. 160.
5 Smitherman v. The State, 27 Ala.
23.
6 Maull v. The State, 37 Ala. 160, 161.
And see post, § 721.
7 Crim. Proced. I. § 393, 394.
CHAP. XLI.] LIVING IN ADULTERY OR FORNICATION. § T07
or perhaps as committed between one day and another named.}
Still, since its complete perpetration in a single day is legally
possible,? it may equally well be charged as on one day, and the
proof may be of acts done on any number of days.!
§ T04. “Cohabit,” &e.— Where the statute makes it punish-
able “if any man and woman, not being married to each other,
shall lewdly and lasciviously associate, bed, and cohabit together,”
an indictment is good which simply charges, that, at the time and
place, the defendants, not being married to each other, did lewdly
and lasciviously associate, bed, and cohabit together.®
§ 705, Alleging Sex. — The sex, whether of the male or female,
need not be alleged.® Still, there are States wherein, by reason
of special statutory terms, or exceptional views of the court, this
is required.’
§ 706. “Live together.” — These statutory words need only be
covered by the indictment, without expansion. “If,” said Gold-
thwaite, J. “a single 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 this indictment. But entertaining 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 com-
position 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 precision, and for this reason it is
unnecessary to allege them.” °
§ T07. Other Forms — of the statute may require corresponding
1 The State v. Way, 5 Neb. 283; Crim.
Proced. I. § 895, 396.
2 Ante, § 697.
8 The State v. Glaze, 9 Ala. 283; Hall
v. The State, 53 Ala. 463; Swancoat v.
The State, 4 Texas Ap. 105.
# Crim. Proced. I. § 397.
5 The State v. Lyerly, 7 Jones, N. C.
158. The indictment, which was held
good in this case, was not in the exact
terms of the text. The State v. Lashley,
84 N.C. 754. See, for a form under the
Alabama statute, Lawson v. The State,
20 Ala. 65.
6 Crim. Proced. II. § 952; McLeod v.
The State, 85 Ala. 895; The State v.
Lashley, 84 N. C. 754.
7 The State v. Dunn, 26 Ark. 34.
5 The State v. Hinton, 6 Ala. 864.
® Lawson v. The State, 20 Ala. 65, 74.
See Crim. Proced. I. § 493-498.
4385
§ 709 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
differences in the indictment But the principles for construct-
ing it are already sufficiently explained.
§ 708. Joint or Several. — Though the joining in one indictment
of the two participants in this guilt seems to be the appropriate
course, it is not necessary. The proceeding against one alone is
good.2 Or, if the two are joined, and one only is taken, he may
be tried ; and, if there is a general verdict of guilty, this will not
furnish ground for arresting judgment.3
§ 709. Secondly. The Evidence : —
‘ In General. — The explanations of the evidence in the last two
chapters are applicable equally under this head, and they cover
the entire ground,‘ except what will be obvious to every prac-
titioner.
1 As, for example, see The State v. 8 The State cv. Lyerly, 7 Jones, N. C.
Fore, 1 Ire. 878; The State v. Jolly,3 158.
Dev. & Bat. 110; The State . Gartrell, 4 For proofs held not sufficient, see
14 Ind. 280. Cohen v. The State, 11 Texas Ap. 337.
2 Wasden v. The State, 18 Ga. 264.
436
CHAP. XLI.] |OPEN AND NOTORIOUS LEWDNESS. § 712
CHAPTER XLII.
OPEN AND NOTORIOUS LEWDNESS.
§ 710. Introduction.
711-718. Law of the Offence.
719-725. The Procedure.
§ 710. Order of Chapter. — We shall consider, I. The Law of
the Offence ; II. The Procedure.
I. The Law of the Offence.
§ 711. At Common Law. — Though a single act of mere pri-
vate incontinence is not indictable at the common law,! one ina
public place and witnessed by people is.2 And, as explained in
other connections,? the indecent living together of men and
women contrary to the order of society, and other like inde-
cencies in the face of the public, may be sufficiently offensive
and injurious to the community to be punishable as criminal
nuisances.*
§ 712. Under Statutes. — In aid and extension of this common-
law doctrine, we have statutes in various terms, containing such
expressions as. —
“Lewdly and lasciviously associate." — Under the words ‘shall
lewdly and lasciviously associate and cohabit together,” the co-
habitation meant was held to be, not simple incontinence in one
instance, or in two instances,° but a living together by the par-
ties; the legislative purpose being, in the language of the court,
“‘to prevent evil and indecent examples, tending to corrupt the
public morals.”® There must be something more, therefore, than
1 Ante, § 654, 691. Crouse v. The State, 16 Ark. 566; Dela-
2 Crim. Law, I. § 1125-1127; Reg. v. ny v. People, 10 Mich. 241.
Elliot, Leigh & C. 103. 5 The State v. Marvin, 12 Iowa, 499.
8 Crim. Law, I. § 500, 501, 1146. 6 Commonwealth v. Calef, 10 Mass.
4 Brooks v. The State, 2 Yerg. 482; 153; The State v. Moore, 1 Swan, Tenn.
Britain v. The State, 8 Humph. 2038; 186.
437
§ T1T OFFENCES MORE PURELY STATUTORY. [BOOK VI.
mere private incontinence, continued to however great a degree.?
Nor will the mere living together of a man and woman as hus-
band and wife under an invalid marriage, in the mistaken belief
that it is valid, constitute this offence.?
§ 713. “Lascivious Carriage” — may be committed by wanton
and lascivious acts of one person toward and against the will of
another of the opposite sex. The statute was “ meant,” said
Baldwin, J. ‘‘to include and suppress all those wanton acts,
between persons of different sexes, flowing from the exercise of
lustful passions, which are grossly indecent and unchaste, and
which are not otherwise punished as crimes against chastity and
public decency.” 2
§ 714.. “Open and Gross Lewdness and Lascivious Behavior.” —
Within this expression, is a man who indecently exposes his per-
son to a woman, and solicits her to sexual intercourse, and per-
sists in the solicitation, against her opposition and remonstrance.+
So likewise is one who, intentionally and without excuse, ex-
poses, in the house of another, his person to a girl eleven years
old.é
§ 715. “Whoredom” — “Whore..— A “whore” is a woman
given to promiscuous commerce with men, usually for hire.®
The term “‘ whoredom” appears to be less narrow. Within it
has been held to be any single act of adultery between a married
female and a male not her husband.’
§ 716. “Lewdness” — differs in meaning both from “ whore-
dom” and from “ prostitution.” The court, in one case, not
defining it, said: “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.” 8
§ T17. “Public Indecency.”—In Indiana, where there are no
1 Commonwealth v. Catlin, 1 Mass. 8; Misso. 143; Williams v. The State, 64
The State v. Marvin, 12 Iowa, 499. See, Ind. 553.
however, The State v. Cagle, 2 Humph. 5 Sheehey v. Cokley, 43 Iowa, 183.
414. 7 Rodebaugh v. Hollingsworth, 6 Ind.
2 Commonwealth v. Munson, 127 Mass. 339.
459. 8 Commonwealth v. Lambert, 12 Al-
3 Fowler v. The State, 5 Day, 81, 84. len, 177, 178. Compare with Common-
4 The State v. Millard, 18 Vt. 574. wealth v. Catlin, 1 Mass. 8. See, also,
5 Commonwealth v. Wardell, 128 Mass. The State v. Rye, 9 Yerg. 386.
62. And see The State v. Osborne, 69
438
CHAP. XLII.] OPEN AND NOTORIOUS LEWDNESS. § 721
offences at common law, these words were adjudged to be too
indefinite in meaning to create an offence! Thereupon the
legislature expressed its own sense of their signification, by sub-
stituting for them a provision 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 com-
mon law.” ?
§ 718. Cohabitation under Void Marriage. — We have seen that
one of these statutes is not violated by a cohabitation under a
void marriage supposed to be valid. Probably none of them are.*
II. The Procedure.
§ 719. Course of Discussion. — We shall consider, First, The
Indictment; Secondly, The Evidence.
First. Zhe Indictment : —
Previous Explanations. — The explanations of the indictment in
the last three chapters, and particularly the last, will serve in
some measure for the present chapter.
Follow Statute.— The rule, ordinarily sufficient, is, that the
indictment for this offence should cover the statutory terms, and
it need not in general be much expanded beyond.®
§ 720. Marriage. — Under some of the statutes, there is scope
for the doctrines already considered ° as to averring or negativing
a marriage.”
§ 721. “Together” —“ With each other” — (Joint). — Some of
the statutes have the one, some the other, of these forms of
words. As in the offence treated of in the last chapter,® so in
this, the pleader must cover them by his allegations. And it is,
at least by some, deemed legally impossible for one party to com-
mit this offence unless the other commits it also.2 Still, —
1 Jennings v. The State, 16 Ind. 335; 457; and cases cited in subsequent sec-
The State v. Huey, 16 Ind. 338. tions.
2 Bicknell Crim. Pr. 448, 449. & Ante, § 673, 687, 693, 700.
8 Ante, § 712. * The State v. Clinch, 8 Iowa, 401.
4 Commonwealth v. Hunt, 4 Cush. 49. 8 Ante, § 702.
And see ante, § 666. ® The State v. Byron, 20 Misso. 210;
5 Post, § 724; Williams ev. The State, Delany v. People, 10 Mich. 241. And
64 Ind. 558; The State v. Osborne, 69 see Ashworth v. The State, 9 Texas, 490.
Misso. 143; People v. Colton, 2 Utah, For a sufficient form, see The State v.
439
§ 725 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Convictions Several. — As in the offence explained in the last
chapter,! the one may be prosecuted without the other, or may
even be convicted after the other is acquitted.?
§ 722. Time — (Continuando or not). — This offence, like that
treated of in the last chapter,? may be charged as continuing or
not, at the election of the pleader.*
§ 723. “Lewd, &c. Person.” — On a statute making punishable
“lewd, wanton, and lascivious persons in speech or behavior,”
it is sufficient in allegation to say, that, at, &c. the defendant
“was and still is a lewd, wanton, and lascivious person in speech
and behavior.” 6
§ 724. Purther of following Statute. — In further illustration of
the rule of following the statute, —
Open and Public— It was in Tennessee held necessary to aver,
that the acts constituting the offence were openly and publicly
committed.®
Specific Acts.— Under a Missouri statute making punishable
“every person, married or unmarried, who shall be guilty of
open, gross lewdness or lascivious behavior,” the simple following
of the statutory words was adjudged good.’ This is believed to
be the true doctrine,’ yet hardly consistent with an earlier case in
the same State.
§ 725. Secondly. The Evidence : —
Circumstantial Evidence —is competent, and it may be suffi-
cient ; 1° but —
Hearsay — such as rumor and neighborhood talk, is inad-
missible.!
Osborne, 69 Misso. 143; People v. Colton, 6 The State v. Moore, 1 Swan, Tenn.
2 Utah, 457. 136.
1 Ante, § 708. * The State v. Bess, 20 Misso. 419.
2 The State v. Caldwell, 8 Baxter, 576. 8 Ante, § 706.
3 Ante, § 703. 9 Dameron v. The State, 8 Misso. 494.
+ Hinson v. The State, 7 Misso. 244. 10 Peak v. The State, 10 Humph. 99.
. & Commonwealth v, Parker, 4 Allen, 1 Belcher v. The State, 8 Humph. 63;
813. Buttram v. The State, 4 Coldw. 171.
440
CHAP. XLII. ] INCEST. § 728
CHAPTER XLIII.
INCEST.
§ 726. Introduction.
727-730. Law of the Offence.
731-736. The Procedure.
§ 726. How Chapter divided. — We shall consider, I. The Law
of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 727. How definea. — Incest, where statutes have not modi-
fied its meaning, is sexual commerce, either habitual or in a single
instance, and either under a form of marriage or without it,
between persons too nearly related in consanguinity or affinity to
be entitled to intermarry.1 And, in this offence, illegitimate con-
sanguinity has the same effect as legitimate.?
Marriage Voidable — Void.— Where the forbidden marriage is
merely voidable, in the sense special to the matrimonial law, a
cohabitation under it, before its nullity is judicially declared, is
not a crime ;° but a void marriage could give to the carnal com-
merce no protection.!
§ 728. At Common Law.— At the time of the settlement of
our country, incest, the same as common adultery and fornica-
tion, was punishable as an offence against the ecclesiastical laws,®
1 Chick v. Ramsdale, 1 Curt. Ec. 34;
Griffiths v. Reed, 1 Hag. Ec. 195; Black-
more v. Brider, 2 Phillim. 859; Woods v.
Woods, 2 Curt. Ec. 616; Burgess v. Bur-
gess, 1 Hag. Con. 384.
2 1 Bishop Mar. & Div. § 815; Woods
v. Woods, supra, at p. 521; The State v.
Schaunhurst, 34 Iowa, 547; Baker v. The
State, 30 Ala. 521; Morgan v. The State,
11 Ala. 289.
31 Bishop Mar. & Div. § 104 a, 105,
116, 119, 320. In the English ecclesiasti-
cal courts, the first step might be a crim-
inal suit for the incest, and then the
punishment and the nullity of the mar-
riage would be decreed together. See
the English cases just cited.
4 1 Bishop Mar. & Div. § 105, 119.
5 See the English cases cited to the
last section.
441
§ 730 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
but it was not indictable in the common-law courts! It is not,
therefore, indictable under our common law.?, But, —
Under Statutes. — Quite generally in our States, yet not abso-
lutely in all,? it is made a crime by statutes.* And under many
or all of the statutes, not only incestuous fornication or adultery
is incest, but such also is an incestuous marriage, not requiring
the added element of cohabitation.®
§ 729. Knowledge of Relationship. — Some of the statutes have
the word “knowingly,” thereby expressly making a knowledge
of the relationship an element in the offence.6 In the absence of
this word or its equivalent, while such knowledge is not an
affirmative element, and it need not be alleged in the indictment,”
ignorance of the relationship is, by the Scotch doctrine,’ and by
the principles of our own law, though the question seems not to
have been directly adjudicated, a good defence, on the ground of
mistake of fact.®
§ 730. Attempts — (Solicitations). — There may be an indict-
able attempt to commit incest, though the act must proceed far
enough.” On principle, a solicitation not responded to may con-
1 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 adul-
tery were made capital crimes; but also
the repeated acts of keeping a brothel,
or committing fornication, were (upon a
second conviction) made felony without
benefit of clergy. But at the restora-
tion, 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 unfashionable rigor. And these
offences have been ever since left to the
feeble coercion of the spiritual court, ac-
cording to the rules of the canon law; a
law which has treated the offence of in-
continence, nay even adultery itself, with
a great degree of tenderness and lenity;
owing perhaps to the constrained celi-
bacy of its first compilers.” 4 BI. Com.
64, 65. Incest is indictable under the
common law of Scotland. McColl’s Case,
1 Scotch Sess. Cas. 4th ser. Just. 22, 2
Couper, 538.
2 Crim. Law, I. § 502; The State ».
442
Keesler, 78 N. C. 469. See the State v.
Smith, 30 La. An. 846.
3 The State v. Keesler, supra.
+ Cook v. The State, 11 Ga. 53;
Powers v. The State, 44 Ga. 209; Com-
monwealth v. Perryman, 2 Leigh, 717;
Chancellor v. The State, 47 Missis. 273;
The State v. Slaughter, 70 Misso. 484;
The State v. Peterson, 70 Maine, 216; Peo-
ple v. Harriden, 1 Parker, C. C. 344; At-
torney-General v. Broaddus, 6 Munf. 116;
Baker v. The State, 30 Ala. 521; Howard
v. The State, 11 Ohio State, 328; United
States v. Hiler, Morris, 330.
5 The State v. Schaunhurst, 34 Iowa,
547; Gay v. The State, 2 Texas Ap. 127;
Territory v. Corbett, 3 Montana, 50.
6 Williams v. The State, 2 Ind. 439;
Baumer v. The State, 49 Ind. 544.
7 Post, § 733; The State v. Bullinger,
54 Misso. 142; Morgan v. The State, 11
Ala. 289. See Delany v. People, 10 Mich.
241, 244.
£1 Alison Crim. Law, 563; 1 Hume
Crim. Law, 2d ed. 448.
® Crim. LawI § 301-310; ante, § 5964,
663.
10 People v. Murray, 14 Cal. 159; Me-
CHAP. XLIII.] INCEST. § 733
stitute an attempt, —a proposition denied in one case.!_ But this
case, and the question generally, are sufficiently explained in
“Criminal Law.” ?
II. The Procedure.
§ 731. Previous Expositions. — Incest being either an unlawful
marriage, therefore within the principles explained in the chap-
ter on polygamy, or a particular form of fornication or adultery,
consequently within the expositions of the last four chapters, the
reader has only to turn to those chapters to find answered most
of his inquiries under the present lead.
§ 732. Following Statute. — The leading rule for all indict-
ments on statutes, to cover in allegation their terms, is the prin-
cipal one in this offence.2 Thus, —
Averring Relationship. — Under the statutory words, “if any
father shall have sexual intercourse with his daughter knowing
her to be such,” it is not sufficient to allege 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.” A’s knowledge is not covered by
“unlawfully,” nor does it otherwise appear.* But where the
expression in the statute was, “within the degrees of consan-
guinity within which marriages are prohibited or declared by law
to be incestuous and void,” it was adjudged adequate to aver,
that the defendant “ did commit the crime of fornication” with
one B, his daughter. Under the Illinois statute, the allegation
that the defendant A did the criminal act on the person of B,
the said B then and there being the daughter of him, the said A,
was held to be adequate as to the relationship.®
§ 733. “Knowingly..— We have already seen that the word
Coll’s Case, 1 Scotch Sess. Cas. 4th ser.
Just. 22, 2 Couper, 538.
1 Cox v. People, 82 Ill 191.
2 Crim. Law I. Introduction to 7th-
ed. the long note, § 764, 768 d, 772 a.
The Carnal Act — What is the carnal act
necessary to the substantive offence we
saw under the title Adultery. Ante;
§ 661; Noble v. The State, 22 Ohio State,
541.
8 The State v. Bullinger, 54 Misso.
142; Baumer v. The State, 49 Ind. 544;
Gay v. The State, 2 Texas Ap. 127.
4 Williams v. The State, 2 Ind. 439.
5 Hicks v. People, 10 Mich. 395.
6 Bergen v. People, 17 Ill. 426; s. P.
Hicks v. People, 10 Mich. 395. See also
Howard v. The State, 11 Ohio State, 328;
Noble v. The State, 22 Ohio State, 541;
Hutchins v. Commonwealth, 2 Va. Cas.
331, 332; Attorney-General v. Broaddus,
6 Munf. 116.
443
§ 736 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
“knowingly,” if in the statute, must be in the indictment, other-
wise it need not be.1 Now, —
Both knowing — Joint or Several.—If, as some deem, or as
under some statutes, the guilt of both parties is essential to that
of either one,? the knowledge of both, where the statute requires
both to have it, must be alleged. But where the offence may
be proceeded against as several, and one may be guilty with-
out the other, the knowledge of the defendant alone need be
averred.®
§ 734. Continuando or not. — Where, by the terms of the stat-
ute or its interpretation, one carnal act constitutes the offence, it
cannot be charged as continued through a specified number of
years; for so the count would be double.$
But doubtless there
are statutes under which this form of averring the time will be
good.
§ 735. Proof of Relationship. — It has been held, doubtless cor-
rectly, that, on an indictment for incest, the relationship and
pedigree of the parties may be proved by reputation’ or by the
defendant’s confessions.®
§ 736. Other Questions. — Some other questions of evidence
have been decided in these cases; but relating simply to the
sufficiency of the proofs, or not involving principles special to this
offence.®
1 Ante, § 729, 782. It is so also in
simple adultery. Commonwealth v. El-
well, 2 Met. 190.
2 Ante, § 660; The State v. Thomas,
63 Iowa, 214; De Groat v. People, 39
. Mich."124.
8 Baumer v. The State, 49 Ind. 544.
4 Powers v. The State, 44 Ga. 209.
5 Baker v. The State, 30 Ala. 521;
Morgan v. The State, 11 Ala. 289, 290.
6 Barnhouse v. The State, 31 Ohio
State, 89. And see The State v. Temple,
38 Vt. 87; The State v. Glaze, 9 Ala.
283
444
7 Ewell v. The State, 6 Yerg. 364; The
State v. Bullinger, 54 Misso. 142, 144.
See 1 Bishop Mar. & Div. § 546-548.
8 People v. Jenness, 5 Mich. 305; Mor-
gan v. The State, 11 Ala. 289; Bergen v.
People, 17 Il]. 426; People v. Harriden, 1
Parker C. C. 344; The State r. Schaun-
hurst, 34 Iowa, 547.
9 Lovell v. The State, 12 Ind. 18;
People v. Jenness, 5 Mich. 305; Tuber-
ville v. The State, 4 Texas, 128; Gay
v. The State, 2 Texas Ap. 127; Freeman
v. The State, 11 Texas Ap. 92; Kidwell
v. The State, 63 Ind. 884; The State v.
Ellis, 74 Misso. 385.
CHAP. XLIV.] OTHER OFFENCES AGAINST MARRIAGE. 739
CHAPTER XLIV.
OTHER OFFENCES AGAINST MARRIAGE.
§ 737. In “Marriage and Divorce”—JIn the author’s work on
“Marriage and Divorce,” there is a chapter on the ‘ Impedi-
ments of Race and Civil Condition,” ! and another on the “ Penal
Consequences of Irregular Marriage Solemnization.”? It is not
proposed to repeat here what is said there. Still, —
§ 738. Miscegenation. — As there stated, some of our States
have statutes against the mixing of races by intermarriage, par-
ticularly of blacks and whites; and these statutes, even since the
abolition of slavery and the accompanying amendments of the
national Constitution, and the enforcing acts of Congress, are
within the legislative power of the States.3 Nor, in general, did
such abolition and those amendments and acts interrupt the
operation of the prior statutes of this sort. For something of
the interpretation of the statutes and the procedure under them,
the reader is referred to the cases in the note.®
§ 739. The Rest of the Subject — is sufficiently discussed in the
other work. But the reader may like to see, in a note,® a refer-
ence to some of the cases.
1 1 Bishop Mar. & Div. § 308-311.
2 1 Ib. § 341-347 a.
3 1 Ib. § 308, 308 a; Ex parte Kinney,
3 Hughes, 9; Ex parte Francois, 3 Woods,
367; Lonas v. The State, 3 Heisk. 287.
# Frasher v. The State, 3 Texas Ap.
263; Francois v. The State, 9 Texas Ap.
144; The State v. Gibson, 36 Ind. 389.
5 Moore v. The State, 7 Texas Ap. 608;
Hoover v. The State, 59 Ala. 57; Green
v. The State, 59 Ala.68; The State v.
Bell, 7 Baxter, 9; Frasher v. The State,
supra; Burns v. The State, 48 Ala. 195,
overruled in Green v. The State, 58 Ala.
190.
6 The State v. Bray, 13 Ire. 289; The
State v. Loftin, 2 Dev. & Bat. 81; The
State v. McWhinney, 5 Blackf. 3864;
Smyth v. The State, 8 Eng. 696; Bailey
v. Fiske, 34 Maine, 77; Reg. v. James,
Temp. & M. 300, 14 Jur. 940, 19 Law J.
n. 8. M. C. 179, 1 Eng. L. & Eq. 552, 2
Den. C. C.1; Wyckoff v. Boggs, 2 Halst.
188; The State v. Griffith, 67 Misso. 287;
The State v. Wilder, 7 Blackf. 582; The
State v. Horsey, 14 Ind. 185; The State
v. Pierce, 14 Ind. 302; Commonwealth v.
Waterman, 122 Mass. 43; Commonwealth
v. Hill, 6 Leigh, 636 ; The State v. Ross, 26
Misso. 260; Sikes v. The State, 30 Ark.
496; The State v. Winright, 12 Misso.
410; Reg. v. Asplin, 12 Cox C. C. 391,
5 Eng. Rep. 470; Bonker v. People, 37
Mich. 4.
445
§ 743 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
CHAPTER XLV.
ABORTION.
§ 740, 741. Introduction.
742-750. Law of the Offence.
751-762, The Procedure.
§ 740. Why treated as statutory.— Though, as we shall see,!
abortion is recognized in some degree as an offence at the com-
mon law, practically the prosecutions for it are nearly all upon
statutes. Hence it is placed in the statutory division of this
series of works.
§ 741. How Chapter dividea.— We shall consider, I. The Law
of the Offence ; II. The Procedure.
I. The Law of the Offence.
§ 742. Resulting in Death.— An abortion which results in the
death of the woman,?— or, where the pregnancy has so far ad-
vanced that the child passes from her alive, in its death from
injuries inflicted in the operation, or from premature exposure to
the external world,? —is common-law murder. But, —
§ 743. Same under Statutes. —In some of our States, statutes
have either made it manslaughter,* or an aggravated abortion
punishable less severely than murder.’ But not all the statutes
on the subject thus reduce the offence.®
1 Post, § 744. v. The State, 46 Ind. 363; The State v.
2 Crim. Law, IT. § 691; Reg. v. Fret-
well, Leigh & C. 161, 9 Cox C. C. 153;
Commonwealth v. Hersey, 2 Allen, 173;
The State v. Moore, 25 Iowa, 128; The
State v. Dickinson, 41 Wis. 299.
3 Crim. Law, I. § 328; II. § 691; Reg.
v. West, 2 Car. & K. 784, 2 Cox C. C. 500;
Storer & Heard Abortion, 153.
4 The State v. Dickinson, 41 Wis. 299;
People v. Olmstead, 30 Mich. 481; Willey
446
Glass, 5 Oregon, 73.
5 Gen. Stats. c. 165, § 9; Common-
wealth v. Brown, 14 Gray, 419; Com-
monwealth v. Jackson, 15 Gray, 187;
Commonwealth v. Adams, 127 Mass. 15,
under the earlier Massachusetts stat-
utes; Commonwealth v. Wood, 11 Gray,
85, 92; In other States, The State v. Har-
per, 35 Ohio State, 78; People v. Davis,
56 N. Y. 95.
6 Beasley v. People, 89 Ill. 57L
CHAP. XLV. ] ABORTION. § 746
§ 744. Abortion at Common Law. — The causing of an abortion
is an indictable misdemeanor at the common law.! Therefore a
mere unsuccessful attempt to produce it, is thus indictable ;? as,
where one administers to a woman a noxious thing with such
intent.3
At what Stage of Pregnancy — (Consent or not).— An act of
this sort, whether successful or not, committed without the wo-
man’s consent, is also, of course, an aggravated assault. Some
have denied, that, if she consents; it is indictable at the common
law, unless she has arrived at the stage of pregnancy termed
quick with child.* And Hale has on this subject the expression
“quick or great with child;’’> and Coke, ‘quick with child ;”*®
but not in connections denying that the offence may be commit-
ted at an earlier stage of the pregnancy. Others reject this dis-
tinction. “It is not,” said Coulter, J. delivering the opinion of
the Pennsylvania court, “the murder of a living child which con-
stitutes 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 per-
peirated.”? This, in principle, seems to be the reasonable and
just doctrine.
§ 745. “Quick with Chila””—The meaning of this phrase is
commonly understood to be, that the woman has felt the child
move ;° and a distinction between it and “with quick child,”
once taken by a learned judge,® has been discarded.”
§ 746. Under Statutes, as to Quick with Child. — Our statutes
against this offence, with few exceptions," do not in terms require
a quicking; and, when they do not, they are not judicially con-
strued to require it. Thus, under the following expressions, the
1 3 Inst. 50; 1 Hale P. C. 433; Hawk, 8 Rex v. Phillips, 3 Camp. 73, 76;
P. C. Curw. ed. p. 94, § 16. And see 3 Commonwealth v. Reid, 1 Pa. Leg. Gaz.
Chit. Crim. Law, 798, 799. Rep. 182.
2 1 Russ. Crimes, 5th Eng. ed. 853. 9 Reg. v. Wycherley, 8 Car. & P. 262;
3 The State v. Slagle, 82 N. C. 653. and see this case for an interesting note
4 Commonwealth v. Parker, 9 Met.
263; Commonwealth v. Bangs, 9 Mass.
387; The State v. Cooper, 2 Zab. 52;
Smith v. The State, 33 Maine, 48.
5 1 Hale, P. C. 423.
6 3 Inst. 50.
7 Mills v. Commonwealth, 1 Harris,
Pa. 631, 633; followed by the North
Carolina ‘Tribonal 4 in The Biale v. Slagle,
83 N. C. 630, 632.
by the reporter, showing, on medical au-
thority, that “the popular idea of quick
or not quick with child is founded in
error.”
10 The State v. Cooper, 2 Zab. 52, 57;
and see the authorities there cited; also
Rex v. Russell, 1 Moody, 356, 360. See
The State v. Smith, 32 Maine, 369.
1 Robbins v. The State, 8 Ohio State,
181.
447
§ TAT OFFENCES MORE PURELY STATUTORY. [BOOK VL
crime may be committed at any time during gestation: “ wilfully
administer to any pregnant woman any medicine, drug, substance,
or thing whatever, with intent thereby to procure the miscarriage
of any such woman ;”! “with intent to cause and procure the
miscarriage of a woman then pregnant with child shall adminis-
ter,” &c.2 And the Vermont court has even held, under a statute
similar in terms to these, that it is not essential for the fetus to
be alive when 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,” 3— as to which, there is a dictum to the contrary in Mas-
sachusetts.*
§ 747. “Noxious Thing.” — In many of the statutes, one of the
prohibited means of abortion is the administering of a ‘ noxious
thing.” The “thing” must, by construction, be “noxious” to
the system, not necessarily in small quantities, but in the quanti-
ties actually given. It is not noxious if administered in quan-
tities too small to effect injury of any sort.6 But, to be within
the statute, it need not be capable of bringing about the abortion.’
“Poison” — is another word often employed in the same con-
nection. It has been deemed to be a substance capable of
destroying life by its own inherent qualities, without acting
mechanically .®
“ Administer." To administer the poison or other thing is to
cause it to be taken.® It may be by forcing it down the woman’s
throat, or by violence compelling her to swallow it? Or it may
be by delivering it to one who receives it into her system volun-
tarily ; having, or not, asked for it. Generally, in our statutes,
the expression is “administer and cause to be taken ;” and per-
1 Wilson v. The State, 2 Ohio State,
319.
2 Mass. Stat. of 1845, c. 27; Common-
wealth v. Wood, 11 Gray, 85; The same,
in substance, in Iowa. The State v.
Fitzgerald, 49 Iowa, 260.
3 The State v. Howard, 32 Vt. 380,
403.
# Commonwealth v. Wood, supra.
5 Reg. v. Cramp, 5 Q. B. D. 207, 14 Cox,
C. C. 401; Reg. ». Cramp, 14 Cox, C. C.
390; The State v. Gedicke, 14 Vroom,
86; Reg. v. Hollis, 12 Cox, C. C. 463;
448
Reg. v. Isaacs, Leigh & C. 220, 9 Cox C.
C. 228.
6 Reg. v. Perry, 2 Cox, C. C. 223; Reg.
v. Hennah, 13 Cox C. C. 547, the head-
note to which case seems not to be cor-
rect.
7 The State v. Gedicke, supra; Reg.
v. Hennah, supra. And see in Common-
wealth v. W. 3 Pittsb. 463. :
8 People v. Van Deleer, 53 Cal. 147.
° Crim. Proced. IL § 645. And see
ante, § 225.
19 Blackburn v. The State, 23 Ohio
State, 146.
CHAP. XLV. ] ABORTION.
§ 749
haps it is a question not absolutely settled in authority, or one
depending on other parts of the statute, whether, under the single
word “administer,” ! the offence can be complete before the thing
is swallowed.”
Intent.— The evil intent specified in the statute, or implied
from the nature of the case, is au element indispensable to the
offence.?
Varying Provisions.— The statutes on this subject so vary from
one another, and are so changing from time to time, that it be-
comes specially necessary for the practitioner to study those of
his own State, and the adjudications under them.+*
§ 748. attempt consummated.— The offence under many of
our statutes is an attempt only; as, “administer, &c. with intent
to procure a miscarriage.’ But, by construction, it is no less
committed though the attempt is successful, the woman actually
miscarrying.®> The case is like that of burglary, where the crime
consists of breaking and entering with intent to perpetrate a
felony ; yet it is equally burglary if the intended felony is ac-
complished.®
§ 749. Persons assisting— may incur guilt, according to the
1 See the elucidations in Crim. Proced.
TI. § 645.
2 Ante, § 225; Reg. v. Wilson, 37 Eng.
L. & Eq. 605, Dears. & B. 127, 7 Cox C.
C. 190; Reg. v. Farrow, 40 Eng. L. & Eq.
550, Dears. & B. 164; Reg. v. Fretwell,
Leigh & C. 161; Reg. v. Isaacs, Leigh
& C. 220; Reg. v. Cramp, 14 Cox C. C.
390; Reg. cv. Hollis, 12 Cox C. C. 465.
Under the words, in the New Jersey stat-
ute, “administer to her, prescribe for her,
or advise or direct her to take or swallow,
any poison, drug, medicine, or noxious
thing,” the indictment need not (see Crim.
Proced. II. § 645) aver that the thing was
taken or swallowed, nor need this be
proved at the trial. “The defendant’s
guilt,” said the learned judge, “is com-
plete by giving the advice with the intent
specified in the act, and it is immaterial
whether the advice be followed or not.”
The State v. Murphy, 3 Dutcher, 112, 115.
** Supply or Provide,” — The words of
24 & 25 Vict. c. 100, § 59, “supply or
provide any poison,” &c., do not require
29
it to be taken. Reg. v. Titley, 14 Cox
C. C. 502.
3 Reg. v. Hillman, Leigh & C. 348;
Reg. v. Isaacs, Leigh & C. 220; Slattery
v. People, 76 Ill. 217; Reg. v. Titley, 14
Cox C. C. 502; Commonwealth v. Wood,
11 Gray, 85. See Tulley v. Corrie, 10 Cox
C. C. 584, 640.
* There have been certainly three (I
cannot say how many more) successive
English statutes against attempted abor-
tion, in force at different times, the pro-
visions whereof so differ from one another
as to require, in some respects, different
constructions; namely, 48 Geo. 3, c. 58,
§ 1; 7 Will. 4&1 Vict. c. 85, § 6; and
the present statute of 24 & 25 Vict. c.
100, § 58, 59. See Crim. Law, I. § 741
and note; Greaves Crim. Law Acts, 82.
Further as to American enactments, see
Abrains v. Foshee, 3 Iowa, 274; Robbins
v. The State, 8 Ohio State, 131.
5 Reg. v. Wilson, Dears. & B. 127;
Commonwealth v. W. 8 Pittsb. 463.
6 Crim. Law, II. § 115-117; Crim.
Proced. II. § 148.
449
OFFENCES MORE PURELY STATUTORY. [BooK VI.
§ 752
special terms of the statute or the principles of the unwritten
law.) As to the —
Guilt of consenting Woman. —In England, the statute of 24 &
25 Vict. c. 100, § 58, makes punishable the attempt of a woman
with child “ to procure her own miscarriage.” 2 She may, there-
fore, be the accomplice of another person in this crime.2 But
the author has not observed this provision in any of our statutes ;
and, by reason of their terms, and the particular nature of the
offence, the courts in the construction generally regard her as in
some degree the victim, and not punishable though she consents.‘
Woman's Consent in Defence. — The consent of the woman, or
desire to save herself from disgrace, furnishes no excuse to the
perpetrator.®
§ 750. Felony or Misdemeanor.— At the common law, and by
the statutes of Illinois and of some of the other States, this offence
is misdemeanor. But in some of the States there are forms of it
which are felony, —a question which the practitioner can best
decide from his local books.
II. The Procedure.
§ 751. Order of Discussion.— We shall consider, First, The
Indictment ; Secondly, The Evidence.
First. The Indictment : —
At Common Law.— As the offence may be either the substan-
tive procuring of an abortion or the attempt to produce it,’ and
the methods are numerous, the common-law indictment will vary
with the multiplied diversities of cases.
§ 752. Attempt. — The indictment for the attempt may charge,
for example, that, at a time and place specified, the defendant
maliciously administered to and caused to be taken by a woman
1 Commonwealth v. Adams, 127 Mass.
15; Reg. v. Hollis, 12 Cox C. C. 463;
Crichton v. People, 1 Abb. Ap. 467.
2 And see Reg. v. Fretwell, Leigh & C.
161, 9 Cox C. C. 152.
3 Reg. v. Cramp, 14 Cox C. C. 390, 393.
4 Hatfield v. Gano, 15 Iowa, 177, 178;
Dunn v. People, 29 N. Y. 523; Common-
wealth v. Wood, 11 Gray, 85, 98; Com-
monwealth v. Boynton, 116 Mass. 343;
The State v. Hyer, 10 Vroom, 698. See
450
Solander v. People, 2 Colo. 48; Frazer
». People, 54 Barb. 306; People v. Jos-
selyn, 39 Cal. 393.
5 Crim. Law I. § 257-260; Common-
wealth v. Wood, 11 Gray, 85; Common-
wealth v. Snow, 116 Mass. 47; Reg, v.
Wilson, Dears. & B. 127, 7 Cox C. C. 190.
And see The State v. Glass, 5 Oregon, 73;
Commonwealth v. Holmes, 103 Mass. 440.
® Holliday v. People, 4 Gilman, 111.
7 Ante, § 744.
CHAP. XLV.] + ABORTION. § 756
named, she being then and there pregnant with child, divers
large quantities of deadly, &c.,) with intent then and there to
cause her miscarriage, and the premature birth and destruction
of the child whereof she was so pregnant. The objection, made
in one case, that the allegation of the intent should be “ to cause
and procure the miscarriage and abortion of the child,” instead of
the pregnant mother, was overruled.27 And, —
§ 753. Quick with Child.—In a State where the courts hold,
that, to constitute this common-law offence, the woman must be,
not merely pregnant, but quick with child,’ this matter also must
be averred.*
§ 754. Under Statutes. — In the multiplicity. of our statutory
provisions, the leading rule for the pleader is to —
Follow the Statute.— This rule is specially safe, and in most
instances sufficient, in the various forms of the offence now under
consideration. Rarely will the allegations require expansion be-
yond the statutory terms.5
§ 755, Negativing Necessity. — Where the statute makes the act
an offence unless necessary to save the woman’s life, or the like,
the indictment must negative such necessity ; and in terms which,
though they may be general,® are broad enough to cover the full
statutory meaning.’
§ 756. Naming Drug.— Our statutes in general, employing such
words as “any poison or other noxious thing,” and the like, do
not descend to specify any particular drug, the administering of
which shall be punished. Therefore it is held, by those of our
courts that have passed upon the question, not to be necessary
for the indictment to be more specific,’ and give the name of the
1 As to whether the name of the Intyre, 19 Minn. 98; Commonwealth v.
drug must be given, see post,: § 756,
757.
2 Mills v. Commonwealth, 1 Harris,
Pa. 631. Compare this case with People
v. Lohman, 2 Barb. 216.
3 Ante, § 744.
4 Commonwealth v. Bangs, 9 Mass.
387; Commonwealth v. Parker, 9 Met.
263.
5 The State v. Owens, 22 Minn. 238;
Beasley v. People, 89 Ill. 571; Eckhardt v.
People, 88 N. Y. 462; Watson v. The
State, 9 Texas Ap. 237; Davis v. The
State, 4 Texas Ap. 456; Commonwealth
v. Snow, 116 Mass. 47; The State v. Mc-
Brown, 14 Gray, 419; Madden v. The
State, 1 Kan. 340; Commonwealth v.
Thompson, 108 Mass. 461; Dougherty
v. People, 1 Colo. 514; Commonwealth
v. Brown, 121 Mass. 69; The State v.
Sherwood, 75 Ind. 15.
6 Crim. Proced. I. § 641.
7 The State v. Meek, 70 Misso. 355;
The State v. Sherwood, 75 Ind. 15; Bas-
set v. The State, 41 Ind. 303; The State
v. Hollenbeck, 36 Iowa, 112; Willey v.
The State, 52 Ind. 246; Beasley v. Peo-
ple, 89 Ill. 571.
8 For the general question of descend-
ing, in the indictment, into this sort of
451
§ 758 a [Book VI.
OFFENCES MORE PURELY STATUTORY.
noxious drug which, in the instance in allegation, was adminis-
tered.! Still, —
§ 757. Purther as to which.— This form of the allegation lies
close upon the border line, and it is not certain that all our tri-
bunals will accept it as adequate. The English statutes are in
the general terms just stated, and all the forms upon them, which
the author has observed, specify the drug; as, for example, “a
large quantity, to wit, two ounces, of a certain noxious thing
called savin.” And so likewise are the forms in analogous Eng-
lish cases.2_ And, in justice to the defendant, it would seem but
equitable for the grand jury to say, if they know, what was the
drug administered, or, if they do not know, to allege their want
of knowledge, whether the strict law requires it or not. Yet the
averment of the name of the drug, if made, appears to be, like
that of the weapon in homicide and some other similar things,3
of a sort only necessary to be proved in substance; so that, if the
evidence discloses instead a drug of some other name, yet of the
like effects, there will be no variance,t— a proposition not, per-
haps, quite conclusively establisted on the authorities.
§ 758. “Cause and Procure.”—If the statutory intent is “to
cause and procure the miscarriage,” &c., both verbs, coupled by
“and,” must be employed in the allegation. It will not do to
charge the intent in one count to be to “cause,” and in another
count to be to “procure.”® But if the statutory words are
“‘ cause or procure,” either count, so drawn, will be good.
§ 758 a, By Instruments.— The indictment for attempting or
effecting a miscarriage by the use of an instrument follows, like
the other, the statute; and is otherwise similar in construction.
particular, see Crim. Proced. I. § 566-584, 869; Reg. v. Farrow, Dears. & B. 164;
611, 619, 624, 629; ante, § 440.
1 Commonwealth v. Morrison, 16 Gray,
224; Watson v. The State, 9 Texas Ap.
237; The State v. Vawter, 7 Blackf. 592
(referring to Rex v. Phillips, 3 Camp.
73); Shotwell v. The State, 387 Misso.
859; The State v. Van Houten, 37 Misso.
857. And see Mills v. Commonwealth,
1 Harris, Pa. 631.
2 Archb. Crim. PJ. & Ev. 19th Lond.
ed. 771; Archb. New Crim. Proced. 295;
Matt. Crim. Law, 418; Burn Just. Abor-
tion; Rex v. Phillips, 3 Camp. 73; Rex
v. Coe, 6 Car. & P. 408; Rex v. Cadman,
1 Moody, 114; Rex v. Harley, 4 Car. & P.
452
Rex v. Scudder, 1 Moody, 216. In Reg.
v. Wilson, Dears. & B. 127, 7 Cox C. C.
190, “it does not appear how the form
was in this respect.
3 Crim. Proced. I. § 488 6, 488 ¢; II.
§ 514.
4 Rex v. Phillips, 3 Camp. 738; Rex v.
Coe, 6 Car. & P. 403. See Carter v. The
State, 2 Ind. 617. And see and compare,
in the Supreme Court and Court of Ap-
peals, Crichton v. People, 6 Parker C. C.
863, 1 Keyes, 341, 1 Abb. Ap. 467.
5 The State v. Drake, 1 Vroom, 422.
6 Ante, § 244.
CHAP. XLV. ] ABORTION. § 760
For example, it may allege, if so the statutory terms will be coy-
ered, that, at a time and place stated, the defendant did unlaw-
fully use an instrument, a more particular description whereof is
to the jurors unknown, by then and there thrusting it into the
body and womb of one, &c., who was then and there pregnant
with child, with the intent thereby and then and there to procure
her miscarriage.}
§ 759. Duplicity.— The use of an instrument and the adminis-
tering of drugs, to effect the one common object, may both be
averred in a single count. It is not thereby rendered double.?
Or the two methods may be set out each in a separate count ;
and, should the proof show that the result proceeded from them
combined, and not solely from either, either count will be thereby
sustained, or the verdict of guilty may be general on both.’
Death following. — Where death follows, under a statute mak-
ing this sort of killing an aggravated abortion,‘ it need not be
charged also as murder.®
§ 760. Secondly. The Evidence : —
Woman as Witness. — The woman is admissible as a witness,
within principles. explained in another connection® We have
seen, that, generally in our States, she is not technically an
accomplice,’ whose evidence, therefore,’ is within the special rule
requiring confirmation? But it is by some deemed that, ‘ inas-
much as she was in a moral point of view implicated in the
transaction, it would be proper for the jury to consider that cir-
cumstance in its bearing upon her credibility ;”! rendering a
caution from the court, to this effect, judicious and proper, and
evidence confirmatory particularly appropriate. And some tri-
bunals appear to regard her, as to confirmation, substantially the
same as a technical accomplice.” Yet, in reason, the difference is
1 Commonwealth v. Brown, 121 Mass.
® Crim. Proced. I. § 1019-1021, 1136-
69; The State v. Dyer, 59 Maine, 303; ;
1172.
Commonwealth v. Brown, 14 Gray, 419;
Commonwealth v. Snow, 116 Mass. 47.
2 Commonwealth v. Brown, 14 Gray,
419; People v. Davis, 56 N. Y. 95, 100,
101.
3 Tabler v. The State, 34 Ohio State,
127.
4 Ante, § 748.
5 Commonwealth v. Jackson, 15 Gray,
187. And see Commonwealth v. Holmes,
103 Mass. 440.
7 Ante, § 749.
8 Crim. Proced. I. § 1156-1176.
9 Dunn v. People, 29 N. Y. 528; Com-
monwealth v. Boynton, 116 Mass. 348.
1” Commonwealth v. Wood, 11 Gray,
85, 90, 93.
U Crim. Proced. I. § 1178; Frazer v.
People, 54 Barb. 806; Watson v. The
State, 9 Texas Ap. 237. And see Com-
monwealth v. Drake, 124 Mass. 21.
12 People v. Josselyn, 39 Cal. 893.
4538
§ Tél a OFFENCES MORE PURELY STATUTORY. [BOOK VI.
wide; for an accomplice swears under the temptation of earn-
ing thereby his own immunity, while she does not. She discloses
her own disgrace; and, where no evil motive appears for it, this
fact may, in reason, strengthen her credibility. Yet plainly the
special temptations of the particular case should be taken into
the account, and the attention of the jury may well be directed
to them.
Wife against Husband. — Where a husband is charged with this
offence committed, by the use of instruments, on his wife, she
may be a witness against him and his accomplices indicted with
him ; at least, one case so holds. ‘+The offence,” said Kent, J.
“is clearly one that includes the element of personal violence to
the wife; and, whenever that appears, the wife may as well be
admitted to testify as where the charge is by the State of a
breach of the public peace.” !
§ 761. Circumstances.— Aside from the testimony of the. wo-
man, the evidence in these cases is generally circumstantial.
Therefore, of necessity, each case will present its special aspects,
and what is admissible in one will not necessarily be so in
another. Such facts as the secretion of a foetus about the build-
ing where the abortion is alleged to have taken place,” the char-
acter of the house,’ the defendant’s possession of instruments
adapted to this sort of operation,’ his solicitation of the or this
class of business,® the woman’s low health and spirits and stains
on her bed-clothes,’ — are illustrations of what is, in connection
with other facts, admissible.’
§ 761a. Dying Declarations. — Where the woman dies, her
dying declarations are admissible, if the indictment is for mur-
der.6 But if it is for abortion, and, under the statute,® it sets out
1 The State v. Dyer, 59 Maine, 303, 7 And see, for further illustrations,
307. And see Commonwealth v. Reid,
8 Philad. 885; The State v. Briggs, 9
R. I. 361.
2 The State v. Howard, 32 Vt. 380, 405.
3 Hays v. The State, 40 Md. 633.
4 Commonwealth v. Blair, 126 Mass.
5 Commonwealth v. Holmes, 103 Mass.
440; Weed v. People, 56 N. Y. 628; 8. c.
below, 3 Thomp. & C. 50. See Watson v.
The State, 9 Texas Ap. 237.
6 Commonwealth v. Wood, 11 Gray,
85; People v. Olmstead, 30 Mich. 431.
454
Commonwealth v. Brown, 14 Gray, 419;
Commonwealth v. Hersey, 2 Allen, 173;
Dunn v. People, 29 N. Y. 523; Crichton
v. People, 6 Parker C. C. 363; Common-
wealth ». Brown, 121 Mass. 69; Com-
monwealth v. Blair, 123 Mass. 242; Hays
v. The State, 40 Md. 633; The State v.
Howard, 32 Vt. 380.
8 Crim. Proced. I. § 1207; Maine »v.
People, 9 Hun, 118; Rex v. Baker, 2
Moody & R. 53.
9 Ante, § 743.
CHAP. XLV.] . ABORTION. § 762
her death in aggravation of the defendant’s guilt, they are not
admissible.}
§ 762. Burden of Proof as to Abortion not necessary. — Under a
statute which makes it an element of the offence that the abortion
was not necessary, some courts hold, that, though this want of
necessity must be averred in the indictment,” it need not be
proved, but the burden is on’ the defendant to show a necessity.3
This is a sort of question on which judicial opinions differ.* -
1 People v. Davis, 56 N. Y. 95, 103; 3 Moody v. The State, 17 Ohio State,
The State v. Harper, 85 Ohio State, 78; 110; Bradford v. People, 20 Hun, 309.
Rex v. Hutchinson, 2 B. & C. 608, note; 4 1Greenl. Ev. § 78-81; ante, § 648;
Reg. v. Hind, Bell C. C. 253, 8 Cox C. C. post, § 800 a, 1051, 1052; The State v.
300. Meek, 70 Misso. 355.
2 Ante, § 755.
455
§ 765 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
CHAPTER XLVI.
CONCEALMENT OF BIRTH, OR CHILD MURDER.
§ 763. Introduction.
764-776. Law of the Offence.
777-780. The Procedure.
§ 763. How Chapter divided. — We shall consider, I. The Law
of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 764. What and Why. — For the protection of bastard children
from the temptation of their mothers to conceal their own shame
by destroying them at a private birth, statutes have been enacted ~
in England, Ireland, Scotland, and many of our States, making
the concealment of the birth or of the death of such a child, by
the mother, though nothing more appears against her, a crime.
Parent Statute.— The parent statute is 21 Jac. 1, c. 27; pro-
viding, “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; ex-
cept 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. Later.—In 1803, after the union with Ireland, this
statute and the Irish one were repealed by 43 Geo. 3, c. 58, § 3.
1 See, for expositions of this statute, New Crim. Proc. 297; Archb. Crim. PL
1 East P. C. 228; 2 Hale P. C. 288; 1 & Ev. 19th Lond. ed. 7738.
Russ. Crimes, 3d Eng. ed. 572; Archb.
456
CHAP. XLVI. ] CONCEALMENT OF BIRTH. § 768
It was in 1828 followed by 9 Geo. 4, c. 31, § 14; now superseded
by the somewhat better drawn provisions of 24 & 25 Vict. c. 100,
§ 60. :
In Scotland, — the old law was superseded by 49 Geo. 3, c. 14;
providing, 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 lawfully convicted thereof shall
be imprisoned for a period not exceeding two years.” !
§ 766. In England, at Present,—by 24 & 25 Vict. c. 100, § 60,
“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
conceal 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 thereof, 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 there-
upon the court may pass such sentence as if such person had
been convicted upon an indictment for the concealment of the
birth.” ?
§ 767. As Common Law with us.— The date of the parent stat-
ute of 21 Jac. 1, c. 27, is 1623, sufficiently early to be common
law in most of our States. The Pennsylvania judges do not
include it in their list; but Kilty says it was received in Mary-
land, and under it there were in early times numerous con-
victions.$
§ 768. Legislation with us.— Our American legislation appears
to conform, in the main, to the early model of 21 Jac. 1, ¢. 27.
Thus, in Arkansas, “If any woman shall endeavor privately,
either by herself, or the procurement of others, to conceal the death
11 Alison Crim. Law, 153; Brown’s
Case, 1 Swinton, 482.
2 Mr. Greaves tells us, that this stat-
ute was framed from 9 Geo. 4, ec. 31, § 14,
and 10 Geo. 4, c. 34, § 17, Irish; but was
intended also to supply some defects in
those statutes. Greaves Crim. Law Acts,
84.
3 Report of Judges, 3 Binn. 595, 623.
+ Kilty Rep. Stats. 172. This statute
of 21 Jac. 1, c. 27, was originally, by its
terms, to be in force only “until the end
of the first session of the next Parlia-
ment;” but it was continued by 3 Car.
1, c. 4, § 22, and made perpetual by 16
Car. 1, ¢. 4.
457
§ 769 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
of any issue of her body, male or female, that it may not come to
light, although it cannot be proved that it was murdered, every
such mother shall suffer the same punishment as for manslaugh-
ter.” And it is added that this provision shall not prevent her
being indicted for the murder of “such bastard child,” — by con-
struction whereof, the indictment for concealment must allege
the child to be a bastard.! In Maine, “ If any woman is willingly
delivered in secret of the issue of her body, which would be a
bastard if born alive, and conceals the death thereof, so that it is
not known whether it was born dead or alive, and was murdered,
she shall be punished,” &c.; and, by construction, she is to be
acquitted if the child is shown to have been born dead.2 While
these statutes are not identical in expression, others, present and
past, vary more or less from them and from one another; re-
quiring —
§ 769. Caution as to the Interpretation —By reason of the
diversities of the statutes,’ it is difficult to draw from the past
decisions, and those in other localities than our own, safe guides
for our own future causes. So that practitioners and courts are
compelled to tread cautiously over this ground.
Interpretation specially strict. — It is perceived that the statute
makes heavily punishable what of itself is nearly or quite inno-
cent,:simply because of its tendency toward an unproved wrong.
Hence its interpretation is always specially strict; as, says East,
writing of —
21 Jac. 1, c. 27.— “If,” under this statute, the woman “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 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,
1 Sullivan v. The State, 36 Ark. 64. Foster v. Commonwealth, 12 Bush, 373.
2 The State v. Kirby, 57 Maine, 30. As to Texas, The State v. Rupe, 41
Similar is the Massachusetts statute. Texas, 83. As to South Carolina, The
Mass. Gen. Stats. c. 165, § 11; formerly State v. Love, 1 Bay, 167.
R. S. c. 180, § 6. See as to Kentucky, 3 Rex v. Douglas, 1 Moody, 480.
458 '
CHAP. XLVI. ]: CONCEALMENT OF BIRTH.
§ 771
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.”! Hence, —
§ 770. What is a Concealment ?— This is a leading question
under our various enactments. Now, —
Birth or Death. — Some of them make the offence consist in con-
cealing the “ death,” others the “birth,” of the child; the idea
being, that it is a badge of murder.
Person Present. — If there is any person present when a child is
born and dies, there is no concealment by the mother, though
such person is an accomplice.”
§ T71. “By Secret Burying,” &c. — (Statutory Method). — Where
the statute specifies the method of concealment,— as, under
9 Geo. 4, e. 31, § 14, “ by secret burying or otherwise disposing of
the dead body” (words which have caused ‘* many questions ”),?
— the effect of the particular expression should be regarded. It
was not necessary, under this statute, that the body should have
been put in what was meant to be its final resting-place; as, for
example, it was sufficient where the woman hid it under the bol-
ster on which she laid her head.t/ There must be some act of
disposal ; a mere denial is not enough.® Therefore, if the woman
goes to a privy for another purpose, and unawares the child there
passes from her into the night-soil and is suffocated, she does not
commit the statutory offence, though she denies the birth.’ And
it is the same, as to the complete substantive offence, where she is
detected with the body in her possession, about to dispose of it.8
Where a girl puts away her dead child, not from the motive of
concealment, but through fear of provoking her father, and other-
wise she would have caused it to be buried in the churchyard,
she does not commit this offence.? Nor does she commit this
1 1 East P. C. 228. See post, § 771.
2 Ante, § 769; Rex v. Peat, 1 East P.
5 Foster rv. Commonwealth, 12 Bush,
873.
C. 229. But see, under other statutes,
Rex v. Cornwall, Russ. & Ry. 386; Rex
v. Douglas, 1 Moody, 480.
3 Greaves Crim. Law Acts, 84.
-* Reg. v. Perry, Dears. 471, 473, 6 Cox
C. C. 581; Reg. v. Goldthorpe, 2 Moody,
244, Car. & M. 885; Reg. v. Farnham, 1
Cox C. C. 349. And see Boyles v. Com-
monwealth, 2 S. & R. 40.
6 Reg. v. Turner, 8 Car. & P. 755.
7 Reg. v. Turner, 8 Car. & P. 755;
Reg. v. Coxhead, 1 Car. & K. 623. See
Rex v. Cornwall, Russ. & Ry. 336.
8 Rex v. Snell, 2 Moody & R. 44. See
Reg. v. Goode, 6 Cox C. C. 318.
9 So the doctrine was laid down by
Coltman, J. to a jury. Reg. v. Morris, 2
Cox C. C. 489.
459
§ 773 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
offence though there is a concealment, if it is by some other per-
son, without her privity or consent.?
§ 772. “chila.” — It has been deemed that the contents of the
womb, to be a “child” within these statutes, must have grown
so far beyond the embryo state as, in the natural course of things,
to have some chance of being born alive, or living after birth.
Within which rule, “no specific limit,” said Erle, J. can be
assigned 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.’”?
Martin, B. refused to yield to this doctrine, “stating that he saw
nothing to limit the word + child’ in the statute to a child likely
to live or likely to die, but that as soon as the foetus had the out-
ward appearance of a child [in this case it was about the length
of a man’s finger] it was sufficient.”3 As this statute is to be
construed with great strictness,* and popularly a “child” is the
offspring after birth and a “foetus” is the same before, it does
not seem reasonable so to extend the former word by interpreta-
tion as to include within its meaning what is popularly within the
meaning of the latter alone; and, by no possibility, can, on being
expelled from the womb, become a child, but only a dead lump.®
§ 773. Our own Statutes, —it is seen, conform more nearly to
these earlier English statutes than to the present one. Yet it
will be helpful to see something on the latter; namely, —
24 & 25 Vict. — There have been a few cases on 24 & 25 Vict.
c. 100, § 60, before quoted. The endeavor to conceal the birth
must be by putting the child where it is deemed not likely to he
found. To place it in an open box in the prisoner’s bedroom, and
say where it is to the medical man inquiring for it, is not within
the statute.’ What is “a ‘secret disposition’ must,” in the
words of Bovill, C. J. concurred in by the other judges, “ depend
upon the circumstances of each particular case. The most com-
1 Rex v. Higley, 4 Car. & P. 866; Reg. 44; Reg.7. Ash, 2 Moody & R. 294; Reg.
v. Bate, 11 Cox C. C. 686. v. Jones, 2 Moody & R. 295, note; Reg.
2 Reg. v. Berriman, 6 Cox C. C. 388, v. Bell, 2 Moody & R. 294, note; Reg. v.
390. And see Reg. v. Hewitt, 4 Fost. Halton. 2 Moody & R. 295, note; Rex v.
& F. 1101. Watkins, 1 Russ. Crimes, 3d Eng. ed.
3 Reg. v. Colmer, 9 Cox C. C. 606. 574. And see Commonwealth v. Clark,
4 Ante, § 769. 2 Ashm. 105.
5 For further authorities on the earlier 6 Ante, § 766.
English statutes, see Reg. v. Bird, 2 Car. 7 Reg. v. Sleep, 9 Cox C. C. 559. And
& K. 817; Rex v. Snell, 2 Moody & R. see Reg. v. George, 11 Cox C. C. 41.
460
CHAP. XLVI. ] CONCEALMENT OF BIRTH.
§ 175
plete exposure of the body might be a concealment; as, for in-
stance, 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.” “In the
case in controversy, ‘the evidence of a secret disposition con-
sisted in the situation 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.”! By
the terms of this statute, the secret disposition. must be, not of
the living, but of the ‘dead body ;” consequently, where a
mother, to conceal the birth, put her child alive 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 Mischief.— The concealment is not alone suffi-
cient, but the entire case must come within the mischief to be
remedied by the statute.® Again, —
Born dead. — There is no need the child should have been born
alive.t But itis otherwise under the North Carolina statute, by
reason of its differing words; while yet the defendant has the
burden of proof to show that the child was still-born.®
§ 775. Accomplices. — Under a considerable part of the stat-
utes, —for example, the Rhode Island one, — no person but the
mother can commit the offence as principal of the first degree.
But, when she is guilty, others may be guilty as principals of the
second degree, or as accessories, on the ground of aiding her.®
It was the same also under the English statute of 9 Geo. 4, c. 31,
1 Reg. v. Brown, Law Rep. 1 C. C.
244, 246. And see Reg. v. Opie, 8 Cox
C. C. 832; Reg. v. Clarke, 4 Fost. & F.
1040; Reg. vr. Cook, 11 Cox C. C. 542;
Reg. v. Nixon, 4 Fost. & F. 1040, note.
2 Reg. v. May, 10 Cox C. C. 448, 15
W. R. 751, 16 Law Times, wn. s. 362.
8 Commonwealth v. Clark, 2 Ashm.
105; 1 East P. C. 228; ante, § 282.
4 Rex v. Cornwall, Russ. & Ry. 336;
Reg. v. Wright, 9 Car. & P. 754. See
further. on the English law, Rex v. May-
nard, Russ. & Ry. 240; Rex v. Cole, 2
Leach, 4th ed. 1095, 3 Camp. 871; Rex
v. Dobson, 1 Lewin, 48.
5 The State v. Joiner, 4 Hawks, 350.
Under the Pennsylvania statute of 1718,
concealment 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 suf-
ficient evidence to convict the mother;
there must also have been presumptive
proof that the child was born alive. And
by statute of 1794, concealment is not
conclusive evidence, unless the circum-
stances satisfy:the jury that the mother
wilfully and maliciously destroyed the
child. Pennsylvania v. McKee, Addison,
1.
6 The State v. Sprague, 4 R. I. 257;
Rex v. Douglas, 7 Car. & P. 644. See
Reg. v. Wright, 9 Car. & P. 754.
461
§ 779 [BooK VI.
OFFENCES MORE PURELY STATUTORY.
§ 14,—a defect cured by 24 & 25 Vict. c. 100, § 601 If, under
the former English provision, the mother employed an accomplice
to do the active work, she could be convicted as principal in the
first degree though not continually present; as, though she re-
mained in bed while he buried the body.22_ But where she 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.” 3
§ 776. These Discussions — will be helpful if carefully examined
by the practitioner in connection with the statutes and decisions
of his own State. But here, as under every other title in the
law, it is impossible for the elucidations of an author to supply
the place of thought and circumspection in those who use his
book.
II. The Procedure.
§ TTT. The Indictment — should duly cover the statutory terms ;
as, for example, under such as those of 24 & 25 Vict. c. 100, § 60,4
it may charge that the defendant, at a time and place stated,
being big with child, was delivered thereof, and then and there it
did die; whereupon she did afterward, then and there, by secretly
burying its dead body, endeavor to conceal the birth thereof
But —
§ 778. Mode of Secreting.— It will not. do simply to say, that
the defendant concealed, &c. ‘‘ by secreting the said child ;” for,
as the offence is committed only by overt acts, they — that is, the
manner of the secreting — must be averred. The word “secret-
ing” indicates merely a conclusion of law.® Yet, on the other
hand, it has been held under the Pennsylvania statute, contrary
to this which is believed to be the better view, that the indict-
ment need not say in what manner or by what acts the mother
endeavored to conceal the death.’
§ 779. Averring Death. — As the concealing of a living child is
not within these statutes, the death must in some way be averred.3
1 Greaves Crim. Law Acts, 84. And
see, on this question, Reg. v. Bird, 2 Car.
& K. 817; Reg. v. Skelton, 3 Car. & K.
119.
2 Tb.; Rex v. Douglas, 7 Car. & P. 644.
3 Reg. v. Bate, 11 Cox C. C. 686, 688.
4 Ante, § 766.
5 Archb. Crim. Pl. & Ev. 19th Lond.
462
ed. 773; Ib. 10th Lond. ed. 435; compare
with cases cited, post, § 778, 779.
6 Foster v. Commonwealth, 12 Bush,
373; Reg. v. Hounsell, 2 Moody & R. 292;
Reg. v. Coxhead, 1 Car. & K. 623.
7 Boyles v. Commonwealth, 2S. & R.
40.
_.& Rex v. Davis, 1 Russ. Crimes, 3d
CHAP. XLVI. ] CONCEALMENT OF BIRTH. § 780
But whether it occurred before, at, or after the birth need not be
specified.! It has been adjudged sufficient to say, that the de-
fendant afterward, &c., “the said infant having on the day and
year aforesaid died, did endeavor,” &c.?
§ 779 a. Prima facie Case.— Only a prima facie case is required
to appear in allegation. Matter of defence need not be negatived.?
§ 780. Evidence. — ‘‘ The prosecutor,” said Rogers, J. “ 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.”# But the
proofs required will vary somewhat with the statute.
Bastardy. — The evidence of bastardy was, in one case, that the
defendant 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.” . Little-
dale, J. instructed the jury that this, if believed, was sufficient.®
Corpus Delicti.— Clear identification of the body, the same as
in murder,® has been deemed important.’
‘Verdict. — A verdict of ‘‘ guilty 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.®
Eng. ed. 574; Perkins’s Case, 1 Lewin, 65385. And see Rex v. Poulton, 5 Car. & P.
44; Douglass v. Commonwealth, 8 Watts, 3829; Pennsylvania v. McKee, Addison,
535. 1, 2.
1 Perkins’s Case, supra; Reg. v. Cox- 5 Rex v. Poulton, supra.
head, 1 Car. & K. 623. 6 Crim. Proced. I. § 1056-1060.
2 Boyles v. Commonwealth, 2 8. & R. 7 Reg. v. Williams, 11 Cox C. C. 684.
40. * Boyles v. Commonwealth, 2S. & R.
3 The State v. Rupe, 41 Texas, 33. 40.
* Douglass v. Commonwealth, 8 Watts,
463
[BooK VI.
§ 783 OFFENCES MORE PURELY STATUTORY.
CHAPTER XLVII.
CARRYING WEAPONS.
§ 781, 782. Introduction.
783-793. Law of the Offence.
794-801. The Procedure.
§ 781. How this Discussion.— The statutes on the subject of
this chapter are numerous, and diverse in their terms. Therefore
it will be profitable to direct attention only to leading doctrines,
and cite the authorities; assuming, that the reader has before
him the statutes and decisions of his own State.
§ 782. How Chapter divided. — We shall consider, I. The Law
of the Offence ; II. The Procedure.
I. The Law of the Offence.
§ 783. Statute of Northampton.— The parent statute on this
subject is that of Northampton, 2 Edw. 3, c. 3, A.p. 1328. It
provides, that ‘‘no man, &c. except the king’s servants in his
presence, and his ministers in executing of the king’s precepts, or
of their office, &c. 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,” &c., making the offence a misdemeanor.)
With us. — Notwithstanding the early date of this statute, we
have no evidence that it was accepted as common law in our
colonies.2 But, —
1 For the interpretations of this stat-
ute, see 1 Hawk, P. C. Curw. ed. 488,
§ 4 et seq.
2 Kilty deems it not “applicable to
the circumstances of the people.” Kilty
Rep. Stats. 31. The Pennsylvania judges
464
do not mentionit. Report of Judges, 3
Binn. 699, 610. But, in reason, it would
seem adapted to the wants of every civil-
ized community, and fully within the
principles on which the early English
statutes were received in the colonies.
CARRYING WEAPONS.
CHAP. XLVII. ] § 787
§ 784. Going armed with Dangerous Weapons, at Common Law.
— Whatever we may deem of this statute, the leading offence
punishable by it, namely, riding or going about armed with dan-
gerous or unusual weapons to the terror of the people, was always
indictable under the common law of England,! and it has become
a part of the common law of our States.2 And —
§ 785. Same under Statutes. — This common-law offence has
also been extended, regulated, and confirmed by statutes in some
of our States.2 But, —
§ 786. “Secret,” “Concealed,” &c.— Generally in the States
which have legislated on the subject, the simple carrying of the
weapon, without reference to whether it is open or concealed, or
to the terror of people or not, is prohibited ;* or else the inhibi-
tion is limited to the “secret” or “ concealed” carrying. The
object sought is the protection of the community?
Forms of Statutes.— The statutory terms are numerous and
varying. Thus, in Indiana they were at one time, “ wear or carry
any dirk, pistol, sword in a cane, or other dangerous weapon con-
cealed.” § Then they were changed to “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,
concealed, or shall carry or wear any such weapon openly, with
the intent or avowed purpose of injuring his fellow-men.”? In
Alabama we have: “ Any person who, not being threatened or
having good reason to apprehend an attack, or travelling, or
setting out on a journey, carries concealed about his person
a bowie-knife, or any other knife or instrument of a like kind or
description, or a pistol, or fire-arms of any other kind or descrip-
tion, or an air-gun.” $ Some of the interpretations are —
§ 787. “Carries” — “Conceals.” — Under the Alabama statute,
said Rice, C. J. “ the word ‘ carries’ was used as a synonym of
1 4 Bl. Com. 149; 1 Hawk, P. C. Curw.
ed. p.488, § 4; Knight’s Case, 8 Mod. 117,
Comb. 38.
2 The State v. Huntly, 3 Ire. 418; The
State v. Roten, 86 N. C. 701.
8 Nunn v. The State, 1 Kelly, 243;
The State v. Bentley, 6 Lea, 205. The
following cases are under statutes relat-
ing to the carrying of arms by negroes
and slaves: The State v. Harris, 6 Jones,
N. C. 448; The State v. Hannibal, 6
30
Jones, N. C. 57; The State v. Chavers,
5 Jones, N. C. 11.
+ Dycus v. The State, 6 Lea, 584.
5 Haynes v. The State, 5 Humph. 120;
Evins rv. The State, 46 Ala. 88.
® The State v. Duzan, 6 Blackf. 31.
7 Bicknell Crim. Pr. 397, referring to
Laws, 1859, p. 129; 2 G. & H. 480.
And see Haynes v. The State, supra.
§ Lockett v. The State, 47 Ala. 42.
And see Owen v. The State, 31 Ala. 387.
465
§ 788 4 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
“bears ;’ and the word ‘concealed’ means wilfully or knowingly
covered or kept from sight. Locomotion is not essential to con-
stitute a carrying within the meaning of that section.” So that
one who, being in another’s room with several persons, has in his
vest pocket out of sight a pistol, commits the offence And it is
no excuse for a defendant, that, at other times than the one in
question, he carried the weapon openly; and such, indeed, was
his habit.2, A weapon hid from ordinary observation is concealed,
though it may be discovered on close scrutiny. On the other
hand, —
§ 788. Partly hidden. — Though the weapon is partly hidden,
yet if it is exposed so far as to enable every one plainly to see
what it is, there is not a concealment within this statute.* But,
in different words, the Florida enactment makes it punishable
“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.”
And this provision is held to be violated by so carrying the weapon
partly concealed.>
§ 788 a. Statutory Exemptions. — Among the exemptions spe-
cified in the statutes,® from their general terms, are such as that
the person is a —
Traveller — On Journey. — “‘ Travelling” implies the going of
some distance — but no exact distance can be defined, it may
be short? —from home, beyond the circle of one’s immediate
acquaintances. A man on his daily return from his place of
business in the city to his home in the country is not a traveller?
Bat one is such who is taking a two days’ journey on a river raft,"
or is passing through the county at the rate of ten miles a day
with cattle for a distant market." Not every going from home is
a “journey,” ” nor does every pause by a traveller on his way sus-
pend his journey. The question is a mixed one of intent and
1 Owen v. The State, 31 Ala. 387, 389. 4 Stockdale v. The State, 32 Ga. 225;
Further as to what is a carrying, see Killet v. The State, 32 Ga. 292.
Page v. The State, 3 Heisk. 198 note. 5 Sutton v. The State, 12 Fla. 155.
2 Washington v. The State, 36 Ga. 242. 6 Ante, § 786.
And see Hicks v. Commonwealth, 7 Grat. 7 Lockett v. The State, 47 Ala. 42.
697. 8 Gholson v. The State, 53 Ala. 519.
3 Jones v. The State, 51 Ala. 16; The ® Eslava v. The State, 49 Ala. 355.
State v. Roten, 86 N. C. 701; Carr v. The 19 Baker v. The State, 49 Ala. 350.
State, 34 Ark. 448. ! Rice v. The State, 10 Texas Ap. 288.
2 Smith v. The State, 3 Heisk. 511.
466
CHAP. XLVII. ] CARRYING WEAPONS. § 789
acts.1_ The protection to a traveller on his journey extends over
the whole time ; namely, from the setting out to the return.?
§ 788 6. “Threatened” — (Self-Defence). — The statutory terms
exempting persons who are “ threatened,” or are otherwise acting
in self-defence, differ; and they require no special explanations.?
Though one has been threatened, if he carries the weapon for of-
fence, intending to make or provoke an attack, he is, by construc-
tion, not within the exemption. The right to carry the weapon
will not extend to one having no reason to. apprehend an attack
in the particular circumstances, however it might be in others.®
§ 788 c. Officers and Official Places. — There are statutory ex-
ceptions in favor of the carrying of weapons by officers and in
official places, requiring no special explanations.’ And there are
statutes against carrying them in these and other specified places.’
§ 789. Motive and Exemptions by Construction. — One, to be pun-
ishable under this statute, must intentionally do what it forbids,
with any superadded evil intent which it specifies. And, doing
this, with such intent, and no more, he commits the offence.®
Hence, for example, it is no defence that the motive for carrying
the weapon was merely to exhibit it as a curiosity. And, in
general, a reasonable occasion for carrying it, of a sort not within
the statutory exemptions, will not avail one who has intentionally
violated the prohibiting letter of the statute.!
1 Carr v. The State, 34 Ark. 448.
2 Coker v. The State, 63 Ala. 95. See
also, as to the subject of this paragraph,
Maxwell v. The State, 88 Texas, 170.
Ex parte Boland, 11 Texas Ap. 159;
Chaplin v. The State, 7 Texas Ap. 87.
3 Hardin v. The State, 63 Ala. 88;
Shorter v. The State, 68 Ala. 129; Smith
v. The State, 69 Ind. 140; Polk v. The
State, 62 Ala. 237; The State v. Carlton,
48 Vt. 636; Bailey v. Commonwealth, 11
Bush, 688; Hopkins v. Commonwealth,
3 Bush, 480; The State v. Speller, 86 N.
C. 697.
4 Stroud v. The State, 55 Ala. 77.
> Chatteaux v. The State, 52 Ala. 388.
6 O'Conner v. The State, 40 Texas, 27;
Carmichael v. The State, 11 Texas Ap.
27; Beasley v. The State, 5 Lea, 705;
Gayle v. The State, 4 Lea, 466; Horn
v. The State, 6 Lea, 835; Brewer v. The
State, 6 Baxter, 446; Miller v. The State,
Nor will it avail
6 Baxter, 449; Snell v. The State, 4 Texas
Ap. 171; Williams v. The State, 42 Texas,
466.
7 Summerlin v. The State, 3 Texas Ap.
444; The State v. Wilforth, 74 Misso.
528 ; Crim. Law, II. § 809 a.
8 Crim. Law, I. § 343-345 ; ante, § 132;
Morton v. The State, 46 Ga. 292; Cut-
singer v. The State, 7 Bush, 392.
9 Walls v. The State, 7 Blackf. 572.
10 Reynolds v. The State, 1 Texas Ap.
616; The State v. Speller, 86 N. C. 697;
Preston v. The State, 63 Ala. 127; Liv-
ingston v. The State, 3 Texas Ap. 74;
Cutsinger v. The State, supra; The State
v. Martin, 31 La. An. 849; Titus v. The
State, 42 Texas, 578; Carroll v. The State,
28 Ark. 99. See Moorefield v. The
State, 5 Lea, 8348; Waddell v. The State,
87 Texas, 354; Christian v. The State,
87 Texas, 475; Hilliard v. The State, 37
Texas, 358.
467
§ 792 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
him that the carrying was on his own premises,! unless the stat-
ute has this exception.?
§ 790. Bowie Knife or “like Kind.” — Under the words “ bowie-
knife or knife or instrument of like kind or description,” in-
dicating the forbidden weapon, a knife in some of its essential
particulars like a bowie-knife is included, but not one all the
essential particulars whereof are different.?
Fire-Arms.— A “fire-arm” has been defined to be “a weapon
acting by the force of gun-powder.” It includes+ a—
§ 791. Pistol.— A “ pistol,” to be within the statute, need not
be loaded.’ All its essential parts must be in possession ;® but,
as they can be readily adjusted, they need not be put together.”
By what appears to be the better opinion, if it has no mainspring
or only a broken one, and if it cannot be discharged in the
ordinary way, yet can be by a match, it is still a pistol within the
statute,’ though the contrary was once held.®
§ 792. Constitutionality of these Statutes : —
Under United States Constitution. — The provision which, if any
in the United States Constitution, governs this question, is, that
‘a well-regulated militia being necessary to the security of a free
State, the right of the people to keep and bear arms shall not be
infringed.” © It is among the older amendments, most! of which
are held to be restrictions on the national power, and not to bind
the States.12. This one is declaratory of personal rights, so also are
some of the others which are adjudged not to extend to the States ;
and, contrary perhaps to some former views, it is now settled in
1 Dycus v. The State, 6 Lea, 584; 12 Crim. Law, I. § 946, 981; Crim.
Carroll v. The State, supra.
2 Baird v. The State, 38 Texas, 599.
3 Sears v. The State, 33 Ala. 347.
4 Atwood v. The State, 53 Ala. 508,
opinion by Brickell, C. J.
5 The State v. Duzan, 6 Blackf. 31.
® Cook v. The State, 11 Texas Ap. 19.
7 Hutchinson v. The State, 62 Ala. 3.
3 Williams v. The State, 61 Ga. 417;
Atwood v. The State, 58 Ala. 508.
9 Evins v. The State, 46 Ala. 88, 89.
Further as to what is a pistol, see Barton
v. The State, 7 Baxter, 105; Holland »v.
The State, 33 Ark. 660; Puryear v. The
State, 44 Ga. 221.
1) Const. U. S. amendm. art. 2.
11 Justices v. Murray, 9 Wal. 274.
468
Proced. I. § 64, 145, 261, 301, 891; Barron
v. Baltimore, 7 Pet. 243, 247; Livingston
v. New York, 8 Wend. 85; The State v.
Shumpert, 1 8. C. 85; The State v. An-
derson, 80 La. An. 557; The State v.
Wells, 46 Iowa, 662; North Missouri
Railroad v. Maguire, 49 Misso. 490; Pres-
cott v. The State, 19 Ohio State, 184;
Colt v. Eves, 12 Conn. 243; James v.
Commonwealth, 12 S. & R. 220; Barker
v. People, 8 Cow. 686; Reed v. Rice, 2 J.
J. Mar. 44; The State v. Paul, 5 R. I.
185; The State v. Keeran, 5 R. I. 497;
Boyd v Ellis, 11 Iowa, 97; Common-
wealth ». Hitchings, 6 Gray, 482, 485.
See Campbell v. The State, 11 Ga. 353;
United States v. Rhodes, 1 Abb. U. S. 28.
CHAP. XLVII.] CARRYING WEAPONS. § 794
authority that this provision has no relevancy to State legislation.!
Still, —
§ 798. Under State Constitutions.— The same guaranty to the
people of the right “to keep and bear arms” is largely found in
our State constitutions; in some of them, in these words alone,
and in others more or less qualified. In reason, the keeping and
bearing of arms has reference’ only to war, and possibly also to
insurrections wherein the forms of war are as far as practicable
observed ; yet certainly not to broils, bravado, and tumult, dis-
turbing the public repose, or to private assassination and secret
revenge. Nor are these, in the language of the constitutional
provision now under consideration, “ necessary to the security of
a free State.” Nor yet are dirks, bludgeons, revolvers, and other
weapons which are not used in war, ‘‘arms.” Moreover, there is
no species of property,? and no private right, the ‘‘ keeping”’ and
“bearing” of which may not be regulated® by legislation for the
public good. Hence, in reason, statutes like those explained
in the foregoing sections do not violate any of our constitutions ;
and so, with some differences in the form of the argument and
limitations of the doctrine, our courts generally hold ;* though
there are opinions in dissent.?
II. The Procedure.
§ 794. Course of Discussion.— We shall consider, First, The
Indictment ; Secondly, The Evidence.
First. The Indictment : —
Follow Statute.— In general, the indictment for this offence is
1 United States v. Cruikshank, 92
U.S. 542; Andrews v. The State, 3 Heisk.
165; Fife v. The State, 31 Ark. 455. See
Nunn v. The State, 1 Kelly, 243; Stock-
dale v. The State, 32 Ga. 225; The State
v. Jumel, 13 La. An. 399.
2 Commonwealth v. Tewksbury, 11
Met. 55.
3 Post, § 989; Lewis v. The State, 2
Texas Ap. 26; Wilson v. The State, 33
Ark. 557; The State v. Buzzard, 4 Pike,
18; The State v. Speller, 86 N. C. 697;
Edmonds v. Banbury, 28 Iowa, 267.
4 Fife v. The State, 81 Ark. 455; An-
drews v. The State, 3 Heisk. 165; Eng-
lish v. The State, 35 Texas, 473; Lewis
v. The State, supra; The State v. Wilburn,
7 Baxter, 57; Cockrum v. The State, 24
Texas, 394; Wright v. Commonwealth, 27
Smith, Pa. 470; Hill v. The State, 53 Ga.
472; Owen v. The State, 31 Ala. 387;
The State v. Buzzard, supra; The State v.
Speller, supra; Aymette v. The State, 2
Humph. 154; The State v. Reid, 1 Ala.
612; The State v. Mitchell, 3 Blackf.
229; The State v. Newsom, 5 Ire. 250;
The State v. Jumel, 138 La. An. 399.
5 Bliss v. Commonwealth, 2 Litt. 90.
See Ely v. Thompson, 3 A. K. Mar. 70:
Jennings v. The State, 5 Texas Ap. 298;
Leatherwood v. The State, 6 Texas Ap.
244; Wilson v. The State, 83 Ark. 557.
469
§ 796 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
simply required to cover duly, with time and place,! all the ma-
terial statutory terms, and it need not be expanded beyond?
Thus, —
§ 795. “Carry.” If the statutory word is “carry,” it is ill to
say that the defendant “ did have about his person” the weapon?
But, —
Loaded. — Under a statute making punishable one ‘“ who, hav-
ing or carrying a deadly weapon, shall exhibit the same in a rude,
angry, or threatening manner,” an indictment for thus exhibiting
a pistol need not allege that it was loaded.* Moreover, —
Name of Person terrified. — Where the thing inhibited is the
carrying of the weapon to the terror of any person, an indict-
ment is good which simply charges that the defendant carried it
“to the fear and terror of certain persons,” not mentioning their
names. So the Tennessee court has held,® but it is not certain
that this point would be so adjudged in all the States.®
§ 796. Expanding beyond Statute.—In special circumstances,
the allegations for this offence must be expanded beyond the
statutory terms. Thus, —
Armed when arrested. — A statute made it punishable for one
to be armed, in a way pointed out, “* when arrested upon a war-
rant of a magistrate issued against him for an alleged offence,”
or “ when arrested by a sheriff, deputy-sheriff, constable, police
officer, or watchman, while committing a criminal offence.’’*
Thereupon a man was indicted for being armed when arrested
while in the act of drunkenness. And the court, assuming,
without deciding, that drunkenness was one of the crimes meant
by the statute, interpreted it to “apply only to legal arrests
made by virtue of a warrant, or in pursuance of some valid legal
authority,” not 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.”
Consequently the allegations must in some way render apparent
1 Rex v. Silcot, 3 Mod. 280. And see 3 The State v. Carter, 36 Texas, 89.
Rex v. Pursey, 12 Mod. 435. 4 Gamblin v. The State, 45 Missis. 658.
2 Pickett v. The State, 10 Texas Ap. 8. p.-in substance, The State 7. Duzan,
290, 291; The State v. Swope, 20 Ind. 6 Blackf. 31.
106; The State v. Judy, 60 Ind. 138; 5 The State v. Bentley, 6 Lea, 205.
Hill v. The State, 53 Ga. 472; The State 6 Crim. Proced. I. § 571.
v. Bentley, 6 Lea, 205; Owens v. The T Mass. Gen. Stats. 164, § 10.
State, 3 Texas Ap. 404; The State v.
Green, 3 Heisk. 131.
470
CHAP. XLVII.] CARRYING WEAPONS. § 800
the lawfulness of the arrest. By the other laws of the State,
officers had no general authority to make arrests for dunkenness
without warrant; therefore either a warrant, or the particular
facts which gave the authority without it, must be alleged In
another case, the indictment set out an arrest on a warrant by a
police officer; but, by the laws of the State, police officers might
be appointed either with or without the power to serve the sort
of process specified. The indictment, not alleging that the par-
ticular officer had the power, was adjudged insufficient.?
§ 797. Sufficient. —It has been adjudged sufficient under the
Indiana statute to say, that the defendant, at a time and place
mentioned, he not being then and there a traveller, did wear and
earry concealed about his person a dangerous and deadly weapon,
to wit, a fire-arm called a revolver.®
§ 798. Negativing Exceptions and Provisos.— The rules as to
negativing the exceptions and provisos in statutes are stated
elsewhere.* Within these rules, some, in the statutes now under
discussion, must be negatived,® others need not be.®
§ 799. Secondly. The Evidence : —
Concealed. — Where the offence is the carrying of a “ concealed
weapon,” the fact that it was concealed, as alleged, must be
shown.’ oe
§ 800. How much of Allegation. — The full offence must be
made out in the proofs.8 But as more may be alleged than
suffices to constitute it, only so much of allegation as is indis-
pensable to it need be established. For example, where the
charge was the carrying of “deadly weapons; to wit, a bowie-
knife, and also a dirk or dagger;” it was sustained by proof
of the bowie-knife, though nothing appeared as to the dirk or
dagger.®
1 Commonwealth v. O’Connor, 7 Allen,
588, 584, opinion by Bigelow, C. J.
2 Commonwealth v. Doherty,
Mass. 443.
3 The State v. Swope, 20 Ind. 106.
* Crim. Proced. I. § 631-641.
5 The State v. Duke, 42 Texas, 455;
Young v. The State, 42 Texas, 462 ; Smith
c. The State, 42 Texas, 464; Summerlin
v. The State, 8 Texas Ap. 444; Leather-
wood v. The State, 6 Texas Ap. 244;
Wiley v. The State, 52 Ind. 516; The
State v. Clayton, 43 Texas, 410.
103
§ The State v. Maddox, 74 Ind. 105;
The State v. Jackson, 1 Lea, 680; Com-
monwealth v. McClanahan, 2 Met. Ky. 8.
7 Washington v. The State, 36 Ga. 242;
Ridenour v. The State, 65 Ind. 411; Has-
kew v. The State, 7 Texas Ap.107; New-
some v. The State, 61 Ga. 481; Smith v.
The State, 10 Texas Ap. 420.
8 Wilson v. The State, 52 Ga. 40.
® Commonwealth v. Howard, 3 Met.
Ky. 407.
471
§ 801 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 800 a. Negative Averments.— On the somewhat disputed
question of proving the negative averments,! we have adjudica-
tions that the allegation of the defendant's not being a peace
officer,? and the same of his not being a traveller,’ need not,
though necessary to be made, be established as a part of the
prima facie evidence of guilt.
§ 800 b. Carry about Person. — The charge that the defendant
carried a pistol about his person is sustained by showing that he
carried it in his hand.*
§ 801. Some Witnesses seeing, and others not.— Where one
witness swore, that, during a quarrel between himself and the
defendant, he saw a pistol about the person of the latter; and
another, that he was present, looked closely to see and saw none,
and must have seen it if there had been one; it was held not
error to charge the jury, that both might have sworn truly, and
that the preponderance was in favor of the positive testimony of
the former, whose attention, excited by the quarrel, was directed
toward the weapon.’ In another case, an instruction not very
different from this was adjudged erroneous.® In reason, the ques-
tion being purely of fact, the court should say nothing to the
jury leading them to suppose it to be within the cognizance of
any rule of law. But something of this appears in another con-
nection.’
1 Ante, § 762. 6 Haskew v. The State, 7 Texas Ap.
° Leatherwood v. The State, 6 Texas 107.
Ap. 244. 7 Crim. Proced. I. § 1071, 1147. For
8 Wiley v. The State, 52 Ind. 516. Further Questions, — see Wilson v. The
4 Woodward v. The State, 5 Texas Ap. State, 33 Ark. 557; Tipler v. The State,
296. 57 Missis. 685; Hopkins v. Common-
5 Fitzgerald v. The State, 12 Ga. 213. wealth, 3 Bush, 480.
472
CHAP. XLVUI.] ELECTION OFFENCES — THE LAW. § 803
CHAPTER XLVIII.
ELECTION OFFENCES — THE LAW.!
§ 802. Introduction.
803, 804. These Offences in General.
805-806 a. Offences by Officers of Elections,
807-826. By Voters and others as to Voting.
§ 802. How Chapter divided. — We shall consider, I. These
Offences in General; II. Offences by the Officers of Elections ;
III. Offences by Voters and others as to Voting.
I. These Offences in General.
§ 803. At Common Law.— Offences of the classes to be treated
of in this chapter are indictable at the common law,” as ex-
plained in another connection ;? though, by reason of the great
number of the prohibiting statutes, the indictment is generally,
in practice, upon them. And —
Elsewhere — are discussed the connected offences of —
Betting on Elections, — further on in this volume ;* —
Liquor Selling,» — by some statutes made specially penal on
election day, or when carried on at or near a place where an
election is being held ;® —
Conspiracy,’ — whereof a conspiracy against the freedom and
purity of an election, or an individual’s right to vote thereat, or
to violate the common law or a statute in respect of an election,
1 For matter relating to this title, see
ante, § 205, 223; post, § 931 et seq.
2 Commonwealth v. McHale, 1 Out.
Pa. 407; Commonwealth v. McHale, 1
Out. Pa. 397; Commonwealth v. Jones,
10 Philad. 211.
8 Crim. Law, I. § 471.
# Post, § 852, 931 et seq.
5 Post, § 983 et seq.
6 Hoskey v. The State, 9 Texas Ap.
202; Haines v. The State, 7 Texas Ap.
30; The State v. Powell, 3 Lea, 164; The
State v. Kidd, 74 Ind. 554; The State v.
Cady, 47 Conn. 44; Manis v. The State,
3 Heisk. 315; English v. The State, 7
Texas Ap. 171; The State v. Stamey, 71
N. C. 202; The State v. Irvine, 3 Heisk.
155; post, § 1070 8.
7 Crim. Law, IT. § 169 et seq.; Crim.
Proced. II. § 202 et seq.
473
§ 804 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
is indictable at the common law! and in some localities under
statutes ;2—
Bribery, — in respect of elections? as well as in other respects.*
§ 804. As between States and United States. — The election, in
the States, of purely State officers, is, with a single exception,
matter of State regulation, not within the jurisdiction of the
National government. The exception is, that, by the fifteenth
Amendment of the Constitution of the United States, “the right
of citizens of the United States to vote shall not be denied or
abridged by the United States, or by any State, on account of
race, color, or previous condition of servitude ;” and “ the Con-
gress shall have power to enforce this article by appropriate
legislation.” Congress has so legislated. But the effect has not
been to make the qualification of voters for State officers a
national question. It is such to the extent only that the national
power may and does restrain the States from discriminating, in
their laws, so as to withhold the ballot from one of a particular
race, &c., who would be entitled to it by their general provisions ;
punishing, also, acts committed in violation of what is thus estab-
lished.6 But the qualifications of voters otherwise in the States
are for the States themselves; as, for example, whether the bal-
lot shall extend to women.’ The election of the National officers
of Senator, Representative to Congress, President, and Vice
President, proceeds on a mixture of State and National law.$
The consequence whereof, and of the interest which the general
government has in its own officers, is, that it may and does
exercise some supervision over the elections, in the States, of
1 Crim. Law, II. § 86 and note; 219,
220, 222, 223,229; Commonwealth v. Mc-
Hale, 1 Out. Pa. 397.
2 Crim. Law, IL § 236-238; United
States v. Goldman, 3 Woods, 187; United
States v. Mitchell, 1 Hughes, 439;
United States v. Butler, 1 Hughes, 457;
United States v. Crosby, 1 Hughes, 448.
8 Crim. Law, II. § 86; Russell v. Com-
monwealth, 3 Bush, 469; Commonwealth
v. Stephenson, 3 Met. Ky. 226; Simpson
v. Yeend, Law Rep. 4 Q. B. 626; Milnes
v. Bale, Law Rep. 10 C. P. 591; The
State v. Purdy, 36 Wis. 213; Grant »v.
Pagham, 3 C. P. D. 80; Rex v. Pitt, 1 W.
Bl. 380; Sulston v. Norton, 3 Bur. 1235,
1 W. Bi. 317.
474
4 Crim. Law, II. § 85 et seq.; Crim.
Proced. IT. § 126, 127.
5 Minor v. Happersett, 21 Wal. 162;
United States v. Crosby, 1 Hughes, 448.
6 United States v. Reese, 92 U. S. 214;
United States v. Crosby, 1 Hughes, 448;
Wood v. Fitzgerald, 3 Oregon, 568 ; United
States v. Canter, 2 Bond, 389; Anthony
v. Halderman, 7 Kan. 50; United States
v. Souders, 2 Abb. U. S. 456. And see
United States v. Cruikshank, 92 U. 8.
642; Ex parte Virginia, 100 U. S. 339.
7 Minor v. Happersett, supra; United
States v. Anthony, 11 Blatch. 200; Minor
v. Happersett, 53 Misso. 58.
8 Const. U. S. art. 1, § 4; art. 2, § 2;
amendm. art. 12, 14, 15.
CHAP. XLVIII.] ELECTION OFFENCES — THE LAW. § 806
such officers; and punish violations of the election laws as to
them.!
II. Offences by the Officers of Election.
§ 805. Duties. — The duties of the officers of the elections are
variously prescribed by statutes ;2 some of the provisions whereof
are directory ® and others mandatory, within distinctions already
explained _
Mistake. — Knowledge of the law is not conclusively imputed
to these officers ;5 so that if, acting carefully and conscientiously,
they do what is contrary to their duty through a mistake either
of law or of fact, they are exempt from indictment. Yet under
some circumstances and by some opinions the person injured,
whereby, for example, he loses his vote, may have his civil action
against them.’ Others require, even in this case, that their act
should have been corrupt. And —
§ 806. Judicial. — Though the statutes of our States differ, and
the duties imposed on these officers are diverse, to a large extent
they are deemed judicial or guast such,? — a ground largely ex-
empting them from criminal or even civil liability for their mis-
takes. Of this sort is the passing upon the qualifications of
voters, whether in making out or revising voting lists, or receiving
| Ex parte Clarke, 100 U. 8. 899; Ex
parte Siebold, 100 U. S. 371; United
States v. Anthony, 11 Blatch. 200; United
States v. Nicholson, 8 Woods, 215;
United States v. Gitma, 3 Hughes, 549;
United States v. Clayton, 2 Dil. 219;
United States v. Hayden, 52 How. Pr.
471. See United States v. Cruikshank,
92 U. S. 542.
2 The State v. Smith, 18 N. H. 91;
People v. Livingston, 79 N. Y. 279; The
State v. Camden, 13 Vroom, 335; Dells
v. Kennedy, 49 Wis. 555; United States
v. Clayton, 2 Dil. 219; People v. Wilson,
62 N. Y. 186; The State v. Fitzgerald,
44 Misso. 425; Wattles v. People, 13
Mich. 446; Bernier v. Russell, 89 Ill. 60;
People v. Wheeler, 18 Hun, 540; Keenan
v. Cook, 12 R. I. 52.
3 Lee v. The State, 49 Ala. 43; People
v. Cook, 4 Seld. 67; People v. Wilson,
62 N. Y. 186; People v. Livingston, 79
N. Y. 279; Taylor v. Taylor, 10 Minn.
107.
4 Ante, § 254-256.
5 Crim. Law, I. § 299.
6 The State v. Smith, 18 N. H. 91, 94;
Commonwealth v. Sheriff, 7 Philad. 84.
7 Bernier v. Russell, 89 Ill. 60; Lincoln
v. Hapgood, 11 Mass. 850 (compared with
Humphrey v. Kingman, 5 Met. 162, 167);
Thomas v. Hinkle, 35 Ark. 450. See
Byler v. Asher, 47 Ill. 101; Bevard v.
Hoffman, 18 Md. 479.
8 Friend v. Hamill, 84 Md. 298;
Goetchens v. Matthewson, 5 Lans. 214;
Busteed v. Parsons, 54 Ala. 893; Moran v.
Rennard, 3 Brews. 601; Carter v. Harri-
son, 5 Blackf. 138; Jenkins v. Waldron,
11 Johns. 114. Consult, as to these ques-
tions, Crim. Law, I. § 459, 460, 462; II.
§ 791 et seq.
9 The State v. Powers, 75 N. C. 281;
Keenan v. Cook, 12 R. I. 52; Miller v.
Rucker, 1 Bush, 135.
Y Crim. Law, I. § 459-464; The State
v. Powers, supra; Keenan v. Cook, supra.
And see United States v. Hayden, 52 How.
475
§ 808
OFFENCES MORE PURELY STATUTORY. [Book VI.
or rejecting votes at the polls.! Therefore, for example, the pre-
siding officer at an election is not criminally liable for any mis-
take which he may honestly make in receiving or refusing to
receive a vote.”
§ 806 a. Other Questions, — within the scope of this sub-title,
have been adjudged ; but they are so far local, or involve so little
of general jurisprudence, that they may be dismissed with a sim-
ple reference to the cases.3
ITI. Offences by Voters and others as to Voting.
§ 807. Blective Franchise. — Highly as the right to vote in gov-
ernmental affairs is by most esteemed, it is not, like that to life,
liberty, and the pursuit of happiness, fundamental, natural, and
inalienable. But, among all nations, it is simply a political
privilege, conferred by the governing power on such of the people
as it will. The elective franchise, therefore, is with us similar
to the franchise of making laws, which the voters confer, from
time to time, on the men who constitute our legislative bodies.
By the theory of our governments, national and State, the gov-
erning power is in the people; who, while they have no natural
and inalienable right to vote at our ordinary elections, have the
right to determine who these voters shall be. This they have
done in our written constitutions ; so that what is declared there-
in to be the right to the elective franchise, it, in reason and
authority, is.®
§ 808. Who the People to determine. — It is not in every partic-
ular settled with us, who are the people to determine on whom
the elective franchise shall be conferred; in other words, to
ordain our written constitutions. By the public law of nations
Pr. 471; Burkett v. McCarty, 10 Bush,
758.
1 Byrne v. The State, 12 Wis. 519;
The State v. Daniels, 44 N. H. 383; Be-
vard v. Hoffman, 18 Md. 479 And see
The State v. Staten, 6 Coldw. 233. But
see Huber v. Reily, 3 Smith, Pa. 112.
2 The State v. McDonald, 4 Harring.
Del. 555; The State v. Porter, 4 Harring.
Del. 556.
8 Commonwealth v. Trimmer, 3 Nor-
ris, Pa. 65; The State v. Jefferson, 17
Fla. 707; People v. Pease, 27 N. Y. 45;
476
People v. Wheeler, 18 Hun, 540; Wattles
v. People, 13 Mich. 446; Harbaugh v.
People, 33 Mich. 241; Supervisors of
Elections’ Case, 114 Mass. 247; Wayman
v. Commonwealth, 14 Bush, 466.
4 Ridley v. Sherbrook, 3 Coldw. 569;
Anderson v. Baker, 28 Md. 531; Blair v.
Ridgely, 41 Misso. 63.
5 The State v. Staten, 6 Coldw. 233;
Huber v. Reily, 3 Smith, Pa. 112; Blair
v. Ridgely, supra; Anderson v. Baker,
supra; Spencer v. Board of Registration,
1 McAr. 169.
CHAP. XLVIII.] ELECTION OFFENCES — THE LAW. § 809
as now practised, — so the author understands, — the voters to
decide upon a form of government, and in whom the governing
power shall be reposed, are all the male persons who have
reached the age of majority. To a large extent, not absolutely,
the history of our people and governments shows this rule to
prevail with us. But, in connection with it, there are special
considerations, and, in the States, results wrought by the Con-
stitution of the United States, not best to be entered into
here.
§ 809. Power of Legislation. — The rights of voting conferred
by our constitutions cannot be taken away or abridged by stat-
utes.2 But—
To regulate. — Constitutional rights, like any other, may be
regulated by legislation to any extent which does not impair
them,? and by the same power they may be enforced or made
effectual. Within which doctrine, a statute in aid of or regu-
lating a constitutional right to vote is good; but it cannot, under
color of doing this, take the right away. Thus, —
Registration Laws. — Though the constitution defines the quali-
fications of voters, statutes may compel preliminary registration,®
and render an election without it void.’ But—
Qualifications. — To vary a constitutional qualification § — as,
for example, to make longer or shorter the required residence 9 —
is not within the legislative power.
Forfeiture of Right to Vote — (Punishment). — Constitutional
rights may be waived. Therefore they may be forfeited." So
that legislation may, and it sometimes does, make the forfeiture
1 Ante, § 804; Crim. Law, I. § 160-
171; In re Hughes, Phillips, 57.
2 Monroe ec. Collins, 17 Ohio State,
665; Davies v. MecKeeby, 5 Nev. 369;
Page v. Allen, 8 Smith, Pa. 338; The
State. v. Staten, 6 Coldw. 233; Cooley
Const. Lim. 2d ed. 599; Huber v. Reily,
8 Smith, Pa. 112; Ridley v. Sherbrook,
3 Coldw. 569.
3 Ante, § 798; Field v. People, 2 Scam.
79.
4 Ante, § 11 a, note, 92 b.
5 Monroe v. Collins, supra ; Patterson
v. Barlow, 10 Smith, Pa. 54; Capen v.
Foster, 12 Pick. 485; The State v. Lean,
9 Wis. 279.
6 Byler v. Asher, 47 Ill. 101; The
State v. Staten, supra; Cooley Const.
Lim. 2d ed. 601, 602; The State v. Baker,
88 Wis. 71; Edmonds v. Banbury, 28
Towa, 267. See the State v. Bond, 38
Misso. 425.
7 The State v. Albin, 44 Misso. 346.
8 Bourland v. Hildreth, 26 Cal. 161;
Day v. Jones, 31 Cal. 261; Munroe v.
Collins, 17 Ohio State, 665; Page v. Allen,
8 Smith, Pa. 338.
9 People rv. Canaday, 73 N. C. 198;
Quinn v. The State, 35 Ind. 485. And
see the State v. Baker, supra.
D Crim. Law, I. § 995; Crim. Proced.
I. § 50, 112, 118.
N In re Duffy, 4 Brews. 531.
477
§ 811 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
of the constitutional right to vote a punishment for crime.! But
there must first be a conviction,? after which a pardon will restore
the forfeited right. As to the power of —
§ 810. Congress over voting in States. —Some of our State con-
stitutions expressly declare incompetent those convicted of felony
under either the State or national laws.* Under such a constitu-
tion, the President’s pardon of a national offence revives, within
the doctrine just stated, the forfeited right to vote in the State.>
Besides which, it seems to have been deemed to be within the
congressional power to impose the forfeiture of the right to vote
in a State for State officers as a penalty for the violation of
national law. But the true view of this question is, that, if the
State constitution makes United States citizenship an element in
the right to vote, such citizenship may be forfeited under the
national laws, and then the right will terminate by the State
laws.6 For the simple and pure question of the ballot in a
State depends, with the single exception already explained,’ on
State laws, and is in no degree under the control of the United
States.8
§ 811. Voting out of State. — A necessary prerequisite to voting,
is the ascertainment of a time and place.® Commonly the place
is fixed by the constitution or by statutes; and, in the nature of
things, it must ordinarily be within the State. But during the
late civil war, there were in some of the States attempts to
reserve the ballot to soldiers serving out of the State. Under
some of the constitutions, a statute to this effect was adjudged
valid ; under others, not. The Pennsylvania constitution made
one a voter who should have ‘resided in the State one year, and
in the election district where he offers to vote ten days immedi-
ately preceding such election;” and the majority of the court,
deeming personal presence essential to the offering of a vote, held
the statute which permitted voting out of the State to be uncon-
stitutional.” Still, —
1 Huber v. Reily, 3 Smith, Pa. 112. 4 Gandy v. The State, 10 Neb. 243.
Some of our constitutions have this pro- 5 Ridley v. Sherbrook, 3 Coldw. 569;
vision. Gandy v. The State, 10 Neb. 243 Jones v. Alcorn Registrars, 56 Missis.
2 The State v. Symonds, 57 Maine, 148. 766.
It is immaterial that the conviction oc- 6 Huber v. Reily, 3 Smith, Pa. 112.
curred while the party was a minor. * Ante, § 804.
Hamilton v. People, 57 Barb. 625. 8 Spragins v. Houghton, 2 Scam. 377.
8 Jones v. Alcorn Registrars, 56 Missis. 9 Stephens v. People, 89 IIL. 337.
766; Ridley v. Sherbrook, 3 Coldw. 569. 1) Chase v. Miller, 5 Wright, Pa. 403,
478
CHAP. XLVIII.] ELECTION OFFENCES —THE LAW. § 816
§ 812. The Right —of the State, by its constitution, or by a
statute not in conflict with any constitutional provision, to per-
mit voting in this way, is plain on general principles! And,—
‘§ 818. Punishment of Voter out of State.— Should we admit
that a State cannot punish even its own citizen for a crime com-
mitted abroad, still, within the doctrine that a man in one local-
ity becomes guilty of crime in any other wherein his wrongful
act.takes effect,? one who, out of the State, sends or deposits to
be sent into it a vote there to take effect contrary to its laws,
may be punished. Overlooking this principle, the Pennsylvania
court held, that, if at such an election a foreigner, serving the
United States, and owing no allegiance temporary or otherwise
to Pennsylvania, casts illegally his vote out of the State to oper-
ate in it, the State power has no jurisdiction over the offence.
In the case of a citizen of the State, the doctrine was admitted to
be otherwise.? :
§ 814. Validity of Election — (Illegal Voting). — To make pun-
ishable an unlawful voting, the election must be legal and valid.!
Now, —
Informalities. — Not all informalities invalidate an election,®
some do. The question seems to be within the distinction of
directory and mandatory statutes, already discussed.’
§ 815. Illegal Voting and Perjury — are distinct offences. There-
fore, on a prosecution for the former, it is no objection that the
defendant took an oath affirming his qualifications, and so is
indictable also for the latter’ As to—
§ 816. What is Voting. —It was in Tennessee laid down, that,
if on election day one standing before the judges delivers to the
proper officer his vote, and by their order his name is announced
3 Commonwealth v. Kunzmann, 5
Wright, Pa. 429; See The State v. Main,
16 Wis. 398.
419. See Hulseman v. Rems, 5 Wright,
Pa. 396. Of the like sort is Opinion of
Justices, 44 N. II. 633. For other opin-
ions on the one side and the other of the ©
general constitutional question, see Bour-
land v. Hildreth, 26 Cal. 161; Opinion of
the Judges, 30 Conn. 691; Soldiers’ Vot
ing Bill, 45 N. H. 695; Lehman v. Mc-
Bride, 15 Ohio State, 573; The State v.
Main, 16 Wis. 898; People v. Blodgett,
13 Mich. 127.
1 See ante, § 810; Crim. Law, I. § 152.
2 Crim. Law, I. § 110-112; Crim. Pro-
ced. I. § 53, 59, 61.
4 Ex parte Rodriguez, 39 Texas, 705.
And see Reg. v. Vaile, 6 Cox C. C. 470;
Reg. v. Hague, 4 B. & S. 715.
5 The State v. Cohoon, 12 Ire. 178;
The State v. Bailey, 21 Maine, 62.
6 The State v Williams, 25 Maine,
561.
7 Ante, § 254-256.
8 The State v. Minnick, 15 Iowa, 123,
See The State v. Welsh, 21 Minn. 22.
479
§ 818 4 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
and the clerk registers it, he votes; though the officer neglects till
the polls are closed to put the ballot into the box for safe-keeping.!
§ 817. “Residence” of Voter.— Most of our constitutions and
statutes require the voter to “reside” at the place where he
offers his vote. Abstractly, and as applied to some things, there
is a slight difference between “residence” and ‘“domicil;” so
that, for example, while a man can have but one “ domicil,” he
may ‘reside’? at more places than one at the same time. But
in various connections in the written laws, and as applied to
other things, residence means domicil.? It is believed that it
does in our voting laws; for to permit a man to vote in more
places than one is contrary to their spirit, and the one place, if
termed ‘“residence’’ in the statute or constitution, can be no
other than the domicil.2. A person, therefore, who goes to a
place merely to vote, or for some other temporary object, does
not become thereby a resident;* his inhabitancy must be with
the intention of remaining.’ For illustration, —
Student — Soldier. — Sojourning in a place as a student® ora
soldier? does not make one a resident within our voting laws.
§ 818. “ Offering ” — “ Promising " — (Bribery). — Under the
Delaware statute, there is held to be no difference between
“ offering ” and “ promising ” a reward to a voter.3
Municipal Corporation.—_In Tennessee it is adjudged not in-
dictable to cast a ballot illegally for the officers of a municipal
corporation,® — a proposition a little doubtful on principle.”
§ 818 a. Personating Voter. — Under some of the English ™ and
American ™ statutes, it is an offence to “ personate any person
entitled to vote.” 13 But one who is dead is not so entitled, and
to personate him is not within the inhibition.¥
1 Steinwehr v. The State, 5 Sneed,
586. See The State v. Elwood, 12 Wis.
651; Commonwealth v. Gale, 10 Bush,
488; Reg. v. Hague, 4 B. & S. 715, 9 Cox
C. C. 412.
2 2 Bishop Mar. & Div. § 124, 124 a.
32 Chase rv. Miller, 5 Wright, Pa. 403;
Allentown Election Case, 8 Philad. 575;
Beardstown v. Virginia, 81 Ill. 541;
Harbaugh v. People, 33 Mich. 241.
4 The State v. Minnick, 15 Iowa, 123.
5 The State v. Marshall, 45 N. H. 281.
6 Fry’s Election Case, 21 Smith, Pa.
302; Vanderpel v. O’Hanlon, 53 Iowa,
246; Allentown Election Case, supra.
480
7 Devlin v. Anderson, 38 Cal. 92;
People v. Riley, 15 Cal. 48; Hunt v. Rich-
ards, 4 Kan. 549.
8 The State v. Harker, 4 Harring. Del.
559.
® The State v. Liston, 9 Humph. 603.
) Crim. Law, L. § 246, 471, note.
1 Such as 14 & 15 Vict. c. 105, § 3;
22 Vict. c. 35, § 9.
12 The State v. Lockbaum, 38 Conn.400.
13 As to this at common law, see Crim.
Law, I. § 468, 471 and note, 587.
14 Whiteley v. Chappell, Law Rep. 4
Q. B. 147, 11 Cox C. C. 307. And see
further, as to this offence, Reg. v. Vaile, 6
CHAP. XLVIII.] ELECTION OFFENCES — THE LAW. § 823
§ 819. Intent. — There must be the like evil intent as in other
cases of crime ; as, —
Mistaking Age.— A minor, told by his parents and believing
he is of age, is not punishable when he votes as he might law-
fully do if he were so! But —
§ 820. “Knowingly and Fraudulently "— (Advised — Ignorance
of Law).— A statute punishing a non-voter who shall “know-
ingly and fraudulently vote,” is, it has been adjudged, violated if
he votes under the advice of a non-official and non-professional
person that he may. But the learned judge deemed that the
question would have been different ‘if the defendant had stated
the facts to the judges of the election, 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.” 2? Yet an erroneous opinion of these officials not com-
municated to the party voting will not excuse him.’ Notwith-
standing the statutory words, some weight is in these cases given
to the party’s presumed knowledge of the law. Again, —
§ 821. “Knowingly,” “not qualified.” — Another form of the
statute makes punishable “any person who shall knowingly vote
at any election, not being at the time a qualified voter.” And
the court observed, that the legislature did not intend by these
words “ to violate a fundamental principle of the criminal law.”
Therefore, for example, one below the qualifying age, who, know-
ing his age, votes, under the mistaken idea that the law permits
him, commits the statutory offence. But—
§ 822. Further of Mistaking Law. — This view seems to over-
look the familiar principle, that, when a particular condition of
the mind is an element of an offence, the lack of it produced by
a mistake of law is as available to the defendant as if it were
from any other cause. So that, —
§ 823. “Fraudulently."— Where, in Rhode Island, a statute
made punishable one who should “fraudulently vote, not being
Cox C. C. 470; Reg. v. Hague, 4 B. opinion by Pearson, J.; The State v.
& §. 715, 9 Cox C. C. 412; Martin v. The Hart, 6 Jones, N. C. 389.
State, 1 Texas Ap. 586; Reg. v. Bent, 1 3 The State v. Hart, supra.
Den. C. C. 157, 2 Car. & K. 179, 1 Cox C. 4 McGuire v. The State, 7 Humph. 54.
C. 356. The English Case of Reg. v. Price, 3 Per.
1 Gordon v. The State, 52 Ala. 308; & D. 421, 11 A. & E. 727, seems to con-
Carter v. The State, 55 Ala. 181; Crim. firm this view.
Law, I. § 307. 5 Crim. Law, I. § 297-299.
2 The State v. Boyett, 10 Ire. 336,
31 481
§ 825 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
qualified,” it was held that a voter who knows the facts, and,
believing them to qualify him while they do not, casts illegally,
yet with an honest purpose, his vote, does not commit the offence.
And it did not vary the case that the defendant was challenged
at the polls, and persisted in voting. For, in the words of Ames,
C. J. he “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 Meirelles 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 purposes of the commission, and such having been the
practice of the office for more than thirty years, was not liable to
the penalty.”? So—
§ 824. “Knowingly,” “ Wilfully " — (Advised). — The Massa-
chusetts statute provided a punishment for any person who,
“knowing himself not to be a qualified voter, shall, at any elec-
tion, wilfully give in a vote;” and these words were held not to
conclude the defendant to know the law. And, said Shaw, C. J.
“it is necessary to prove, not only that the party had no right to
vote, but that he knewit. As this qualification depends upon
domicil, 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 ascertain the right shall make a true statement
of the facts of his case to a professional man, or any other man
of skill and experience capable of advising him correctly, the
evidence of such advice, and the facts upon which it was taken,
are competent as bearing upon the question whether he knew
that he had not a right to vote.” 4
§ 825. Double Voting — (Simple Inhibition). — A statute with
1 Meirelles v. Banning, 2 B. & Ad. 909. The State v. Sheeley, 15 Iowa, 404. And
2 The State v. Macomber, 7 R. I. 349, see Reg. v. Dodsworth, 8 Car. & P. 218.
353. Inspector.— As to the duties and liabil-
3 Mass, R. 8. c. 4, § 6. Slightly ities of an inspector of elections in New
changed in Gen. Stats. c. 8, § 30. York, see People v. Pease, 30 Barb. 588;
4 Commonwealth v. Bradford, 9 Met. Hogan v. People, 2 Thomp. & C. 536.
268, 272. Similar is the lowa doctrine.
482
CHAP. XLVIII.] ELECTION OFFENCES —THE LAW. § 826
no such qualifying words as “ knowingly,” “ fraudulently,” “ wil-
fully,” and the like, ordained that, “if any person shall on the
same day vote in more towns than one for the same officers, he
shall forfeit,” &c. And it was held, that, if a man under no
mistake of facts, but, mistaking the law, votes in two towns, sup-
posing himself at the casting of each ballot to be entitled, he is
indictable, however innocent in morals may be his real motive.
In the particular instance, one just of age voted in the town
where his father lived ; being told, aud believing, that his voting
place was there. He then went to his work in an adjoining town;
and here, being told that he had been wrongly advised, and this
was his voting place, submitted all the facts, including the for-
mer vote, to those officers of the town who by law were intrusted
with the duty of passing upon the qualifications of voters. They
advised him that he might still cast a vote in this town; he did,
and was held to have violated thereby the statute! On the other
hand, —
Mistake of Fact through Drunkenness. — The California statute
is in like terms; namely, “‘ vote more than once at any-election.”
And it was held, that, if one 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 in the
statute.2
§ 826. Other Questions. — A few other questions have arisen
under the criminal law, and many under the civil. But none
of them are so purely criminal and of such general importance ®
as to justify a further extension of this chapter.
1 The State v. Perkins, 42 Vt. 399.
To the like effect is The State v. Welch,
21 Minn. 22. Compare with ante, § 806-
820; Nettles v. The State, 49 Ala. 35;
Harbaugh v. People, 33 Mich. 241.
2 People v. Harris, 29 Cal. 678. Con-
tra, The State v. Welch, 21 Minn. 22.
3 As to voting under Naturalization
Papers.— United States v. Burley, 14
Blatch. 91. In re Coleman, 15 Blatch.
406; People v. Pease, 27 N. Y. 45; People
v. Pease, 30 Barb. 588. False Answers.
— Reg. v. Bent, 1 Den. C. C. 157, 2 Car.
& K. 179, 1 Cox C. C. 856; Dennis v. The
State, 17 Fla. 889; Commonwealth ».
Shaw, 7 Met. 52.
4 Nichols v. Mudgett, 32 Vt. 546.
Liness v. Hesing, 44 Ill. 113.
5 But the following may here be
stated: ‘Freeman.’ — Under this word
a woman is not entitled to vote. Burn-
ham v. Luning, 9 Philad. 241. See United
States v. Anthony, 11 Blatch. 200. Bal-
lot.— The constitutional provision that
elections shall be by ballot, secures to the
voter secrecy as to his vote. Williams v.
Stein, 38 Ind. 89. :
483
[Book VI.
§ 832 OFFENCES MORE PURELY STATUTORY.
CHAPTER XLIX.
ELECTION OFFENCES — THE PROCEDURE.
§ 827. Introduction.
828-840. The Indictment.
841-843. The Evidence.
§ 827. How Chapter divided. — We shall consider, I. The In-
dictment; II. The Evidence.
I. The Indictment.
§ 828, In General. — The offences under this head, and the
forms of the statutes creating them, being diverse, no general
direction for the indictment can be given, except to frame it after
the rules for indictments on statutes.!
§ 832.2 alleging Election. — There must be some sort of alle-
gation that there was an election lawfully * being held ;* some-
times or ordinarily, also, for what purpose,® but this averment is
not always necessary.° In England, the writ or precept is set
out,’ but nothing of this sort is generally required in our States.$
Thus, —
1 Crim. Proced. I. § 593 et seq.; Wat-
tles v. People, 13 Mich. 446 ; United States
v. Hendric, 2 Saw. 476; United States v.
Hendric, 2 Saw. 479; United States v.
O’Neill, 2 Saw. 481; United States
v. Johnson, 2 Saw. 482; United States v.
Cruikshank, 1 Woods, 308, 92 U. S. 542;
Biggerstaff v. Commonwealth, 11 Bush,
169; The State v. McCollum, 44 Misso.
843; The State v. Welch, 21 Minn. 22;
The State v. Lockbaum, 38 Conn. 400;
United States v. Hirschfield, 13 Blatch.
3830; Commonwealth v. Desmond, 122
Mass. 12; Dennis x. The State, 17 Fla.
889; Gallagher v. The State, 10 Texas
Ap. 469; Hoskey v. The State, 9 Texas
Ap. 202; Johnson v. People, 94 Ill. 605;
United States v. Crosby, 1 Hughes, 448;
484
United States v. Petersburg Judges, 1
Hughes, 493; Reg. v. Vaile, 6 Cox C. C.
410; The State v. Dustin, 5 Oregon,
375 ; Humphreys v. The State, 17 Fla.
881.
2 § 829-831 omitted from this edition.
3 Ante, § 814.
* Tipton v. The State, 27 Ind. 492,
493; Newell v. Commonwealth, 2 Wash.
Va. 88.
5 Carter v. The State, 55 Ala. 181, 183.
6 The State «. Lockbaum, 88 Conn.
400; Gallagher v. The State, 10 Texas
Ap. 469. See The State v. Minnick, 15
Iowa, 123.
7 Reg. v. Bowler, Car. & M. 659; Reg.
v. Ellis, Car. & M. 564.
8 Gallagher v. The State, supra.
CHAP. XLIX.]. ELECTION OFFENCES—THE PROCEDURE. § 835
§ 833. Sufficient. — An indictment for illegally voting at a
town meeting, averring that the meeting was duly holden, with-
out stating how or by what authority called, was adjudged suffi-
cient.! So also it was enough to say, “ that the inhabitants were
convened, according to the constitution and laws of the State, in
legal town meeting, for the choice of town officers.” 2 And an
averment that, at the time and place mentioned, the defendant
voted at a certain election authorized by law, then and there
held, implies that it was held by the proper officers.’
§ 884. The Place —is, as of course, alleged. But that it is
within the State need not be added.5
§ 835. Want of Qualification. — Where the indictment is for
voting or registering without being qualified, most of the cases
require it to specify the qualification lacking.6 Within which
rule, it is sufficient, for example, to say, that the defendant was
under twenty-one years of age.’ Other cases hold it to be ade-
quate simply to aver, that the defendant voted “not being quali-
fied to vote according to the constitution and laws of this
State.” 8 To some degree, the difference seems to depend on
differences in cases, statutes, and-particular disqualifications. In
principle, there are circumstances wherein the latter form should
be deemed adequate while yet it would not be in others; because,
first, this is a negative averment, not therefore in general required
to be so full as an affirmative one ;° and, secondly, qualification
may be a compound fact, consisting of several particulars where-
of a specification would be unnecessary in pleading it,! therefore,
a fortiori, not necessary in its negation.!!
1 The State v. Marshall, 45 N. H. 281.
And see Commonwealth v. Desmond, 122
Mass. 12; The State v. Hardy, 47 N. H.
538.
2 The State v. Bailey, 21 Maine, 62.
And see the State v. Marshall, supra.
8 The State v. Douglass, 7 Iowa, 413.
And see United States v. Johnson, 2 Saw.
482.
4 Commonwealth v. Desmond, 122
Mass. 12; Wilson v. The State, 52 Ala.
299; United States v. Johnson, 2 Saw.
482; The State v. Bruce, 5 Oregon, 68;
Gallagher v. The State, 10 Texas Ap. 469.
But see The State v. Lockbaum, 38 Conn.
400.
5 Commonwealth v. Shaw, 7 Met. 52.
§ Crim. Proced. I. § 627; Quinn v. The
State, 85 Ind. 485; United States v.
Hirschfield, 13 Blatch. 330. The State v.
Moore, 3 Dutcher, 105; The State »v.
Tweed, 3 Dutcher, 111; Gordon v. The
State, 52 Ala. 308. See The State v.
Bruce, 5 Oregon, 68.
7 Gordon v. The State, supra; United
States v. O’Neill, 2 Saw. 481.
8 The State v. Macomber, 7 R. I. 349;
The State v. Douglass, 7 Iowa, 413; Gal-
lagher v. The State, 10 Texas Ap. 469, 471.
® Crim. Proced. I. § 641.
19 And see ante, § 706.
11 And see Commonwealth v. Gray, 2
Duv 378; The State v. Daniels, 44 N. H.
383,
485
§ 840 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 836. Act of Voting. — There is no unvarying form for setting
out the act of voting. It is sufficient, for example, to say, that
the defendant did wilfully and unlawfully give in his vote.!_ The
name of the person voted for, and the offices to be filled, need
not be mentioned.? |
§ 837. Double Voting. — The terms of the statutes creating this
offence? differ, and the indictment must duly cover them. As-
suming them to be covered, it may, for example, after setting
out the election, with time and place, add, that thereat and then
and there the defendant did wilfully, &c. cast more than one
vote, &c.t It need not say for whom.®
In two Places. — If the offence consists of voting in two places,
both are material; they must be alleged, and a variance be-
tween allegation and proof will be fatal. Where there were
two counts, alternating the order of the places of voting, and
the jury could not determine in which the last, or illegal, act
occurred, it was held that they could not convict upon either or
both.§
§ 838. Election Judges unlawfully receiving Vote.— A statute
made punishable “ any judge or sheriff who shall knowingly and
unlawfully receive the vote of any other than a qualified voter.”
Thereupon an allegation against one of the judges, that he know-
ingly and unlawfully received the vote of a person not entitled
to vote, not mentioning what his associates did, was adjudged
sufficient. It set out a crime, “however the other judges and
sheriff may have acted.” “
§ 839. Appointment of Election Officers.— To aver that persons
named were judges of the election is equivalent to saying that
they were duly appointed such, and is sufficient.®
Knowledge .of Election Officer. — An indictment against the
proper officer for refusing to put a name on the voting list,
should allege that he knew the person to be entitled to vote.®
§ 840. “Falsely and Fraudulently ” for “ Wilfully”— An English
1 The State v. Moore, 3 Dutcher, 105. 5 Ante, § 886; Wilson v. The State,
See Reg. v. Bowler, Car. & M. 559; 652 Ala. 299.
United States v. Watkinds, 7 Saw. 85. 5 The State v. Fitzpatrick, 4 R. 1
2 The State v. Minnick, 15 Iowa, 123, 269.
125; Wilson v. The State, 52 Ala. 299. 7 Commonwealth v. Gray, 2 Duv. 373.
3 Ante, § 825. See People v. McManus, 34 Barb. 620;
4 The State v. Boyington, 56 Maine, Byrne v. The State, 12 Wis. 519.
612. 8 The State v. Randles, 7 Humph. 9.
® The State v. Daniels, 44 N. H. 383.
486
CHAP. XLIX.] ELECTION OFFENCES—-THE PROCEDURE. § 843
statute! made punishable one who should “ wilfully make a false
answer” as to his qualifications to vote. And to allege that the
defendant did it “falsely and fraudulently,” omitting the word
“wilfully,” was adjudged ill. But, —
“ Unlawfully ” for “Illegally.” — Under a Tennessee statute, which
employed the word “ illegally,” it was held good to say in the
indictment “ unlawfully ;”’ for “‘ the words are synonymous.” 3
II. The Evidence.
§ 841. Qualification of Election Officers. — Where the official
character of the officers of an election is among the issues, it is
sufficient prima facie to show that they acted as such.*
False Answers — Variance. — On an indictment for giving false
answers to the election officers, the allegation of the defendant’s
intent was, that it was to procure his name to be placed on the
_list of voters, and to obtain permission to vote. But the proofs
showed, that his name was on the list when the answers were
given. Thereupon this allegation was held not to be of a sort
which could be rejected as surplusage, and so the case failed by
reason of the variance.®
§ 842. Presumption of Residence. — On the issue of non-resi-
dence, it is sufficient prima facie to prove against the defendant,
that, during the period for which the residence was required by
law, he did not actually abide in the place. The burden is
then on him to show, if he can, that he was away for a tempo-
rary purpose.®
§ 842 a. Proof of Voting — (Voting Lists). — The poll-lists
have been deemed to be the highest evidence that the defend-
ant cast a vote, without which the offence cannot be made
out.? But probably this would not be so under every form of
the laws.
§ 848. “Corroborating Circumstances ” — (Bribery) — By a stat-
ute, one accused of receiving a bribe for his vote could not be
1 The Municipal Corporations Act, 5 891, 893; Commonwealth v. Shaw, 7 Met.
& 6 Will. 4, c. 76, § 34. 52.
2 Reg. v. Bent, 1 Den. C.C. 157. See 5 Commonwealth v. Shaw, supra.
Crim. Proced. I. § 613. 6 The State v. Marshall, 45 N. H.
8 The State v. Haynorth, 3 Sneed, 64. 281.
* Crim. Proced. I. § 1180; IL. § 824, 7 Wilson v. The State, 52 Ala. 299;
Hunter v. The State, 55 Ala. 76.
487
§ 843 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
convicted ‘on the testimony of a single witness, unless sustained
by strong corroborating circumstances.” And it was held, that
the mere fact of the candidate having had private interviews with
several friends on the day of the election did not satisfy the
requirement.
1 Russell v. Commonwealth, 3 Bush, 469.
488
CHAP. L.] GAMING — THE LAW. § 847
CHAPTER L.
GAMING — THE LAW|!
§ 844, 845. Introduction.
846-851. Common Law and old Statutes.
852-856. Generally of our own Legislation.
857-881. Expositions of Particular Provisions.
§ 844. What for this Chapter.— The statutes on this subject
are so numerous and diverse, that a full treatment of them would
conduct us through an almost interminable course of discussions
merely local to particular States. It -will not be attempted.
What is proposed, therefore, is to present views helpful every-
where, with citations of the cases not explained as well as of those
which are, and the local ones with the rest; enabling the reader
to conduct for himself any minuter investigations desired.
§ 845. How dividea.— We shall consider, I. The Unwritten
and old English Statutory Law of the subject ; II. Generally of
the American Legislation and its Validity; III. Expositions of
particular Statutory Provisions.
I. The Unwritten and old English Statutory Law of the Subject.
§ 846. At Common Law. — Simple gaming, with no special ele-
ment of criminality, is not punishable by the common law either
of England or of our States.2 But —
§ 847. In other Offences. — It is or may be an ingredient in some
other offences; as, —
Gaming-house. — The keeping of a common gaming-house is an
indictable nuisance at the common law.? So also —
1 Gaming-house.— For the nuisance lies, 11 Co. 84 b, 87 b; 1 Hawk. P. C.
of keeping a gaming-house, see Crim. Curw.ed. p. 721; 1 Russ. Crimes, 3d Eng.
Law, I. § 1135 et seq. ed. 455; 1 Gab. Crim. Law, 451; United
2 Crim. Law, I. § 504, 1135; Bell ». States v. Milburn, 4 Cranch C. C. 719.
Norwich, 3 Dy. 254 6; Case of Monopc- 8 Crim. Law, I. § 504, 1185 et seq.
489
§ 850 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
False Dice. — Winning another’s money with false dice is a
punishable common-law cheat.
§ 848. Wager.— A wager isa species of game. Like the other
sorts, it appears not to be indictable at the common law. Yet,
to an extent not well defined in the books, it is deemed contrary
to the policy of the law; so that, by some opinions, in the more
flagrant cases, and by other opinions in ‘all cases, a civil suit to
recover the wager cannot be maintained.?
In Scotland —no action is maintainable on any gaming con-
tract; while yet mere gaming, in distinction from keeping a
gaming-house and the like, appears not to be punishable by the
unwritten Jaw there prevailing?
§ 849. Old English Statutes : —
17 Haw. 4, c. 3,— was repealed by 33 Hen. 8, c. 9, under the
words “all other statutes made for the restraint of unlawful
games.” Therefore, not being in existence when our country
was settled, it could not have become a part of our common law.
This statute of — :
§ 850. 33 Hen. 8, c. 9,— was the leading enactment on the
subject in England when we received thence our unwritten law.
The “ bowyers, fletchers, stringers, and arrowhead makers ” hav-
ing complained to Parliament that their business had been made
unprofitable by the people leaving archery for gaming, this stat-
ute directed them to exercise themselves with long bows; every
man to have not less than one such bow and four arrows, and
every boy over seven one bow and two arrows. Then it pro-
ceeded with various inhibitions of gaming and gaming-houses.
For example, by § 17, “no manner of artificer or craftsman of
any handicraft or occupation, husbandman, apprentice, laborer,
servant at husbandry, journeyman, or servant of artificer, mari-
ners, fishermen, watermen, or any serving man shall, &. play at
1Jb. I. § 157.
2 Bishop Con. § 489; Lewis v. Little-
field, 15 Maine, 233; Ball v. Gilbert, 12
Met. 397; Gibbons v. Gouverneur, 1 De-
nio, 170; Ellis v. Beale, 18 Maine, 337;
Dunman »v. Strother, 1 Texas, 89; Crow
v. The State, 6 Texas, 334; Bryant »v.
Mead, 1 Cal. 441; Trenton Mutual Life
and Fire Ins. Co. v. Johnson, 4 Zab. 576 ;
Gahan »v. Neville, 2 Cal. 81; Dewees v.
Miller, 5 Harring. Del. 347; Nudd v. Bur-
nett, 14 Ind. 25; Worthington v. Black,
490
18 Ind. 344; Murdock v. Kilbourn, 6 Wis.
468 ; Woodcock v. McQueen, 11 Ind. 14;
Sipe v. Finarty, 6 Iowa, 394; Craig vo.
Andrews, 7 Iowa, 17; Commonwealth »v.
Gourdier, 14 Gray, 390, 391; Sutphin
v. Crozer, 1 Vroom, 257, reversed, 3
Vroom, 462; Lear v. McMillen, 17 Ohio
State, 464; Walker ». Armstrong, 54
Texas, 609; Smith v. Bouvier, 20 Smith,
Pa. 325; See post, § 872, et seq.
8 Greenhuff’s Case, 2 Swinton, 236.
CHAP. L.], GAMING —THE LAW. § 852
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. With us. — This statute had never any force in Mary-
land? or probably in any of the other colonies. Its date, 1541,
is not too recent; but there are other objections, apparent on its
entire face, too obvious to need explanation, showing that it
could not have become a part of our common law.
Other old English Statutes are —16 Car. 2, c. T (A.D. 1664) ; 4
10 & 11 Will. 3, c. 17 (4.d. 1699) 5° 9 Anne, c. 6 (a.D. 1710) ;®
9 Anne, c. 14,7 and 10 Anne, c.:26.8 But though these have
been the basis for American legislation, none of them probably
are common law with us; or, at least, are to be practically relied
on as the foundation for an indictment.®
Il. Generally of the American Legislation and its Validity.
§ 852. Diversified Objects enumerated — (Cases cited). — The
statutes are numerous and diverse; and, as every practitioner
will have before him those of his own State, to recite them in
detail would not be a wise use of our space. The acts prohib-
ited by them, with many of the cases decided thereon, are such
as the following : —
Keeping Implements or Gaming Place. — The keeping of a
1 See 1 Hawk. P. C. Curw. ed. p. 721-
725.
2 Kilty Rep. Stats. 75.
8 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.
4 See 1 Hawk. P. C. Curw. ed. p. 726,
729.
5 Tb. p. 733, 784.
6 Ib. p. 7384.
¥ Ib. p. 727, 728-781.
8 Ib. p. 734.
® 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 of 16 Car. 2, c. 7,
against deceit in gaming; 9 Anne, c. 14,
§ 1, avoiding securities for money lost at
gaming; ib. § 2, providing, that, if more
than £10 be lost at play at one sitting, it
may be recovered ; and § 3, requiring the
winner 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.”
491
§ 852 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
bowling-alley,! a billiard-table,? a faro bank, or other like
device ; 3 —
In Particular Places. — The having of the facilities for gaming,
or allowing it, or personally gaming, in places where intoxicating
liquors are sold,* or in saloons,* or public houses,® or other public
places,’ to which youth will be allured, or in the vicinity of a
dwelling-house,® or in a place under the defendant’s control ;? —
Particular Day. — Gaming on a particular day, as, for instance,
on the Sabbath day ; 1° —
Betting and Wagers. — Betting by persons on games played by
1 The State v. Currier, 23 Maine, 43;
Commonwealth v. Stowell, 9 Met. 572;
Commonwealth v. Drew, 3 Cush. 279;
Needham v. The State, 1 Texas, 139;
The State v. Hay, 29 Mame, 457; Com-
monwealth v. Goding, 3 Met. 130.
2 Smith v. The State, 22 Ala.54; The
State v. Moseley, 14 Ala. 390; Mayers v.
The State, 8 Eng. 222; Blanton v. The
State, 5 Blackf. 560; The State v. Math-
ews, 2 Brev. 82; Harbaugh v. People, 40
Ill. 294; Gibbons v. People, 83 Ill. 442;
Commonwealth v. Emmons, 98 Mass. 6;
Commonwealth v. Sylvester, 13 Allen,
247; Ward v. The State, 17 Ohio State,
32; Pardee v. Smith, 27 Mich. 33; Carr v.
The State, 50 Ind. 178; Hanrahan v. The
State, 57 Ind. 527; Longworth v. The
State, 41 Texas, 508; Mayers v. The
State, 3 Eng. 222.
3 The State v. Howery, 41 Texas,
506; The State v. Andrews, 43 Misso.
470; Wheeler v. The State, 42 Md. 563;
Schooler v. The State, 57 Ind. 127; Ter-
ritory v. Copely, 1 New Mex. 571;
St. Louis v. Sullivan, 8 Misso. Ap. 455;
The State v. Savannah, T. U. P. Charl.
235; The State v. Stogsdale, 67 Misso.
630; The State v. Thomas, 50 Ind. 292;
Rice v. The State, 3 Kan. 141; Campbell
v. The State, 2 Texas Ap. 187; Harris v.
The State, 5 Texas, 11; McCoy v. Zane,
65 Misso. 11; Euper v. The State, 35 Ark.
629; Simms v. The State, 60 Ga. 145;
Hayes v. The State, 55 Ind. 99 ; The State
v. Whitworth, 8 Port. 434; Commonwealth
v. Wyatt, 6 Rand. 694; Ervine v. Com-
monwealth, 5 Dana, 216 ; Commonwealth
v. Burns, 4 J. J. Mar. 177; The State v.
Markham, 15 La. An. 498.
4 Ante, § 294; Campbell v. The State,
492
55 Ala. 89; Ray v. The State, 50 Ala. 172;
Harcrow v. The State, 2 Texas Ap. 511;
Phillips v. The State, 51 Ala. 20; The
State v. Black, 9 Ire. 378; The State v.
Terry, 4 Dev. & Bat. 185; The State ov.
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;
Jacobi v. The State, 59 Ala. 71.
5 O’Brien v. The State, 10 Texas Ap.
644.
& Ante, § 299; Commonwealth »v. Til-
ton, 8 Met. 232; The State v. Smither-
man, 1 Ire. 14; The State v. Records, 4
Harring. Del. 554; Commonwealth vu.
Price, 8 Leigh, 757; The State v. Barns,
25 Texas, 654; Millican v. The State, 25
Texas, 664; The State v. Mansker, 36
Texas, 364; The State v. Jurgins, 31
Texas, 588.
7 Ante, § 298, 209; Wilcox v. The
State, 26 Texas, 145; O’Brien v. The
State, 10 Texas Ap. 544; Lindsey ».
The State, 48 Ala. 169; Elsberry v. The
State, 41 Texas, 158; The State v. Roder-
ica, 35 Texas, 507; The State v. Arnold,
37 Texas, 409; Perez v. The State, 48 Ala.
356; Sheppard v. The State, 1 Texas Ap.
3804; Lowrie v. The State, 43 Texas, 602.
8 The State v. Noyes, 10 Fost. N. H.
279.
9 The State v. Cooster, 10 Iowa, 453;
Commonwealth v. Edds, 14 Gray, 406;
The State v. Mathis, 3 Pike, 84; Roberts
v. Commonwealth, 11 B. Monr. 3; Cal-
vert v. Commonwealth, 5 B: Monr. 264.
10 The State v. Fearson, 2 Md. 310; The
State v. Conger, 14 Ind. 396; The State v.
Anderson, 30 Ark. 131.
CHAP. L.]
GAMING —THE LAW.
§ 853
others,’ or on a public election,? or horse-race,? together with
some other forms of wager ; +—
Encouraging Gaming — (Minors). — One’s otherwise encouraging
gaming in others,® or even permitting it by minors, or allowing
them to congregate where games are played ;® —
Horse-racing. — The public racing of horses, and especially
under specified circumstances ; 7 —
Why. — Each of these, in distinction from mere private playing,
is in various States made indictable, because of its tendency to
affect other persons than the players themselves.
Again, —
§ 853. Gaming for Money —is, irrespective of place, time, or
person, by some of our statutes made an offence generally® or
under special circumstances.°
1 Bagley v. The State, 1 Humph. 486;
Crow v. The State, 6 Texas, 334; Tor-
ney 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; The State v. Blair, 41 Texas,
30; The State v. Bristow, 41 Texas, 146;
Blair v. The State, 32 Texas, 474; Napier
v. The State, 50 Ala. 168; The State v.
Czarnikow, 20 Ark. 160; Anderson v.
The State, 9 Texas Ap. 177; Ben v. The
State, 9 Texas Ap. 107; Bone v. The
State, 63 Ala. 185; Stone v. The State,
3 Texas Ap. 675; Mitchell v. The State,
55 Ala. 160; Jacobson v. The State, 55
Ala. 151; Ray v. The State, 50 Ala. 172;
Bass v. The State, 87 Ala. 469; Flynn v.
The State, 84 Ark. 441; Schuster v. The
State, 48 Ala. 199.
2 Post, § 931, ct seq.; Doyle v. Balti-
more, 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. McLelland, 4 Sneed,
487; Commonwealth v. Kennedy, 15 B.
Monr. 631.
3 The State v.Blackburn, 2 Coldw. 285.
4 The State v. Posey, 1 Humph. 384;
Parsons v. The State, 2 Ind. 499; Dun-
man v. Strother, 1 Texas, 89; Common-
wealth 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.
So—
5 Fugate v. The State, 2 Humph. 397;
The State v. Ebert, 40 Misso. 186; Hitch-
ins v. People, 39 N. Y. 454; The State v.
Hall, 3 Vroom, 158.
6 Manheim v. The State, 66 Ind. 65;
Commonwealth v. Emmons, 98 Mass. 6;
Moore v. The State, 65 Ind. 218; Ready v.
The State, 62 Ind. 1; Donniger v. The
State, 52 Ind. 326; The State v. Ward,
57 Ind. 587; Squier v. The State, 66 Ind.
817; Alexander v. The State, 48 Ind. 394;
Zook v. The State, 47 Ind. 463; Green v.
Commonwealth, 5 Bush, 827; The State
v. Derichs, 42 Iowa, 196; Stern v. The
State, 58 Ga. 229; Bartender v. The
State, 51 Ind. 73; Conyers v. The State,
50 Ga. 103; Powell v. The State, 62 Ind.
531; Hipes v. The State, 73 Ind. 39.
« 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; Gold-
smith v. The State, 1 Head, 154; The
State v. Catchings, 43 Texas, 654; King
v. The State, 3 Texas Ap. 7; Robb v.
The State, 52 Ind. 216.
8 Carper v. The State, 27 Ohio State,
572.
9 The State v. Stillwell, 16 Kan. 24;
Truitt v. People, 88 Ill. 518; Roberts v.
493
[BOOK VI.
§ 855 OFFENCES MORE PURELY STATUTORY.
Frequenting Gaming-houses, — for the purpose of gaming, is by
some statutes made an offence.! Again, —
Obtaining Money —or other thing, by gaming, is another form
of the offence.?
§ 854. Other Distinctions. — Some of the statutes also make a
difference, whether the playing is at a game of .chance or of
skill;? 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.’ ?
§ 854 a, Licensed.— There are statutes for licensing gaming
places, and licensing other places and forbidding gaming in them;
a violation whereof is made punishable.®
§ 855. Interpretation. — We have seen,® that, by special pro-
visions in some of the States, the statutes against gaming are to
be interpreted liberally, contrary to the general rule for criminal
statutes. In general, and with this exception, they follow the
same rules of construction as other enactments ordaining the like
penalties“? Particular explanations will occur under the next
sub-title; and, for the convenience of the reader, some helpful
cases are referred to in a note," in the order of the States.
The State, 82 Ohio State, 171; Tuttle v.
The State, 1 Texas Ap. 364, 367.
1 Howard v. The State, 64 Ind. 516;
The State v. Allen, 69 Ind. 124; Bowe v.
The State, 25 Ind. 415; Hamilton v. The
State, 25 Ind. 426.
2 Post, § 874, 875; Blemer v. People,
76 Ill. 265.
3 The State v. Nates, 3 Hill, S. C. 200.
4 The State v. Purdom, 3 Misso. 114;
The State v. Albertson, 2 Blackf. 251;
Vicaro v. Commonwealth, 5 Dana, 504.
5 Estes v. The State, 2 Humph. 496;
Commonwealth v. Hopkins, 2 Dana, 418;
Commonwealth v. Moore, 2 Dana, 402.
6 Johnson v. The State, 8 Ga. 453;
The State v. Nates, 3 Hill, S. C. 200. See
Wells v. The State, 3 Lea, 70.
7 The State v. Laney, 4 Rich. 193;
Ward v. The State, 87 Ala. 158. See
The State v. Pemberton, 2 Dev. 281.
8 Clark v. The State, 49 Ala. 37; Ai-
eardi v. The State, 19 Wal. 635; Harris
v. The State, 9 Texas Ap. 308; Eubanks
v. The State, 17 Ala. 181; Ex parte
Chamberlaine, 8 Ellis & B. 644; Patten
494
v. Rhymer, 3 Ellis & E. 1; Common-
wealth v. Adams, 109 Mass. 344; Hough-
ton v. The State, 41 Texas, 136; The
State v. Johnson, 41 Texas, 504; People
v. Craycroft, 2 Cal. 243.
9 Ante, § 55.
1 As to a few of these statutes, see
ante, § 135, 221, 294, 298, 299; Crim.
Law, I. § 686.
11 Alabama. — The State v. Whitworth,
8 Port. 434; The State v. Moseley, 14 Ala.
390; The State v. Allaire, 14 Ala. 435;
Eubanks v. The State, 17 Ala. 181;
Batre v. The State, 18 Ala.119; Ward v.
The State, 22 Ala. 16; Smith v. The
State, 22 Ala. 54; Smith v. The State, 23
Ala. 39; Burdine v. The State, 25 Ala.
60; Bryan v. The State, 26 Ala. 65;
Windham v. The State, 26 Ala. 69; Rodg-
ers v. The State, 26 Ala. 76; Elliott v.
The State, 26 Ala. 78; Jones v. The
State, 26 Ala. 155; Spaight rv. The State,
29 Ala. 32; Bass v. The State, 37 Ala.
469; Eslava v. The State, 44 Ala. 406;
Miller v. The State, 48 Ala. 122; Clark
v. The State, 49 Ala. 37; Napier v. The
CHAP. L.]
GAMING — THE LAW.
§ 856
§ 856. Constitutionality — (Lotteries ).— Some cases have raised
the question of the constitutionality of statutes restraining lot-
State, 50 Ala. 168; Ray v. The State, 50
Ala. 172; Phillips v. The State, 51 Ala.
20; McInnis v. The State, 51 Ala. 23;
Campbell v. The State, 55 Ala. 89; Wet-
more v. The State, 55 Ala. 198; Jacobi v.
The State, 59 Ala. 71; Toney v. The
State, 61 Ala. 1; Bone v. The State, 63
Ala. 185.
Arkansas.— The State v. Mathis, 3
Pike, 84; Mayers v. The State, 3 Eng.
222; Stith v. The State, 13 Ark. 680;
Notton v. The State, 15 Ark. 71; The
State v. Hawkins, 15 Ark. 259; The State
v. Grider, 18 Ark. 297; The State v. Mar-
tin, 22 Ark. 420; Ex parte Tucker, 25
Ark. 567; Trimble v. The State, 27 Ark.
8355; Portis v. The State, 27 Ark. 360;
Flynn v. The State, 34 Ark. 441; Euper
v. The State, 35 Ark. 629; Ansley v. The
State, 36 Ark. 67.
California.— People v. Craycroft, 2
Cal. 243; People v. Markham, 7 Cal.
208; Ex parte Ah Yem, 53 Cal. 246.
Dakota. — People v. Sponsler, 1 Dak.
289.
Georgia. — The State v. Doon, R. M.
Charl. 1; Johnson v. The State, 8 Ga.
453 ; Higdon v. Heard, 14 Ga. 255 ; Brown
v. The State, 40 Ga. 689; Conyers v. The
State, 50 Ga. 103; Porter v. The State,
51 Ga. 300; Simms v. The State, 60 Ga.
145; Mallory v. The State, 62 Ga. 164;
Kneeland v. The State, 62 Ga. 395.
IUinois. — Blemer v. People, 76 Ill. 265 ;
Truitt v. People, 88 Ill. 518.
Indiana. — Blanton v. The State, 5
Blackf. 560; The State v. Ness, 1 Ind.
64; Parsons v. The State, 2 Ind. 499;
Watson v. The State, 3 Ind. 123; Wade
v. Deming, 9 Ind. 35; The State v. Hope,
15 Ind. 474; The State v. Henderson, 47
Ind. 127; Bartender v. The State, 51
Ind. 73; Hayes v. The State, 55 Ind. 99;
Ridgeway v. West, 60 Ind. 871; Ready
v. The State, 62 Ind. 1; Powell v. The
State, 62 Ind. 531; Howard v. The State,
64 Ind. 516; Squier v. The State, 66 Ind.
817, 604; Hamilton v. The State, 75 Ind.
586.
Iowa. — The State v. Maurer, 7 Iowa,
406; The State v. Bishel, 39 Iowa, 42;
The State v. Book, 41 Iowa, 550; The
State v. Miller, 53 Iowa, 154.
Kansas. — The State v. Stillwell, 16
Kan. 24.
Kentucky. — Commonwealth v. Burns,
4 J. J. Mar. 177; Hinkle v. Common-
wealth, 4 Dana, 518; Ervine v. Com-
monwealth, 5 Dana, 216; Vicaro v.
Commonwealth, 5 Dana, 504; Calvert
v. Commonwealth, 5 B. Monr. 264; Ash-
lock v. Commonwealth, 7 B. Monr. 44;
English v. Young, 10 B. Monr. 141;
Roberts v. Commonwealth, 11 B. Monr.
38; Commonwealth v. Kennedy, 15 B.
Monr. 581; Conner v. Ragland, 15 B.
Monr. 634; Ritte v. Commonwealth, 18
B. Monr. 85; Marston v. Commonwealth,
18 B. Monr. 485; Commonwealth v.
Branham, 3 Bush, 1; McDaniel v. Com-
monwealth, 6 Bush, 826; Brown w.
Thompson, 14 Bush, 538.
Louisiana. — The State v. Markham, 15
La. An. 498.
Maine. — Ellis v. Beale, 18 Maine, 337.
Maryland. — Baker v. The State, 2 Har.
& J.5; Germania v. The State, 7 Md. 1;
Wheeler v. The State, 42 Md. 568. 7
Massachusetis. — Commonwealth v. God-
ing, 3 Met. 180; Commonwealth ». Tilton,
8 Met. 232; Commonwealth v. Drew, 3
Cush. 279; Commonwealth v. Pattee, 12
Cush. 501; Commonwealth v. Adams, 109
Mass. 344.
Michigan. — Pardee v. Smith, 27 Mich.
33.
Missouri.— Lowry v. The State, 1
Misso. 722; The State v. Purdom, 3
Misso. 114; Ward v. The State, 2 Misso.
120; Shropshire v. Glascock, 4 Misso.
536; Boynton v. Curle, 4 Misso. 599; Eu-
banks v. The State, 5 Misso. 450; Hick-
erson v. Benson, 8 Misso. 8; The State v.
Bates, 10 Misso. 166; O’Blennis v. The
State, 12 Misso. 311; The State v. Her-
ryford, 19 Misso. 377; The State v.
Fulton, 19 Misso. 680 ; The State v. Smith,
19 Misso. 683; The State v. Hayden, 31
Misso. 35; The State v. Lemon, 46 Misso.
375; McCoy v. Zane, 65 Misso. 11; The
State v. Stogsdale, 67 Misso. 630; Lowry
v. Rainwater, 70 Misso. 152.
New York.— Bigelow v. Stearns, 19
Johns. 89; Van Valkenburgh v. Torrey,
7 Cow. 252.
North Carolina. — The State v. Terry,
495
§ 856
teries,! but it is for another connection.”
OFFENCES MORE PURELY STATUTORY.
[BOOK VI.
The forbidding and
punishing of gaming is clearly within the general legislative
power; while yet there may be unconstitutional legislation of
this sort.*
4 Dev. & Bat. 185; The State v. Smither-
man, 1 Ire. 14; The State v. Gupton, 8
Ire. 271; The State v. Black, 9 Ire. 378;
The State v. Keisler, 6 Jones, N. C. 73;
The State v. Bryant, 74 N. C. 207.
Ohio. —— Buck v. The State, 1 Ohio
State, 61; Veach v. Elliott, 1 Ohio State,
139.
Oregon. — The State v. Mann, 2 Oregon,
238.
South Carolina. — The State v. Mathews,
2 Brev. 82; The State v. Nates, 3 Hill,
8. C. 200; The State v. Laney, 4 Rich.
193.
Tennessee. — Howlett v. The State, 5
Yerg. 144; McGowan v. The State, 9
Yerg. 184; The State v. Posey, 1 Humph.
384; Bagley v. The State, 1 Humph. 486;
Estes v. The State, 2 Humph. 496; Smith
v. The State, 5 Humph. 163; The State
v. Fidler, 7 Humph. 502; Fiddler v. The
State, 7 Humph. 508; Huff v. The State,
2 Swan, Tenn. 279; Myers v. The State,
8 Sneed, 98; The State v. McLelland, 4
Sneed, 437; Johnson v. The State, 4
Sneed, 614; Goldsmith v. The State, 1
Head, 154; The State v. Blackburn, 2
Coldw. 235; Wells v. The State, 3 Lea,
70.
Texas.— Cole v. The State, 9 Texas,
42; Randolph v. The State, 9 Texas, 521;
The State v. Horan, 11 Texas, 144; Bar-
ker v. The State, 12 Texas, 273; The
State v. Kelly, 24 Texas, 182; The State
v. Jurgins, 31 Texas, 588; Wolz v. The
State, 33 Texas, 331; The State v. Ro-
derica, 35 Texas, 507; Johnson v. The
State, 36 Texas, 198; Galbreath v. The
State, 36 Texas, 200; Herron v. The State,
86 Texas, 285; Houghton v. The State,
41 Texas, 136; The State v. Homan, 41
Texas, 155; The State v. Johnson, 41
Texas, 504; The State v. Catchings, 43
Texas, 654; Chiles v. The State, 1 Texas
Ap. 27; Tuttle v. The State, 1 Texas Ap.
864; Harcrow v. The State, 2 Texas Ap.
511; Stone v. The State, 3 Texas Ap. 675;
Ben v. The State, 9 Texas Ap. 107; Har-
ris v. The State, 9 Texas Ap. 308; Whit-
496
ney v. The State, 10 Texas Ap. 377;
O’Brien v. The State, 10 Texas Ap. 544.
Virginia. —Commonwealth v. Terry, 2
Va. Cas. 77; Commonwealth v. Garland,
5 Rand. 652; Commonwealth v. Chubb,
5 Rand. 715; Commonwealth v. Wy-
att, 6 Rand. 694; Windsor v. Common-
wealth, 4 Leigh, 680; Commonwealth v.
Price, 8 Leigh, 757; Commonwealth v.
Wilson, 9 Leigh, 648; Pitman v. Com-
monwealth, 2 Rob. Va. 800; Common-
wealth v. Shelton, 8 Grat. 592; Neal v.
Commonwealth, 22 Grat. 917; Nuckolls
v. Commonwealth, 32 Grat. 884.
Wisconsin. — The State v. Lewis, 12
Wis. 434.
United States. — Aicardi v. The State,
19 Wal. 635; United States v. Horni-
brook, 2 Dil. 229.
England. — Grizewood v. Blane, 20 Eng.
L. & Eq. 290, 11 C. B. 526; Johnson v.
Lansley, 12 C. B. 468, 22 Eng. L. & Eq.
468; Reg. v. Ashton, 1 Ellis & B. 286, 16
Eng. L. & Eq. 346; Watson v. Martin,
10 Cox C. C. 56; Patten v. Rhymer, 3
Ellis & E.1; Gallaway v. Maries, 8 Q.
B. D. 275; Batson v. Newman, 1C. P. D.
573; Eastwood v. Miller, Law Rep. 9 Q.
B. 440; Haigh v. Sheffield, Law Rep. 10
Q. B. 102; Redgate v. Haynes, 1 Q. B.
D. 89.
1 Commonwealth v. Dana, 2 Met. 329;
The State v. Allen, 2 McCord, 55; Fre-
leigh 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 Harring. Del. 441;
Wendover v. Lexington, 15 B. Monr.
258.
2 Post, § 957.
3 People v. Beatty, 14 Cal. 566, 578,
Baldwin, J. observing: “ Similar statutes
exist in many of the States, and have
been carried into effect without a ques-
tion of the constitutional power of the
legislature.”
* Stevens v. The State, 2 Pike, 291;
The State v. Hanger, 5 Pike, 412.
CHAP. L.] GAMING — THE LAW. § 857
Taxing. — In the absence of any special inhibition in the con-
stitution, a tax on gaming is competent to legislation! Even a
city by-law may impose it, under the statutory authority to sup-
press and restrain.? ;
Municipal By-law. — Within principles already explained,? mu-
nicipal by-laws * regulating or forbidding gaming within the cor-
porate limits are good or ill according to the circumstances. A
by-law licensing what a statute forbids is void.5 A power in the
charter to repress and restrain gaming implies the authority to
grant licenses, and forbid what is not licensed.§
II. Expositions of Particular Statutory Provisions.
§ 857. “Game,” “Gaming,” “Gambling.” — These words in a stat-
ute are essentially alike in meaning, but there may be minor dif-
ferences. In general literature, “game” is widely used to denote
an innocent sport, ‘‘ gaming” is sometimes yet less commonly so,
and “gambling” rarely if ever ; while, in other connections,
these words are severally employed in the evil sense.’ Thus
flexible in their popular meaning, they have not become univer-
sally otherwise in the law; though there may be States in which
their. signification in the statutes is uniform and fixed. So that
largely the precise legal meaning of these several terms is ascer-
tainable only on a consideration of the connection in which they
stand in the statute,’ of the other statutes on the same subject
both present and repealed,® and of the decisions of the courts ;
1 Washington v. The State, 8 Eng.
752. Compare with Stevens v. The
State, 2 Pike, 291; Gibson v. Pulaski, 2
Pike, 309; The State v. Hanger, 5 Pike,
412. As to lotteries, see The State v.
Allen, 2 McCord, 55.
2 Smith v. Madison, 7 Ind. 86; Merri-
am v. New Orleans, 14 La. An. 318. See
ante, § 20, 21.
3 Ante, § 18 et seq.
4 The State v. Hay, 29 Maine, 457;
Ridgeway v. West, 60 Ind. 371.
5 The State v. Lindsay, 34 Ark. 372.
And see Robbins v. People, 95 Il. 175.
§ Burlington v. Lawrence, 42 Iowa,
681; Winooski v. Gokey, 49 Vt. 282.
7 See, among other illustrations, the
extracts in Richardson’s Dictionary,
82
‘““Game, gamesome, gamester, gaming,
gamble, gambler.”
8 Ante, § 92 d, 93, 95 a, 111 a.
9 Ante, § 86. Thus it was observed in
South Carolina: “ 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 meaning
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 understood to mean to
play at an unlawful game, without any
reference to the fact whether anything
was bet or not.” The State v. Nates, 3
Hill, 8. C. 200.
1 Ante, § 96, 97.
497
§ 858 OFFENCES MORE PURELY STATUTORY. [BOOK VI,
the result of which is, that it is not in all particulars the same in
our various States. Still, —
§ 858. “Gaming,” “Gambling.” — In general, subject possibly to
a few exceptions,’ yet not many, the words gaming and gam-
bling in our statutes are similar in meaning,” and either one com-
prehends the idea, that, by a bet, by chance, by some exercise of
skill, or by the transpiring of some event unknown until it
occurs, something of value is, as the conclusion of premises
agreed, to be transferred from a loser to a winner, without which
latter element there isno gaming or gambling.®
1 Spaight v. The State, 29 Ala. 32;
The State v. Hall, 3 Vroom, 158.
2 Evans v. Cook, 11 Nev. 69.
3 Cases cited post, § 861; Bew wv.
Harston, 3 Q. B. D. 454; Williams v.
Warsaw, 60 Ind. 457; Carper v. The
State, 27 Ohio State, 572; The State v.
Stillwell, 16 Kan. 24; Tuttle v. The State,
1 Texas Ap. 364; Chiles v. The State, 1
Texas Ap. 27; Ansley v. The State, 36
Ark. 67; Buckley v. O’Niel, 113 Mass.
193; Clark ». The State, 49 Ala. 37; Mc-
Innis v. The State, 51 Ala. 23; The State
v. Bryant, 74 N. C. 207; McDaniel v.
Commonwealth, 6 Bush, 326; The State
v. Bishel, 389 Iowa, 42; White v. Buss,
8 Cush. 448; Babcock v. Thompson, 3
Pick. 446, 449; People v. Sergeant, 8
Cow. 139; Blewett v. The State, 34
Missis. 606; Smith v. The State, 5
Humph. 163; Bell v. The State, 5
Sneed, 507; Commonwealth v. Taylor,
14 Gray, 26; Harrison v. The State, 4
Coldw. 195, 198; The State v. Smith,
Meigs, 99. In the last two cases,
gaming is defined 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.” An-
other definition in this State is: “Gaming
is an agreement between two or more
to risk money or property on a contest or
chance of any kind, where one must be
loser and the other gainer.” Bell v. The
State, 5 Sneed, 607; Eubanks v. The
State, 3 Heisk. 488. In another case in
the same State, the following from the
jury was held to be a verdict of guilty :
“We find that the defendant, with some
498
Whether the
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 assigned to
him a certain number of pins to be got
with a certain 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 bottle
of champagne. The defendant [in the
county of the indictment] did sometimes,
on failing to get the number of pins al-
lotted to him, treat to a bottle of cham-
pagne, 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 engaged in this play
did not believe it to be gaming.” Said
Caruthers, J.: ‘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, billiards, 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 of-
fence; and so is betting upon such haz-
ards 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 nota
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
CHAP. L.] GAMING — THE LAW. § 859
game is of skill or of chance is ordinarily immaterial! In some
statutory connections, gaming is said to be synonymous with
betting,” but it is by no means so in all. The result of which is,
that, —
Evil Sport.— Since, in popular language, the words gaming
and gambling do largely if not universally indicate an evil sport,
if a statute makes either punishable, the evil form of it is com-
monly or always presumptively meant; the statute being con-
strued, as legislative acts should be, harmoniously with its
manifest purpose and intent.2 That any playing to win or lose,
where no valuable consideration enters into the transaction, is
evil, our law seems pretty generally to have held;* though there
may be found in the books some qualifications of so broad a propo-
sition, or instances wherein it has been overlooked by the judges.
But this is believed not to be the only sort.of what the Jaw deems
evil, which may enter into a sport. Thus, —
§ 859. “Unlawful Game or Sport” — (Cock-fighting).— A stat-
ute having made it indictable for an innholder to suffer in his
house any “unlawful game or sport,” one who thus permitted
cock-fighting, in a case into which the ingredient of a wager
appears not to have entered, was adjudged to be within the in-
hibition. ‘* We are of opinion,” said Shaw, C. J. ‘that the game
or sport of cock-fighting is unlawful,® because it is a violation
alike of the prohibitions of a statute, and of the plain dictates of
the law of humanity, which is at the basis of the common law.
. . . As being barbarous and cruel, leading to disorder and
were called. It would certainly be gam-
ing for two or more persons to determine,
by the chance of a game at tenpins, 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. All these con-
trivances are regarded and intended as
evasions of the law, and cannot be toler-
ated.” Walker v. The State, 2 Swan,
Tenn. 287, 289, 290, 291. In Massachu-
setts, Shaw, C. J. observed: “ All gaming
is unlawful by the law of this Common-
wealth; and it is gaming to play any
game of hazard, for money or other ar-
ticle of value. A game of hazard, to de-
termine who shall pay for the beer or
other liquor to be drank, is strictly play-
ing for money ; it is to determine which
party shall pay a sum of money for the
other.” Commonwealth v. Taylor, 14
Gray, 26, 29; s. p. Commonwealth v.
Gourdier, 14 Gray, 390; The State v.
Maurer, 7 Iowa, 406. And see post,
§ 860 and note.
1 The State v. Miller, 53 Iowa, 154;
Commonwealth v. Gourdier, 14 Gray,
390.
2 The State v. Fearson, 2 Md. 310;
Wolz v. The State, 83 Texas, 331.
8 Ante, § 70, 82, 98.
44 Bl. Con. 171.
5 Bishop Com. § 489.
® So adjudged in Rex v. Medlor, 2
Show. 36.
499
§ 860 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
danger, and tending to deaden the feelings of humanity, both in
those who participate in it and those who witness it, it appears to
us to stand on the same footing with bull-fighting, bear-baiting,
and prize-fighting with fists or dangerous weapons, all of which,
we think, would be considered as unlawful games or sports.” }
Said Lord Ellenborough, C. J.: “ Cock-fighting must be consid-
ered a barbarous diversicn, which ought not to be encouraged or
sanctioned in a court of justice.’’? At the same time, these un-
lawful sports, other than prize-fighting,? are, like other gaming,
not indictable without the aid of a statute. Now, —
“Unlawful.”— We thus see that “unlawful,” when qualifying
“game” or “gaming,” is not restricted in its meaning to what
had been before declared by statute to be unlawful,® or to what
was before indictable.’ Thus, the Kentucky Act of 1833, against
owners using their houses for gaming, has the words “ shall per-
mit 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 their meaning in any such way,
but held, that the criterion to determine whether or not a game
is within the prohibition is furnished by the words “won or
lost ;’’ and so an unlawful game is one at which betting is done.®
On the whole, —
§ 860. Conclusion as to “Gaming,” “Gambling.” — The conclu-
sion as to “gaming” and “gambling,” in a statute forbidding
either, is, that in the absence of any contrary indication they sev-
erally imply something of an unlawful nature: as, betting on the
sport, being indeed ordinarily an ingredient in their significa-
tion; or a game of an evil or immoral tendency, or “ unlawful,”
as judged of by the prior law or a contemporaneous statute. In
England, therefore, where a tavern license had the proviso that
the licensee “do not knowingly suffer any unlawful games, or
1 Commonwealth v. Tilton, 8 Met. 232,
224, 235.
2 Squires v. Whisken, 3 Camp. 140,
141. “A person was convicted of keep-
ing a cockpit; and the court resolved it
to be an unlawful game within the Stat.
83 Hen. 8, c. 9, and fined him 40s. a day.
Rex v. Howel, 3 Keb. 510.” Jacob Law
Dict. Gaming.
3 Crim. Law, I. § 260, note, 535, 632;
II. § 35.
* Ante, § 846.
500
5-Clark v. Hague, 2 Ellis & E. 281, 8
Cox C. C. 824; Morley’v. Greenhalgh, 3
B. & 8. 374; Murphy v. Manning, 2
Ex. D. 307; Budge v. Parsons, 3 B. & S.
382.
6 Commonwealth v. Goding, 3 Met.
130.
7 Crim. Law, II. § 178.
8 Vicaro v. Commonwealth, 5 Dana,
504. And see Ervine v. Commonwealth,
5 Dana, 216.
CHAP. L.] GAMING — THE LAW. § 862
any gaming whatsoever,’ on the premises, this was held 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 convicted
for that; but this conviction does not state that such was the
case."' Under a statute rendering void “ all contracts or agree-
ments, whether by parol or in writing, by way of gaming or
wagering,” one for the sale and purchase of railway shares,
whereby, according to the understanding 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 in-
cluded. It appears to have been laid down in Tennessee, that
there can be no gaming without a wager ;? but, pretty clearly,
this is not universal doctrine. In other words, it is true gener-
ally, not always. Hence,—
§ 861. Gaming defined. — While it is not possible that any
definition of a word so flexible in meaning as this should be uni-
versally correct, still, in most circumstances and under most stat-
utes, gaming is any sport or play carried on between two or more
persons, depending on skill, chance, or the transpiring of an un-
known future event, on the result of which some valuable thing
is, without other consideration, to be transferred from the one to
the other, or which in its course or consequences involves some
other thing demoralizing or unlawful.®
§ 862. “Game of Chance,” “ Hazard,” “Skill.” — Some of the stat-
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. :
8 Dobkins v. The State, 2 Humph. 424.
See ante, § 857, 858.
4 And see ante, § 857, 859; The State
v. Fearson, 2 Md. 310. ,
5 The reader may consult, in addition
to the cases already cited under this sub-
title, the following: 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. Smith-
erman, 1 Ire. 14; Howlett v. The State,
5 Yerg. 144; Shropshire v. Glascock, 4
Misso. 586; Boynton v. Curle, 4 Misso.
599; The State v. Fidler, 7 Humph. 502;
Fiddler v. The State, 7 Humph. 508;
Commonwealth v. Terry, 2 Va. Cas. 77;
Commonwealth 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. 683; The State v. Hay-
den, 81 Misso. 35; The State v. Ebert,
40 Misso. 186; Hitchins v. People, 39
N. Y. 454; The State v. Cooster, 10
Towa, 453 ; McDaniel v. Commonwealth,
6 Bush, 326; Commonwealth v. Taylor,
14 Gray, 26; Commonwealth v. Gour-
dier, 14 Gray, 390; The State v. Hall, 3
Vroom, 158.
501
§ 862 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
utes have the words “game of chance,” or “game of hazard,” —
distinguishable in meaning from ‘game of skill.” It was ob-
served in North Carolina, that, when in 1835 the expression
“game of chance” was introduced into the law by a statute, “it
had no technical meaning as a legal expression. It must have
been used by the legislature in the sense in which persons con-
versant in games, or the world at large, give to it in classing the
_ different kinds of games.’’! But as pure games of chance are al-
most unknown, most of those into which chance enters being more
or less influenced by skill, or mixed games, the question of the
distinction between them is not very unlike that between black
persons and white, already considered.2~ What preponderance of
chance over skill or skill over chance will relegate the game to
the one class or the other? ‘+ We believe,” continued the court
in this North Carolina case, “that, in the popular mind, the uni-
versal 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.” And it seems to have been the
idea of the court that, on the other hand, a game of skill is one
in which chance has no share. But this explanation, if we ac-
cept it as correct, leaves the question still open to practical
doubts, some of which may be in a measure relieved as we pro-
ceed. Thus, —
Horse-race — Dog-race. —— A mere horse or dog race, and no
more, is not an act of gaming.t And it was once observed to
be a “great perversion of language to call a horse-race a gambling
device.’ *® But ordinarily a betting on a horse-race is gaming.®
Yet it is not, on this race,’ or on a dog-race,® a game of chance ;
or, on the other hand, it would appear, a game of skill.® Plainly
enough the capacity of an animal for running does not depend on
1 Ruffin, C. J. in The State v. Gupton, 5 The State v. Hayden, 31 Misso. 35;
8 Ire. 271.
2 Ante, § 274.
3 The State v. Gupton, supra.
4 Harrison v. The State, 4 Coldw. 195.
See post, § 872, 873. Under the Tennes-
see act of 1833, there may be a “ horse-
race” though there is no wager, and no
previous agreement to run the race.
Goldsmith v. The State, 1 Head, 154.
502
The State v. Lemon, 46 Misso. 375.
6 Post, § 872; Godman v. Morley, 7
Mod. 438; 8.c. nom Goodburn v. Marley,2
Stra. 1159; Tatman v. Strader, 23 IIL 493;
Garrison v. McGregor, 51 Ill. 473, 474.
7 The State v. Rorie, 23 Ark. 726;
Harless v. United States, Morris, 169.
8 Hirst v. Molesbury, Law Rep. 6 Q.
B. 180.
® The State v. Rorie, supra.
CHAP. L. ] GAMING — THE LAW.
§ 864
either chance or human skill; although, by some, it may be
deemed an exercise of skill to judge of such capacity, as one does
in betting. Still, —
Pari Mutuel.— In England, a game was held to be of chance
where the defendants were the proprietors of an instrument called
a “part mutuel,” at which persons betting on a horse-race de-
posited their money; it registered the deposit, and the game
depended partly on the result of the race, and partly on the
number of depositors and the horse bet upon. ‘“ Whether a
horse-race be in itself a game of chance or not,” said Cockburn,
C. J. ‘*we can entertain no doubt that, if some additional ele-
ment of chance be introduced, the wagering on a horse-race may
be converted into a game of chance.” ! Again, —
§ 863. Tenpins —is not a game of chance.? But —
Pigeon-hole — Keno — Shuffleboard — Rondo. — “ Pigeon-hole ” 3
and “ Keno”’‘ are games of chance. And, where the question
was left to the jury, “shuffleboard” ® and ‘rondo ” ® were sev-
erally found to be such.
§ 864. Sorts of Chance —“Same or like Kind” —(Faro — Hap-
hazard — Blind-hazard — Skin-cap). — A Virginia statute made
punishable ‘every keeper or exhibitor of any of the tables com-
monly called A B C, 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.” And it was 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 reason was, that games of chance are of
two classes; in the one of which, “the chances are equal, all
other things being equal;” in the other, “all other things being
equal, the chances are nevertheless unequal, that is, in favor of
one side.” Said Daniel, J.: ‘‘ 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
1 Tollett v. Thomas, Law Rep.6Q.B. Ark. 355; Portis v. The State, 27 Ark.
514, 520, 521.
2 The State v. Gupton, 8 Ire. 271.
8 Commonwealth v. Branham, 8 Bush,
1.
* Eslava v. The State, 44 Ala. 406.
Further of Keno. — Brown v. The State,
40 Ga. 689; Trimble v. The State, 27
360; United States v. Hornibrook, 2 Dil.
229; Miller v. The State, 48 Ala. 122;
Schuster v. The State, 48 Ala. 199;
Nuckolls v. Commonwealth, 32 Grat. 884.
5 The State v. Bishop, 8 Ire. 266.
6 Glascock v. The State, 10 Misso.
508.
503
§ 867 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
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 enu-
merated 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.” 1 Again, —
§ 865. “Same or like Kind” — (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.” “If,” said the court,
“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. “Other,” &c.— Banking Games. — A statute having made
punishable the keeper or exhibitor of “any faro bank, gaming-
table, machine, or contrivance used in betting, or other game of
chance, whereby money or other thing is or may be won,’’ some-
thing like the rule of limiting general words to things of the like
kind with the specific ? was applied in the construction. It was
deemed “that,” in the language of Stiles, J. “ 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.” And “it should
appear that the table, machine, or contrivance was such as is ordi-
narily used for gambling for money or property.”
§ 867. “Gambling Device” —is a term often occurring in these
statutes; as, ‘set up or keep any table or gambling device com-
1 Daniel, J. in Commonwealth v. Wy- 8 Ante, § 245 et seq.
att, 6 Rand. 694, 702. 4 Ritte v. Commonwealth, 18 B. Monr.
2 The State v. Red, 7 Rich. 8. And _ 36, 39, 40.
see Crow v. The State, 6 Texas, 334; The
State v. Grider, 18 Ark. 297.
504
CHAP. L. ] GAMING — THE LAW.
§ 870
monly 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.” Under which and other like provisions, —
Cards — have been adjudged to be a gambling device.!
And —
Keno — the same.?
§ 868. Changes in Game.—If, after the statute is enacted, the
parties change the name of a game,? or make mere colorable
alterations in the game itself, they do not thereby escape its
penalties.
§ 869. “Device or Substitute for” — (Cards —- Ramps — Dom-
inos).— A statute made it punishable to play, under circum-
stances pointed out, “ with cards or dice, or with any device or
substitute for the same.” ® And the game of “ ramps” was held
to fall within the prohibition; being, in the words of Gold-
thwaite, J. ‘played with a substitute or device for cards.” He
said: “ 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 a device or substitute
for cards, but we are very clear that the evidence we have stated
tends to establish that fact.” *
§ 870. “Wager” and “Bet,” distinguished.— The words “wager”
and “bet,’’ as used in the law of gaming, are in substance equiv-
1 The State v. Herryford, 19 Misso.
877; The State v. Lewis, 12 Wis. 434.
But see The State v. Mann, 2 Oregon,
238.
2 Portis v. The State, 27 Ark. 360;
Trimble v. The State, 27 Ark. 355. See
ante, § 863 and note. As to Gambling
Device, — see, further, Euper v. The
State, 35 Ark. 629; Watson v. Martin,
10 Cox C. C. 56; McCoy v. Zane, 65
Misso. 11; Toney v. The State, 61
Ala. 1.
3 The State v. Maurer, 7 Iowa, 406.
4 McGowan v. The State, 9 Yerg. 184.
5 Flynn v. The State, 34 Ark. 441.
And see and compare Smith v. The State,
17 Texas, 191, 192; Harris v. The State,
383 Ala. 873; The State v. Kelly, 24
Texas, 182; Cohen v. The State, 17
Texas, 142; The State v. Grider,.18
Ark. 297; Bartender v. The State, 51
Ind. 73.
6 Windham v. The State, 26 Ala. 69,
70.
7 Bryan v. The State, 26 Ala. 65.
505
§ 872 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
alents, yet distinguishable. 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 au-
thority that makes it mean the subject on which a bet is laid.”
Consequently, a statute punishing those “ 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,” 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. Their Meaning.— These words severally imply a risk,
not solely on one side, but on both; though it need not be equal.?
A wager is said to be complete when the offer to bet is accepted.
The placing of money on the gaming-table is an offer, and the
owner of the table not objecting is an acceptance, rendering the
offence fully committed. It is now immaterial that the game is
not played out, and so the bet is neither lost nor won.?
§ 872. “Betting” and “Gaming,” distinguished. — Though, under
some circumstances, the terms betting and gaming are practically
synonymous,‘ they are not necessarily or always so. Yet a bet-
ting on what is not a game may constitute gaming. Thus, —
Betting on Horse-race. — To bet on a non-gaming horse-race may
be gaming.® But, consistently with this view, under the statu-
tory words, ‘play at any game whatever, except bowls, chess,
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 was in Virginia held not to be prohibited. A contrary con-
clusion was reached in Indiana ;* also, in Maine, under a statute
differently expressed.2 So —
Betting on an Election — may be gaming,® or not,!° according to
the statutory terms and the views of the particular court. And —
1 Smoot v. The State, 18 Ind. 18. 486. Compare with Neal v. Common-
2 Quarles v. The State, 5 Humph. 561; wealth, 22 Grat. 917.
Jordan v. Kent, 44 How. Pr. 206; Lucas 7 Wade v. Deming, 9 Ind. 35. See
v. Harper, 24 Ohio State, 328; post, The State v. Lovell, 10 Vroom, 463.
§ 937. , 8 Ellis v. Beale, 18 Maine, 337. See
8 The State v. Welch, 7 Port. 463. also Bledsoe v. Thompson, 6 Rich. 44;
4 Ante, § 858-861. The State v. Blackburn, 2 Coldw. 235.
5 Ante, § 862. -® Post, § 936.
6 Commonwealth v. Shelton, 8 Grat. 19 The State v. Henderson, 47 Ind. 127;
592. See also The State v. Moseley, 14 The State v. Smith, Meigs, 99,
Ala. 390; Bagley v. The State, 1 Humph.
506
CHAP. L.] GAMING —THE LAW. § 874
§ 873. Further as to Horse-racing. — Horse-racing is, in some of
the States, generally by reason of protecting statutes, specially
favored; so that wagers upon the result are collectible in the
courts! But in other States the contrary view is taken ; more-
over, in many, there are statutes intended to suppress or control
both racing and wagers.2_ A race with mares, or with mules, is a
‘“‘horse-race”’ within these enactments.®
No Penalty. — Where the forbidding statute is silent as to the
punishment, the racing is made thereby an indictable misdemeanor
at the common law.*
§ 874. Betting “Money.” — The thing forbidden to be bet is by
some of the statutes ‘“money,’’—a word which ordinarily signi-
fies only what is legal tender. So that the betting of what is
not coin is not within this provision.’ Still the Maryland court
held the deposit of a note of ee bank of: Virginia, as a wager or
bet, to be a deposit of “money” within the act of 1838, c. 392.7
And, in harmony with the general doctrine, the betting of checks
or counters of a faro bank, agreed by the parties to be represen-
tatives of money between themselves, is adjudged to be a betting
of money.’ It is the same also where the loser is to pay the
liquor bill for the company, or to pay for the use of the table, or
the like ; the thing bet being deemed money.®
1 Barret v. Hampton, 2 Brev. 226;
Kirkland v. Randon, 8 Texas, 10; Mc-
Elroy v. Carmichael, 6 Texas, 454; Dun-
man v. Strother, 1 Texas, 89. See Mc-
Elroy v. Chancellor, 8 Texas, 270; John-
son v. Lansley, 12 C. B. 468, 22 Eng. L. &
Eq. 468.
2 The State v. Posey, 1 Humph. 384;
Gibbons v. Gouverneur, 1 Denio, 170;
Bledsoe v. Thompson, 6 Rich. 44; Van
Valkenburgh v. Torrey, 7 Cow. 252;
Ellis v. Beale, 18 Maine, 337; Lewis v.
Littlefield, 15 Maine, 233; Huff v. The
State, 2 Swan, Tenn. 279; Myers v. The
State, 8 Sneed, 98; Watson v. The State,
8 Ind. 128. And see ante, § 848.
3 Goldsmith v. The State, 1 Head,
154,
4 Redman v. The State, 33 Ala. 428.
See ante, § 138; Crim. Law, I. § 237.
5 Ante, § 346.
6 Horton v. The State, 8 Eng. 62;
Johnston v. The State, Mart. & Yerg.
129.
7 Doyle v. Baltimore, 12 Gill & J. 484.
To the like effect, Flynn v. The State, 34
Ark. 441; Porter v. The State, 51 Ga. 300.
8 Ashlock v. Commonwealth, 7 B.
Monr. 44; Walton v. The State, 14 Texas,
881. And see ante, § 346; The State v.
Welch, 7 Port. 463.
9 Bachellor v. The State, 10 Texas,
258, 262; Hitchins v. People, 39 N. Y.
454; Commonwealth v. Taylor, 14 Gray,
26,29; Ward v. The State, 17 Ohio State,
32; Stone v. The State, 3 Texas Ap. 675;
The State v. Book, 41 Iowa, 550. See
The State v. Leighton, 3 Fost. N. H. 167;
People v. Sergeant, 8 Cow. 189;. Com-
monwealth v. Gourdier, 14 Gray, 390;
McDaniel v. Commonwealth, 6 Bush, 326 ;
The State v. Cooster, 10 Iowa, 453; Mal-
lory v. The State, 62 Ga. 164; McInnis
v. The State, 51 Ala. 23; Simms v. The
State, 60 Ga. 145; The State v. Hall, 3
Vroom, 158; Harbaugh v. People, 40 Mil.
294. Iicense of Game. — The licensing
of a game may render harmless a betting
507
§ 878 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 875. Betting “Valuable Thing” -—In some of the statutes, a
term to denote the subject of the wager is “ valuable thing.” }
Tt need be of no intrinsic worth, being valuable if it will bring
value. Such is even a written memorandum of a sort not col-
lectible in law. It, as in the cases mentioned in the last section,
need only represent value as between the parties.”
§ 876. Setting up or permitting Gaming * — (“ Enticing”). — Un-
der a statute making it an offence to “set up or keep” any gam-
bling device designed, &c. for “‘ playing any game of chance for
money or other property, and” to ‘induce, entice, or permit
any person to bet or play at or upon any such gaming-table,” it
was held that there might be a complete enticing though no
money was bet or won. If the statute requires the gambling
device to be in a house “ belonging” to the defendant, “or by
him occupied, or of which he has at the time the possession or
control,” it is a sufficient defence that he had sublet the premises
to a third person, who had the exclusive right and possession.®
But if the letting was for the purpose of the unlawful use, it will
avail nothing.®
§ 877. Suffering Minors — (Mistake of Age).— Under the stat-
utes making punishable the suffering of minors to play at gam-
ing,’ it is a sufficient defence, that, after due diligence and proper
inquiry, the defendant honestly believed the person not to be a
minor, but to have attained his majority ;* though, on the other
hand, this has been denied.® It is the same question of mistake
of fact which the author has discussed in other connections.”
§ 878. Place of Gaming.— The place of the gaming is under
some of the statutes an element in the offence." Various terms
Scott v. The State, 29 Ga. 263. And see
Robinson v. The State, 24 Texas, 152.
thereon. Hawkins v. The State, 33 Ala.
433; Blewett v. The State, 34 Missis.
606, 614. But the license must be valid.
Schuster v. The State, 48 Ala. 199. And
see ante, § 858, note.
1 Ante, § 346, note; Hamilton v. The
State, 75 Ind. 586.
2 Gibbons v. People, 33 Ill. 442, 446.
And see Nuckolls v. Commonwealth, 32
Grat. 884; The State v. Bishel, 39 Iowa,
42.
3 Ante, § 852, 854.
4 The State v. Fulton, 19 Misso. 680;
The State v. Smith, 19 Misso; 683. See
ante, § 867.
5 The State v. Ebert, 40 Misso. 186;
508
See, as to the Arkansas statutes and
their interpretation, The State v. Still-
well, 20 Ark. 96; Stith v. The State, 13
Ark. 680. As to Indiana, see The State
v. Hope, 15 Ind. 474.
6 Commonwealth v. Adams, 109 Mass.
344.
7 Ante, § 852.
8 Stern v. The State, 53 Ga. 229, 230.
9 Commonwealth v.Emmons,98 Mass.6.
10 Ante, § 596 a, 596 b, 631 a, 632, 632,
663-665; Crim. Law I. § 301-310.
1 Ante, § 221. And see Bass v. The
State, 37 Ala. 469.
CHAP. L. ] GAMING — THE LAW. § 879
to designate it have already been explained ; as, ‘ public place,” }
“ public house,” ? “ outhouse,” ® or ‘ outhouse where people resort.” §
Then we have, as probably not needing explanation, such expres-
sions as “house where spirituous liquors are retailed,” > ‘ sa-
loon,” ® “ the premises,” 7 ‘* public gambling-house,” ® “ highway”
(meaning a public way in distinction from a private one),?
“place.” 10 There are other statutes against gaming in particular
places, in distinction from gaming generally ; but they have not
led to expositions of doctrine rendering advisable a further con-
sideration of the topic.”
§ 879. “Common Gambler.”— There are analogies” for the
proposition, that, for one to be a “common gambler” under a
statute, he must have gambled in at least three specific instances,
which should be shown against him, with other facts. But a
Kentucky case holds a single instance sufficient, when taken in
connection with circumstances, like the display of gaming imple-
ments. Said Underwood, J.: “* While many acts of gaming may
be palliated, so as to show that the general conduct and practices,
of an individual are not such as to constitute him a common gam-
1 Ante, § 298; Purcell v. Common-
wealth, 14 Grat. 679; Commonwealth »v.
Sylvester, 13 Allen, 247; Lowrie v. The
State, 43 Texas, 602.
2 Ante, § 299.
8 Ante, § 291; Smith v. The State, 37
Ala. 472.
4 Ante, § 291; Swallow v. The State,
20 Ala. 80; The State v. Norton, 19
Texas, 102, 205; Wheelock v. The State,
15 Texas, 260; Cain v. The State, 30 Ala.
634.
5 Napier v. The State, 50 Ala. 168;
Ray v. The State, 50 Ala. 172; Phillips
v. The State, 51 Ala. 20; Johnson v. The
State, 36 Texas, 198; Galbreath v. The
State, 836 Texas, 200; Harcrow v. The
State, 2 Texas Ap.511. Likewise
one who procures another to lay a wager for his profit,® or bets
with money which another furnishes,’ is equally guilty as though
he staked personally his own money,’—a doctrine liable to be
varied by the special terms of the statute.®
1 Commonwealth v. Hopkins, 2 Dana,
418. And see The State v. Markham, 15
La. An. 498; Howard v. The State, 64
Ind. 516.
2 Bowe v. The State, 25 Ind. 415;
Hamilton v. The State, 25 Ind. 426.
8 Ante, § 185; Hayes v. The State, 55
Ind. 99.
* People v. Shear, 7 Cal. 1839; Hayes
v. The State, supra.
5 Commonwealth v. Burns, 4 J.J. Mar.
177.
6 Williams v. The State, 12 Sm. & M.
68. But see, on this general doctrine,
510
O’Blennis v. The State, 12 Misso. 311;
English v. Young, 10 B. Monr. 141.
7 Iseley v. The State, 8 Blackf. 403.
And see, on this point and the last, Com-
monwealth v. Drew, 3 Cush. 279; Hinkle
v. Commonwealth, 4 Dana, 518; The
State v. Purdom, 3 Misso. 114; Ward v.
The State, 22 Ala. 16.
8 And see Stone v. The State, 3 Texas
Ap. 675. For other points, see Elliott v.
The State, 26 Ala. 78; Johnson c. The
State, 4 Sneed, 614.
® Ante, § 145; Bass v. The State, 37
Ala. 469.
CHAP. LI.]
GAMING — THE PROCEDURE.
§ 884
CHAPTER LI.
GAMING — THE PROCEDURE.
§ 882, 883.
884-892.
893-917.
918-926.
927-930.
Introduction.
Particular Forms of Gaming.
Particular Questions.
Specially of Betting on Games.
Specially of Horse-racing and the like.
§ 882. What for this Chapter.— By reason of the great num-
bers and diversities of the statutes, we shall in this chapter, as in
the last, keep within general doctrines, and references to the
cases which will enable the reader to trace them for himself into
their details ; assuming that he has before him the books local to
his State.
§ 883. How Chapter divided. — We shall consider, I. The Pro-
cedure for some Particular Forms of Gaming; IIL. Particular
Questions of Procedure; III. Specially of Betting on Games ;
IV. Specially of Horse-racing and the like.
I. The Procedure for some Particular Forms of Gaming.
§ 884. Indictment in General. — The indictmeut for each of the
several forms of offence is drawn after the general rules for the
indictment on statutes, and upon the particular statutory terms,
to all of which it must conform.
1 Post, § 908, 909; The State v. Jef-
frey, 33 Ark. 186; Zook v. The State, 47
Ind. 463 ; Alexander v. The State, 48 Ind.
894; Gallagher v. The State, 26 Wis.
423 ; Carper v. The State, 27 Ohio State,
672; The State v. Allen, 69 Ind. 124;
Johnson v. The State, 36 Texas, 198;
Donniger v. The State, 52 Ind. 326; Com-
monwealth v. Edds, 14 Gray, 406; The
State v. Cooster, 10 Iowa, 453; Perez v.
The State, 48 Ala. 856; The State r.
Alvey, 26 Texas, 155; The State v. Ar-
nold, 87 Texas, 409; The State v. Shult,
41 Texas, 648; Longworth v. The State,
41 Texas, 508; The State v. Howery, 41
Texas, 506; Elsberry v. The State, 41
Texas, 158; Roberts v. The State, 382
Ohio State, 171; Davis v. The State, 32
Ohio State, 24; Howard v. The State, 64
Ind. 616; The State v. Homan, 41 Texas,
155; Galbreath v. The State, 36 Texas,
200; Herron v. The State, 36 Texas, 285 ;
The State v. Roderica, 35 Texas, 507;
The State v. Jurgins, 31 Texas, 588;
511
§ 887 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 885. Fraudulent Winning. — In England, the statute of 9 Anne,
c. 14, which appears to have been in force until 1845, made it an
offence to win ‘“‘any sum or sums of money or other valuable
thing,” by “any fraud or shift, cosenage, circumvention, deceit,
or unlawful device, or ill practice whatsoever, in playing at or
with cards, dice, or any,” &c. And it was a good indictment
thereon to say, that the defendant, at a time and place specified,
by fraud, &c. as above, in playing at cards, to wit, stating the
names of the game and of the person played with, did win and
acquire to himself a large sum of money, to wit, saying how
much [of the property of such person !], &c. concluding as for a
statutory miscdemeanor.?
§ 886. The Evidence. — Archbold? observes, that, to sustain
this indictment, the defendant must be shown to have won the
money, or some part of it,* by the averred fraud. And a “ vari-
ance between the indictment and evidence, as to the game played
Gif stated) would be fatal.” Also, if the thing won is alleged to
be bills of exchange, the proof must be so.$
§ 887. Winning more than Sum named.— The statute of Anne
also made indictable those who should, ‘“‘at any one time or
sitting, win of any one or more person or persons whatsoever
above the sum or value of ten pounds.” And it was adequate in
allegation to say, that, at a specified time and place, the defend-
ant, by playing at and with cards, at a game and with a person
named, did win of him at one time and sitting above the sum
and value of ten pounds, that is to say, the sum of sixty pounds
{of his moneys], &c.8
The State v. Stogsdale, 67 Misso. 630;
Wheeler v. The State, 42 Md. 563; Batre
v. The State, 18 Ala. 119; Eubanks v.
The State, 17 Ala. 181; Sheppard v. The
State, 1 Texas Ap. 304; Lindsey v. The
State, 48 Ala. 169; King v. The State, 3
Texas Ap. 7; Commonwealth v. Crupper,
8 Dana, 466; The State v. Ames, 10
Misso. 743; The State v. Kesslering, 12
Misso. 665; The State v. Austin, 12 Misso.
576; Campbell v. The State, 2 Texas Ap.
187; Rice v. The State, 3 Kan. 141; Me-
Gaffey v. The State, 4 Texas, 166; Carr
v. The State, 50 Ind. 178; The State v.
Thomas, 50 Ind. 292; Territory v. Copely,
1 New Mex. 571; The State v: Anderson,
80 Ark, 131; Leath v. Commonwealth,
512
82 Grat. 873; Moore v. The State, 65 Ind.
213; Gibbons v. People, 33 Ill. 442.
1 Unnecessary. Reg. v. Moss, Dears.
& B. 104, 7 Cox C. C. 200.
2 Archb. Crim. Pl. & Ev. 10th Lond.
ed. 657. Under the Illinois statute,
Blemer v. People, 76 Ill. 265. See The
State 7. Stillwell, 16 Kan. 24.
8 Tb. 657, 658.
4 See Rex v. Darley, 1 Stark. 359.
5 See Rex v. Rogier, 2 D. & R. 431, 1
B. & C. 272.
® Rex v. Darley, supra.
* Probably unnecessary, as see ante,
§ 885, note.
8 Archb. Crim. Pl. & Ev. 10th Lond.
ed. 658.
CHAP. LI.] GAMING — THE PROCEDURE. . § 890
§ 888.. The Evidence. The exact sum won need not be proved
as laid; it must simply be shown to be over ten pounds, for if
less the offence was not committed.!_ The winning is at one sit-
ting where the company does not separate, though the playing
should not be continuous, as where dinner intervenes ; ‘to lose
ten pounds at one time,” said Blackstone, J. “isto lose it by a
single stake or bet.” 2
§ 889. Permitting Gaming by Minors. — The statutes on this
subject? are not in uniform terms; and, whatever they may be,
the indictment must duly cover them.* It must set out, for
example, that a game was played, and with whom, or allege an
excuse for not naming him.’ And where-the playing was charged
to be with “ persons” unknown, and it was proved to have been
with one “person,” the variance was adjudged fatal.® If the
statute is silent as to the defendant's knowledge of the minority,
there need. be neither allegation nor proof of such knowledge,
while yet the want of it will in the proper circumstances consti-
tute a good defence.‘ The fact of minority must be proved asa
part of the State’s prima-facie case,> the. “congregating”’ of
minors where this is an element of the offence,? and the same of
all the rest.
§ 890. Permitting or setting up Gambling Device or Place. —
Where the thing forbidden is the permitting of a gambling device
on one’s premises, it is sufficient to charge that the defendant did
there permit such device, specifying it; without alleging, what is
not a necessary part of the offence, that there was gaming thereon.”
The indictment should as far specify the place as the statute does.”
The chief rule, in all cases of this sort, is to cover duly the statu-
1 Crim. Proced. I. § 4885; Rex v.
Darley, 1 Stark. 359.
2 Bones v. Booth, 2 W. BI. 1226.
3 Ante, § 877. ”
4 Zook v. The State, 47 Ind. 463;
Donniger v. The State, 52 Ind. 326;
Powell v. The State, 62 Ind. 631; Ready
uv. The State, 62 Ind. 1; Manheim v. The
State, 66 Ind. 65; Bond v. The State,
52 Ind. 457; Conyers v. The State, 50 Ga.
103; Green v. Commonwealth, 5 Bush,
327; The State v. Ward, 57 Ind. 537.
5 Zook v. The State, supra; Alexander
v. The State, 48 Ind. 394.
§ Moore v. The State, 65 Ind. 213.
33
7 Crim. Proced. I. § 522, 523; ante,
§ 675, 877; Commonwealth v. Emmons,
98 Mass. 6.
8 Ante, § 482; Commonwealth v. Em-
mons, supra.
9 Powell v. The State,.supra.
10 Conyers v: The State, supra; Bar-
tender v. The State, 51 Ind. 73; Squier v.
The State, 66 Ind. 317, 604; Hipes v. The
State, 73 Ind. 39.
11 The State v. Scaggs, 33 Misso. 92;
The State v. Thomas, 50 Ind. 292. And
see The State v. Whitworth, 8 Port.
434.
. 2 The State v. Mansker, 36 Texas, 364.
513
§ 893 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
tory terms.!
gations.?
§ 891. Permitting Gaming. — The indictment for this form of
the offence is substantially the same as for the last. The statu-
tory terms must be duly and formally covered.2 And the proofs
must establish the essential allegations.*
§ 892. Permitting Gambling Table to be exhibited. — An indict-
ment for this offence, if it covers the statutory terms, is good
when it says, that, at a time and place stated, the defendant,
being the owner of, &c. specifying the building, &c. did then and
there unlawfully, &c. permit and suffer a certain gambling table,
called, &c. to be exhibited and carried on in the said premises.5
And the proofs must sustain all the essential alle-
II. Particular Questions of Procedure.
§ 893. Negativing Exceptions and Provisos.— We saw, in an-
other connection,® what exceptions and provisos in a statute
must, as general doctrine, be negatived in an indictment, and
what need not be.
Within the distinctions there laid down,
some of the statutes against gaming require the negation,’ others
do not.8
1 The State v. Bullion, 42 Texas, 77;
Wheeler v. The State, 42 Md. 563; En-
wright v. The State, 58 Ind. 567; Han-
rahan v. The State, 57 Ind. 527; Rice v.
The State, 3 Kan. 141; Territory ».
Copely, 1 New Mex. 571; The State v.
Fulton, 19 Misso. 680; The State v.
Smith, 19 Misso. 683; Truitt u. People,
88 Ill. 518; Montee ». Commonwealth, 3
J. J. Mar. 182; The State v. Foster, 2
Misso. 210; The State v. Kesslering, 12
Misso. 565; The State v. Austin, 12 Misso.
576; The State v. Fletcher, 18 Misso. 425;
Stoltz v. People, 4 Scam. 168; Campbell
v. The State, 2 Texas Ap. 187.
2 The State v. Cooster, 10 Iowa, 453 ;
Rice v. The State, 3 Kan. 141; Harris v.
The State, 5 Texas, 11; Chase v. People,
2 Colo. 509; The State v. Howery, 41
Texas, 506; The State v. Whitworth, 8
Port. 434.
3 The State v. Middleton, 11 Iowa, 246;
Commonwealth v. Fraize, 5 Bush, 325;
Perez v. The State, 48 Ala. 356; Enwright
v. The State, 58 Ind. 567; Montee v. Com-
monwealth, 3 J. J. Mar. 1382; Common-
514
wealth v. Lampton, 4 Bibb, 261; Buford
v. Commonwealth, 14 B. Monr. 24; Mc-
Gaffey v. The State, 4 Texas, 156; The
State v. Crowder, 39 Texas, 47; The State
v. Noyes, 10 Fost. N. H. 279; The State
v. Kennedy, 1 Ala. 31; The State vw.
Noland, 29 Ind. 212; Metz -. Common-
wealth, 2 Met. Ky. 14; Commonwealth v.
Bolkom, 3 Pick. 281; Commonwealth v.
Arnold, 4 Pick. 251; Commonwealth v.
Pattee, 12 Cush. 501; Commonwealth »v.
Stowell, 9 Met. 572; The State c. Brice,
2 Brev. 66. 8:
* Redgate v. Haynes, 1 Q. B. D. 89;
Chase v. People, 2 Colo. 509; Common-
wealth v. Bolkom, supra; O’Brien v. The
State, 10 Texas Ap. 544; Schooler v. The
State, 57 Ind. 127.
® Clark v. The State, 19 Ala. 552.
6 Crim. Proced. I. § 631-641.
7 Holt v. Commonwealth, 2 Bush, 33,
36.
8 Clark v. The State, 19 Ala. 552;
Romp v,. The State, 3 Greene, Iowa, 276.
See ante, § 606, 755.
CHAP. LI.] GAMING — THE PROCEDURE. § 896
§ 894, Name of Third Person playing. — Commonly, to identify
the particular instance, the indictment should by the better
opinion allege the name of the third person with whom the game
was played, if known; or, if not known, say that it is to the
jurors unknown.! But this is not required by all our courts,
under every form of the statutory provision; nor is it easy to
derive from the cases an exact rule as to when such name be-
comes indispensable? But, on principle, where the transaction
is otherwise identified, or where the playing is not of the essence
of the offence, the giving of the players’ names should not be
deemed important; as, for example, —
§ 895. For permitting Gaming-Tables. — Under the Alabama
statute against permitting gaming-tables to be exhibited on one’s
premises, it is unnecessary, we have seen,* to allege the name of
the person by whom the particular table complained of was
exhibited.! So likewise, in this form of the offence, the names of
the players on the table or other device need not be averred.®
§ 896. Name of Game.— Where the names of the players, the
date, and the locality are alleged, and in other respects the statu-
tory terms are covered, there would appear to be a sufficient
identification of the transaction without adding the name of the
game.
1 Crim. Proced. I. § 546-552, 566, 570;
Butler v. The State, 5 Blackf. 280; The
State v. Irvin, 5 Blackf. 343; Zook vu.
The State, 47 Ind. 463; Alexander vu.
The State, 48 Ind. 394; Donniger v. The
State, 52 Ind. 326; Bond ce. The State,
62 Ind. 457; 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. 652; Buck
v. The State, 1 Ohio State, 61; Davis v.
The State, 22 Ga. 101, 102%. See, also,
Moffatt v. The State, 6 Eng. 169.
2 Green v. People, 21 Ill. 125; Coggins
v. The State, 7 Port. 263; Romp v. The
State, 8 Greene, Iowa, 276; Johnson v.
The State, 86 Texas, 198; Roberts v. The
State, 82 Ohio State, 171.
3 Ante, § 892.
4 Clark v. The State, 19 Ala. 652.
5 The State v. Thomas, 50 Ind. 292;
Chase v. People, 2 Colo. 509; Common-
wealth v. Crupper, 3 Dana, 466. In In-
diana, an indictment charged, “ that M.,
. from circumstances.
And so, in general, are the authorities;* while yet, if
on, &e., at, &c., and continuously from
that day until the day of the finding 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 tenement, to be used and occu-
pied for gaming, contrary, &c.” And
this was held to be good; while, to sus-
tain it, no more need be proved than that
the defendant kept any one of the places
during the time and for the purpose al-
leged. The gambling need not be shown
by direct evidence ; it may be inferred
McAlpin vu. The
State, 3 Ind. 567. See also Bowe vu. The
State, 25 Ind. 415; Hamilton v. The
State, 25 Ind. 426; Commonwealth v.
Branham, 8 Bush, 1; Commonwealth v.
Fraize, 5 Bush, 325; The State v. Lewis,
12 Wis. 434; Frisbie v. The State, 1
Oregon, 264.
6 Groner v. The State, 6 Fla. 39.- To
515
§ 900 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the name is given, it must be proved, to avoid a variance And,
under numerous statutes, more or less in the way of describing
the game is required. There are even statutes under which it
has been held necessary to give the name of the game, or aver it
as unkniown.®
§ 897. Name of Device.— Where the statute declares a partic-
ular thing by name —for example, “faro” —to be a ‘“ game,”
then forbids the betting at such “ gaming-table or bank,” an in-
dictment is good which alleges that the defendant “did bet at a
gaming bank commonly called a faro bank ;” for the court judi-
cially knows that to be a game which the statute has specified as
such. But under other statutory terms, the allegation must be
more or less varied from this model.
§ 898. Thing played for — (Money).— Where the playing for
a particular thing — as, for example, “ money ’’ 5 — is an element
in the offence, it must be alleged. But if neither the punish-
ment nor the jurisdiction of the tribunal depends on the sum, the
indictment need not say how much ;® otherwise, it must specify
the sum." Still, —
§ 899. Needless Mention of Sum.— In those cases wherein the
sum is not required to be stated, no harm will come from averring
it. And proof of a different sum will sustain the allegation.$
§ 900. “Valuable Thing.” — Under the statutory term “ valuable
thing,” ® differing from “‘money,” the indictment must be more
the like effect.see The State v. Maxwell,
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; Commonwealth v. Crupper, 3 Dana,
466; Campbell v. The State, 2 Texas Ap.
187.
1 The State v. Anderson, 30 Ark. 131.
An indictment for unlawfully playing
at cards is supported by proof of betting
at a game of faro. Gibboney v. Com-
monwealth, 14 Grat. 582. Where the
charge was an unlawful playing with
cards, to wit, at the game of “all fours,”
of “loo,” and of “whist,” it was held
that the defendant must be shown to
have played at some one of the games
specified. Windsor v. Commonwealth, 4
Leigh, 680.
2 The State v. Gitt Lee, 6 Oregon, 425;
516
Webster v. The State, 8 Blackf. 400. See
The State v. Ritchie, 2 Dev. & Bat. 29.
3 The State v. Jeffrey, 33 Ark. 136.
+ The State v. Burton, 25 Texas, 420;
Commonwealth v. Monarch, 6 Bush, 301;
The State v. Lewis, 12 Wis. 434; Com-
monwealth v. Monarch, 6 Bush, 298;
The State v. Blair, 41 Texas, 30; Blair
v. The State, 32 Texas, 474; The State
v. Bristow, 41 Texas, 146; Ben v. The
State, 9 Texas Ap. 107.
5 Ante, § 874.
5 Moffatt v. The State, 6 Eng. 169;
Commonwealth v. Tiernan, 4 Grat. 545;
The State v. Ward, 9 Texas, 870.
7 Long v. The State, 13 Ind. 566.
8 Medlock v. The State, 18 Ark. 363;
Parsons v. The State, 2 Ind. 499; Com-
monwealth v. Garland, 3 Met. Ky. 478.
® Ante, § 876.
CHAP. LI.] GAMING — THE PROCEDURE.. § 902
specific! and say what the particular valuable thing was.?
And, —
' § 901. Proof of Thing — (“Money”). — Though money need
not always be proved in amount as alleged,’ the thing, whatever
it is, must be of the averred kind. If, for example, the accusa-
tion is, that the. defendant won five dollars, it is not made good
by showing that he won a promissory note for five dollars ; be-
cause such note is not money. Nor is the charge that money
was bet, sustained by: proof of the betting of any other property.®
If the money was. seen lying on the table where the defendant
and others were playing, the jury may infer that it was bet on
the game. .
§ 902. Place of Gaming. — Where the place at which the
gaming is carried on — as, “ public place,” “* public house,”’ or.
the like — is an element of the offence,’ a charge simply that it
was in the county is not sufficient, the particular statutory place
must also be specified. But the name of its owner need not be
added ;° or, if given, it need: not be proved. If the statutory
term is general, the indictment must be made more specific; if
specific, the nee word alone will suffice in allegation." To
illustrate, —
“ Outhouse.” — Where the expression in the statute was ‘ out-
house where people resort,” the averment was held sufficient
which. laid. the game “in a certain outhouse to which divers
people. did then. and there resort.” 1? So—
“House of Entertainment ” —- “ House for retailing,” &e. — To lay
the offence simply as in “a house of entertainment,” !° or “ house
for retailing spirituous liquors,” 14 will suffice where these are the
statutory words, But—.
1 Crim. Proced. I. § 568-570; ante,
§ 426, 440.
2 Anthony v. The State, 4 Humph. 83,
85.
8 Ante, § 898, 899.
4 Tate v. The State, 5 Blackf. 174;
ante, § 346, 874. .
5 Hale v. The State, 8 Texas, 171.
6 Rice v. The State, 10 Texas, 545.
And see Wilcox v. The State, 26 Texas,
145; St. Louis v. Sullivan, 8 Misso. Ap.
455; The State v. Andrews, 43 Misso.
470.
7 Ante, § 878.
8.The State v. Langford, 3 Ire. 354;
Shihagan 2 The State, 9 Texas, 430,
Hord v. Commonwealth, 4 Leigh, 674.
® The State v. Atkyns, 1 Ala. 180.
10 Wilson v. The State, 5 Texas, 21;
Prior v. The State, 4 Texas, 383. Yet
query, and see post, § 911; Crim. Proced.
I. § 488 0.
11 Crim. Proced. I. § 566-584; ante,
§ 426, 440; People v. Saviers, 14 Cal. 29;
The State v. Atkyns, supra.
12 The State v. Norton, 19 Texas, 102.
18 Linkous v. Commonwealth, 9 Leigh,
608.
14 Sublett v. The State, 9 Texas, 53.
And see Rodgers v. The State, 26 Ala. 76.
olT
§ 905 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
§ 903. “Public Place ” — “Public House.” — The terms “ public
place” and “public house” are alone, respectively, too indefi-
nite; the indictment must be more specific.1 Yet, in Alabama,
a statute has made the general expression adequate.2 Now, —
§ 904. Form of Specific.— Where the gaming was alleged to
have occurred ‘“‘ near McFadden’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 adequate2 And
it was the same where the allegation was, that the defendant did
play “at a certain game with cards at the county jail in the town
of G. in H. county, said jail being then and there a public
place.” * So also it was sufficient to say, that the accused “did
unlawfully play at a game with cards at a public house; to wit,
in the back room of the store-house of 8,” adding time and
venue.” But it was adjudged inadequate to say, “at the grocery
of D. & C.,” there being no averment that the grocery was a
‘public place,” or a ‘ place of public resort.” 6
§ 905. Time — (Place for retailing Liquors). — Where the
statutory place was “any tavern, inn, storehouse for retail-
ing spirituous liquors,” &c., an allegation that the defendant,
“in the county aforesaid, did play at cards in a storehouse
where spirituous liquors are retailed,” was adjudged ill; be-
cause it did not appear from this, as it ought, that the store-
house was a place where spirituous liquors were retailed at the
time when the playing occurred.’ But the. following was sus-
tained: “ 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.’
1 The State v. Jurgins, 31 Texas, 588,
589; The State v. Fuller, 31 Texas, 559;
Elsberry v. The State, 41 Texas, 158;
The State v. Barns, 25 Texas, 654; Mil-
lican v. The State, 25 Texas, 664. And
see Commonwealth v. Perrigo, 3 Met. Ky.
5; Bosshard v. The State, 25 Texas
Supp. 207.
2 Roquemore v. The State, 19 Ala.
5628; Flake v. The State, 19 Ala. 551.
See, also, Burnett v. The State, 30 Ala.
19.
3 The State v. Lopez, 18 Texas, 33.
518
* The State v. Arnold, 37 Texas, 409.
5 Sheppard v. The State, 1 Texas Ap.
804. And see Manheim v. The State, 66
Ind. 65.
6 Roberts v. Commonwealth, 10 Leigh,
686. See McGaffey v. The State, 4
Texas, 156. And see, as to this question,
ante, § 897, 903.
7 The State v. Coleman, 3 Ala. 14.
3 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.
CHAP. LI.] GAMING — THE PROCEDURE. § 909
§ 906. “Highway or other Public Place.”.— Under the statute
quoted in an earlier section,! where the expression was “ any
public house or highway, or any other public place,” an allegation
of playing ‘at a public place” was adjudged not sustained by
proof of a playing in a “highway.”? _
§ 907. Law or Fact.— Where all the facts are agreed, it is
plainly enough, in principle, a question of law whether or not
the place in controversy is within the statutory terms. But
commonly the facts are not agreed; and then the court instructs
the jury in the meaning of the particular term, and they are to
say whether or not the place is within it. Possibly some of the
eases go a little further than this — if so, too far — in remitting
the question to the jury.*
§ 908. Statutory Terms.— The general doctrine, as to how
closely an indictment on a statute must copy its words, is ex-
plained elsewhere.’ Under the present head, —
“Gaming” — “Gambling.” — Where “gaming” was the statu-
tory word, “gambling” in the indictment was held not to be ill
as a substitute.®
“ Paro-bank ” — “Faro.” — A statute having made it an offence to
exhibit ‘ any faro-bank,” an allegation in the words “ gambling-
table commonly called faro”’ was sustained.’
“With” — “at” —“ With” and “at,” in such phrases as play-
ing a“game with cards,” and “ game at cards,” are admissible
substitutes for each other.’
§ 909. Expanding beyond Statutory Words. — We have seen
elsewhere when, in general, an indictment on a statute must be
expanded beyond its terms.? Under most of the statutes against
gaming, the allegations need only cover the statutory words.”
But there are exceptions. Thus, —
“Like Kind.” — A Virginia statute made punishable the keep-
ing or exhibiting of “a gaming-table commonly called A B C, or
1 Ante, § 298. Ray v. The State, 50 Ala. 172; The State
2 Bush v. The State, 18 Ala. 415. v. Huston, 12 Texas, 245.
8 Crim. Proced. I. § 989 a, 989 6. ® Crim. Proced. I. § 623-630; post,
4 The State v. Alvey, 26 Texas, 155; § 942.
Cherry v. The State, 30 Texas, 439. 10 Ante, § 884; People v. Beatty, 14
5 Crim. Proced. I. § 608-622. Cal. 566; Spratt v. The State, 8 Misso.
6 The State v. Nelson, 19 Misso. 393. 247; The State v. Ward, 9 Texas, 370;
7 Brown v. The State, 5 Eng. 607. Crain v. The State, 14 Texas, 634; Reeves
“ Holland v. The State, 3 Port. 292; v. The State, 9 Texas, 447.
The State v. Shult, 41 Texas, 548. See
519
§ 910 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
E O table, or faro-bank, or a table of the like kind, under any
denomination, whether the game or table be played with eards,
dice, or otherwise.” And, said the court: “ Where the offence
charged is the exhibition of any of the gaming-tables enumerated,
nothing more need be averred; for the statute makes exhibiting
of any of the gaming-tables named a penal offence. And there-
fore 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 exhibition of it is unlawful. Where
the offence charged is for keeping and exhibiting a game not
enumerated, there must be some averment showing it to be one
of the unequal games belonging to the same class with the enu-
merated games.” Again: “ The charge that the game is unlaw-
ful does not cure the defect. The offence must be so charged as
to appear to be unlawful; 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 en-
large or extend the force and effect of the terms employed to
deseribe the act, so as to make the act unlawful when it dees not
appear to be so by the deseription itself.” 2
§ 910. Variance.—-We have seen something of variance? in
these cases. Among the adjudged points are —
Persons playing. — The winning and playing must be proved to
have been between the persons alleged. Thus, where the charge
was, that the defendant won from A, B, and C, proof of a win-
ning by him and another, as partners, from A and C, as partners,
was held to present a fatal variance.© And so it is where the
allegation is of a winning or losing with several persons named,
and the facts disclose the same of a part only of them.® Like-
wise an averment that A lost, is not supported by proof that A
and others lost jointly.; Again, one count charged, that the
defendant and four other persons did “ bet together and against
each other;” and the other count, that he and the other four
“did bet together.” The proof was, that the other four played
1 Roberts v. Commonwealth, 10 Leigh, 8 Crim. Proced. 1. § 483-488 e..
686; Bishop v. Commonwealth, 13 Grat. 4 Ante, § 896, 899, 901, 902, 906.
785. See post, § 922. 5 Wilcox v. The State, 7 Blackf. 456,
2 Huff v. Commonwealth, 14 Grat. 648, 6 Iseley v. The State, 8 Blackf. 403.
6850, 651. See, also, Bryan v. The State, T Jackson v. The State, 4 Ind. 560.
26 Ala. 65.
520
CHAP. LI. ] GAMING — THE PROCEDURE. § 913
the game, while he stood by and bet with one of them; three
bet together, one did not bet. And it was held that there could
be no conviction; for, needlessly complicated though the allega-
tion was, it must be in form proved.!
§ 911. Owner of Place.— Where the offence was set out as
committed at the booth of Peter Spinner, and it appeared in
evidence to have been at the booth of one Clark, and Spinner
had no interest or agency in this booth, the variance was ad-
judged fatal,2—a conclusion perhaps not quite in accord with a
doctrine explained a little way back.
§ 912. Joinder of Defendants. — Offenders may be indicted
jointly for this offence on the same principles as for other crimes.*
They are not to be charged separaliter, except where the trans-
actions are separate and distinct ;5 and then, it seems, this nearly
obsolete method is permissible, though not to be commended.®
Where the indictment is joint against two, and the proof is that
one played with a particular third person on one occasion, and
the other with another person on another occasion, and no joint
guilt is shown, both cannot be convicted.7
§ 913. Statutory Modifications of Procedure. — In some of the
States, there are statutes special to gaming, simplifying the forms
of procedure; as, —
Indictment. — As early as 1824, it was provided in Tennessee,
that, in this offence, ‘‘no presentment or indictment shall .be
quashed for want of form ; and, in all such cases, it shall be suf-
ficient 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, drawn on a statute not given
in the report, was held to be good: “That A, late of, &e.,
on, &c., at, &c., was guilty of unlawful gaming, by then and
there wagering and betting money on a certain unlawful game
l 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 Ante, § 902.
£ Crim: Proced. I. § 463 et seq.; Com-
monwealth v. McGuire, 1 Va. Cas. 119;
Galbreath v. The State, 36 Texas, 200;
Herron v. The State, 86 Texas, 285,
The State v. Homan, 41 Texas, 155; The
r
State v. Roderica, 35 Texas, 507; Parker
v. The State, 26 Texas, 204.
5 Covy v. The State, 4 Port. 186.
6 Crim. Proced. I. § 476; The State v.
Homan, supra. And see Parker v. The
State, supra.
i Elliott v. The State, 26 Ala. 78.
And see Lindsey v. The State, 48 Ala,
169.
521
§ 917 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
and match at cards, contrary to the form of the statute.”!
Again, —
§ 914. Continued. —JIn this condition of the laws, it was ad-
judged sufficient to say, that the defendant, on, &c., at, &c.,
“with force and arms, did unlawfully encourage and promote a
certain unlawful game and match at cards for money; and then
and there unlawfully did play for and bet money at the said
game and match at cards, contrary,” &c.?
§ 915. Evidence — (Witnesses). — We have a few special pro-
visions for compelling evidence, — not of a general character.®
§ 916. Limitations.— The general principles governing statutes
of limitations? apply in gaming. The burden is on the State to
prove the offence within the statutory period, not on the defend-
ant to show that it is barred.’ If the statute against gaming
provides the punishment of both fine and imprisonment, the
limitations statute may in a particular case have run as to the
one and not as to the other.®
§ 917. Other Points. — Some other points connected with the
pleading and evidence appear in the cases cited in the note,’ but
no special explanations of them are deemed important here.
Recognizance.— A recognizance has been deemed not good
which simply binds the party to answer to a charge of “ gam-
ing;” because “gaming is not of itself alone an indictable
offence.” And it is the same of one to answer to a charge of
“‘playing at a game of cards.” ® But one to appear and answer
to an indictment for keeping a gaming-table was sustained.”
1 The State v. McBride, 8 Humph. 66.
2 Dean v. The State, Mart. & Yerg.
127. And see Dobkins v. The State, 2
Humph. 424; The State v. McBride, 8
Humph. 66, 67, 68.
3 Kneeland v The State, 62 Ga. 395;
The State v. Henderson, 47 Ind. 127, oyer-
ruled in Frazee v. The State, 58 Ind. 8;
Batre v. The State, 18 Ala. 119. And see
Ward v. The State, 2 Misso. 120; The
State v. Quarles, 13 Ark. 307; Orr v.
The State, 18 Ark. 540; Higdon v. Heard,
14 Ga. 255.
4 Ante, § 257 et seq.
5 Ante, § 264; Manning v. The State, 35
Texas, 723; The State v. Waters, 1 Strob.
59; Stevens v. The State, 3 Pike, 66, 70.
6 The State v. Dent, 1 Rich. 469. And
see ante, § 261 d.
522
1 Harris v. The State, 31 Ala. 362;
The State v. Stallings, 3 Ind. 531; Com-
monwealth v. Tiernan, 4 Grat. 545; The
State v. Howe, 1 Rich. 260; Stockden v.
The State, 18 Ark. 186; Durham x. The
State, 1 Blackf. 23; Ervine rv. Common-
wealth, 5 Dana, 216; Crain v. The State,
14 Texas, 634; Willis v. Warren, 1 Hil-
ton, 590; The State v. Noland, 29 Ind.
212; Nuckolls v. Commonwealth, 32 Grat.
884; Robinson v. The State, 24 Texas,
152.
8 Commonwealth v. West, 1 Dana, 165;
The State v. Cotton, 6 Texas, 425.
® Cotton v. The State, 7 Texas, 547.
And see McDonough v. The State, 19
Texas, 293; Bailes v. The State, 20 Texas,
498.
10 Whitfield v. The State, 4 Pike, 17L
CHAP, LI.] GAMING — THE PROCEDURE. § 922
III. Specially of Betting on Games.
§ 918. Already, — under the last sub-title, much of what
would be appropriate under the present one has been explained.
§ 919. Indictment. — The indictment, which will vary with the
statute, is ordinarily sufficient if it covers the statutory terms, in
a manner to make the offence affirmatively appear! Counts for
exhibiting a faro bank, and for betting on the game, may be
joined?
§ 920. Thing Bet.— Commonly the thing bet should be stated.?
Under which rule the words “goods, wares, and merchandise,
being valuable things,” not describing anything more specifically,
were held to be too indefinite. But, —
§ 921. Continued. —In some of our States, there are statutes
rendering generally or in particular circumstances this averment
unnecessary. So that, for example, it was adjudged sufficient
to say, that the defendant “unlawfully did bet at a faro bank,
the said faro bank being then and there kept and exhibited for
the purpose of gaming.’’® And the same was held of the allega-
tions, that the defendant ‘“‘did bet at a certain gaming-bank,
then and there exhibited and kept, called monte;”7 and that
the defendant bet money “at a certain gambling device, called
rondeau.”’ 8
§ 922. Describing Game.— If the game at which was the bet-
ting is one of those forbidden by name in the statute, the indict-
ment need only mention it by the name. But if it is pointed to
simply by such words as ‘‘ of the like or similar kind, or of any
other description, although not named,” the indictment for bet-
1 Warren v. The State, 18 Ark. 195,
198; Drew v. The State, 5 Eng. 82; Gra-
ham v. The State, 1 Pike, 171; The State
v. Holland, 22 Ark. 242; Booth v. The
State, 26 Texas, 203; Ben v. The State,
9 Texas Ap. 107; Anderson v. The State,
9 Texas Ap. 177; The State v. Bristow,
41 Texas, 146; The State v. Blair, 41
Texas, 30.
2 The State v. Holland, supra.
3 Ante, § 898-901; Warren v. The
State, 18 Ark. 195; Bone v. The State,
68 Ala. 185; Napier v. The State, 50 Ala.
168; Ray v. The State, 50 Ala. 172.
4 The State v. Kilgore, 6 Humph. 44,
45. See Bagley v. The State, 1 Humph.
486.
5 Harrison v. The State, 15 Texas,
239; Jacobson v. The State, 55 Ala. 151 ;
Mitchell v. The State, 55 Ala. 160.
6 Blair v. The State, 82 Texas, 474.
7 McKissick ce. The State, 2 Texas,
356.
3 The State v. Mann, 13 Texas, 61.
See, also, Estes v. The State, 10 Texas,
800; The State v. Prewitt, 10 Texas, 310;
Ramey v The State, 14 Texas, 409;
Cohen v. The State, 17 Texas, 142.
528
§'927 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
ting at it must so far describe it as to bring it affirmatively within
the statutory inhibition. Simply to say, for example, that the
defendant betted ‘“ upon and against a certain gambling device,
commonly called the blind tiger,” where the words “ blind tiger”
are not in the enactment, is inadequate.}
§ 923. Person bet with.— The question of naming or not such
person is within principles already explained? It was in one
case in Arkansas adjudged unnecessary to allege that the defend-
ant bet with any particular individual.?. But under another pro-
vision of the act, making it punishable “if any person shall be
guilty of betting any money,” &c. the court required the name
of the player to be given to identify the transaction,* —a rule
afterward changed by a statute which declared it unnecessary to
set out the name of the players.®
§ 924. Locality. — If, by construction of the statute, the betting
is equally punishable whether the playing is in the same or an-
other county, only the betting, not also the playing, is required
to be charged as in the county of the indictment.®
§ 925. The Nature of the Game,—as, for example, where the
betting is at a faro bank, — need not be particularized.’
'§ 926. Adequate.—In Missouri, the averments that the de-
fendant “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 prop-
erty,” were adjudged sufficient.$
IV. Specially of Horse-racing and the like.
§ 927. On Highway — (Indictment).— The indictment on a
statute forbidding horse-racing ‘ along a public highway” ® need
not set out the termini of the way.° Under some of the statutes,
1 The State v. Grider, 18 Ark. 297. 6 The State v. Kyle, 10 Misso. 389.
See ante, § 909. 7 The State v. Ames, 1 Misso. 524.
2 Ante, § 894, 895. And see ante, § 896.
3 Drew v. The State, 5 Eng. 82; 8. p. 83 The State v. Flack, 24 Misso. 378.
in Missouri, The State, v. Kyle, 10 Misso. 9 Watson v. The State, 3 Ind. 123.
389, 10 The State v. Armstrong, 3 Ind. 189;
4 Parrott v. The State, 5 Eng. 574; The State v. Burgett, 1 Ind. 479; The
Barkman v. The State, 13 Ark. 703. State v. Brown, 1 Ind. 532. . And see
5 Orr v. The State, 18 Ark, 540. Myers v. The State, 1 Ind. 251.
024
CHAP. 11.] GAMING — THE PROCEDURE. § 930
if there are two defendants, it must be charged that they ran
“ together ;” ! to omit which is not always fatal after verdict.?
§ 928. In Proof of Highway,— it is prima facie sufficient to
show, that the racing was on a road leading from one town
to another in the county.’
§ 928 a. Variance. — A charge that the defendant suffered his
horse to be run in a horse-race is not sustained by proof that he
rode a horse, not his own, in the race.*
§ 929. Betting on Horse-race.—In Tennessee, an indictment
alleging that the defendant * unlawfully did bet twenty dollars
upon a horse-race, and . . . said. horse-race was not run upon a
track or path kept for the purpose of horse-racing,” was held to
be insufficient ; because, by the statute, the running of the race
was an element in the offence, and this indictment does not show
that it was run.6 But an indictment in slightly varied terms, —
namely, that the defendant ‘did bet on a horse-race money, &c. ;
said race not being runon a legally licensed track,” — was held
good under a statute declaring it a misdemeanor “to make any
bet or wager for money.” ®
§ 930. Betting on Shooting-match. — The indictment for betting
on a shooting-match must, in Tennessee, to render apparent its
unlawfulness under the statute, charge that the shooting was
within two hundred yards of a public road of the first or second
class.’
1 The State v. Catchings, 43 Texas, Yet, in an earlier case, an indictment in
654 ; Lewellen v. The State, 18 Texas, nearly the same terms was held to be
538. adequate. The State v. Posey, 1 Humph.
2 King v. The State, 3 Texas Ap. 7. 384.
® Watson v. The State, 3 Ind. 128. 6 The State v. Blackburn, 2 Coldw.
* Robb ». The State, 52 Ind. 216. 235.
5 Dobkins v. The State, 2 Humph. 424. 7 The State v. Bess, 5 Coldw. 55.
525
§ 934
OFFENCES MORE PURELY STATUTORY.
[BOOK VI.
CHAPTER LII.
BETTING ON ELECTIONS,
§ 981, 932. Introduction.
933-937. Law of the Offence.
938-949. The Procedure.
§ 931. Related to last Chapter. — The subject of this chapter is
within the principles of the last.
simply from convenience.
Its separate treatment here is
§ 982. How divided.— We shall consider, I. The Law of the
Offence ; II. The Procedure.
I. The Law of the Offence.
§ 933. In Civil Jurisprudence. -—- Without the aid of any stat-
ute, betting on an election is contrary to the policy of the law,
and the sum bet cannot be recovered! in an action against either
the party or the stakeholder.? There are also in some of the
States statutes to enforce this doctrine.?
§ 934. Criminal by Statute. — Pretty generally in our States,
statutes have made such betting a crime.
Their terms vary: as,
in Kentucky, they are or have been, “shall wager or bet any
sum of money, or other thing, upon the election of any of the
1 Bishop Con. § 489-491.
2 Ball v. Gilbert, 12 Met. 397; Worth-
ington v. Black, 13 Ind. 344; Murdock v.
Kilbourn, 6 Wis. 468; Duncan v. Cox, 6
Blackf. 270; Lloyd v. Leisenring, 7
Watts, 294; Wagonseller v. Snyder, 7
Watts, 343; Columbia Bank, &c. Co. v.
Haldeman, 7 Watts & S. 233; Harper v.
Crain, 86 Ohio State, 838, 343; Gilmore
v. Woodcock, 70- Maine, 494; Brush »v.
Keeler, 6 Wend. 250; Cooper v. Brews-
ter, 1 Minn. 94; Barham », Livingston,
12 La. An. 618; Bevil v. Hix, 12 B.
Monr. 140; Guyman v. Burlingame, 36
Ill. 201; Nudd v. Burnett, 14 Ind. 25;
526
Sipe v. Finarty, 6 Iowa, 394; Craig v,
Andrews, 7 Iowa, 17; Wheeler v. Spen-
cer, 15 Conn. 28; Gardner v. Nolen, 3
Harring. Del. 420; Wroth v. Johnson, 4
Har. & McH. 284; Bunn v. Riker, 4
Johns. 426. But see Morgan ». Pettit, 3
Scam. 629. And see ante, § 848, 872,
873; Pulver v. Burke, 66 Barb. 390;
Johnston v. Russell, 87 Cal. 670.
3 Hickman »v. Littlepage, 2 Dana, 344;
Morgan v. Pettit, 3 Scam. 629; Common-
wealth ». Moore, 2 Dana, 402; Givens v.
Rogers, 11 Ala. 543, And see Conner v.
Raglan, 15 B. Monr. 634; Commonwealth
vu. Avery, 14 Bush, 625.
CHAP. LI. ] BETTING ON ELECTIONS. § 937
officers” mentioned in a previous section, “ within six months
next before the election;’’+ in Alabama, “make any bet or
wager of money or other thing of value, upon any election ;”? in
Indiana, “ bet or wager any money or other valuable property on
the result of any election.” 8
§ 935. Election over. — The foregoing Alabama provision was
held not applicable to a betting after the election is overt But
in Mississippi, under words slightly different, — namely, “ upon
the result of any election,’ — the court deemed, that a betting after
the votes have been cast and before the result is ascertained, is,
while less mischievous than a betting before they are cast, within
the words and sufficiently within the spirit of the act, therefore
adjudged it punishable.) —
What Elections. — In the absence of special terms, these stat-
utes do not extend to elections for State officers in other States,
or to unauthorized elections within the State ;® but they do, to
an election in another State for officers of the United States,’ or,
a fortiori, for the like in the State of the prosecution.
§ 936. “Game” and “Gaming.” — We have seen that these
words are in meaning specially flexible.2 Under the somewhat
varying Indiana statutes, betting on an election has been held to
be and not to be a “ game.” 1
§ 937. What the Betting. — A bet implies risk to both parties.!!
Therefore a sale of goods on a fair valuation, to be paid for when
a particular candidate is elected, is not a wager; for the pur-
chaser can in no event sustain a loss.“ But where the agreed
price is above their value, the buyer is liable to lose the difference
between the two sums, therefore the transaction is a wager.
! Commonwealth v. Kirk, 4 B. Monr. 1.
2 Givens v. Rogers, 11 Ala. 543. For
the Ohio law, see Veach »v. Elliott, 1 Ohio
State, 139.
3 Bicknell Crim. Pr. 425, referring to
Laws, 1857, p. 35, 2 G. & H. 465, note f.
+ The State v. Mahan, 2 Ala. 340.
5 Miller v. The State, 33 Missis. 356.
6 Hickerson v. Benson, 8 Misso. 8.
7 Miller v. The State, 33 Missis. 356;
Gregory v. King, 58 Ill. 169, overruling
Smith v. Smith, 21 Ill. 244, and Morgan
v. Pettit, 3 Scam. 529.
8 McClurken v. Detrich, 33 Ill. 349;
Quarles v. The State, 5 Humph. 661;
ante, § 205. And see Williams v. The
State, 12 Sm. & M. 58. See further on
the matter of this section, Commonwealth
v. Kennedy, 15 B. Monr. 5381.
9 Ante, § 857-861.
19 Hizer v. The State, 12 Ind. 330;
Woodcock v. McQueen, 11 Ind. 14; Fra-
zee u. The State, 58 Ind. 8, overruling
The State v. Henderson, 47 Ind. 127.
1 Ante, § 871. The contingency is
determined when the vote is cast, though
the official count and returns have not
been made. Hizer v. The State, 12 Ind.
330.
12 Quarles v. The State, 5 Humph. 561.
13 Givens v. Rogers, 11 Ala. 643; Par-
sons v. The State, 2 Ind. 499.
527
§ 940 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
And there are cases which hold generally, that any promise to
pay money if a person named is elected to office is a wagering
contract, not enforcible.! Illustrations of bet are, that a par-
ticular candidate will receive a specified number of votes,” that
he will beat another candidate,? and that the result of the elec-
tion will be so orso.* An agreement between parties that the one
who fails in an estimate shall make the other a present of a coat,
is a bet.6
II. The Procedure.
§ 938. Course of Discussion. — We shall consider, First, The
Indictment ; Secondly, The Evidence.
First. The Indictment : —
Winning. — The allegation may be, if so the statutory terms
are covered, that the defendant, at a time and place mentioned,
did unlawfully win and take from a person named one hat [of
the value of, &c.],° by then and there unlawfully betting and
wagering with him for the said hat upon the result of a certain
election had and held on, &c.’ It has been adjudged ill to
charge that, at a specified time and place, the defendant did
“‘ win” money on the “result” of an election subsequently held.®
§ 939. Betting. — Where it is a statutory offence to ‘‘ wager or
bet” “any money or other valuable thing” “ upon the result of
any election,” the allegation may be, that, at a time and place
specified, the defendant bet, with a person named, a fifty dollar
bank-note against a horse, upon the result of an election to be
held, &c.2 Or—
§ 940. Continued. — The form may be, that, at a time and place
alleged, the defendant did lay a wager and bet of fifty dollars
with one B that C would be elected Governor of, &c. at an elec-
tion to be held, &c., the said C being then and there a candidate
nominated for public office, to wit the office of, &c.!
1 Craig v. Andrews, 7 Iowa, 17; Sipe 8 The State v. Windell, 60 Ind. 300.
v. Finarty, 6 Iowa, 394; Nudd v. Burnett, 9 Miller v. The State, 33 Missis. 356.
14 Ind. 26. And see Williams v. The State, 12 Sm. &
2 Commonwealth v. Kirk,4B.Monr.1. M. 68; ante, § 935. In 2 Morris State
3 Commonwealth v. Pash, 9 Dana, 31. Cases, 1809, the form, in substance, given
+ The State v. Cross, 2 Humph. 301. in the next section of the text, as ap-
5 Cain v. The State, 13 Sm. & M. 456. proved in Pennsylvania, is inserted for
6 See ante, § 427, 444. use in Mississippi. .
7 Hizer v. The State, 12 Ind. 330; 10 Sherban v. Commonwealth, 8 Watts,
Bicknell Crim. Pr. 427. 212.
528
CHAP. LII.] BETTING ON ELECTIONS. § 948
-§ 941. Averment of Election. — Speaking of the form epitomized
in the last section, Sergeant, J. said: ‘* 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 defend-
ant made a bet dependent on an election for Governor, to be
held in October, 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.”
§ 942. Expanding beyond Statutory Words. — On the question
of expanding the allegation beyond the words of the statute,? we
have from Kentucky some intimations which perhaps may not be
deemed in accord with the first two of the forms just indicated.
The statute made punishable any one who “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.’”? And 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 tobe 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 candidate 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.” So, proceeding on this interpretation, the court
held it insufficient simply to set out a bet, that, at an approach-
ing election specified, a particular person 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 manner
proposed for the office at the election.2 Now, —
§ 943. As to which, — the conclusion of the court would seem
legitimately to follow from its interpretation of the statute. But
so strict a rendering is believed, on principle, not to be required.
If, before the political parties had held any preliminary meetings,
one person should bet with another that an individual named
1 Sherban v. Commonwealth, 8 Watts, 2 Crim. Proced. I. § 623-680; ante,
212, 218. -And see, under the title“ Elec- § 447, 796, 909.
tion Offences,” ante, § 828 et seq. “8 Commonwealth v. Shouse, 16 B.
Monr. 325.
34 529
§ 946 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
would not be elected to the office, the evil meant to be prevented
by the statute would be done; and the offence, thus committed,
ought not to be deemed in law to be taken away, should the for-
mer person, stimulated by his interest in the bet, spread so many
falsehoods about the individual as to preclude his being even
talked of afterward for a candidate. Such a case, coming, there-
fore, within the policy of the law, as well as its words, would
not demand expansion in the allegation beyond the statutory
terms.
§ 944. Name of Person with whom the Bet.— By what is be-
lieved to be the current of decision, and, it is submitted, in prin-
ciple,’ the indictment should state the name of the person with
whom the bet was made, if known; or, if unknown, aver it to
be so.2, Yet an indictment was sustained which charged that
two defendants did “ unlawfully bet and wager a sum of money,
to wit, one hundred dollars, on the result of an election which
was held,” &c. ; for it sufficiently appeared that the betting was
with each other,? —a form not to be commended.
§ 945. Value.— The value of the thing bet should be men-
tioned if necessary to its description or an element affecting the
punishment. Otherwise it need not be.‘
§ 946. Summary.— The indictment must state when the elec-
tion was to be held. But it need not add, that the law required
it to be held then. It must also say what was the purpose of
the election ; that is, whether for President, for Governor, or the
like... An averment, that ‘‘there was an election held in the
State of Tennessee for President and Vice-President of the United
States of America,’ was adjudged to be sufficient, though, in
exact language, it was for electors of President and Vice-Presi-
dent; for, said Caruthers, J. “it is in substance for President
and Vice-President.” § But, under the national Constitution,
1 Ante, § 894-897 ; post, § 1037.
2 Lewellen v. The State, 18 Texas,
538; The State v. Little, 6 Blackf. 267.
In Tennessee this averment is held not
to be necessary; a statute there provid-
ing, that “it shall be sufficient to charge
the general name of the game, without
setting forth and describing with or
against whom they may have bet or
played.” The State v. Trotter, 5 Yerg.
184. See The State v. Smith, Meigs, 99;
post, § 1037.
530
8 The State v. Smith, 24 Misso. 356,
357.
4 Ante, § 938 and places there referred
to; post, § 949.
5 Lewellen v. The State, 18 Texas,
538.
6 The State v. Banfield, 22 Misso.
461.
7 Bellair v. The State, 6 Blackf. 104.
S Porter v. The State, 5 Sneed, 358,
359,
CHAP. LII.] BETTING ON ELECTIONS. § 949
presidential electors and the President and Vice-President are
chosen at different elections, held at different times and places ;
so that, where the charge was 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 candidate, there was ad-
judged to be a fatal variance.!
§ 947. Secondly. The Evidence : —
Parol — Writing. — The result of a presidential election was
adjudged to be provable 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.” 2
Probably, in most of the States, it is immaterial to the offence
what the result is ; for which reason, there is no occasion either
to allege or prove it.’ If the terms of the bet are in writing, the
writing should be produced.®
§ 948. Time of Bet.— Where, from the dates in the indict-
ment, the bet appears to have occurred before the election was
held, it is still no variance to prove a bet made afterward, before
the result was known.!
§ 949. Value.— The value of the thing bet must, when neces-
sarily alleged,’ be so far proved as to make the offence and its
punishment appear.® But it need not be proved, or proved as
laid, where it is not an ingredient in the crime and the averment
is surplusage.’
1 Gamble v. The State, 35 Missis. 222. 4 Miller v. The State, 83 Missis. 356.
2 Williams v. The State, 12 Sm. &M. See ante, § 935.
58, 63. And see, as to Indiana, Hizer v. 5 Ante, § 945.
The State, 12 Ind. 330. ® Crim. Proced. I. § 488 5.
3 Caldwell v. The State, 63 Ind. 283; 7 Commonwealth v. McAtee, 8 Dana,
Frazee v. The State, 58 Ind. 8. 28.
531
§ 952 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
CHAPTER LIII.
LOTTERIES,
§ 950. Introduction.
951-960. Law of the Offence.
961-966. The Procedure.
§ 950. How Chapter divided. — We shall consider, I. The Law
of the Offence; II. The Procedure.
I. The Law of the Offence.
§ 951. General and Historical. — Lotteries are a species of
gaming.! Formerly they were in our States permitted, and even
established and licensed by law, as a means of raising money for
worthy objects. But their evils were immense; both in the woes
inflicted on the weak-minded and credulous, who were induced
to buy chances in them, to be followed by bitter disappoint-
ments; and. in their baneful effects on those, termed lucky, who
drew the prizes. Later, under the influence of a healthier public
sentiment, they are pretty generally forbidden.
§ 952. Meaning of “ Lottery.” —“ By statute 10 & 11 Will. 3,
c. 17,” observes Blackstone, “all lotteries are declared to be pub-
lic nuisances, and all grants, patents, or licenses for the same to
be contrary to law. But, as state-lotteries have, for many years
past, been found a ready mode of raising the supply, an act was
made, 19 Geo. 3, c. 21, to license and regulate the keepers of such
lottery-offices.””? Whence, and from an inspection of the statute-
books of the mother country, we learn that the term “lottery”
has long been familiar to her laws. Yet we appear not to have
derived from the English books any definings of it, helpful in the
interpretations of our statutes. So that, in the absence of adju-
dications of our own, our courts look, for its meaning, to the
1 Thomas »v. People, 59 Ill. 160; Bell v. The State, 5 Sneed, 507, 509.
2 4 Bl. Com. 168.
532
CHAP. LIII. ] LOTTERIES. § 953
popular use.! But by repeated decisions, they have to some
extent given bounds to it; until, if not with absolute, yet with
proximate accuracy, —
How defined.— A lottery may be defined to be any scheme
whereby one, on paying money or other valuable thing to an-
other, becomes entitled to receive from him such a return in
value, or nothing, as some formula of chance may determine.?
§ 958. Chance to draw more than paid.— No one would ever
patronize a lottery unless the scheme showed, that, in some pos-
sible contingency, more might be drawn out than was paid in.
1 Dunn ». People, 40 Ill. 465; United
States v. Olney, 1 Abb. U.S. 275; and
other cases cited to this section.
2 Consult and compare Holoman v.
The State, 2 Texas Ap. 610; Randle v.
The State, 42 Texas, 580; The State v.
Randle, 41 Texas, 292; The State v.
Lovell, 10 Vroom, 458, 463; Chavannah
v. The State, 49 Ala. 396; The State »v.
Clarke, 33 N. H. 329; Negley v. Devlin,
12 Abb. Pr. n. s. 210; Thomas v. People,
59 Ill. 160 ; Commonwealth v. Mander-
field, 1 Pa. Leg. Gaz. Rep. 87; Common-
wealth v. Manderfield, 8 Philad. 457;
Reg. v. Harris, 10 Cox C. C. 352; France
v. The State, 6 Baxter, 478; The State v.
Bryant, 74 N. C. 207; United States v.
Hornibrook, 2 Dil. 229; Buckalew v. The
State, 62 Ala. 334; Hull v. Ruggles, 56
N. Y. 424; Swain v. Bussell, 10 Ind. 438;
Rolfe v. Delmar, 7 Rob. N. Y. 80; Dunn
v. People, 40 Ill. 465; Almshouse »v.
American Art Union, 3 Seld. 228; Peo-
ple v. American Art Union, 3 Seld. 240,
13 Barb. 577; People v. Payne, 3 Denio,
88; The State v. Pinchback, 2 Mill, 128;
Wooden v. Shotwell, 3 Zab. 465; Com-
monwealth v. Chubb, 5 Rand. 715. See
Commonwealth v. Garland, 5 Rand. 652.
In United States v. Olney, 1 Abb. U.S.
275, in an opinion by Deady, J. various
definitions of the word lottery are col-
lected, as follows : —
Worcester’s Dictionary. —* A distribu-
tion of prizes and blanks by chance; a
game of hazard, in which small sums are
ventured for the chance of obtaining a
larger value either in money or other
articles.”
Webster’s Dictionary. — ‘A disposition
of prizes by lot or chance.”
Bouvier’s Law Dictionary. — “ A 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 superior
to the amount or value of that which he
risks.”
Smith’s Wealth of Nations. — ‘‘ That the
chance of gain is naturally overvalued,
we may learn from the universal success
of lotteries.”
And the learned judge explains: “ All
these authorities agree, that, where there
is a distribution of prizes — something
valuable —by chance or lot, this consti-
tutes a lottery. But the definitions from
Worcester and the American Cyclopedia
are the most complete. From each of these
it expressly appears that a valuable con-
sideration must be given for the chance to
draw the prize.” p. 278, 279. Again:
“Tf persons already owning family plate,
pictures, or other property, not suscepti-
ble of division, or even equal division,
choose to distribute by an appeal to
lot what has thus come to them before
they had any scheme of so distributing
it, they are not within the definition of
a lottery, nor liable to this special tax.
They have not given a valuable consid-
eration for the chance of obtaining some-
thing of much greater value —a prize.”
p. 281. For another collection of defini-
tions, see Fleming v. Bills, 3 Oregon, 286.
583
§ 956 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
So that the question whether this element is essential becomes
unimportant, because it can never practically arise.?
§ 954. By whom Lot cast.— Commonly the managers of the
lottery work the scheme whereby the lot is determined.? Buta
scheme worked by the ticket holders or by third persons would
seem equally to be a lottery, though the question is perhaps not
absolutely settled.?
§ 955. Blanks — Property. — To constitute a lottery, there need
be no blanks ;* but there must be some property disposed of by lot.®
Illustrations — of schemes which have been held to be lotteries
are the “ American Art Union,”® a “gift sale”? of books,’ a
‘prize concert,” ® and ‘auction pools,” “French pools,” and
“combination pools” upon a horse-race2 Again, —
§ 956. Right to buy Chance Values. — It is a lottery where one
sells cards in envelopes, the contents of which the purchaser does
not know; except that each card contains a list of articles which
he may buy for one dollar, and the values of the articles on the
respective cards differ. “The element of chance lies,” said Law-
rence, J. “not in what the holder of the envelope may know-
ingly do with his card and dollar after he has purchased his
1 Where the tickets were sold for a
shilling, and every holder was to receive
something which, it was contended, was
worth the shilling, but there were chances
of prizes of greater value, M. Smith, J.
ruled that the scheme was a lottery.
“Whether,” he said, “the full value of
the shilling was or was not received by
the subscribers, the case comes equally
within the mischief against which the
act prohibiting lotteries was directed, in-
asmuch as the subscribers were induced
to part with their money in the hope of
obtaining not only their alleged shilling’s
worth, but something of much greater
value, the right to which was to be ascer-
tained by chance.” Reg. v. Harris, 10
Cox C. C. 852. And see United States
v. Olney, 1 Abb. U. S. 275; Wooden »v.
Shotwell, 3 Zab. 465, 4 Zab. 789 ; Seiden-
bender v. Charles, 4 S.& R. 151. Ina
Tennessee case, Caruthers, J. said: “A
lottery is a game of hazard, in which
small sums are ventured, for the chance
of obtaining greater.” Bell v. The State,
5 Sneed, 507, 509.
2 For example, Marks v. The State,
534
45 Ala. 36; Warren v. The State, 46 Ala.
549; Thomas v. The State, 59 Ill. 160;
The State v. Shorts, 3 Vroom, 398.
8 Fleming v. Bills, 3 Oregon, 286;
Dunn »v. People, 40 Ill. 465; The State v.
Clarke, 33 N. H. 829; Holoman v. The
State, 2 Texas Ap. 610. See Buckalew
v. The State, 62 Ala. 334.
+ Wooden v. Shotwell, 3 Zab. 465;
Reg. v. Harris, 10 Cox C. C. 352.
5 People v. Payne, 3 Denio, 88.
6 Almshouse v. American Art Union,
3 Seld. 228. Compare with People v.
American Art Union, 3 Seld. 240; New
York v. American Art Union, 32 How. Pr.
341. For analogous cases, see Thomas ».
People, 59 Ill. 160; Marks v. The State, 45
Ala. 36, followed in Warren v. The State,
46 Ala. 549. And see Boyd v. The State,
61 Ala. 177.
7 The State v. Clarke, 33 N. H. 329;
Bell v. The State, 5 Sneed, 507, 509.
8 Commonwealth v. Thacher, 97 Mass.
683. And see Negley v. Devlin, 12 Abb.
Pr. n. s. 210.
9 The State v. Lovell, 10 Vroom, 458,
463.
CHAP. LIII. ] LOTTERIES. § 957
envelope, but in the purchase of the envelope itself, which, it is
represented to him by the advertisement, 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 something so valueless as not to be
worth buying at any price.” ! So also—
Town Lots.— A scheme for disposing of town lots, whereby
some are sold and others are reserved to be distributed by lot
among the buyers of the former, the chance of getting a reserved
lot being among the inducements to the purchase, is a lottery.
Likewise —
Gift Exhibition. — A gift exhibition, conducted as follows, was
adjudged to be a lottery. Each patron bought a ticket at the
door, with a number on it. An exhibitor, at the close of the
exhibition, called at will a number, and the person whose ticket
bore it came forward. If the former liked his appearance, or
thought he would advertise the show well, he presented him with
one of the articles advertised as gifts; or, at the option of the
former, the distribution of presents could be dispensed with. It
was urged for the defendants, that their keeping things so under
their control, and dispensing only gifts, prevented the scheme
from being a lottery. But the court deemed, that the principle
of the lottery, chance, controlled the whole proceeding; as,
whether a man’s number would be called, whether the exhibitor
would fancy his -appearance, and whether he would be in the
mood to make any distribution of prizes.3
§ 957. Constitutional Questions. — The legislation against lot-
teries has raised some constitutional questions ; among which,
one of great importance is —
1 Dunn »v. People, 40 Ill. 465, 468.
2 United States v. Olney, 1 Abb. U.S.
275. “It matters not,” said Deady, J.
“even if the purchaser was to receive
the full value of his money in any event.
As a 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. And see ante,
§ 953, note.
3 The State v. Shorts, 3 Vroom, 398,
401. The programme of an entertain-
ment in England stated, that, at its con-
clusion, the proprietor will “distribute
amongst his audience « shower of gold
and silver treasures on a scale utterly
without parallel, besides a shower of
smaller presents, all of which will be im-
partially divided amongst the audience,
and given away.” The audience was ad-
mitted on pay. The seats were num-
bered. At the time for distribution, he
called out the numbers of the seats, one
after another, giving an article to each
occupant, until all the articles were dis-
tributed. And this was held to be a lot-
tery. Morris v. Blackman, 2 H. & C.
912.
5385
§ 957 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Making penal after Franchise granted. — When the legislature
has granted to private persons the right to raise money by a lot-
tery, some have deemed the grant a contract, which cannot be
annulled by a statute making the lottery a crime, especially after
it is accepted by the grantees and a consideration paid.' But,
contrary to this view, the legislative right to make penal the lot-
tery to the practical annihilation of the charter was maintained
by the courts of a part of the States ;* and subsequently the Su-
preme Court of the United States, the tribunal having the ulti-
mate jurisdiction over the question, has so settled it. ‘* The con-
tracts which the Constitution protects,” said Waite, C. J. “are
those which relate to property rights, not governmental.” And
“all agree that legislation cannot bargain away the police power
of the State.” 3
1 Kellum v. The State, 66 Ind. 688;
State Lottery Co. v. Fitzpatrick, 3 Woods,
222; The State v. Miller, 50 Misso. 129;
The State v. Sterling, 8 Misso. 697; The
State v. Hawthorn, 9 Misso. 389. See
Mississippi Society of Arts, &c. v. Mus-
grove, 44 Missis.820; Broadbent v. Tuska-
loosa, &c. Assoc. 45 Ala. 170; The State
v. France, 72 Misso. 41; Kitchen c.
Greenabaum, 61 Misso. 110.
2 Moore v. The State, 48 Missis. 147 ;
The State v. Morris, 77 N. C. 512; Pha-
Jen v. Commonwealth, 1 Rob. Va. 713.
And see Randle v. The State, 42 Texas,
680.
3 Stone v. Mississippi, 101 U. 8. 814,
817, 820. The learned Chief Justice
added, quoting: “Irrevocable grants of
property and franchises may be made if
they do not impair the supreme authority
to make laws for the right government
of the State; but no legislature can cur-
tail the power of its successors to make
such laws as they may deem proper in
matters of police.” Referring to Metro-
politan Board of Excise v. Barrie, 34
N. Y. 657, 668; Boyd v. Alabama, 94
U. S. 645. He proceeded: “The ques-
tion is, therefore, directly presented,
whether, in view of these facts, the legis-
lature.of a State can, by the charter of a
lottery company, defeat the will of the
people, authoritatively expressed, in re-
lation to the further continuance of such
business in their midst. We think it can-
536
not. No legislature can bargain away the
public health or the public morals. The
people themselves cannot do it, much less
their servants. [See ante, § 39 a, 40.]
The supervision of both these subjects of
governmental power is continuing in its
nature, and they are to be. dealt with as
the special exigencies of the moment may
require. Government is organized with
a view to their preservation, and cannot
divest itself of the power to provide for
them. . . . The people, in their sovereign
capacity, have established their agencies
for the preservation of the public health
and the public morals, and the protection
of public and private rights. These sev-
eral agencies can govern according to
their discretion, if within the scope of
their general authority, while in power;
but they cannot give away nor sell the
discretion of those that are to come after
them, in respect to matters the govern-
ment of which, from the very nature of
things, must ‘vary with varying circum-
stances.’ They may create corporations,
and give them, so to speak, a limited citi-
zenship; but, as citizens, limited in their
privileges, or otherwise, these creatures
of the government creation are subject
to such rules and regulations as may
from time to time be ordained and estab-
lished for the preservation of health and
morality.” p. 819,820. And see Phalen
v. Virginia, 8 How. U. S. 163.
CHAP. LIIt.] LOTTERIES.
§ 960
Penalty in Form of Taz — A penalty for carrying on a lottery
cannot be imposed by a statute declaring it to be a tax; and
authorizing the tax collectors, in default of payment, ‘to issue
execution as in other cases of defaulters.” The liability must
first be determined by the verdict of a jury.!
Seizure of Materials. — The Massachusetts statute,? authorizing
magistrates to issue warrants for the seizure of lottery tickets,
or materials for a lottery, unlawfully in possession, is consti-
tutional.®
§ 958. Advertising. — There are statutes, not requiring special
expositions, against advertising lotteries ;4 also —
Having or Selling. — Against having for sale or selling lottery
tickets,> and the like® Now,—
§ 959. Foreign Lotteries. — Within the reasons of these pro-
visions are advertisements, tickets, and the like, of lotteries con-
ducted in other States where they are lawful. The enticement
to our citizens, and its consequences, are the same as where
the drawings are at home. Therefore statutes in general terms,
forbidding things of this sort, are construed as applying to these
foreign lotteries the same as to domestic.
not unconstitutional.’
And the statutes are
§ 960. Construction of the Statutes.-— Various questions have
arisen upon the construction of these statutes.®
Thus, —
Against Policy, strict.— Where lotteries are contrary to the
1 The State v. Allen, 2 McCord, 55.
2B. S.c. 142.
3 Commonwealth v. Dana, 2 Met. 329.
And see post, § 959,
4 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.
5 Ante, § 205; The State v. Scribner,
2 Gill & J. 246; Commonwealth v. Chubb,
5 Rand. 715; Commonwealth v. Dana, 2
Met. 329; People v. Payne, 3 Denio, 88;
Phalen v. Commonwealth, 1 Rob. Va.
713; People v. Warner, 4 Barb. 314;
People v. Sturdevant, 28 Wend. 418;
Salomon v. The State, 27 Ala. 26; Salo-
mon v. The State, 28 Ala. 83; Fontaine
v. The State, 6 Baxter, 514. As to the
civil action, see McNight v. Biesecker, 1
Harris, Pa. 328; Wilkinson v. Gill, 10
Hun, 156; Edelmuth v. McGarren, 4
Daly, 467; Lanahan v. Pattison, 1 Flip.
410.
6 Treleigh v. The State, 8 Misso. 606;
Commonwealth v. Chubb, 5 Rand. 715;
The State v. Pinchback, 2 Mill, 128; The
State v. Mace, 5 Md. 337; Common-
wealth v. Lottery Tickets, 5 Cush. 369; .
Morton v. Fletcher, 2 A. K. Mar. 1387.
‘ Charles v. People, 1 Comst. 180;
The State v. Sykes, 28 Conn. 225; Wil-
kinson v. Gill, 10 Hun, 156; Rolfe v. Del-
mar, 7 Rob. N. Y. 80. See also Com-
monwealth v. Harris, 18 Allen, 534; ante,
§ 205.
8 The State v. First District Judge, 32
La. An. 719; Commonwealth v. Harris,
13 Allen, 584; Miller v. Commonwealth,
13 Bush, 731; Hill v. The State, 49 Ala.
395; Albertson v. The State, 5 Texas Ap.
89.
5387
§ 962 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
general policy and laws of the State, no uncertain or doubtful
terms in a municipal charter will be construed to authorize them
in the particular locality ;! as, —
Disposal of Property.—If it empowers the corporators to dis-
pose of property ‘“‘in any manner they deem best,” it does not
operate to enable them to do it by means of a lottery, where pro-
hibited by the general law.
II. The Procedure.
§ 961. Indictment in General.— The statutes and the offences
under them are so numerous and diverse that no general form
for the indictment becomes possible. The particular statute
must be duly followed, according to the rules for indictments on
statutes.?
Joinder.— The joinder of defendants and offences must conform
to the same rules of pleading as in other cases.‘
§ 962. Selling Ticket.—In general, an indictment for this
offence, simply following the statute, is good.6 But the indi-
vidual statute and special facts must be duly taken into the
account.® It was in one case adjudged sufficient to say, that the
defendant, at a time and place mentioned, “did wilfully, unlaw-
fully, and knowingly sell, vend, and cause to be sold and vended,
what are commonly known and called lottery policies, the par-
1 Boyd v. The State, 53 Ala. 601.
2 The State v. Krebs, 64 N. C. 604.
3 Crim. Proced. I. § 593 et seq.; Com-
monwealth v. Harris, 13 Allen, 534; Mil-
ler vy. Commonwealth, 13 Bush, 731; The
State v. Yoke, 9 Misso. Ap. 582; The
. State v. Sykes, 28 Conn. 225; United
States v. Noelke, 17 Blatch. 554; France
v. The State, 6 Baxter, 478; Common-
wealth v. Bierman, 13 Bush, 345; Com-
monwealth v. Bull, 13 Bush, 656; Com-
monwealth v. Manderfield, 8 Philad. 457;
Pickett v. People, 8 Hun, 83; Roediger
v. Simmons, 14 Abb. Pr. nw. 8. 256; Com-
monwealth v. Manderfield, 1 Pa. Leg.
Gaz. Rep. 37; The State v. Barker, 2
Gill & J. 246; Commonwealth x. Gillespie,
7S. & R. 469; People v. Sturdevant, 28
Wend, 418; Charles v. People, 1 Comst.
180; Commonwealth v. Lottery Tickets,
5388
5 Cush. 369; United States v. Patty, 9
Bis. 429.
# Miller v. Commonwealth, 13 Bush,
731; Fontaine v. The State, 6 Baxter,
514; The State v. McWilliams, 7 Misso.
Ap. 99.
5 Commonwealth v. Bull, 13 Bush,
656; France v. The State, 6 Baxter, 478;
The State v. McWilliams, 7 Misso. Ap.
99.
6 The State ». Barker, 2 Gill & J. 246;
Commonwealth v. Manderfield, 8 Philad.
457; The State v. McWilliams, 7 Misso.
Ap. 99; France v. The State, 6 Baxter,
478; Fontaine v. The State, 6 Baxter,
514; The State v. Sykes, 28 Conn. 225;
Commonwealth v. Thacher, 97 Mass. 583;
Commonwealth v. Harris, 18 Allen, 534;
The State v. Shorts, 3 Vroom, 398;
Dunn v. People, 40 Ill. 465. And see
Post, § 965.
CHAP. LIII.] LOTTERIES. § 964
ticulars whereof are unknown to the jurors aforesaid; and did
' then and there sell and vend divers of such lottery policies to
divers persons, to the jurors aforesaid unknown.” The facts thus
averred to be unknown, and so not given, were deemed to be
but of description, and not of the essence of the offence.!
§ 962 a. Advertising. — The indictment for advertising tickets
or a lottery should be framed with reference to the particular
statute and facts, and the general rules of pleading. For ex-
ample, it should probably set out the tenor of the advertisement,
though possibly not all courts will so hold. And in proper cases
averments and innuendoes should be added, as in libel, to make
plain and point the meaning of whatever is not distinctly on its
face within the inhibition?
§ 963. Having with Intent.— The charge of having lottery
tickets in possession, with the intent to sell them, need not be
expanded beyond the statutory words to say, that the selling was
intended to be within the State.*
§ 964. Setting on Foot — (Names and Description). — Accord-
ing to a New York case, the indictment for setting on foot a lot-
tery need not set out the tickets sold, or the names of the
purchasers, where they are, and are alleged to be, unknown to
the grand jury. Yet in the absence of such allegation, it should
describe the lottery ; nor is it sufficient in excuse merely to say,
that the name of the lottery is to the grand jury unknown.’ But
in Massachusetts, where a statute made punishable “ every per-
son who shall, in any house, shop, or building, owned or occupied
by him or under his control, knowingly permit the setting up,
managing, or drawing of any such lottery,” it was adjudged suf-
ficient simply to aver, that the defendant, in a house occupied by
him, “did unlawfully 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 per-
sonal property and of value were disposed of by the way of a
lottery.” There was no need to say also, that the lottery was
not authorized by law, or to give its name, or describe the articles
disposed of, or mention their value, or the names of their owners,
1 Pickett v. People, 8 Hun, 83, 84. For « like point, see Commonwealth v.
2 Crim. Proced. I. § 559-563; IL. § 403, Clapp, 5 Pick. 41. And see, as to follow-
404, 789, 790, 808, 915. ing the statute, The State v. Kennon, 21
8 The State v. Sykes, 28 Conn. 225. Misso. 262.
4 Commonwealth v. Dana, 2 Met. 329. 5 People v. Taylor, 3 Denio, 91, 99.
5389
§ 966 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
or of the persons who received them as prizes.1_ Further as to
which question, —
§ 965. Details in Allegation of Sale of Tickets.— It has been
held sufficient to allege, that, at a time and place specified, 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.? Even the name of the
purchaser has been adjudged not necessary to be given.? But
this sort of question is a little variable, depending on the special
terms of the statute and the views of the particular tribunal.’
§ 966. Evidence. — The tickets, on an indictment for selling
them, should, if possible, be produced.®
Printed envelopes for
them, and handbills advertising them, found on the defendant’s
counter and bearing his name, are admissible.®
Other Questions —- connected with the evidence, the indict-
ment, and the practice, are considered in the cases cited in the
note.”
1 Commonwealth v. Horton, 2 Gray,
69. And see Commonwealth v. Bierman,
13 Bush, 345.
2 The State v. Follet, 6 N. H. 53.
See ante, § 962.
3 The State v. Yoke, 9 Misso. Ap.
582.
4 And see The State v. Barker, 2 Gill
& J. 246; Commonwealth v. Gillespie, 7
S. & R. 469; .People v. Sturdevant, 23
Wend. 418; France v. The State, 6 Bax-
ter, 478; Commonwealth v. Manderfield,
1 Pa. Leg. Gaz. Rep. 37, 8 Philad. 457.
5 Whitney v. The State, 10 Ind. 404.
6 Dunn v. People, 40 Ill. 465.
540
7 Salomon v. The State, 28 Ala. 83;
United States v. Noelke, 17 Blatch. 554;
Commonwealth v. Frankfort, 13 Bush,
185; Commonwealth v. Bierman, 13 Bush,
345; Commonwealth v. Bull, 3 Bush, 656;
Miller v. Commonwealth, 13 Bush, 731;
The State v. Ochsner, 9 Misso. Ap. 216;
The State v. Houston, 30 La. An. 1174;
Ex parte Tompkins, 58 Ala. 71; Charles
v. People, 1 Comst. 180; People v. War-
ner, 4 Barb. 314; Commonwealth »v.
Hooper, 5 Pick. 42; Swan v. The State,
29 Ga. 616; Commonwealth v. Harris, 13
Allen, 534; Commonwealth v. Lottery
Tickets, 5 Cush. 369.
CHAP. LIV.]
. DRUNKENNESS.
§ 969
CHAPTER LIV.
DRUNKENNESS.
§ 967. Introduction. ‘
968-973 b. Law of the Offenee.
974-982. The Procedure.
§ 967. Elsewhere — we have considered the effect of drunken-
ness on the criminality of acts committed under its influence.}
Here — we are to inquire after the crime of drunkenness.
How Chapter divided. — The order will be, I. The Law of the
Offence; II. The Procedure.
I. The Law of the Offence.
§ 968. At Common Law, —a mere act of private drunkenness
is not, as elsewhere explained, indictable.”
But —
Nuisance. — One drunk in public is a sort of public nuisance ;
and, it seems, that to be a common drunkard and be abroad in-
toxicated is indictable at the common law, — a doctrine not firmly
established.3
The Tennessee court even held, that a single act
of drunkenness, public and notorious, is within the principle ; *
the North Carolina, that, to such act, there must be added some
annoyance to the public.® Again, —
§ 969. Drunkenness in Office — (Juror — Justice of Peace). —
Drunkenness by an official person in the discharge of official
duties is, in some circumstances, and, it is believed, generally, a
1 Crim. Law, I. § 397 et seq.
2 Crim. Law, I. § 399.
8 The State v. Waller, 3 Murph. 229;
and the cases cited in the notes next fol-
lowing.
4 Smith v. The State, 1 Humph. 396.
But a statute afterward provided, that
no one “shall be subject to presentment
or indictment for single acts of intoxica-
tion or drunkenness, unless he shall,
whilst so intoxicated, commit some other
indictable offence.” And this is held to
protect a single instance of drunkenness,
though public and notorious. Hutchi-
son v. The State, 5 Humph. 142.. But
such single. act is indictable since the
adoption of the Code.. The State v.
Smith, 3 Heisk. 465. See also. post,
§ 974,
5 The State v. Deberry, 5 Ire. 371;
The State v. Waller, 3 Murph. 229.
541
§ 972 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
punishable malfeasance under the unwritten law.1_ So that, for
example, a grand juror is indictable at the common law for
getting drunk when on duty, thereby “disqualifying himself
for the discharge of the office of a juror.”? And in Virginia it
was adjudged, that drunkenness by a justice of the peace, while
performing his official functions, is a misbehavior furnishing cause
to amerce him and remove him from office.?
§ 970. Statutes. — We have in more or less of our States stat-
utes against specified forms of drunkenness; particularly against
being a—
“Common Drunkard ”— “Habitual Drunkard.” — The two expres-
sions ‘common drunkard ” and “ habitual drunkard” are equiv-
alents.* There is said to be no “fixed rule” defining such
drunkard. “ Occasional acts of drunkenness” are not enough ;®
nor, on the other hand, need the party be always, or even daily,
drunk.6 One case holds, following some analogies,’ that, at least,
three specific instances of being drunk must be shown. And
still the drunkenness must be “ habitual,” or “common;” so
that simply to be drunk three times within a given period does
not constitute a common drunkard.® As to —
§ 971. Disturbing Public. — One to be a common drunkard need
not disturb the public by his drunkenness.” Nor need he be
drunk in public; at least, it is sufficient that his drunkenness
occurred in another’s room in the house wherein he resides.!!
Moreover — ‘
§ 972. From what Drinks — (Chloroform — Opium). — The
drunkenness must proceed from some form of the liquors popu-
larly termed intoxicating. A similar inebriety from chloroform ”
or opium #8 does not come within the statutory term.
1 Crim. Law, I. § 459 et seq.; IL
§ 971-982.
2 Pennsylvania v. Keffer, Addison, 290.
And see Crim. Proced. I. § 869, 925.
8 Commonwealth v. Alexander, 4 Hen.
& M. 622, 1 Va. Cas. 156; Commonwealth
v. Mann, 1 Va. Cas. 308.
£ Commonwealth v. Whitney, 5 Gray,
85, 86; Commonwealth v. McNamee, 112
Mass. 285.
5 Ludwick v. Commonwealth, 6 Har-
ris, Pa. 172.
6 1 Bishop Mar. & Div. § 813; Com-
monwealth v. McNamee, supra.
542
7 Ante, § 879, and the places there re-
ferred to.
8 The State v. Kelly, 12 R. I. 535.
® Commonwealth v. Whitney, supra;
The State v. Pratt, 34 Vt. 8323; Mapes v.
People, 69 Ill. 523.
19 Commonwealth v. Conley, 1 Allen,
6, 7.
11 Commonwealth v. Miller, 8 Gray,
484.
12 Commonwealth v. Whitney, 11 Cush.
477. /
13 1 Bishop Mar. & Div. § 813.
CHAP. LIV, ] DRUNKENNESS. § 977
§ 978. Public Drunkenness — (Way). — There are variously-
worded statutes against public drunkenness.!. One making it
punishable to be found drunk in any street, alley, or other pub-
lic place, has been held to extend only to these localities within
the compact parts of cities and villages, not including a highway
in the country?
§ 973 a. “Permit Drunkenness.”— To “ permit” a thing is to
suffer it in another. One does not ‘“‘ permit drunkenness” who
simply gets drunk himself.3
§ 973 6. By-law. — A town, by statute authorized to prevent
“riots, noise, disturbance,” &c. and “ preserve peace and order,”
may provide by ordinance for the arrest and punishment of per-
sons found drunk.‘
Il. The Procedure.
§ 974. Indictment for Nuisance at Common Law.— The allega-
tions for this form of the offence’ should conform to what the
pleader believes the court will hold the law to be. They may
be, for example, that, at a time and place specified, the defendant
was “openly and notoriously drunk, to the disturbance of the
public peace,” &c.6 Yet simply the former clause of these quoted
words has been adjudged inadequate.’
§ 975. Drunk in Public Place. — On a statute making it pun-
ishable to be “‘ found in any public place in a state of intoxica-
tion,” an indictment was held good which alleged, that, on, &.
at, &c. the defendant was “found in a public street, highway,
and sidewalk, situated, &c. unlawfully in a state of intoxi-
cation.” §
§ 976. Drunkenness in Office — should be charged according
to the terms of the statute. An allegation as against a private
person will not justify the special penalty.
§ 977. Charging as Nuisance. — Whatever be the true doctrine
! Hill v. People, 20 N. Y. 363; Evans 7 Smith v. The State, 1 Humph. 396.
v. The State, 59 Ind. 563; The State v. 8 The State r. Waggoner, 52 Ind. 481;
Moriarty, 74 Ind. 108; The State v. 8. p. The State v. Moriarty, 74 Ind. 103.
Waggoner, 52 Ind. 481; ante, § 968. ® Carpenter v. The State, 6 Baxter,
2 The State v. Stevens, 36 N. H. 59. 535. In Mississippi, if the official term
8 Warden v. Tye, 2 C. P. D. 74. expires before judgment, the case can go
4 Bloomfield v. Trimble, 54 Iowa, 399. no further. Stubbs v. The State, 53
5 Ante, § 968. Missis. 487.
6 Tipton v. The State, 2 Yerg. 542.
548
§ 980 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
as to alleging a nuisance to have been “ to the common nuisance,”
&c.! nothing of the sort is required or customary in the class of
cases now under contemplation. Even —
“Common Drunkard.” — The statutory offence of being a com-
mon drunkard does not necessarily come within the principle of
a@ common nuisance ;” so that, assuming the conclusion “to the
common nuisance ”’ to be indispensable in all nuisances, it is not
in this offence? Now, — |
§ 978. How aver “Common Drunkard.” — Where the statute
simply makes it punishable to be a * common drunkard,” with no
further particularization or description of the offence, it is pretty
plainly sufficient to allege, that on, &c. at, &c. the defendant
was a common drunkard, concluding as for any ordinary statutory
misdemeanor ;* though it has been widely the practice to add
words pointing to the elements of the crime.’ The case is like
that of ‘‘common scold,” “common barrater,” and some others,
explained elsewhere.®
§ 979. Whether allege as continuing. — As this offence can be
committed either on one day or on many days, it is within prin-
ciples involved in some others already explained ;* whereby the
pleader may allege it to have heen committed on a given day, or
with a continuando, at his election. Then, —
As to Proof.— Though one day only should be averred, the
proof may be of drunkenness on any other day, or any number of
other days.’ Still, by reason of a doctrine peculiar to Massachu-
setts,® it is in this State held that the evidence must be restricted
to one day.!°
§ 980. Follow Statute. — Within the rule of following the
statute,42 —
“Violation of Decency.” — Where the statute made the offence
1 Crim. Proced. IL. § 863, 864. 6 Crim. Proced. I. § 494; IT. § 99, 100,
2 Ante, § 971. 199, 200.
3 Commonwealth v. Boon, 2 Gray, 74; 7 Ante, § 703, 722, 734.
referring to Commonwealth v. Smith, 6 8 Ante, § 703; Crim. Proced. I. § 397,
Cush. 80. 402. And see The State v. Kelly, 12 R.L
4 Commonwealth v. Whitney, 5 Gray, 535.
85; Commonwealth v. Foley, 99 Mass. 9 Crim. Proced. I. § 402 and note.
499, And see Commonwealth ev. Miller, 1 Commonwealth »v. Foley, 99 Mass.
8 Gray, 484; Commonwealth v. McNa- 499. See Commonwealth v. Wolcott, 110
mara, 116 Mass. 340. Mass. 67; Commonwealth v. Whitney, 5
5 The State v. Kelly, 12 R. I. 525; Gray, 85.
Commonwealth »v. Boon, 2 Gray, 74; L Crim. Proced. I. § 608 et seq.
Commonwealth v. Whitney, 5 Gray, 85.
544
CHAP. LIV.] ‘ DRUNKENNESS. § 982
consist in “being intoxicated under such circumstances as to
amount to a violation of decency,” it was adjudged adequate to
say, in allegation, “ indecently drunk.” ! But, —
“Found.” — Under the statutory expression “ found intoxi-
cated,” the word “ found ” cannot be omitted.?
§ 981. Second Offence. — Under a statute providing a heavier
punishment for the second or third conviction than the first, the
indictment, when such former convictions are relied on, must
allege them.’ Nor is legislation, dispensing with this allegation,
valid under our constitutions. It was deemed adequate to say,
that the defendant, on a day and before a court named, ‘“* was
duly and legally convicted of the crime of drunkenness com-
mitted at” a specified time and place, &c. And thereon a copy
of the record of the former conviction could be introduced in
evidence.®
§ 982. Evidence — (Opinion of Witness).— A non-expert wit-
ness may testify that thé defendant was intoxicated ; he cannot
be restricted to stating demeanor.® .
1 Alexander v. Card, 3 R. I. 145. 6 Commonwealth v. Miller, 8 Gray,
2 The State v. Bromley, 25 Conn. 6. 484.
8 Crim. Law, I. § 961. 6 The State v. Huxford, 47 Iowa, 16;
> Commonwealth v. Harrington, 180 People v. Eastwood, 4 Kernan, 562. See
Mass. 35. Armor v. The State, 63 Ala. 173.
85 545
OFFENCES MORE PURELY STATUTORY.
§ 985 [BOOK VI.
CHAPTER LV.
SELLING INTOXICATING LIQUOR — THE LAW.
§ 983. Introduction.
984-088 b. History and Policy of this Legislation.
989-998. Constitutionality and further of its Forms.
999-1006. The License.
1006 a—1032. Expositions of Statutes and Doctrines.
§ 983. How Chapter divided. — We shall consider, I. The His-
tory and Policy of this Legislation; II. The.Constitutionality of
it and further of its Forms; III. The License; IV. Expositions
of Statutes and Doctrines. °
I. The History and Policy of this Legislation.
§ 984. Lawful at Common Law — (Inn — Ale-house — Tippling
House). —It is at the common law lawful to keep a properly-
regulated inn, ale-house, or tippling-house ; which severally are
indictable only when disorderly.!. Hence, a fortiori, the sim-
ple selling of intoxicating drinks is not a common-law crime.
But, —
§ 985. Under Statutes — (English — American). — From an
early period in English legislation, during ante-colonial times
and thence downward to the present day with us, statutes, in
various forms of provision, have been enacted as aids to the sup-
pression of enormous evils? which the use or abuse of inebriating
1 Crim. Law, I. § 318, 594, 505, 1113-
1118; 1 Hawk. P.C. Curw. ed. p. 714, § 1
et seq.; Rex v. Marriot, 4 Mod. 144; Rex
v. Ivyes, 2 Show. 468; Stephens v. Wat-
son, 1 Salk. 45; Rex v. Randall, 3 Salk.
27; Crown Point v. Warner, 3 Hill, N. Y.
150; Rex v. Faulkner, 1 Saund. 249; 8.c.
nom. Rex v. Fawkner, 2 Keb. 506, pl. 79;
Commonwealth v. McDonough, 13 Allen,
581.
546
2 For example, in 1606, it was in the
preamble of 4 Jac. 1, c. 5, declared that
“the loathsome and odious sin of drunk-
enness, of late grown into common use,”
is “the root and foundation of many other
enormous sins; as, bloodshed, stabbing,
murder, swearing, fornication, adultery,
and such like, to the great‘ dishonor of
God and of our nation, the overthrow of
many good arts and manual trades, the
CHAP. LV.] LIQUOR SELLING—THE LAW... . § 987
liquors has wrought. Indeed, the old English enactments of
this sort are numerous, and they have largely been the models
for legislation in our States.1
§ 986. Scope of Statutes. — The statutory provisions, whereof
the leading ones will be indicated in the course of this and the
next three chapters, are numerous and in some degree variable.
Their aims have been such as the following; namely, to prevent
the sale of intoxicating liquor except in quantities so large as to
preclude its purchase for mere tippling; or to prevent its sale to
be drunk on the premises where sold. Under which head, it is
not uncommon, while making specific sales penal, to declare it
penal also to be a common seller. Only in rare instances is the
purchaser rendered punishable.? Other statutes forbid all sales
in any quantities, by persons not specially authorized ; others,
the selling to special classes of persons, such as minors and com-
mon drunkards. And whatever the form of the inhibition, there
is reserved for licensed persons, or for agents of a municipality,
‘the right to vend generally, or in the larger quantities, or for
specified purposes.
§ 987. Difficult of Enforcement. — It appears from the terms of
some of the old English statutes, that their enforcement was
found practically difficult. And all who are familiar with the
doings of offenders and courts at the present day with us know,
that the same still remains true. In this country, their constitu-
tionality has been strenuously and perseveringly denied, their
rightfulness, their expediency, — all have been cast as obstruc-
tions in their way. ‘ And,” said Tarbell, J. in the Mississippi
court, after quoting these observations of the author, “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 intoxicat-
ing liquor.” ® One of the consequences whereof is, that, sitting
disabling of divers workmen, and the
general impoverishing of many good sub-
jects, absolutely wasting the good crea-
tures of God.” And three years later it
was in like manner declared in 7 Jac. 1,
c. 10, that, “notwithstanding all former
laws and provisions already made, the
inordinate and extreme vice of excessive
drinking and drunkenness doth more and
more abound, to the great offence of Al-
mighty God, and the wasteful destruction
of God’s good creatures.”
1 Leading enactments of the early
times are 12 Edw. 2,c. 6; 11 Hen. 7,c. 2;
5 & 6 Edw. 6, c. 25; 1 Jac. 1, c. 9; 4 Jac.
1,c. 4; 4 Jac. 1,¢.5; 7 Jac. 1, ¢. 10; 21
Jac. 1,¢.7; 1 Car. 1,¢.4;3 Car. 1. c¢. 3.
2 Crim. Law, I. § 658 and note.
8 Riley v. The State, 43 Missis. 397,
420, 2 Morris State Cas. 1632, 1654.
547
§ 988 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
under this unaccustomed pressure, the courts have, at some points,
though not as a general fact, departed from the line of adjudi-
cation indicated by principle. The departure has not always, or
even perhaps more frequently, been in favor of defendants; for,
when judges are unduly pressed, and anxious to do their exact
» duty, it but accords with all observations of human nature, that,
at times, they will resist the pressure by an uprightness which
leans the other way.
§ 988. The “Maine Law.” — One of the noted forms of the
enactment, widely discussed as a question of legislative policy
and justice, and long and strenuously resisted in the courts, is
familiarly known as “ The Maine Law.” Its history is the fol-
lowing: In the summer of 1847, there was drafted in Massachu-
setts a petition to the legislature, praying this body, among other
things, to “abolish all licenses and licensing whatever of the
trafiic in intoxicating liquors, prohibit entirely the sale thereof in
all cases where a license is now required to authorize the same ;”
and ‘ require the courts on reasonable complaint to issue a war--
rant against any and all persons suspected of selling 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 Le
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, numerously signed, was in
the following winter presented to the legislature; and a com-
mittee, to whom it was referred, reported a bill in substantial
conformity to its prayer. It provided, among other things, for
the licensing of persons in the several cities and towns to sell
“alcohol, pure, mixed, and combined, to be used in the arts and
for medicinal and sacramental purposes ;°’ and it forbade, under
penalties, all other sales. It also made penal the keeping of the
liquor by non-licensed persons with the intent to sell it; and the
letting of buildings to be used, or suffering their use, for the un-
lawful sale. And it directed that all liquor kept for sale contrary
to its provisions should be seized; and, on conviction of the
offender, forfeited. Its destruction, after forfeiture, asked in the
petition, was not provided for.1 The bill passed the House, but
'T have before me the “Report” of was entitled “ An Act regulating the Sale
the committee, with the bill. The latter of Alcohol, and prohibiting Intoxicating
548
CHAP. LV. ] LIQUOR SELLING —THE LAW. § 988 a
failed in the Senate. Afterward, in 1851, the legislature of Maine
adopted the measure, including the destruction feature; yet in-
cumbered by some peculiarities of procedure, intended to avoid
those delays to which all real justice is necessarily subject.
Other States followed; among them, at a later period, the one
wherein the measure originated, Massachusetts.
§ 988 a. Policy of this Legislation. — The making of the offence
of selling to consist in the buyer’s purpose to drink the liquor, or
allow it to be drank, without regard to place or circumstances,
was a wide departure from former legislation, wherein the wrong
lay in temptations to idleness, wastefulness, tippling, and public
disorder. Said the chairman of the committee, Mr. Emmons, in
reporting the bill:! ‘The sale of alcohol in its various forms,
pure, mixed, and combined, is, we believe, proper in itself, and
necessary for the public convenience; but, to be used as a bever-
age, it is never necessary, —it is ever wrong, corrupting to the
morals of the community, and tending to poverty, misery, and
crime. Alcohol is good, intoxicating drink is ruinous. This dis-
tinction, we think, should fully appear on the face of every stat-
ute. But in the law of the Revised Statutes, and in the acts
supplementary thereto, it does not appear; they permitting the
granting to innholders and common victuallers licenses to retail
alcohol to be used as a beverage, ‘for the public good.’ Public
opinion, we are happy to know, is in advance of this law; which
appears from the fact that, during the last year, no licenses have
been granted under it, in thirteen out of the fourteen counties in
this Commonwealth.” Now, as everybody is aware, while large
classes of people hold this opinion of alcohol as a beverage, others
do not. And it is reasonable to inquire, whether, when they of
the affirmative become the majority in a State, it is within the
rightful province of legislation to punish the men who furnish to
Drink,” constituting House Document
No. 62. The report is dated March 4,
1848. There was also a supplemental re-
port by the committee, proposing some
slight amendments. This also was print-
ed. There are likewise before me two
pamphlets, the one entitled “Speech of
Francis W. Emmons, of Sturbridge, on
regulating the Sale of Alcohol, and pro-
hibiting Intoxicating Drink, delivered in
the Massachusetts Legislature, April 15,
1848;” and the other entitled “ Conclud-
ing Remarks of, &c. [as before] delivered
in the Massachusetts Legislature, April
18, 1848.” Mr. Emmons was chairman
of the committee; and, as such, reported
the bill. Iam thus particular, simply to
set right a question of history. The
credit or disgrace of devising this form
of legislation belongs, so far as it at-
taches to any person in modern times,
not to any inhabitant of Maine, but of
Massachusetts.
1 See the last note.
549
§ 988 a OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the minority what they deem essential to their health and happi-
ness ; or, otherwise expressed, whether it is the proper function
of a government to deny, to sane and grown-up people, the privi-
lege of drinking in private what the majority deem to be —or
what truly is— harmful. This sort of question has agitated the
world in all ages whereof history has enlightened us. The view
of it which this committee maintain, and which has controlled all
the legislative bodies that have adopted the measure, is venerable
with years. In former times, it was well-nigh universal. One
illustration is in the rule which has been exercised over religious
beliefs. There is no woe possible to man comparable to eternal
damnation in the world to come. And governments, urged by a
public sentiment which never doubted that without certain re-
ligious dogmas no man can be saved, have forbidden the rejection
of them, and visited the wrong-thinkers with the heaviest penal-
ties. But, over seas of blood thus shed, the world has paused
and thought. The result of which has been, that, by almost
universal consent, men are now permitted, as of conceded right,
to make secure to themselves the damnation of the future life, if
they will. Yet still there remains a powerful public sentiment
which urges the governments to compel people to do what their
own private interests require as pertaining to this life. For ex-
ample, in England and many of our States, there are statutes,
and in other States there is a constant clamor to have statutes
enacted, virtually forcing all sick persons to employ the sort of
medical assistance which the majority approve. Now, in opposi-
tion to all this, there is another view, which, it is submitted, is
the true one; namely, that every man is born with the inalienable
right, the full exercise whereof is simply to be deferred till he
reaches the age of majority, to damn himself both for this world
_and the world to come. It is believed that the Maker has com-
mitted to each one, not to the State, the care of himself. The
limit of which proposition is, that no one has the right to injure
another or the public, or to entice another, during thé forming
period of minority, or a period of weakened or deranged mental
faculties, to what the State or the parent deems injurious to
himself. It is proper, therefore, to compel by legislation, and
the more stringent the better, all who offer or render services in
the way of medical help to abstain from every false holding-out as
to their education, competency, or society connections; but not
550
LIQUOR SELLING — THE LAW.
CHAP. LV.] © § 988 b
worthy to be tolerated to preclude any human being from pro-
posing to do, or doing, honestly and under no untrue pretensions,
what he can for the sick, or a sick man from employing whatever
well-meant offices he chooses. So, on the present question, as-
suming all the worst things ever said against intoxicating drinks
to be true, it is still the natural and inalienable right. of every
sane and capable person arrived at majority to procure them, and
ruin himself by their use ; but not, to exercise the right at times,
places, and in a manner to injure another or the community.: It
is but the common course of legislation, and its obvious duty, so
to regulate the exercise of individual rights of every sort as to
promote the common good, yet not to destroy them. Such is the
principle. But it is not the author’s purpose here to draw the
minuter lines, and say just what, should public sentiment require,
legislation may properly do, and where it should decline to go,
as respects the present question. ‘The distinction, to be borne in
mind, is between the two dissimilar jurisdictions of legislation
and persuasion.
§ 988 6, Making Inhibitions effectual. —So much of the Massa-
chusetts, or Maine, law above described as pertains to methods
merits very different comment. It is a familiar rule of action,
that whatever is worthy to be done should be done well. There-
fore, whenever a selling is prohibited, it is in the highest degree
judicious to make punishable also the keeping of the liquor with
the intent to sell it. The provision is in no degree unjust to the
offender, and it is helpful to the State. Still more potent, and
equally just, is the authority to seize and confiscate the liquor.
The destruction feature, introduced into the original Massachu-
setts petition, and into the statute of Maine, violates a funda-
mental principle of political economy. It being admitted that
alcohol is useful, at least in the arts, the State to which it is for-
feited should not destroy it, but dispose of it for the useful
purpose.!
1 I wish to add a personal explana- the legal profession, in drawing the bill.
tion. It is known to some, though prob-
ably not to the majority of my readers,
that the original suggestion for what is
described in the text as the Massachu-
setts, or Maine, law proceeded from me;
that I drafted the Massachusetts petition,
and during the session of the legislature
assisted Mr. Emmons, who was not of
This was while I was a young lawyer in
practice, before my life of legal author-
ship began. The petition was nominally
the work of a committee; yet my recol-
lections do not enable me certainly to
say that the destruction clause, in dis-
tinction from the simple forfeiture of the
liquor, was inserted by way of compro-
551
§ 989
OFFENCES MORE PURELY STATUTORY.
[BooK VI.
II. The Constitutionality of this legislation and further of its
Forms.
§ 989. Distinction as to Constitutional. — Though a statute
should be found to be in conflict with sound principles of legis-
lation as just explained, the consequence does not necessarily
. follow that it is unconstitutional or otherwise void. Our consti-
tutions have withheld from the legislative bodies certain specified
mise between conflicting views. I can-
not callto memory a time when I did not
think of it as indicated in the text. But
the other part of what the text disap-
proves I certainly did believe in then.
At the time of this writing, I count about
thirty-five years during which I have been
observing and at intervals thinking upon
the subject. The change of opinion has
been slow, and especially was it long in
passing the region of doubt. Whether
or not the result stated in the text is
right, I believe it to be, and on it Iam
willing to rest. But why say anything
on the subject? I certainly would not
cast obstructions in the way of the hosts
of earnest men and women, who, guided
by such light as they have, are disinter-
estedly laboring to banish drunkenness
with its enormous evils from the country.
But it is useless to remove one wrong
by ordaining another. No legislation,
founded on unsound principles, can ac-
complish a permanent good, whatever be
the present seeming. The drinks which
a minority of the people deem essential,
however pernicious we assume them to
be in fact, and however condemned by
the majority, cannot be altogether thrust
by law beyond the practical reach of
those who desire them, without violating
fundamental and indispensable principles
of legislation. The sure remedy is to con-
vince the minority of their universally
pernicious nature. And there are other
remedies less absolute, yet more practi-
cable. One is to procure laws, and their
enforcement, doing away with all adul-
terations of intoxicating drinks; for it
is well known that adulterations, quite
beyond the pure liquors, create the physi-
cal conditions which impel to drunken-
552
ness. Nothing is more completely within
the sphere of legislation than such laws;
all honest interests cry out for them; and
men who will not lend their influence to
their enactment should not complain of
others, who object to a departure of legis-
lation from its rightful jurisdiction.
Again, the right of self-ruin — or, as ap-
plied to this question, to drink cither
moderately or to destruction — may, like
the beneficent rights, and even more than
they, be justly regulated by legislation.
Men, for example, may be restrained from
congregating and enticing each other to
evil ways, and nothing is more completely
within the sphere of legislation than to
forbid and punish all public tippling and
liquor-nuisances and whatever leads there-
to. Beyond this, if they who do not ap-
prove of the popular temperance meas-
ures of the past will do what their own
judgments will on reflection dictate, —
namely, discourage and refrain from all
mere social drinking, and take, and offer
to others, intoxicating drinks simply as
they do cold water, beef steak, and phys-
ic, to supply an admitted need, — the
future generations will not grow up with
so much craving for pure and unadulter-
ated liquors as will produce anything like
the drunkenness we now witness. Every
man knows, that the stomach is the labo-
ratory of the physical system. And to
put into it, whenever one meets a friend,
or at other times when it or the system
does not call, anything, in itself good or
bad, is a wrong, which, sooner or later,
will be avenged. When it is ordinary
food, the result is a dyspeptic ; when it
is intoxicating drink, the product is a
drunkard.
CHAP. LV. ] LIQUOR SELLING — THE LAW. § 990
functions,! but they have no broad terms in negation of the
power to violate correct principles of legislation. Hence, in gen-
eral, a legislature can effectively do whatever the constitution does
not by its words or their interpreted effect forbid.2 Now, —
Doctrine as to Constitutional, defined.— It being a legislative
function to regulate the public order, and to provide punishments
for all violations of the regulations, the legislative body has of
necessity the right and duty to judge of what the public order
should be, and what specific regulations will comport with sound
principles and what will not; and there is no other power with
jurisdiction to revise and reverse the decision. Hence whatever
the legislature ordains on this subject is constitutional, unless
found to be in conflict with some specific provision of the consti-
tution of the State or of the United States. As to which, —
§ 990. United States Constitution — (Police Power). — The po-
lice power of the States is always held to be within their control,
not subject to interference from the National Government.? This
power “extends,” in the words of Bradley, J. “to the protection
of the lives, health, and property of the citizens, and to the
preservation of good order and the public morals.” * It, there-
fore, includes the regulation or prohibition of the sale of intoxi-
cating drinks ; placing the subject within the jurisdiction of the
States, to the exclusion of the United States. At the same time,
a State cannot exercise this right in a way conflicting with any
superior function of the General Government. Hence —
Non-imported and Imported Liquors. — While this doctrine ap-
plies in full force to domestic liquors, and to foreign after leaving
the importer’s possession, it is conceded, yet perhaps not conclu-
sively adjudged, that, if Congress imposes a duty on the importa-
tion of foreign liquors, a State cannot punish the sale of them in
the original packages, and in the hands of the original importers.
But this is the limit of the exception;® and it has even been ad-
1 Ante, § 33 et seq. Commonwealth v. Certain Intoxicating
2 Ante, § 38-41. Liquors, 115 Mass. 158; Fell v. The State,
3 New York v. Miln, 11 Pet. 102, 182; 42Md.71; Prohibitory Amendment Cases,
Conway v. Taylor, 1 Black, 603; United 24 Kan. 700; Ex parte Marshall, 64 Ala.
States v. Dewitt, 9 Wal. 41; Thorpe v. 266.
Rutland, &c. Railroad, 27 Vt. 140. 6 The License Cases, 5 How. U. S.
4 Beer Company v. Massachusetts, 97 504 (including Thurlow v. Massachusetts,
U.S. 25, 33. 5 How. U. S. 504; Fletcher v. Rhode
5 Ib.; Bartemeyer v. Iowa, 18 Wal. Island, 5 How. U.S. 504); The State v.
129; The State v. Lovell, 47 Vt. 493; Robinson, 49 Maine, 285, 287; The State
553
§ 990 a OFFENCES MORE PURELY STATUTORY. [BOOK VI.
judged in a State tribunal, it would seem correctly, that the im-
porter may be punished by the State law, if, while yet he has not
broken the original packages, he holds them with the intent to
break them, and then to sell in quantities less than a package.1_ In
reason, the questions considered in this paragraph should depend
somewhat on the terms of the United States statute. Doubtless
the power of Congress to regulate commerce, given by the Con-
stitution, includes the jurisdiction to determine what articles may
be imported; so that a State cannot forbid a sale of the original
and unbroken packages, by the original importer, within its bor-
ders. But, as mere taxation does not imply a license,? the mere
imposition of a duty, and no more, is not such an authority to im-
port as should be construed to take from any State the same right
to regulate or restrain the sale of the article which it would have
if it were a domestic manufacture. Should this view be adopted,
still it would not entitle the State to prohibit the transportation
of the imported packages through its territory to another State
for sale. Practically, of late, the State statute commonly makes
the exception in favor of imported liquors in such form as the
legislative body deems correct; and this wil be controlling
though it should concede more than necessary to the importer.®
But, when the State statute has not the exception in terms, it
and the Constitution of the United States are construed together,
and the latter creates whatever exception the courts deem it to
require.*
§ 990 a. With Indian Tribes.— The power “to regulate com-
merce” extends to that ‘‘ with the Indian tribes.’ Under which
power, Congress may forbid the introduction of spirituous liquors
into the Indian country, and contiguous territory. And—.
v. Shapleigh, 27 Misso. 344; Brown v.
Maryland, 12 Wheat. 419; Ingersoll v.
Skinner, 1 Denio, 540; Commonwealth
v. Blackington, 24 Pick. 352; City Coun-
cil v. Ahrens, 4 Strob. 241; Common-
wealth v. Kimball, 24 Pick. 359; Smith
v. People, 1 Parker C. C. 583; People v.
-Quant, 2 Parker C.C. 410; Wynhammer
v. People, 20 Barb. 567; Bradford v.
Stevens, 10 Gray, 379; Hinson v. Lott,
40 Ala. 128; Tiernan v. Rinker, 102
U. S. 123; The State v. Allmond, 2
Houst. 612.
1 The State v. Blackwell, 65 Maine,
554
556. The terms of the Mass. Stat. of
1869 rendered this lawful. Richards v.
Woodward, 113 Mass. 285.
2 Post, § 991; Youngblood v. Sexton,
82 Mich. 406.
8 Richards v. Woodward, 118 Mass.
285, compared with The State v. Black-
well, 65 Maine, 556; Commonwealth v.
Edwards, 12 Cush. 187; Jones vo. Hard,
82 Vt. 481.
4 Ante, § 82, 86, 89, 90. See Hinson
v. Lott, 40 Ala. 123.
5 Const. U. S. art. 1, § 8.
6 Crim. Law, I. § 154; United States
CHAP. LY.] LIQUOR SELLING —THE LAW. § 991a
§ 990 6. Inter-State Commerce. — Probably Congress, under the
power to regulate commerce between the States, can restrain
liquor-selling on the vehicles which bear it. However this may
be, it has been held that.a steamboat, in transit between States,
is not so far within the jurisdiction of an intermediate State as to
render taxable by its laws the selling of liquor on board.! Nor
can a vendor of liquors in a State be subjected to a higher tax on
imported liquors, or those from another State, than for those of
home manufacture.?
§ 991. National Taxation.— The power of Congress to derive a
revenue from the business of the country gives it a jurisdiction
to tax the selling of intoxicating liquors. But the statutes,
which we once had, expressly reserved to the States their former
rights of restraint ; and so they were held to furnish no protection
to the violators of State laws, leaving open the question how it
would be in the absence of such a clause. Still it has been
deemed, and it would seem justly, that a tax on a business is
neither a license nor an approval of it ;> and it would be startling
to say, that Congress could, if it chose, license, under the name
of taxing, liquor-selling in the States, in defiance of State laws.
§ 991 a. Fourteenth Amendment. — The fourteenth amendment
of the national Constitution, forbidding the States to “abridge
the privileges or immunities of citizens of the United States,”’ is
not infringed by State laws against the selling of intoxicating
liquor.§
v. Forty-three Gallons of Whiskey, 93
U.S. 188. See United States v. Carr, 2
Montana, 234.
1 The State v. Frappart, 31 La. An.
840. “For the reason,” said Spencer, J.
“that a boat plying upon navigable
‘waters between different States cannot
be considered as doing or conducting a
business at each and every point where
she touches, so as to become subject to
taxation at each of said points. Sucha
proposition would give the local author-
ities power not only to regulate but to
destroy commerce between the States ;
which power by the constitution belongs
exclusively to Congress.” p. 341.
2 Tiernan v. Rinker, 102 U. S. 128;
The State v. Marsh, 87 Ark. 366. But
see Davis v. Dashiel, Phillips, N. C. 114.
See Reynolds v. Geary, 26 Conn. 179;
post, § 1080.
8 United States v. Prussing, 2 Bis.
844. !
¢ McGuire v. Commonwealth, 3 Wal.
387; License Tax Cases, 5 Wal. 462;
Pervear v. Commonwealth, 5 Wal. 475;
Commonwealth v. Holbrook, 10 Allen,
200; Commonwealth v. Keenan, 11 Al-
len, 262; The State v. Carney, 20 Iowa,
82; The State ». Stutz, 20 Iowa, 488;
The State v. Baughman, 20 Iowa, 497;
Commonwealth v. O’Donnell, 8 Allen,
648; The State v. McCleary, 17 Iowa,
44; Block v. Jacksonville, 36 Ill. 301;
Commonwealth v. Thorniley, 6 Allen,
445; Commonwealth v. Casey, 12 Allen,
214:
5 Youngblood v. Sexton, 82 Mich. 406.
8 Bartemeyer v. Iowa, 18 Wal. 129;
The State v. Stanton’s Liquors, 88 Conn.
233. Compare ante, § 804.
555
§ 992
OFFENCES MORE PURELY STATUTORY.
[BOOK v1.
§ 992. Under State Constitutions. — Various statutes in the
States, restraining the sale of intoxicating drinks, have been ad-
judged to violate the State constitution; because ordaining a
procedure antagonistic to constitutional guarantees,! or because
ineffectually enacted? or for some other like reason.3
But, aside
from exceptions like these, the restraining and regulating enact-
ments under consideration are uniformly held to be no infringe-
ment of our State constitutions as ordinarily drawn.4| Even —
1 Fisher v. McGirr, 1 Gray, 1; People
v. Toynbee, 2 Parker C. C. 329, 2 Parker
C. C. 490, 3 Kernan, 378; People ».
Wynehamer, 2 Parker C. C. 377, 2 Par-
ker C. C. 421, 3 Kernan, 378; Greene c.
James, 2 Curt. C. C. 187; The State v.
Snow, 3 R.1. 64; Hibbard v. People, 4
Mich..125. See People v. Fisher, 2 Par-
ker C. C. 402; In re Powers, 25 Vt. 261;
Lincoln v. Smith, 27 Vt. 328; The State
v. Prescott, 27 Vt. 194; The State v. Rob-
inson, 19 Texas, 478; People v. Lawton,
30 Mich. 386; Koerner v. Oberly, 56
Ind. 284. Of course, various objections
of this sort have been overruled. Van
Swartow v. Commonwealth, 12 Harris,
Pa. 131; The State x. Cunningham, 25
Conn. 195; People v. McCarthy, 45 How.
Pr. 97.
2 Parker v. Commonwealth, 6 Barr,
607. In the following cases the statute
was sustained against objections of this
sort: Parkinson v. The State, 14 Md. 184;
The State ». Thompson, 2 Kan. 432;
O’Kane v. The State, 69 Ind. 183; Al-
brecht v. The State, 8 Texas Ap. 216.
See ante, § 36.
8’ Yazoo City v. The State, 48 Missis.
440; Atkins v. Randolph, 31 Vt. 226.
4 Lodano v. The State, 25 Ala. 64;
Bancroft +. Dumas, 21 Vt. 456; Pierce
v. The State, 13 N. H. 536, 571; The
State v. Smith, 22 Vt. 74; The State rv.
Moore, 14 N. H. 451; Lunt’s Case, 6
Greenl. 412; Austin v. The State, 10
Misso. 591; Dorman v. The State, 34
Ala. 216; Commonwealth v. Kendall, 12
Cush. 414; Commonwealth v. Burding,
12 Cush. 506; Our House c. The State,
4 Greene, Iowa, 172; Zumhoff v. The
State, 4 Greene, Iowa, 526; Mason v.
Lancaster, 4 Bush, 406; Falmouth »v.
Watson, 5 Bush, 660; Napier v. Hodges,
81 Texas, 287; The State v. Searcy, 20
556
Misso. 489; The State v. Gurney, 37
Maine, 156; Jones v. People, 14 Ill. 196;
The State +v. Clark, 8 Fost. N. H. 176;
Heisembrittle v. City Council, 2 McMul.
233; People v. Hawley, 3 Mich. 330;
Brown v. Maryland, 12 Wheat. 419; Bode
v. The State, 7, Gill, 326; Smith v. Adrian,
1 Mich. 495; The State v. Muse, 4 Dev.
& Bat. 319; Miller v. The State, 3 Ohio
State, 475; City Council v. Ahrens, 4
Strob. 241; Commonwealth v. Kimball,
24 Pick. 359; Fisher v. McGirr, 1 Gray,
1; Smith v. People, 1 Parker C. C. 583;
People v. Quant, 2 Parker C. C. 410;
Langley v. Ergensinger, 3 Mich. 314;
The State v. Snow, 3 R. 1. 64; 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. Gal-
lagher, 4 Mich. 244; The State vr. Bren-
nan’s Liquors, 25 Conn. 278; The State
v. Wheeler, 25 Conn. 290; Perdue v. Ellis,
18 Ga. 586; Bepley v. The State, 4 Ind.
264; Germania c. The State, 7 Md. 1;
Gutzweller v. People, 14 Ill. 142; Fell v.
The State, 42 Md. 71; The State v. Har-
dy, 7 Neb. 877; The State r. Read, 12
R. I. 137; Reynolds v. Geary, 26 Conn.
179; Trammell v. County Judge, 37 Ark,
874; McKinney v. Salem, 77 Ind. 2138;
The State ve. Winstrand, 37 Iowa, 110;
Groesch v. The State, 42 Ind. 47; Allen
v. The State, 52 Ind. 486 (the decisions in
this State seem a little contradictory, as
see Beebe v. The State, 6 Ind. 501;
O’Daily v. The State, 9 Ind. 494; Cros-
singer v. The State, 9 Ind. 557 ; The State
u. Adamson, 14 Ind. 296; Thomasson v.
The State, 15 Ind. 449; Holmes v. Welch,
12 Ind. 555; Coulson v. Cass, 12 Ind. 558;
Meshmeier v. The State, 11 Ind. 482;
Cassel v. Scott, 17 Ind. 514; Lauer v. The
CHAP. LY. ] LIQUOR SELLING — THE LAW. § 998
§ 992 a. After License. — A license, however formally and
lawfully granted, will not protect sales made in violation of a
subsequent statute. One legislature cannot bargain away the
police power of the State, so as to bind another;1 nor is the
license a contract, nor yet has the licensee any vested rights
thereunder.”
§ 993. Confiscating Liquor. — Misapprehensions regarding the
constitutional right to confiscate liquors kept for unlawful sale
have obscured a little some of the cases,’ especially in New York.*
.One can hardly see how this right could be questioned where
fines may be imposed; because the forfeiture is only a fine,
levied on a specific article, instead of the offender's estate at
large. The oldest English enactment against liquor-selling pro-
vides for this forfeiture ;* so that the levying of the penalty on
State, 22 Ind 461; Reams v. The State,
23 Ind. 111); Block v. The State, 66 Ala.
493; Harris v. The State, 4 Texas Ap.
131; Tonella v. The State, 4 Texas Ap.
325; Carr v. The State, 5 Texas Ap. 153;
Kramer v. Marks, 14 Smith, Pa. 151;
The State v. Ludington, 33 Wis. 107;
Stanton v. Simpson, 48 Vt. 628; Rohr-
bacher v. Jackson, 51 Missis. 735; Myers
v. People, 67 Ill. 503; Higgins v. People,
69 Ill. 11; The State v. Morgan, 40 Conn.
44; The State v. Joyner, 81 N. C. 534;
The State v. Thomas, 47 Conn. 546;
Pleuler v. The State, 11 Neb. 547; Intoxi.
cating Liquor Cases, 25 Kan. 751; Black-
well v. The State, 36 Ark. 178; Boyd v.
Bryant, 85 Ark. 69; Commonwealth v
“Ducey, 126 Mass. 269; Schwuchow v.
Chicago, 68 Ill. 444; The State v. All-
mond, 2 Houst. 612; In re Dougherty,
27 Vt. 325; The State v. Conlin, 27 Vt.
318; Lincoln v. Smith, 27 Vt. 828; Gill
v. Parker, 81 Vt. 610; Bedore v. Newton,
54 N. H.'117. And see, for illustrative
points, Washington ov. The State, 8 Eng.
752; Mabry v. Tarver, 1 Humph. 94;
People v. Jenkins, 1 Hill, N. Y. 469; Peo-
ple v. Roe, 1 Hill, N. Y. 470; The State
v. Bock, 9 Texas, 369. But see People ».
Toynbee, and People v. Wynehamer, su-
pra.
! Beer Company v. Massachusetts, 97
U. S. 25, 33.
? Schwuchow v. Chicago, 68 Ill. 444;
Pleuler v. The State, 11 Neb. 547; Hedges
v. Titus, 47 Ind. 145; McKinney v. Salem,
77 Ind. 218; Fell v. The State, 42 Md.
71; Calder v. Kurby, 5 Gray, 597; Com-
monwealth v. Brennan, 103 Mass. 70, 71;
Robertson c. The State, 12 Texas Ap.
641; Reithmiller v. People, 44 Mich. 280;
Johnson v. The State, 3 Lea, 469. And
see ante, § 957; post, § 1001; Blann v.
The State, 39 Ala. 353; Emery v. Lowell,
127 Mass. 188; Ligonier v. Ackerman, 46
Ind. 552; Reg. v. Vine, Law Rep. 10
Q. B. 195; Lehritter v. The State, 42 Ind.
482; Reed v. Beall, 42 Missis. 472; Coul-
son v. Harris, 43 Missis 728, 788.
3 Fisher v. McGirr, 1 Gray, 1; The
State v. Snow, 3 R.I. 64. But see Peo-
ple v. Toynbee, 2 Parker C.C. 329, 2
Parker C. C. 490, 1 Kernan, 878; People
v. Wynehamer, 2 Parker C. C. 877, 2
Parker C. C. 421, 8 Kernan, 378; Miller
v. The State, 3 Ohio State, 475.
+ People v. Toynbee, and People v.
Wynehamer, supra.
5 Stat. 12 Edw. 2, ¢. 6, ap. 1318, 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 assizes 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 there-
of convict, the merchandise whereof he
is convict shall be forfeit to the king, and
the third part thereof shall be delivered
507
§ 996 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the specific article is one of the modes of fine known in that foun-
tain of laws whence our jurisprudence.is drawn. And it is be-
lieved that, at present, this right to inflict the forfeiture of the
liquors as a punishment, and even to confiscate them in various
circumstances wherein their owner has committed no criminal
wrong, is universally conceded by our courts.! As to—
§ 994.. Destroying. — The destruction of the liquors, when re- ;
quired by statute, is equally permissible under our constitutions
with the simple forfeiture.2 Any owner of property can dispose
of it ashe will. The ownership of the liquors vests by forfeiture
in the State, then the State destroys its own.3
§ 995. Why ? — Legislative Control of Person and Property. —
We have already seen something of the reasons on which the
doctrines of this sub-title rest. Both the volitions of men and
the use of their property ® are, and in the nature of things must
be, under the control of the laws; the interests of individuals
being in subjection to the higher interests of the State. The
legislative body, restrained only by the written constitution, has
the jurisdiction, from which there is no appeal, to determine what
limitations of the use of private property the public good requires.
What it adjudges to be right must be accepted as such judicially ;
what it ordains, must stand.®
And, —
§ 996. Manufacture.— Within this doctrine, the legislature may
forbid or regulate the distillation of grain.
Such restraint does
not violate the constitutional guaranty that no person “shall be
to the party that sued. the offender. as the
King’s gift.’ And then follows a direc-
tion concerning the court before which
proceedings shall be had.
1 Crim. Law, I. § 824, 833-835, 944;
Gray v. Kimball, 42 Maine, 299; Com-
monwealth v. Certain Intoxicating Li-
quors, 107 Mass. 396.
2°Seé Fisher v. McGirr, 1 Gray, 1;
The State v. Brennan’s Liquors, 25 Conn.
278.
3 And see Gray v. Kimball, 42 Maine,
299 ;- McCoy v. Zane, 65 Misso. 1. The
common law has also precedents for this
procedure. Thus, Pulton, speaking of
the forfeiture in felony, says: “The fel-
on’s houses and lands shall be seized into
the king’s hands, where they shall remain
by the space of a year and a day, and
then the houses shall be thrown down to
558
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 ot burglary,
robbery, and other felonies, and as much
as may be to terrify and discourage oth-
ers to attempt or practise the like.” Pul-
ton de Pace, ed. of 1615, 220 b.
4 Ante, § 989; Crim. Law, I. § 493.
And see ante, § 793, 856.
5 Commonwealth v. Tewksbury, 11
Met. 55.
5 Jones v. People, 14 Ill. 196, 197;
Austin v. The State, 10 Misso. 591, 593;
License Cases, 5 How. 504.
CHAP. LV. ] LIQUOR SELLING — THE LAW. § 997
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. Municipal By-laws. — Under limitations explained in
another connection,? municipal corporations may be constitution-
ally empowered by statute, and they frequently are, to restrict,
regulate, or entirely prohibit the sale of intoxicating liquor in
their respective localities. By-laws of this sort, being in re-
straint of trade,‘ cannot validly extend beyond the terms of the
statutory power.® For example, under the authority to prohibit
tippling-houses or dram-shops, the by-law cannot forbid all sales
of intoxicating drinks, for whatever purposes, except mechanical
and medicinal ;° and the power to regulate cannot be exercised
by entire suppression.’ But an ordinance is good which goes only
a part way, not covering the entire ground authorized$ And
the authority to vend may be made conditional, where the stat-
ute permits it to be absolute. The ordinance can provide only
for the locality of the municipality ; as, it will be ill if it forbids
the sale of beer within three miles of the corporate limits. But
the provisions are so diverse, that, instead of discussing them
1 Ingram v. The State, 39 Ala. 247,
249. To the like effect, The State v.
Lovell, 47 Vt. 498. See Scanlan v.
Childs, 33 Wis. 663; Westinghausen v.
People, 44 Mich. 265.
2 Ante, § 18-26.
38 Gunnarssohn v. Sterling, 92 Ill. 569;
Commonwealth v. Fredericks, 119 Mass.
199; Kettering v. Jacksonville, 50 Ill. 39;
The State v. Bott, 31 La. An. 663; Car-
thage v. Buckner, 4 Bradw. 317; West v.
Columbus, 20 Kan. 633; The State v.
Welch, 36 Conn. 215; Rochester v. Up-
man, 19 Minn. 108; Kansas v. Flanders,
71 Misso. 281; Falmouth v. Watson, 5
Bush, 660; Mason v. Lancaster, 4 Bush,
406 ; Cuthbert v. Conly, 32 Ga. 211;
Bloomington v. Strehle, 47 Ill. 72; Me-
gowan v. Commonwealth, 2 Met. Ky. 3;
Decker v. McGowan, 59 Ga. 805; The
State v. Andrews, 11 Neb. 523; Licks v.
The State, 42 Missis. 316; Burckholter
v. McConnellsville, 20 Ohio State, 308;
Jackson v. Boyd, 53 Iowa, 536; Rober-
son v. Lambertville, 9 Vroom, 69; Salina
v. Seitz, 16 Kan. 143; Newlan v. Aurora,
14 Ill. 864; Newlan v. Aurora, 17 IIl.
379; Baldwin v. Murphy, 82 IIl. 485;
Bennett v. People, 30 Ill. 389; Sweet v.
Wabash, 41 Ind. 7.
4 Ante, § 20.
5 Sullivan v. Oneida, 61 Ill. 242;
Mount Pleasant v. Vansice,43 Mich. 361 ;
Salt Lake City v. Wagner, 2 Utah, 400; -
Kinmundy v. Mahan, 72 Ill. 462; Pekin
v. Smelzel, 21 Ill. 464, 469; Tuck v. Wal-
dron, 31 Ark. 462; Harbaugh v. Mon-
mouth, 74 Ill. 367.
6 Strauss v. Pontiac, 40 Ill. 301.
7 Tuck v. Waldron, 31 Ark. 462.
8 Schwuchow v. Chicago, 68 IIL. 444;
Piqua v. Zimmerlin, 35 Ohio State, 507.
9 Schwuchow v. Chicago, supra; Bald-
win v. Smith, 82 Ill. 162; Hurber v. Baugh,
43 Iowa, 514; Ottumwa v. Schaub, 52
Iowa, 515. Compare Crim. Law, I. § 914.
10 Strauss v. Pontiac, supra.
509
§ 999
OFFENCES MORE PURELY STATUTORY.
{BOOK VI.
further, we shall do best simply to refer to some of the adju-
dications.}
Local Statutes, enacted by the legislature? are sometimes
made to govern this question in particular localities, instead of
municipal by-laws.? This sort of statute may also, and it often
does, render unlawful the sale of liquors within a specified dis-
tance of particular places, the protection whereof is deemed
specially desirable.‘
§ 998. Constitutional Regulations. — In a few of the States, the
experiment has been tried of more or less regulating this subject
by a special provision in the constitution.
III. The License.
§ 999. Discretionary or not.— In the absence of special terms
in the statute, and as our enactments on this subject are com-
1 Camp v. The State, 27 Ala. 53; Byers
v. Olney, 16 Ill. 835; Goddard v. Jackson-
ville, 15 Ill. 688; The State v. Clark, 8
Fost. N. H. 176; Heisembrittle v. City
Council, 2 McMul. 233; The State v. Co-
lumbia, 6 Rich. 404; Aberdeen v. Saun-
derson, 8 Sm. & M. 663; Bogart v. New
Albany, Smith, Ind. 38; Clintonville v.
Keeting, 4 Denio, 341; City Council v.
Ahrens, 4 Strob. 241; Morris v. Rome,
10 Ga. 532; The State v. Hogan, 10 Fost.
N. H. 268; Markle ». Akron, 14 Ohio,
586; Louisville v. Kean, 18 B. Monr. 9;
The State v. Neeper, 3 Greene, Iowa,
837; Harris v. Livingston, 28 Ala. 577;
St. Paul v. Troyer, 3 Minn. 291; Chastain.
v. Calhoun, 29 Ga. 833; Gardner v. The
State, 20 Ill. 480; Pekin v. Smelzel, 21
“Ill. 464; Megowan v. Commonwealth, 2
Met. Ky. 3; Savannah v. Hussey, 21 Ga.
80: Brooklyn v. Toynbee, 31 Barb. 282 ;
Thompson v, Mt. Vernon, 11 Ohio State,
688; Commonwealth v. Locke, 114 Mass.
288; Dewar v. People, 40 Mich. 401; The
State v. Brady, 41 Conn. 588; The State
v. Pfeifer, 26 Minn. 175; The State v.
Fleckenstein, 26 Minn. 177; Mount Pleas-
ant v. Vansice, 48 Mich. 361; Doug-
lasville v Johns, 62 Ga. 423; Hetzer v.
People, 4 Colo. 45; .Glentz v. The State,
88 Wis. 549; Winona v. Whipple, 24
Minn. 61; Kitson v. Ann Arbor, 26
Mich. 825; Ex parte Hurl, 49 Cal. 657;
560
Ex parte Schmitker, 6 Neb. 108; Meyer
v. The State, 13 Vroom, 145; Gilham
v. Wells, 64 Ga. 192; Osborne »v. Mo-
bile, 44 Ala. 493; Kniper v. Louisville,
7 Bush, 599; The State v. King, 37 Iowa,
462.
' 2 Ante, § 86, 42 b, 104, 112 4, 126;
Crim. Law, I. § 1068.
3 The State v. Joyner, 81 N.C. 534;
Dorman v. The State, 34 Ala. 216;
Hudgins v. The State, 46 Ala. 208; In-
dianapolis v. Fairchild, 1 Ind. 315, Smith,
Ind. 122; Chevalier v, Commonwealth, 8
B. Monr. 379; Hill v. Decatur, 22 Ga.
203; Ambrose v. The State, 6 Ind. 351;
McRae v. Wessell, 6 Ire. 153; McCuen
v. The State, 19 Ark. 630; Levy v. The
State, 6 Ind. 281. See Parker v. Com-
monwealth, 6 Barr, 507; Rauch v. Com-
monwealth, 28 Smith, Pa. 490; The State
v, Strauss, 49 Md. 288.
4 Block v. The State, 66 Ala. 493;
Boyd »v. Bryant, 35 Ark. 69; Blackwell
v. The State, 36 Ark. 178; Barnes v. The
State, 49 Ala. 342; Wilson v. The State,
85 Ark. 414; Harney v. The State, 8
Lea, 113; The State ». Hampton, 77
N. C. 626; DeBois v. The State, 34 Ark.
381; Manis v. The State, 3 Heisk. 315.
5 Langley v. Ergensinger, 3 Mich. 314;
Prohibitory Amendment Cases, 24 Kan.
700.
CHAP. 'LY.] . LIQUOR SELLING —THE LAW. § 999 a
monly framed, the license may be’ granted or withheld by the
licensing power at its discretion.!. And from its decision there is
no appeal ;? though, by force of common-law principles, minis-
terial officers corruptly refusing or granting licenses may be in-
dicted therefor,? as in other cases of ‘corruption. Yet there
are States wherein, by reason of special language in the stat-
ute, the officer must act. whenever the grounds of action are
furnished to:‘him ;* and States in which an appeal lies from the
decision of those to: whom the application is originally made.‘
Of course, —
§ 999 a. Qualifications. —If the statute requires specified quali-
fications in the licensee, the applicant must show that he possesses
them.’ In principle, and as a deduction from such authority as
we have,’ the issuing of the license is an adjudication that the
qualifications are possessed, the requisite notice has been given,
and the like; rendering the license a protection to the seller so
long as it is unrevoked, unless the statute provides otherwise.?
1 Ex parte Yeager, 11 Grat. 625;
. Leigh «. Westervelt, 2 Duer, 618; Reg.
v. Bristol, 28 Eng. L. & Eq. 291, 24 Law
J.n. 8. M. C. 48, 1 Jur. n. s. 373; People
uv. Norton, 7 Barb. 477; Attorney-General
v. Guildford, 5 Ire. 315; Reg. v. Harris,
2 Ld. Raym. 1303; Rex v. Austin, 8 Mod.
809; Louisville v. Kean, 18 B. Monr. 9;
Raleigh v. Kane, 2 Jones, N. C. 288; The
State v. Holt County Court, 39 Misso.
521; Austin v. The State, 10 Misso. 591;
Ex parte Whittington, 384 Ark. 394; In
re Mundy, 59 How. Pr. 359.
2 Coulterville v. Gillen, 72 Ill. 599; Van
Baalen v. People, 40 Mich. 258; Toole’s
Appeal, 9 Norris, Pa. 376; French v.
Noel, 22 Grat. 454. And see The State v.
Ilardy, 7 Neb. 377; Pierce v. Common-
wealth, 10 Bush, 6.
8 People v. Norton, 7 Barb. 477; Rex
v. Holland, 1 T. R. 692. And see Attor-,
ney-General v. Justices, 5 Ire. 315.
* Crim. Law, I. § 459 et seq. ; II. § 971
et seq.
5 The State v. The Justices, 15 Ga.
408 ; Dougherty v. Commonwealth, 14 B.
Monr. 239; Miller v. Wade, 58 Ind. 91.
See People v. Perry, 18 Barb. 206; Sights
v. Yarnalls, 12 Grat. 292; Reg. v. Sylves-
ter, 2 B. & S. 322; Goodwin v. Smith, 72
Ind. 113; Ex parte Laboyteaux, 65 Ind.
36
645; Grummon v. Holmes, 76 Ind. 585;
Leader v. Yell, 16 C. B. x. s. 584; Reg.
v. Bakewell, 7 Ellis & B. 848; Reg. v.
Vine, Law Rep. 10 Q. B. 195, 18 Cox C.C.
43; Kelly v. New York, 54 How. Pr. 327.
6 The State v. Tippecanoe, 45 Ind.
501; Keiser v. Lines, 57 Ind. 481; Ex
parte Dunn, 14 Ind. 122; Drapert v. The
State, 14 Ind. 123; Miller v. Wade, su-
pra; Murphy v. Monroe, 73 Ind. 483;
Molihan v. The State, 30 Ind. 266; Young
v. The State, 34 Ind. 46; Reg. v. De Rut-
zen, 1Q. B. D. 55; Reg. v. Sykes, 1 Q.
B. D. 52; Ex parte Maughan, 1 Q. B. D.
49.
7 Goodwin v. Smith, 72 Ind. 118;
Leader v. Yell, 16 C. B. n. s. 584; Mc-
Williams v. Phillips, 51 Missis. 196. And
see Ex parte Laboyteaux, 65 Ind. 545;
Reg. v. De Rutzen, 1 Q. B. D. 55; Reg.
v. Vine, Law Rep. 10 Q. B. 195, 13 Cox
C. C. 43; Grummon v. Holmes, 76 Ind.
585; Miller v. Wade, 58 Ind. 91; O’Rourke
v. People, 5 Thomp. & C. 496, 3 Hun,
225.
8 Stevens v. Emson, 1 Ex. D. 100;
Hornaday v. The State, 43 Ind. 306;
Martel v. East St. Louis, 94 Ill. 67; The
State v. Brandon, 28 Ark. 410. And see
Leader v. Yell, 16 C. B. n. s. 584.
® Reg. v. Vine, Law Rep. 10 Q. B. 195.
561
§ 1001 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 1000. The License — ought to be in due form, yet not every
departure from what would be strictly appropriate will render it
void. A license for a specified building has
been held to extend to reasonable enlargements, if t:e jury are of
opinion that the premises remain substantially the same as before.®
§ 1003 a. Revoking.— Under statutes, the license may be re-
voked or annulled for cause, by proceedings conforming to -the
statutory requirements.’ And we have statutes providing for a
judgment of forfeiture of it, on a conviction for its violation.®
§ 1004. Ownership of Liquor. — One may sell, under a license to
himself, the liquor of another.2 Also —
1 Adams v. Hackett, 7 Fost. N. H. 289; 3 Huffstater wv. People, 5 Hun, 23;
Commonwealth v. Markoe, 17 Pick. 465; Reg. v. Lancashire, 7 Ellis & B. 839;
Benson v. Moore, 15 Wend. 260; The Harper v. The State, 3 Lea, 211.
State v. Fredericks, 16 Misso. 382; Lam- 4 Phillips v. Tecumseh, 5 Neb. 312.
bert v. The State, 8 Misso. 492; Disbrow And see Brown v. Nicholson, 5 C. B. x. 8.
v. Saunders, 1 Denio, 149; Page v. The 468; The State v. Dobson, 65 N. C. 846;
State, 11 Ala. 849; Commonwealth v.‘ Haug ». Gillett, 14 Kan. 140.
Halk, 8 Grat. 588; The State v. Pretty- 5 Murphy v. Monroe, 78 Ind. 483;
man, 3 Harring. Del. 570; The State v. Sanders v. Elberton, 50 Ga. 178; The
Woodward, 34 Maine, 293; The State v. State v. Walker, 16 Maine, 241; The
Ambs, 20 Misso. 214; Independence v. State v. Prettyman, 3 Harring. Del. 570.
Noland, 21 Misso. 394; Curd r.Common- And see Johnson v. The State, 3 Lea,
wealth, 14 B. Monr. 386. See Mabry v. 469; Taylor v. Pickett, 52 Iowa, 467.
Bullock, 7 Dana, 337. 6 Reg. v. Raffles, 1 Q. B. D. 207.
2 The State v. Perkins, 6 Fost. N. H. * Commonwealth v. Hamer, 128 Mass.
9; Commonwealth v. Thayer, 8 Met. 523; 76; Gaertner v. Fond du Lac, 34 Wis.
Commonwealth v. Jordan, 18 Pick. 228; 497; People v. Brooklyn, 59 N. Y. 92;
The State v. Keen, 34 Maine, 600; The People v. Wright, 6 Thomp. & C. 518, 3
State v. Putnam, 38 Maine, 296; The Hun, 306; Hogan v. Guigon, 29 Grat.
State v. Parks, 29 Vt. 70; The State ». 705; Commonwealth v. Moylan, 119 Mass.
Heise, 7 Rich. 518; The State v. Holmes, 109; Plummer v. Commonwealth, 1 Bush,
28 La. An. 765; Nicrosi v. The State, 52 26,
Ala. 336; The State v. Cahen, 35 Md. 8 The State v. Plunket, 1 Ire. 115;
236; The State v. Fisher, 36 Vt. 584, Lightner v. Commonwealth, 7 Casey, Pa.
And see Reg. v. Knapp, 2 Ellis & B. 447, 341.
22 Eng. L. & Eq. 157; United States v. 9 Lane v. The State, 87 Ark. 272. And
Whitmell, 3 Murph. 137; Parker v. The see post, § 1024.
State, 27 Ind. 392.
564
CHAP. LY.] LIQUOR SELLING — THE LAW. § 1006
By Agent.— The selling may be either by the licensee in per-
son, or by his agent, and the latter will be protected by the
license.1 It is even held that the licensee may carry on the
business by agent.2, But—
Assignee. — The license is so far a personal trust that it cannot
be validly assigned. In the hands of the assignee, it is void.?
Hence, —
Partnership. — Though a joint license may be granted to two
or more persons or a firm, and all may sell under it, or one may
sell after the others have retired from business ;* yet a license to
one member of a firm, or to one person who afterward takes in a
partner, will not authorize the partner to make sales.* For, by
the unwritten law, a partner is the agent: of the firm, but not of
an individual other partner.6 Still there are some Kentucky,
cases which seem to go far toward the doctrine, that one partner
may sell under a license to another.’ And there is a case tend-
ing to the further opinion, that any licensee can protect any other
person in selling, if he has a general superintendence of the
business, though the latter conducts it on his own account8
But
the former must control it himself.9
§ 1005. Conviction not a License.— A conviction for selling
without a license does not authorize further unlicensed sales.
§ 1006. License refused. — A refusal of a license, by the licensing
power, however wrongful, will not entitle the applicant to sell
So—
without license.#
1 Post, § 1024; Runyon v. The State,
52 Ind, 320.
2 Thompson v. The State, 37 Ala. 151;
The State v. McNeeley, Winston, No. L
234; Runyon v. The State, supra. One
who forfeits his ‘license by removing out
of the State cannot thus carry on the
business. And the forfeited license will
not protect- the selling agent. Krant v.
The State, 47 Ind. 519.
3 Alger v. Weston, 14 Johns. 2381;
Lewis v. United States, Morris, 199;
Commonwealth v. Bryan, 9 Dana, 310;
Godfrey v. The State, 5 Blackf. 151; The
State v. Lydick, 11 Neb. 366; Keiser v.
The State, 58 Ind. 379.
* The State v. Gerhardt, 3 Jones, N. C.
178; United States v. Glab, 1 McCrary,
166; Shaw v. The State, 56 Ind. 188;
Long v. The State, 27 Ala. 32, 36.
> Shaw v. The State, supra; Long v.
The State, supra; Keiser v. The State,
58 Ind. 379.
& Bishop Con. § 392, 393.
7 Barnes v. Commonwealth, 2 Dana,
888 ; Gray v. Commonwealth, 9 Dana,
800. See The State 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. 374.
10 The State «. McBride, 4 McCord,
332.
1 Kadgihn v. Bloomington, 58 Ill. 229;
The State v. Cron, 23 Minn. 140; The
State v. Myers, 63 Misso. 824; Hodgman
v People, 4 Denio, 235; City Council x.
Hollenback, 3 Strob. 355; Indianapolis.
565
§ 1007 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Impossible. —It is no defence to the vendor without license,
that there was no officer to whom application for it could be made,
or that the obtaining of it was otherwise impossible.
IV. Expositions of Statutes and Doctrines.
§ 1006 a. Statutory Name of Liquor.— The statutes have vari-
ous terms to designate the liquor the selling whereof they regu-
late or forbid. And —
Court or Jury — (“ Malt Liquor” — “Pop” — “Lager Beer” —
“Whiskey ").— The meanings of the several terms, and whether
or not the admitted or proven facts of a- case are within them,
are for the court,? while the jury determine what facts the evi-
dence establishes. Yet, on this issue, there are facts so familiarly
known and certain,t or so completely a part of the language
itself, that the court will take judicial cognizance of them ; hence
they need not be proved to the jury.6 For example, it is judi-
cially known that lager beer is a malt liquor,’ but probably not
that “ pop” is.
And whiskey is judicially known to be intoxi-
cating,® but malt liquors are not so known.
§ 1007. “Intoxicating Liquor.” — This term denotes any liquor
v. Fairchild, 1 Ind. 815; The State v.
Downer, 21 Wis. 274; The State v.
Jamison, 23 Misso. 830; Commonwealth
v. Blackington, 24 Pick. 352; Garner v.
The State, 8 Blackf. 568; New York ce.
Mason, 4 E. D. Smith, 142.
1 Lord v. Jones, 24 Maine, 439; Erb
v. The State, 85 Ark. 631; Reese v. At-
lanta, 63 Ga. 344.
2 Ante, § 116; Crim. Proced. I. § 989 a,
989 5.
3 Ante, § 907; Crim. Proced. ut sup.
4 Rex v. Luffe, 8 East, 193, 202; Boul-
lemet v. The State, 28 Ala. 83; Hart v.
The State, 55 Ind. 599; Lumpkin v. Mur
rell, 46 Texas, 51; Dixon v. Niccolls,
39 Ill. 372; Humphrey v. Burnside, 4
Bush, 215; Ross v. Boswell, 60 Ind. 235.
5 Clementi v. Golding, 2 Camp. 25, 30,
32; Lampton v. Haggard, 3 T. B. Monr.
149; Jones v. Overstreet, 4 T. B. Monr.
647; Bailey v. Kalamazoo, 40 Mich. 251.
§ That a fact whereof the court
takes judicial cognizance need not be
proved is a proposition substantially axi-
566
omatic. We may say, that the jury,
having the same means of knowledge as
the court (The State v. Packer, 80 N. C.
439; Feldman v. Morrison, 1 Bradw. 460;
Eagan v. The State, 58 Ind. 162), will
take the same cognizance of the fact ; or,
that the court, knowing the fact, will in-
struct them therein. The result of the
two forms of the proposition is identical.
7 Watson v. The State, 55 Ala. 158;
Adler v. The State, 55 Ala. 16; The State
v. Goyette, 11 R. I. 592. But see The
State v. Starr, 67 Maine, 242.
3 Godfreidson v. People, 88 Ill. 284.
9 Schlicht v. The State, 56 Ind. 173;
Eagan v. The State, 53 Ind. 162; Feld-
man v. Morrison, 1 Bradw. 460.
1) Shaw v. The State, 56 Ind. 188;
Godfteidson v. People, supra; Rau v.
People, 63 N. Y. 277; Haines v. Hanra-
han, 105 Mass. 480; Commonwealth »v.
White, 15 Gray, 407. See People v.
Hawley, 3 Mich. 330; Markle v. Akron,
14 Ohio, 586, 591.
CHAP. LV.] LIQUOR SELLING — THE LAW. § 1009
which, by reason of its containing alcohol, whether only created
by fermentation, or afterward extracted by distilling and then
mixed with other ingredients or left pure, is, in such quantities
as may be practically drank, capable of producing intoxication.1
Except as to what is judicially known, within the explanations
of the last section, the question whether a particular liquor is
intoxicating or not is for the jury, who decide it, like any other
fact, on evidence presented.2 Some of the statutes have at-
tempted to remove practical difficulties by specifying what liquors
shall be deemed intoxicating.®
“Beer.”.—Some of the New York judges considered the word
“beer” alone to imply, that it be intoxicating.!
§ 1008. “Strong Liquor." — A statute of New York made pun-
ishable the unlicensed retailing of “any strong or spirituous
.
liquors or wines;’
and the majority of the court held, that
strong beer is “strong liquor”
capable of producing intoxication.®
within the inhibition, because
There are other cases in-
clining also to this opinion ; and agreeing with it, that small beer,
which cannot intoxicate, is not strong liquor.®
§ 1009. “Spirituous Liquor” — is composed wholly or in part
of alcohol extracted by distillation.’
1 The State v. Kelley, 47 Vt. 294;
Commonwealth ce. Blos, 116 Mass. 56;
People v. Hawley, 3 Mich. 330; Markle
v. Akron, 14 Ohio, 586, 591; Foster v. The
State, 36 Ark. 258; Tompkins v. Taylor,
21 .N. Y. 173; Lathrope v. The State, 50
Ind. 555; The State v. Laffer, 38 Iowa,
422; Commonwealth ». Peckham, 2 Gray,
514; Commonwealth v. Herrick, 6 Cush.
465. See King v. The State, 58 Missis.
737; Smith v. The State, 19 Conn. 493;
Bridges v. The State, 37 Ark. 224.
2 Josephdaffer v. The State, 32 Ind.
402; Eisenman v. The State, 49 Ind. 520;
Rau v. People, 68 N. Y. 277; Klare v.
The State, 43 Ind. 483; Haines v. Hanra-
han, 105 Mass. 480; Lathrope v. The
State, 50 Ind. 555; The State v. Lowry,
74 N.C. 121; Commonwealth v. White,
15 Gray, 407; The State v. Biddle, 54
N. H. 379; Plunkett v. The State, 69 Ind.
68; The State v. Wall, 34 Maine, 165;
The State v. Miller, 53 Iowa, 84; The
State v. Peterson, 41 Vt. 504; The State
v. Packer, 80 N. C. 439.
It need not be rectified ;*
3 Jackson v. The State, 19 Ind. 312;
The State v. Lemp, 16 Misso. 389; The
State v. Wittmar, 12 Misso. 407; Com-
monwealth v. Giles, 1 Gray, 466; Com-
monwealth v. Timothy, 8 Gray, 480;
Johnston v. The State, 23 Ohio State, 556;
Commonwealth v. Chappel, 116 Mass. 7;
Guptill v. Richardson, 62 Maine, 257;
Plunkett v. The State, 69 Ind. 68; The
State v. Volmer, 6 Kan. 371; Intoxi-
cating Liquor Cases, 25 Kan. 751; The
State v. Starr, 67 Maine, 242; Common-
wealth v. Shea, 14 Gray, 386; The State
v. McNamara, 69 Maine, 183.
4 People v. Wheelock, 3 Parker C.C.9.
5 Tompkins v. Taylor, 21 N. Y. 173,
178.
6 Nevin v. Ladue, 3 Denio, 43; s. ¢. 3
Denio, 487 ; People v. Crilley, 20 Barb.
246. j
7 Caswell v. The State, 2 Humph. 402;
The State v. Moore, 5 Blackf. 118; Walk-
er v. Prescott, 44 N. H.511. See Smith
v. The State, 19 Conn. 493.
8 Ante, § 273.
567
§ 1011 OFFENCES MORE PURELY STATUTORY. [BOOK VL
that is, it is within the term though it has passed through the
still only once. Fermented liquors are not included? But —
Peppermint Cordial. — Where the statutory words were, “ any
wine, rum, brandy, gin, whiskey, or any spirituous liquor, .. .
or any punch or other mixed liquor,” peppermint cordial, made
of ‘whiskey sweetened and scented, was by the majority of the
court held to be spirituous liquor.*
§ 1010. “Vinous Liquor” — (“ Cider”). — Vinous liquor is liquor
made from the juice of the grape. Cider is not within the term.
Liquor. — Under a statute forbidding the ‘ keeper of an inn,
tavern, or ordinary, or retailer of liquors by the small measure,”
to sell “on a credit liquors to a greater amount than ten dollars,”
champagne wine was held to be a liquor.® _,
§ 1011. Other Terms. — There are other words, either explained
in the earlier parts of this volume, or needing no explanation;
as, “ distiller,”* “ distillery,” ® “manufacturer,” ® ‘ merchant,”
plantation,” } “* refreshment saloon,” ” * saloon,” 8 “ ordinary,” 4
“ premises,” © “ furnishing,” public house,” " “ place of pub-
lie resort,” 8 “town,” ® “ dwelling-house,”® * store,” ‘ shop,” ?!
“Liquor shop.”
1 The State v. Summey, Winston, No.
II. 108. And see Boyd v. United States,
14 Blatch. 317.
2 The State v. Adams, 51 N. H. 568;
Fritz v. The State, 1 Baxter, 15, over-
ruling The State v. Sharrer, 2 Coldw.
323.
® The State v. Bennet, 3 Harring.
Del. 565. See post, § 1020. See, as to an
analogous question, Smith v. The State,
19 Conn. 493.
4 Adler v. The State, 55 Ala. 16, 24.
5 Feldman v. Morrison, 1 Bradw. 460.
6 Kizer v. Randleman, 5 Jones, N. C.
428.
7 Ante, § 273. And see ante, § 1009;
Johnson v. The State, 44 Ala. 414,
8 Atlantic Dock Co. v. Libby, 45 N. Y.
499.
® Commonwealth v. Bralley, 3 Gray,
456.
10 Commonwealth v. McGeorge, 9 B.
Monr. 3; Cole v. Commonwealth, 8 Dana,
81; Anderson v. Commonwealth, 9 Bush,
569 ; post, § 1090.
11 Ante, § 300; Sanderlin v. The State,
2 Humph. 315.
2 The State v. Hogan, 10 Fost. N. 1.
568
268. And see Howes v. Board of Inland
Revenue, 1 Ex. D. 385.
18 Kitson v. Ann Arbor, 26 Mich. 825;
The State v. Mansker, 36 Texas, 364;
O’Brien v. The State, 10 Texas Ap. 544;
The State v. Barr, 89 Conn. 40. And see
Haines v. Smith, 7 Texas Ap. 30.
14 Burner v. Commonwealth, 13 Grat.
778.
15 ‘Ante, § 291, note; Downman v. The
State, 14 Ala. 242; Swan v. The State,
11 Ala. 594; Easterling v. The State, 30
Ala. 46.
16 The State v. Freeman, 27 Vt. 520;
The State v. Jones, 39 Vt. 370; Common-
wealth v. Davis, 12 Bush, 240.
NW Ante, § 297-299; Brown v. The
State, 27 Ala. 47.
18 Bandalow ‘v. People, 90 Ill. 218.
And see ante, § 291, 298.
19 Ante, § 299a; The State v. Glen-
non, 3 R. I. 276.
20 Ante, § 277-290: Commonwealth ».
Estabrook, 10 Pick. 293.
21 Ante, § 294,295; Barth v. The State,
18 Conn. 432.
22 Wooster v. The State, 6 Baxter, 533;
The State v. Powell, 3 Lea, 164.
CHAP. LY.] “LIQUOR SELLING — THE LAW. § 1018
§ 1012. Giving away. — Some of the statutes make punishable
the giving away of the liquor,! equally with the selling.. Under
the rule of interpretation that an act, to be within a penal prohi-
bition, must be within its spirit? as well as its letter, the court
will not hold it to be a crime, where the purpose of the pro-
vision was evidently to prevent evasions of another against
selling,’ merely to treat in hospitality a person calling at one’s
house. But where it is to prevent the corruption of elections,
on election day, the contrary conclusion seems to follow. In
some of the statutes, the word “give” is held to comprehend a
sale.6
§ 1013. “Seu.”—To sell is to transfer the ownership for a
valuable consideration.’ A gift is not a sale,$ nor is the admin-
istering of the liquor by a physician as a medicine.® Nor yet
is a mere agreement to sell; there must be a delivery of the
liquor," or such a constructive delivery as will cause the title
to pass.“ But payment need not be made; for a sale on
credit is equally within the prohibition as one for cash, though
the law would not enforce the payment.® So also it is a sale
where the liquor is delivered in discharge of a prior obligation.
And, —
Quantity and where drank.—- To complete the offence, some of
the statutes require less than a specified quantity to be sold,» or
1 Albrecht v, People, 78 Ill. 510;
Bloomington v. Strehle, 47 Ill. 72; Wil-
liams v. The State, 48 Ind. 306; Dahmer
v. The State, 56 Missis. 787; Parkinson
v. The State, 14 Md. 184.
2 Ante, § 226, 230, 231 et seq.
8 Williams v. The State, supra; Dah-
mer v. The State, supra.
# Albrecht v. People, supra.
5 Cearfoss v. The State, 42 Md. 403.
§ Commonwealth v. Davis, 12 Bush,
240. Compare with Dahmer v. The
State, and Parkinson v. The State,
supra.
‘ Parkinson v. The State, 14 Md. 184;
Stevenson v. The State, 65 Ind. 409;
Lumpkin c. Wilson, 5 Heisk. 555; Madi-
son Avenue Baptist Church v. Baptist
Church, 46 N. Y. 131.
8 Parkinson v. The State, supra; Al-
len v. The State, 14 Texas, 633.
9 Schaffner v. The State, § Ohio State,
642. And see post, § 1019.
10 Banchor v. Warren, 33 N. H. 183;
Riley v. The State, 45 Missis. 397.
Ul Pulse v. The State, 5 Humph. 108.
12 Bishop Con. § 547; Dobson v. The
State, 57 Ind. 69; Commonwealth vu.
“Greenfield, 121 Mass. 40. See Tegler v.
Shipman, 33 Towa, 194; The ‘State v.
Comings, 28 Vt. 508; Stallard v. Marks,
3 Q. B. D. 412.
13 Emerson v. Noble, 32 Maine, 380;
Commonwealth v. Burns, 8 Gray, 482;
Commonwealth v. Rumrill, 1 Gray, 388,
890; Riley v. The State, supra; Ihrig v.
The State, 40 Ind. 422; The State wv.
Thomas, 13 W. Va. 848.
14 Mason v. Lothrop, 7 Gray, 354;
Bescher v. The State, 82 Ind. 480; The
State v. Poteet, 86 N. C. 612.
1 Scott v. The State, 25 Texas Supp.
168; Noecker v. People, 91 Ill. 468;
Weireter v. The State, 69 Ind. 269; Sap-
pington v. Carter, 67 Ill. 482. e
569
§ 1013 OFFENCES MORE PURELY STATUTORY. [BOOK VI
the sale to be by retail,! or for drinking on the premises, or the
like 3? others do not.2 Now,—
Evasions.—It not being punishable under a statute to violate
its spirit where the letter is not broken,’ if, from whatever mo-
tive, parties so shape a transaction that it does not constitute a
sale, or a sale of the forbidden quantity, and it is not meant to be
such, they escape the statutory penalty. But no mere evasion
of the law, where a sale is the thing intended by the parties, —
it being for the jury to say whether or not such was their intent,
where prima facie the transaction was not a sale,®— will avail
them." Numerous have been the devices of offenders to escape
this doctrine, and almost all have been unsuccessful ; as, selling
something else and giving the liquor,’ contracting for the larger
permissible quantity and delivering it in the smaller forbidden
quantities at different times,® permitting the customer to help
himself and drop a piece of money into a hole in the table,” the
‘social club” device,)! and other similar ones.!2. The principle is,
that a sale is, not an executory, but an executed, contract; and,
when the possession of the liquor has passed from the one person
1 Tripp v. Hennessy, 10 R. I. 129;
Bryant v. The State, 46 Ala. 302; Lemons
v. The State, 50 Ala. 130; Harris v. The
State, 50 Ala. 127; Lillensteine v. The
State,46 Ala.498; Luling v.Labranche, 30
La. An. 972; Martin v. The State, 59 Ala.
84; Forwood v. The State, 49 Md. 531.
2 O’Connor v. The State, 45 Ind. 347;
Bandalow v. People, 90 Ill. 218; Powell
v. The State, 63 Ala. 177; Bath v. White,
8 C. P. D. 175; The State v. White, 7
Baxter, 158.
3 Allen v. The State, 5 Wis. 329; The
State v. Corll, 73 Ind. 535,
4 Ante, § 1012 and places referred
to.
5 Dobson v. The State, 57 Ind. 69;
Young v. The State, 58 Ala. 358; Scott
v. The State, 25 Texas Supp. 168; The
State v. Kirkham, 1 Ire. 384.
6 Commonwealth v. Smith, 102 Mass.
144, 147; Rickart c. People, 79 Ill. 85;
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. 848. And see The State v. Hop-
kins, 4 Jones, N. C. 305; The State v.
Wright, 4 Jones, N. C. 3808.
570
7 Ib.; The State v. Redden, 5 Harring.
Del. 505.
8 Commonwealth v. Thayer, 8 Met.
525; Archer v. The State, 45 Md. 33.
And see New Gloucester v. Bridgham, 28
Maine, 60. Thus, “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 jury to say,
whether it was in the contemplation of the
parties by the purchase of cigars to pay
for the liquor; and the jury convicted
the defendant of a violation of this law.”
Observation in The State v. Redden, su-
pra.
® Murphy v. The State, 1 Ind. 266,
Smith, Ind. 261; The State v. Kirkham,
1 Ire. 884; Thomas v. The State, 37
Missis. 353.
1) The State v. McMinn, 83 N. C. 668.
11 The State v. Mercer, 32 Iowa, 405;
Marmont v. The State, 48 Ind. 21.
2 Rickart v. People, 79 Ill. 85; The
State v. White, 7 Baxter, 158; The State
uv. Bell, 2 Jones, N. C. 837. And see The
State v. Simmons, 66 N. C. 622; Bath v.
White, 3 C. P. D. 175, 180; Weireter v.
The State, 69 Ind. 269.
CHAP. LY. ] LIQUOR SELLING — THE LAW. § 1014
to the other, the transaction, whatever its form was, or how-
ever defective in form, becomes what the parties meant.!
Again, —
Name of Liquor.—If a drink of a particular name is adulter-
ated, or mixed with other ingredients, known or unknown, and
sold under another name, still a sale of the mixture is a sale of
the drink.
§ 1014. “Barter” and “Exchange,” distinguished from “Sale.” —
In other departments of the law, a distinction is sometimes made
between a * barter” or ‘* exchange” of goods, and a “sale”’ of
them.? If goods are delivered at a fixed price, to be paid for in
other goods, the transaction is as completely a sale as though the
payment were to be in money.*— But where one thing is simply
given for another, and no determinate value is set upon either,
the transaction is a barter and not a sale, and it does not alter
the case that a money difference is paid. Still we have other
authority for saying, that whenever, for any valuable considera-
tion, though only in unappraised goods, the ownership of a thing
passes from one person to another, there is a sale Some have
applied the former doctrine to the criminal statutes now under
discussion, and held that a barter of the liquor is not a sale of it.”
On the other hand, under the statutory words “shall, directly
or indirectly, on any pretence or by any device, sell, or in con-
sideration of the purchase of any other property give to any per-
son any spirituous or intoxicating liquor,” the offence was held
to be committed where a distiller exchanged intoxicating liquor
for grain. ‘The intention of the legislature,” said the learned
judge, ‘‘ was manifestly to cover every case of the transfer of in-
1 Bishop Con. § 139, 140, 150, 432-434 ;
Huthmacher v. Harris, 2 Wright, Pa. 491;
Whitcher v. Shattuck, 3 Allen, 319; Dun-
ham c. Chatham, 21 Texas, 231; Weath-
erby v. Banham, 5 Car. & P. 228.
2 Commonwealth v. Bathrick, 6 Cush.
247; The State v. Stanton, 37 Conn. 421,
423. See Russell v. Sloan, 33 Vt. 656.
3 Vail v. Strong, 10 Vt. 457.
4 Picard v. McCormick, 11 Mich. 68;
Keiler v. Tutt, 31 Misso. 301; Loomis v.
Wainwright, 21 Vt. 520. Still we have
some authority for saying, that it is a
barter and not a sale, where goods are
exchanged at agreed prices. Guerreiro
v. Peile, 3 B. & Ald.616. And see Toml.
Law Dict. “ Barter.”
5 Gunterv. Leckey, 30 Ala. 591; Mitch-
ell v. Gile, 12 N. H. 390; Woodford v.
Patterson, 32 Barb. 630; Lumpkin v.
Wilson, 5 Heisk. 555. See Wittkowsky
v. Wasson, 71 N. C. 451.
§ Foster v. Pettibone, 3 Seld. 4338;
Madison Avenue Baptist Church v. Bap-
tist Church, 46 N. Y. 131, 1389, 140. See
Schermerhorn v. Talman, 4 Kernan, 93,
117. “In exchanging, both parties are
buyers and sellers.” Anonymous, 3 Salk.
157.
1 Stevenson v. The State, 65 Ind. 409.
See Schlicht v. The State, 56 Ind. 173.
OTL
§ 1016 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
toxicating liquors for value, in whatever form the consideration
for such transfer might be given or paid.” }
§ 1015. “Mortgage” as “Sale.— With some exceptions and
qualifications,? a mortgage is a sale, though upon condition.
Therefore the. mortgage of an apothecary’s stock, consisting in.
part of intoxicating liquors, was adjudged to be a sale of the
liquors within the prohibitory laws; and, as such, invalid.?
§ 1016. “ Offer to Sell” — A sale is not necessarily an offer to
sell.*
Single Sale — (One Day). — Under many of the principal stat-
utes, a single instance of selling constitutes the offence:5 and a
person may commit any number of offences in a single day; or
as to one purchaser.6 Thus, —
“Retail,”— in the statute, is satisfied by a single instance of
selling,’ though if may equally
So —
consist of more sales than one.8
“Deal in Selling.” — The words “deal in the selling” are held
to be satisfied by a single sale.?
“Dealer” — implies a plurality
1 Commonwealth v. Clark, 14 Gray,
867, 372, opinion by Bigelow, J. And
see Howard v. Harris, 8 Allen, 297.
2 Krider v. Western College, 31 Iowa,
547; People v. Cox, 45 Cal. 342..
3 Hay v. Parker, 55 Maine, 355.
4 “Tt [the offer to sell] is not to be in-
ferred from the mere fact of a sale, be-
cause 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 ab-
surd to talk of an acceptance as an offer.
They are as essentially distinct as a ques-
tion and an answer.” Williams v. Tap-
pan, 3 Fost. N. H. 385, 394. * Expose
for Sale.” — The mere having of liquors
visible at the bar, without any affirmative
act of offering them, has been held not to
be within a statute against exposing them
for sale on Sunday. Houtsch v. Jersey
City, 5 Dutcher, 316.
5 Commonwealth v. Porter, 4 Gray,
426; The State v. Grames, 68 Maine, 418;
Weireter v. The State, 69 Ind. 269;
Woody v. The State, 82 Ga. 595; The
State v. Small, 31 Misso. 197.
6 The State v. Small, 31 Misso. 197;
572
But —
of instances. And —
Weireter v. The State, supra; Brooke v.
Milliken, 3 T. R. 509.
7 The State v. Cassety, 1 Rich. 90;
The State v. Mooty, 3 Hill, S. C. 187;
Lawson v. The State, 55 Ala. 118; Mar-
tin v. The State, 59 Ala. 34. In Markle
v. Akron, 14 Ohio, 586, the court were of
opinion, that the word “retail” does not
necessarily imply a consideration given ;
but, query.
8 The State v. Anderson, 3 Rich. 172;
Lillensteine v. The State, 46 Ala. 498.
“* Wholesale.’ — As to the distinction
between ‘ wholesale” and “retail” see
Gorsuth v. Butterfield, 2 Wis. 237; Har-
ris v. Livingston, 28 Ala. 577; Koopman
v. The State, 61 Ala. 70; Espy v. The
State, 47 Ala. 583; Browne v. Hilton, 23
Pick. 319.
9 Ante, § 210; The State v. Paddock,
24 Vt. 312; The State v. Glasgow, Dud-
ley, S.C. 40; The State v. Bugbee, 22
Vt. 32; The State v. Chandler, 15 Vt.
425.
10 Ante, § 210; Overall v. Bezeau, 37
Mich. 506. A clerk in a,dealer’s saloon
is not a dealer. Archer v. The State, 10
Texas Ap. 482. See also Barton v. Mor-
ris, 10 Philad. 360.
CHAP. LY. ] LIQUOR SELLING-—THE LAW. § 1018
“Business or Employment” — the same.!
§ 1017. “Presume to be Seller.” — The words “ 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,” are held to require
only a single sale.2 But —
Quantity. — This statute is not violated where several kinds of
liquor are included in the one sale, the quantity of each kind being
less than the twenty-eight gallons, yet all being more. “It is,”
said Shaw, C. J. a wholesale dealing with a customer who buys
to sell again.” 8
§ 1018. “Common Seller.” — The English statute of 5 & 6
Edw. 6, c. 25, § 4, followed by some later enactments, made pun-
ishable those who should without license ‘* use commonly selling
of” specified drinks. Whence we have derived the expression
‘¢common seller,’ which some of our statutes forbid any one to
be without license. And our courts have interpreted it to require
proof of three specific acts of sale, to which perhaps must be
added other evidence.* They need not be to three distinct per-
sons ;° even if all are to one, the effect is the same.6 They may
be all in one day,’ or evening,’ or on different days.2 They do
not constitute, but rather evidence,” the offence. There may be
other proofs, and even those of the three sales may be circum-
stantial,!! while yet the jury must in some way be made satisfied
that they occurred.” Plainly, aside from a statutory interpreta-
tion which has sometimes prevailed in at least one of the
States,’8 three sales may take place under circumstances which
1 Moore v. The State, 16 Ala. 411;
Harris v. The State, 50 Ala. 127; Lem-
ons v. The State, 50 Ala. 130; Martin
v. The State, 59 Ala. 34; United States
v. Jackson, 1 Hughes, 531; Lawson v. The
State, 55 Ala. 118.
2 Commonwealth v. Dean, 21 Pick.
834; R. S. of Mass. c. 47, § 8.
3 Browne v. Hilton, 23 Pick.319. And
see Commonwealth v. Buck, 12 Met. 524.
4 Commonwealth v. Tubbs, 1 Cush. 2;
Commonwealth v. Odlin, 23 Pick. 275;
The State v. Day, 27 Maine, 244. See
The State v. O’Conner, 49 Maine, 594.
5 Commonwealth v. Tubbs, supra;
The State v. Williams, 6 R. I. 207.
6 Commonwealth vr. Odlin, 23 Pick.
275, 278.
* Commonwealth v. Perley , 2 Cush. 559.
8 Commonwealth v. Rumrill, 1 Gray,
388.
3 The State v. Day, 37 Maine, 244.
1) The State v. Maher, 35 Maine, 225;
The State v. Coombs, 32 Maine, 539.
See post, § 1027. ;
11 The State v. Hynes,66 Maine, 114,115.
12 Commonwealth v.. Tubbs, 1 Cush. 2.
Yet Shaw, C. J. once said: “No statute,
and no rule of common law has precisely
determined what shall constitute a per-
son a common seller.” Commonwealth
v. Odlin, 23 Pick. 275, 278.
13 TNeclaring three acts of sale sufficient
573
§ 1020 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
do not make the seller a common seller. Hence, and for other
reasons, the defendant’s surroundings and fittings up, and num-
berless other like facts may be shown against him.!
§ 1019. Medical Use — (Exceptive Provisions).—Some of the
statutes, in varying terms, provide for the selling of liquors for
medical use, or except from their penalties sales made for such
use.2 And this accords alike with their general policy, and with
the opinions of all classes of people; for, though intoxicating
liquor is not a “ drug,” ? all deem it a valuable medicine. Where
these statutory provisions and: limitations prevail, they must, in
reason, and it is believed on authority, be accepted as the meas-
ure of the right to make such sales, so that no further right can
be superinduced by interpretation.* But, —
§ 1020. No Exceptive Provision.— Where the statute has no
exceptive provision, it is the better opinion that interpretation
should except the bona-fide sale, proceeding on due caution and
inquiry, for medical use;5 though the books contain much in
dissent from this.®
firm foundation.
tion of penal statutes that one to
to constitute 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 transactions with de-
livery, sales, and purchase distinct from
one another, although at a single visit of
the purchasers, and in pursuance of a
preconcerted plan to obtain evidence
against the liquor-seller, is competent
proof of three sales. Commonwealth ».
Graves, 97 Mass. 114.
1 Commonwealth v. Tubbs, supra;
Commonwealth v. Madden, 1 Gray, 486;
Commonwealth v. Harvey, 1 Gray, 487;
Commonwealth v. Norton, 16 Gray, 30;
Commonwealth v. Maloney, 16 Gray,
20; Commonwealth v. Whalen, 16 Gray,
23; Commonwealth v. Collins, 16 Gray,
29.
2 Haynie v. The State, 32 Missis. 400;
Henwood v. The State, 41 Missis. 579;
The State v. Mitchell, 28 Misso. 562;
The State v. Wells, 28 Misso. 565; Har-
per v. The State, 3 Lea, 211; Boone v.
574
In principle, this doctrine rests on a very
It being an established rule in the interpreta-
violate them must infringe their
The State, 10 Texas Ap. 418; Mills v.
Perkins, 120 Mass. 41; Bain v. The State,
61 Ala. 75.:
3 Gault v. The State, 34 Ga. 533.
4 Harper v. The State, supra; The
State v. Wool, 86 N. C. 708; Newman v.
The State, 7 Lea, 617.
5 Ante, § 238; Donnell v. The State,
2 Ind. 658; The State v. Adamson, 14 Ind.
296; Thomasson v. The State, 15 Ind.
449; Elrod v. The State, 72 Ind. 292;
Hooper v. The State, 56 Ind. 153; Ball
v. The State, 50 Ind. 595; Jakes v. The
State, 42 Ind. 473; Nixon v. The State,
76 Ind. 524; Anderson v. Commonwealth,
9 Bush, 569; Miles v. The State, 6 W.
Va. 624; The State v. Wray, 72 N. C.
253.
8 Ante, § 238; The State v. Brown,
31 Maine, 622; Commonwealth v. Sloan,
4 Cush. 52; Commonwealth v. Kimball,
24 Pick. 866; The State v. Chandler, 15
Vt. 425; Gault v. The State, 34 Ga. 533;
Wright v. People, 101 Ill. 126; Philips
uv. The State, 2 Yerg. 458; Brown uv. The
State, 9 Neb. 189. See People v. Safford,
6 Denio, 112.
~
CHAP. LV.] LIQUOR SELLING — THE LAW. § 1020
spirit equally with their letter,! everybody knows the purpose of
these enactments to be the suppression of tippling, — or, at least,
the sale for drink, — not the depriving of the sick of a needed
medicine. Hence it is plain that the interpretation which is
given to other criminal statutes will, if applied to these, except
the dona-fide and cautious sale for medical use. Again, —
Medicine distinguished from Drink. — Things are distinguishable
by the uses to which they are put. A piece of hickory wood
two and a half feet long is one thing or another according as its
purposed use is for fuel, for an axe handle, or for a deadly
weapon with which to commit a murder. So is alcohol one
thing when employed in tippling and another when administered
for medicine to the sick. And it accords with all rules of inter-
pretation to apply these statutes, as they were meant by the
makers,” only to the tippling alcohol. Therefore, in the words
of Gamble, J. “if a physician, upon his professional judgment
that a sick person needs brandy, administers it as a medicine, in
good faith, and charges for 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 a man who is not well,
without exercising his professional judgment, and determining
that it is necessary for the sick person, he is indictable.” ? With-
in this distinction, if, acting honestly and carefully, he is deceived
by the sick man, who perverts what was given for medicine to a
different use, he is excused by reason of the mistake of fact ;#
but it is otherwise where he is not deceived.5 A fortiori, there-
fore, if the forbidden liquor is so mixed with other ingredients as
to become a medicine in distinction from an intoxicating drink,
the selling of it is not within these statutes.° Hence it is no
offence to keep the liquor with the intent thus to mix it? But
the Maine court held, that a physician cannot sell the unmixed
1 Ante, § 226, 230, 231 et seq., 1012,
1018.
2 Ante, § 70, 75, 76.
8 The State v. Larrimore, 19 Misso.
891. See also Commonwealth v. Kim-
ball, 24 Pick. 366, 369; The State v. Hall,
89 Maine, 107; Struble v. Nodwift, 11
Ind. 64; ante, § 1013.
4 Leppert v. The State, 7 Ind. 300;
Taylor v. Pickett, 52 Iowa, 467; The
State v. Mitchell, 28 Misso. 562.
5 McGuire v. The State, 87 Missis.
369. ;
6 King v. The State, 58 Missis. 737;
Prather v. The State, 12 Texas Ap. 401;
Intoxicating Liquor Cases, 25 Kan. 751;
The State v. Bennet, 3 Harring. Del. 565;
Russell v. Sloan, 33 Vt. 656. See Byars
v. Mt. Vernon, 77 Ill. 467.
7 Commonwealth v. Ramsdell, 130
Mass. 68.
575
V
$1021 OFFENCES MORE PURELY STATUTORY. ‘[BOOK VI.
liquor and the other ingredients separately, though the purchaser
compounds them in his presence,! — a conclusion in which per-
haps not all courts will concur.
§ 1021. Selling to Particular Classes — (Minors — Drunkards —
Negroes — Slaves).— There are in some of the States statutes, in
varying terms, forbidding the sale of intoxicating liquors to speci-
fied classes of persons; as, “minors,’’? “ drunkards,” ® ‘“ ne-
groes,’* and formerly “slaves.
for the use of the parent is not to sell it to the minor.®
6
To deliver liquor to a minor.
Some of
the statutes permit the sale with the parent’s consent; under
which the consent must be in
1 The State v. Hall, 39 Maine, 107.
And see The State v. Chandler, 15 Vt. 425.
2 The State v. Fairfield, 37 Maine,
617; Ihrig v. The State, 40 Ind. 422;
Commonwealth v. Davis, 12 Bush, 240;
Newman v. The State, 63 Ga. 533;
Werneke v. The State, 50 Ind. 22; Weed
v. The State, 65 Ala. 18; Edgar v. The
State, 37 Ark. 219; The State v. Cain, 9
W. Va. 559; The State v. Gilmore, 9 W.
Va. 641; Ihinger v. The State, 53 Ind.
251; Hill v. The State, 62 Ala. 168; Ad-
ler v. The State, 55 Ala. 16; Common-
wealth v. Jessup, 138 Smith, Pa. 34;
Payne v. The State, 74 Ind. 203; Reich
v. The State, 63 Ga. 616; Redmond
v. The State, 86 Ark. 58; The State v.
Munson, 25 Ohio State, 381; Farmer v.
People, 77 Ill. 822; McCutcheon v. Peo-
ple, 69 Ill. 601; Faulks v. People, 39
Mich. 200; Robinius v. The State, 67
Ind. 94; Robinius «. The State, 63 Ind.
235; Moore v. The State, 65 Ind. 382;
Bain v. The State, 61 Ala. 75; The State
v. Hartfiel, 24 Wis. 60; Goetz v. The
State, 41 Ind. 162; Ward v. The State,
48 Ind. 289; Marshall v. The State, 49
Ala. 21; Jamison v. Burton, 43 Iowa,
282; The State v. Richter, 23 Minn. 81;
Perry v. Edwards, 44 N. Y. 223; Fitzen-
rider v. The State, 30 Ind. 238; Baer v.
Commonwealth, 10 Bush, 8; Johnson v.
The State, 74 Ind. 197; Hale v. The State,
86 Ark. 150 ; Johnson v. People, 88 IIL. 431.
3 Barnes v. The State, 19 Conn. 398;
Miller v. The State, 3 Ohio State, 475;
Smith v. The State, 19 Conn. 493; Zeizer
v. The State, 47 Ind. 129; Hill v. The
State, 62 Ala. 168; The State v. Gute-
kunst, 24 Kan. 252; Walton v. The State,
576
the: statutory form.’ Or, if the
62 Ala. 197; The State v. Mahoney, 23
Minn. 181; Atkins v. The State, 60 Ala.
45; Williams v. The State, 48 Ind. 306;
Humpeler v. People, 92 Ill. 400; Dudley
v. Sautbin, 49 Iowa, 650; Murphy v.
People, 90 Ill. 59; Crabtree v. The State,
30 Ohio State, 882; People v. Hislop, 77
N. Y. 331; Adams v. The State, 25 Ohio
State, 684; Elam v. The State, 25 Ala.
63; Smith v. The State, 55 Ala. 1; Mapes
v. People, 69 Ill. 523; Deveny v. The
State, 47 Ind. 208; Allen v. The State, 52
Ind. 486; Ruell v. The State, 72 Ind.
523; Tatum v. The State, 63 Ala. 147;
The State v. Heck, 23 Minn. 549.
4 The State v. Sonnerkalb, 2 Nott &
McC. 280.
5 Bond v. The State, 13 Sm. & M. 265;
Commonwealth v. Hatton, 15 B. Monr.
6387; 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;
Rawlings v. The State, 2 Md. 201; Lind-
say v. The State, 19 Ala. 560; Brown v.
The State, 2 Head, 180; The State v.
Weaks, 7 Humph. 522; Jolly v. The
State, 8 Sm. & M. 145; Page v. Luther, 6
Jones, N. C. 413; Shuttleworth v. The
State, 85 Ala. 415; Reinhart v. The
State, 29 Ga. 522; The State v. Harring-
ton, 12 Rich. 293.
6 Commonwealth v. Lattinville, 120
Mass. 385. But see Ross v. People, 17
Hun, 591.
7 Adler v. The State, 55 Ala. 16; The
State v. Coenan, 48 Iowa, 567; Ridling
v. The State. 56 Ga. 601; Commonwealth
v. Davis, 12 Bush, 240.
CHAP. LV. ] LIQUOR SELLING — THE LAW. § 1022
statute does not contain the exception, the authority of the parent
will be no excuse to the seller! What is a drunkard we have
already seen.? One, to be such, need not be always drunk.}
Now, —
$1022. Mistake of Fact — (Vendee's Age — Habits — Intoxicating
Quality of Liquor).— Under these statutes, the question of the
effect of a mistake of fact, discussed or adverted to in several
other connections, has often arisen. It is not proposed to repeat
the former discussions; they are referred to in a note,* and the
reader is requested to examine them. The result, derivable both
from the places referred to and from the decisions under the pres-
ent head, is, that one whom the law permits to sell intoxicating
liquor, and whose purpose and endeavor it is to conform to the
law in all things, and to do no wrong of any sort, is legally, the
same as he is morally, justified in acting, like other people in
respect of other things, on what upon careful investigation and
inquiry appear to be the facts ; so that, if believing the appear-
ances he does what would be legally and morally right were the
real facts so, he is not punishable though he was deceived and
they were different. Thus. if one authorized to sell liquor to
adults and forbidden to sell it to minors, is, without his fault or
carelessness, led to believe an applicant to be an adult while
truly he is a minor, he is not punishable though he makes the
sale,®> — a proposition which some deny. And the same doctrine
1 The State v. Clottu, 33 Ind. 409.
2 Ante, § 970, 972.
3 Murphy v. People, 90 Tl. 59.
4 Crim. Law, I. § 301-310; ante, § 490,
56 a, 596 b, 631 a-632 a, 663-665, 729,
819.
5 Crim. Law, I. § 302; Reich v. The
State, 63 Ga. 616; Marshall v. The State,
49 Ala. 21; Ward v. The State, 48 Ind.
289; Farbach v. The State, 24 Ind. 77;
Rineman v. The State, 24 Ind. 80, 85;
Brown v. The State, 24 Ind. 113; Goetz
v. The State, 41 Ind. 162; Williams v.
The State, 48 Ind. 806; Robinius v. The
State, 67 Ind. 94; Faulks v. People, 39
Mich. 200, 202, the court observing, “It
cannot be assumed that the Legislature
would attempt such a wrong as to pun-
ish as criminal an act which involved no
criminal intent. There can be no crime
where there is no criminal mind. This
37
principle is as old as the criminal law,
and underlies the whole of it;” Adler v.
The State, 55 Ala. 16. .
6 It is difficult to say what cases there
- are in denial of the better doctrine. A
just examination of the decisions will
disclose but very few. One difficulty is,
that judges and writers on the law have
alike, in various instances, discussed this
question in a conditiou of mind so dense
with fog as to render it impossible to de-
termine what is really meant; and an-
other difficulty is, that, in some correctly-
decided cases, where the facts did not
require the drawing of exact lines, obser-
vations have fallen from the court lead-
ing ill-instructed writers to believe them
adverse while they are not. Such a
writer, with strong leanings against the
true doctrine, would set down The State
v. Hartfiel, 24 Wis. 60, as adverse. The
5TT
§ 1022 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
applies under the statutes permitting sales generally but not to
habitual drunkards.! It applies, likewise, to the question of the
intoxicating quality of the liquors sold; but there are cases in
denial of this.2 Where the statute is silent as to the defendant’s
intent or knowledge, the indictment need not allege or the gov-
ernment’s evidence show that he knew the fact; his being mis-
led concerning it is matter for him to set up in defence, and
prove.? Quite different are the law and procedure where the
statute has the word “knowingly” or the like; knowledge is
then an element in the crime, the indictment must allege it, and
the evidence against the defendant affirmatively establish its
existence.4
head-note is: “ The sale of intoxicating
liquors to a minor is an offence under
section 1, c. 128, Laws of 1867, though
the vendor does not know that the pur-
chaser is a minor.” But there is nothing
here of the sort. The statute is silent as
to the seller’s knowledge ; and, of course,
such knowledge is, as tle head-note says,
no element in the offence. Looking into
the case, we find the following observa-
tion from the learned judge: “ The au-
thorities cited 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 culpability, ignorance of the fact,
or state of things contemplated by the
statute, will not excuse its violation.”
p. 61. Nothing of this is in the slightest
degree adverse to the doctrine of my text.
All admit, that a man has no right to
act while his mind is in a state of “ igno-
rance.” He should first inform himself ;
and, if he will not, he must take the con-
sequences. One who throws down from
a loft, into the street, what will kill any
man it hits, while “ignorant ” whether or
not there are men there, is properly ad-
judged guilty of a criminal homicide if a
man is killed. And by all opinions the
same doctrine applies to a sale of liquor
to a minor in “ignorance” of his age.
But it is a very different question wheth-
er or not it is a defence for the seller that
he took pains to remove his “ ignorance,”
and was duly, yet mistakenly, informed,
therefore believed, that the buyer had at-
tained majority. All concede that this
578
sort of mistake would be a perfect de-
fence in the case of homicide. Is the
selling of a glass of whiskey to a youth
an offence so much greater than murder-
ing him that it should be dealt with less
leniently ? I shall not further examine
the cases in detail, but perhaps some
would deem the following to tend more
or less toward the erroneous doctrine:
Redmond v. The State, 36 Ark. 58; Ed-
gar v. The State, 37 Ark. 219; The State
v. Cain, 9 W. Va. 559; The State v. Gil-
more, 9 W. Va. 641; Farmer v. People,
77 Ill. 822; McCutcheon v. People, 69 Iil.
601; Humpeler v. People, 92 Tll. 400;
Ulrich v. Commonwealth, 6 Bush, 400.
And see, as perhaps having some bearing
on this question, on the one side or the
other, Stanley v. The State, £3 Ala. 26;
Smith v. The State, 24 Texas; 547; Dick-
ins v. The State, 30 Ga. 383; Miller v.
The State, 5 Ohio State, 275; Emery v.
Kempton, 2 Gray, 257; Commonwealth
v. Goodman, 97 Mass. 117.
1 Crabtree v. The State, 30 Ohio State,
382.
2 Crim. Law, I. § 308 a, note, par. 20;
Commonwealth v. Boynton, 2 Allen, 160;
Commonwealth v. Hallett, 108 Mass. 452.
3 Ante, § 675, 729; The State v. Kalb,
14 Ind. 403; Goetz v. The State, 41 Ind.
162; Ward v. The State, 48 Ind. 289;
Marshall v. The State, 49 Ala. 21; Mapes
v. People, 69 Il. 523; Jamison v. Bur-
ton, 43 Iowa, 282; Bain v. The State, 61
Ala. 75; The State v. Heck, 23 Minn. 549;
Werneke v. The State, 50 Ind. 22.
4 Crim. Proced. I. § 522, 523; ante,
CHAP. LV.] LIQUOR SELLING — THE LAW. § 1024
§ 1023, Opinion as to Rightfulness — Intent. — When, not mis-
taking the fact, one intentionally makes the sale or does the other
thing forbidden by these statutes, he commits the offence ; it being
no excuse for him that he deems what he does to be right.
§ 1024. Principal and Agent. — The ordinary doctrines regard-
ing the criminal responsibilities of principal and of agent? find
frequent illustrations in the present class of cases. However
men combine, each one is criminally responsible for what he per-
sonally does, whether instigated to it or not, for the whole of
what he assists others in doing, and for all that others do through
his procurement. It is immaterial, therefore, that the liquor
which one sells on his own motion is another’s,? or that he sells
another’s liquor as the agent or servant of the owner,‘ or that he
procures another to sell his liquor as his servant or agent. In
all these cases, he is liable for the whole offence as seller, and it
makes no difference that others are equally liable also for the
same sales. Even the sale, by one partner, of the firm’s liquors,
may, under some circumstances, be deemed the act of each mem-
ber of the firm, though not specially authorized by the others.®
§ 782, 733; Felton v. United States, 96
U. 8. 699; Perry v. Edwards, 44 N. Y.
223; Atkins v. The State, 60 Ala. 45.
And see Elam v. The State, 25 Ala. 53.
1 The State v. Presnell, 12 Ire. 103.
See also The State v. Cassety, 1 Rich.
90; Gilbert v. Hendricks, 2 Brev. 161.
And see Crim. Law, I. § 344, 345.
2 Crim. Law, I. § 355, 628-643, 656-
658, 685-689, 892.
8 The State v. Wadsworth, 30 Conn.
55; Commonwealth v. Williams, 4 Al-
len, 587; The State v. Finan, 10 Iowa,
19; ante, § 1004.
# Crim. Law, I. § 355, 657, 658;
Schmidt v. The State, 14 Misso. 137;
Hays v. The State, 13 Misso. 246; The
State v. Bryant, 14 Misso. 340; The State
v. Bugbee, 22 Vt. 82; Commonwealth v.
Hadley, 11 Met. 66; Roberts v. O’Conner,
83 Maine, 496 ; The State v. Caswell, 2
Humph. 399; The State v. Dow, 21 Vt.
484; French v. People, 3 Parker C. C.
114; The State v. Matthis, 1 Hill, 8. C.
37; The State v. Wiggin, 20 N. H. 449;
Winter v The State, 30 Ala. 22; Reg. v.
Howard, 45 U. C. Q, B. 346; Common-
wealth v. Eggleston, 128 Mass. 408 ; Tar-
diff v. The State, 23 Texas, 169; The
State v. Stucker, 33 Iowa, 395; The State
v. Mercer, 32 Iowa, 405; Johnson v. Peo-
ple, 83 Ill. 431; The State v. Canton, 43
Misso. 48; Walton v. The State, 62 Ala.
197.
5 Crim. Law, I. § 564, 628-633, 673,
677; Commonwealth v. Park, 1 Gray,
553; Thompson v. The State, 5 Humph.
138; Commonwealth v. Major, 6 Dana,
293 ; Commonwealth v. Nichols, 10 Met.
259; Schmidt v. The State, 14 Misso. 137 ;
The State v. Brown, 31 Maine, 520; The
State v. Stewart, 31 Maine, 515; The
State v. Dow, 21 Vt. 484; The State »v.
Caswell, 2 Humph. 399; Forrester v. The
State, 63 Ga. 349; McCutcheon v. People
69 Ill. 601 ; Stevens v. People, 67 IIL. 587 ;
Mullinix v. People, 76 Ill. 211.
6 Smith v. Adrian, 1 Mich. 495; The
State v. Neal, 7 Fost. N. H.181; Whitton
uv. The State, 37 Missis. 879; Gathings
v. The State, 44 Missis. 843. And see
Blahut v. The State, 34 Ark. 447; Com-
monwealth v. Cook, 12 Allen, 542. But
see Acree v. Commonwealth, 13 Bush,
363.
579
§ 1025 [BOOK VI.
OFFENCES MORE PURELY STATUTORY.
Yet, in all cases, if the person sought to be charged really did
not give authority, direct or indirect, or participate in the profits,
or suffer his will to concur in the transaction, he cannot be
holden! A license to the principal protects also the agent.?
§ 1025. Husband and Wife.— The principles which determine
the respective liabilities of husband and wife in these cases are
explained in. other connections? If she sells in his absence, as
his authorized agent, she is punishable personally,‘ and he is so
likewise for the same sales.> For sales by her in his presence,
actual or constructive, the liability is his,® and prima facie it does
not attach to her, who is presumed to act from his coercion?
But where she sells in his absence, without his consent, expressed
or implied, she alone is criminally liable,? a doctrine in a meas-
ure qualified by another; namely, that he is required to use all
his legitimate marital powers to restrain her from crime, neglect-
ing which he may be held criminally for sales made by her, in his
absence, even against his remonstrance.? The recent statutes,
enlarging the property-rights of married women, do not affect
these questions. Though, for example, the wife separately owns
the liquors, the business, and the house,” and he makes the
sales, or she makes them in his presence and by his direction,"
he is indictable.
1 Crim. Law, I. § 218-221, 628-634;
Barnes v. The State, 19 Conn. 398; Com-
monwealth v. Nichols, 10 Met. 259; The
State v. Borgman, 2 Nott & McC. 34, note;
The State v. Bohles, 1 Rice, 145, 147;
Lauer v. The State, 14 Ind. 131; Wreidt
v. The State, 48 Ind. 579; Gaiocchio v.
The State, 9 Texas Ap. 387; Hanson »v.
The State, 43 Ind. 550; O’Leary v. The
State, 44 Ind. 91; Goods v. The State, 3
Greene, Iowa, 566; Lathrope v. The State,
61 Ind. 192. See Mullins v. Collins, Law
Rep. 9 Q. B. 292; Riley v. The State, 43
Missis. 397 ; Noecker v. People, 91 Il. 494.
2 Ante, § 1004; Perkins v. The State,
20 Ind. 116.
3 ‘Crim. Law, I. § 856-366, 891 a.
* The State v. Haines, 35 N. H. 207;
Geuing v. The State, 1 McCord, 573;
Rex v. Crofts, 7 Mod. 397, 2 Stra. 1120.
5 The State v. Roberts, 55 N. H.
483; Commonwealth v. Reynolds, 114
Mass. 306; Commonwealth v. Kennedy,
119 Mass. 211; Commonwealth v. Hamor,
“580
8 Grat. 698; Commonwealth v. Tryon,
99 Mass. 442; The State v. Colby, 55
N. H. 72.
8 Hensly v. The State, 52 Ala. 10.
7 Commonwealth v. Munsey, 112 Mass.
287.
8 Pennybaker v. The State, 2 Blackf.
484; Commonwealth v. Murphy, 2 Gray,
610; The State v. Collins, 1 McCord,
855; The State v. Baker, 71 Misso. 475.
9 Crim. Law, I. § 891 a; The State v.
McDaniel, 1 Houst. Crim. 506; Common-
wealth v. Barry, 115 Mass. 146.
1) Commonwealth v. Gannon, 97 Mass.
547; Commonwealth v. Welch, 97 Mass.
598; Commonwealth v. Carroll, 124
Mass, 30. ‘
11 Commonwealth v. Barry, 115 Mass.
146. .
12 Commonwealth v. Kennedy, 119
Mass. 211; Commonwealth v. Pratt, 126
Mass. 462.
18 Orange v. Dougherty, 55 Barb. 832.
14 Mulvey v. The State, 43 Ala. 316.
CHAP. Lv.] LIQUOR SELLING — THE LAW.
§ 1027
§ 1026. Punishment.— The question of the punishment, and
particularly whether that for a joint sale should be made by the
sentence several or joint, will be found sufficiently elucidated in
‘Criminal Law.” ! There are, on this question, some points
special to particular States.?
g 1027. Blecting Offence to prosecute. — An offender’s conduct
will often be found to have violated more than one of the pro-
visions of these statutes. Then, as in other criminal cases, he
may be proceeded against for any crime which can be carved out
of it, at the election of the prosecuting power.2 But, —
Former Jeopardy. — Whether, in a particular instance, after a
jeopardy for one of the crimes he can be pursued for another, it
may be difficult to decide, partly because of inherent obscurities
in this class of questions, and partly because the adjudications
have not been entirely harmonious, or all absolutely just.*
As this is not the place for the elucidation of the principles
involved, we shall here only look at some adjudged points.
Thus, —
Common Seller and Single Sales. — Whether, where it is punish-
able to be a common seller, and likewise to make specific sales,
the three instances ® relied on to establish the former offence may
be also prosecuted as separate sales, we saw in another connec-
tion.® Again, —
Nuisance and Specific Sales, &c. — It appears to be settled that
one may be convicted both of keeping a tippling-shop or other
1 Crim. Law, I. § 940, 957. And see
Lincolnton v. McCarter, Busbee, 429;
Black v. McGilvery, 38 Maine, 287;
Tuttle v. Commonwealth, 2 Gray, 505;
Estes v. The State, 2 Humph. 496; Inger-
soll v. Skinner, 1 Denio, 540; Washburn
v. McInroy, 7 Johns. 134; People v.
Brown, 16 Wend. 561; Barth v. The
State, 18 Conn. 482; Commonweaith v.
Harris, 7 Grat. 600; Tracy v. Perry, 5
N. H. 504; Harris v. Commonwealth, 23
Pick. 280; The State v. Shaw, 23 Iowa,
316; Hall v. McKechnie, 22 Barb. 244;
Bates v. Enright, 42 Maine, 105; Com-
monwealth v. Fontain, 127 Mass. 452.
2 Taunton v. Sproat, 2 Gray, 428;
Crosby v. Snow, 16 Maine, 121; Miller
v. The State, 3 Ohio State, 475; Johnson
v. People, Breese, 276; Mertz’s Case, 8
Watts & S. 374; Morris v. People, 2
Thomp. & C. 219; Marxhausen v. Com-
monwealth, 29 Grat. 853; The State r.
Little, 42 Iowa, 51; The State v. Mc-
Grew, 11 Iowa, 112; Reg. v. Dale, Dears.
37, 6 Cox C. C. 93; People v. Bartow,
27 Mich. 68.
3 Crim. Law, I. § 791; Miller v. The
State, 3 Ohio State, 475. And see Henry
v. Commonwealth, 9 B. Monr. 361; Fra-
sier v. The State, 6 Misso. 195.
* Crim. Law, I. § 1012, 1048-1069.
5 Ante, § 1018.
® Crim. Law, I. § 1054, 1065; The
State v. Coombs, 32 Maine, 529; The
State v. Maher, 35 Maine, 225; The State
v. Johnson, 8 R. I. 94. See Wilson v.
Commonwealth, 12 B. Monr. 2; People
v. Safford, 5 Denio, 112.
581
§ 1030 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
like liquor nuisance, and of specific sales shown in evidence of
it,! or of being a common seller.2 Also —
Nuisance and Keeping Liquors. — Maintaining a liquor nuisance
and keeping liquor with the intent to sell it have been held to be
separate offences in respect of this question? So—
Keeping for Sale and Selling — have been adjudged distinct of-
fences, as thus viewed.?
Specific Sales.— A prosecution for one specific sale wil] not bar
an indictment for another,® yet it will for the same sale.®
Principal and Agent.— The conviction of the principal for a
sale made by his agent is no defence to the agent afterward in-
dicted for the same sale.’ '
§ 1028. Felony or Misdemeanor.— In Vermont® and New
York,® this offence is a misdemeanor, and probably none of our
statutes elevate it to a higher degree.
§ 1029. abetting. — One, in this misdemeanor, as in others,
may incur the guilt by assisting another therein. It has been
even held that to make change for persons selling is to commit
the offence! But, for reasons explained in “ Criminal Law,” the
purchaser of the liquor is not indictable as abetting the seller.”
§ 1030. Civil Consequences. — Courts will not assist parties in
violating a statute.% Therefore all executory contracts for the
purchase and sale of liquors contrary to a statutory inhibition or
provision rendering it penal, and all promises, even promissory
notes, to pay for liquors thus unlawfully sold or for services ren-
dered in the selling, are void."
1 Crim. Law, I. § 1065; The State v.
Williams, 1 Vroom, 102; The State v.
Lincoln, 50 Vt. 644; Commonwealth v.
Hogan, 97 Mass. 122.
2 The State v. Inness, 53 Maine, 586;
Commonwealth v. O’Donnell, 8 Allen, 548.
3 Commonwealth v. McShane, 110
Mass. 502.
4 The State v. Head, 3 R. I. 135.
5 The State v. Ainsworth, 11 Vt. 91;
The State v. Cassety, 1 Rich. 90. For
other points, see People v. Stevens, 13
Wend. 341; Miller v. The State, 3 Ohio
State, 475; The State v. Brown, 49 Vt.
437; The State v. Shafer, 20 Kan. 226.
6 The State v. Brown, supra; Brink-
man v. The State, 57 Ind. 76.
7 The State v. Finan, 10 Iowa, 19.
582
But any independent, lawful
8 The State v. Comings, 28 Vt. 508.
5 Hill v. People, 20 N. Y. 363.
10 Ante, § 1024, 1025; Walton v. The
State, 62 Ala. 197; The State ». Munson,
25 Ohio State, 381; White v. The State,
11 Texas Ap. 476; The State v. Summey,
1 Winst. II. 108.
11 Johnson v. People, 83 Ill. 481.
12 Crim. Law, I. § 657, 658, 761; Com-
monwealth v. Willard, 22 Pick. 476; Hill
v. Spear, 50 N. H. 253; Commonwealth
v. Williams, 4 Allen, 587; Harney v. The
State, 8 Lea, 118.
18 Bishop Con. § 457, 458; Holt v.
Green, 23 Smith, Pa. 198; Fowler vu.
Scully, 22 Smith, Pa. 456.
14 Bishop Con. § 488; Briggs v. Camp-
bell, 25 Vt. 704; Vannoy v. Patton, 5 B.
CHAP. LV. ] LIQUOR SELLING —THE LAW. § 1031
contract may be enforced, though made at the same time ;! while
yet, if the lawful and unlawful are so blended as to constitute
one indivisible contract, all will be void.2. Some nice questions
arise where the transaction is partly in a State wherein it is law-
ful, and partly in one where it is unlawful; but a mere reference
to some of the authorities will suffice under this head. When
the contract has become fully executed on both sides,* neither
money paid on it ° nor the liquors ® can be recovered back. After
a sale on credit has been made, the repeal of the forbidding stat-
ute will not so operate retrospectively as to enable the vendor to
recover the price.’ Now,—
§ 1031. Special Provisions. — Some of the statutes have special
provisions confirming or modifying the common-law doctrines
thus laid down. They are not uniform in our States. The
reader may consult the cases cited in the note; of which some
are only illustrative, having proceeded on enactments which did
not contain the express provisions.®
Monr. 248; Smith v. Joyce, 12 Barb. 21;
Turck v. Richmond, 18 Barb. 533; Ban-
croft v. Dumas, 21 Vt. 456; Chase v.
Burkholder, 6 Harris, Pa. 48; Adams uv.
Hackett, 7 Fost. N. H. 289; Lewis vu.
Welch, 14 N. H. 294; Rindskoff v. Cur-
ran, 34, Iowa, 825; Melchior v. McCarty,
81 Wis. 252; Timson v. Moulton, 3 Cush.
269; Roop v. Delahaye, 2 Col. Ter. 307;
Niles v. Rhodes, 7 Mich. 374; Alexander
v. O’Donnell, 12 Kan. 608;. Webber v.
Howe, 36 Mich. 150. And see Mabry v.
Bullock, 7 Dana, 337 ; New Gloucester v.
Bridgham, 28 Maine, 60; Foster v. Thurs-
ton, 11 Cush. 322; Solomon v. Dreschler,
4 Minn. 278; Mansfield v. Stoneham,
15 Gray, 149; Butler v. Northumber-
land, 50 N. H. 33; Niles v. Fries, 35
Jowa, 41; Dolan v. Buzzell, 41 Maine,
473.
1 Chase v. Burkholder, 6 Harris, Pa.
48.. And see Buck v. Albee, 27 Vt. 190.
2 Bishop Con. § 471; Ladd ». Dilling-
ham, 34 Maine, 316; Bliss v. Brainard,
41 N. H. 256.
8 Hill v. Spear, 50 N. H. 253; Con-
verse v. Foster, 32 Vt. 828; Carter »v.
Clark, 28 Conn. 512; Backman v. Mus-
sey, 31 Vt. 547; Harrison v. Nichols, 31
Vt. 709; Gaylord v. Soragen, 32 Vt. 110;
Finch v. Mansfield, 97 Mass. 89; Second
National Bank v. Curren, 36 Iowa, 555;
Garfield v. Paris, 96 U. S. 557; Boothby
v. Plaisted, 51 N. H. 486; Schlesinger v.
Stratton, 9 R. I. 578; Erwin v. Stafford,
45 Vt. 390; Abberger v. Marrin, 102 Mass.
70; Ely ». Webster, 102 Mass. 304;
Brockway v. Maloney, 102 Mass. 308;
Dolan v. Green, 110 Mass. 322.
4 Bishop Con. § 487, 670.
5 Mudgett v. Morton, 60 Maine, 260.
6 Marienthal v. Shafer, 6 Iowa, 228.
™ Hathaway v. Moran, 44 Maine, 67;
Webber v. Howe, 36 Mich. 150.
8 Carlton v. Bailey, 7 Fost. N. H. 230;
Breck v. Adams, 3 Gray, 569; Sullivan
v. Park, 33 Maine, 438; Towle v. Blake,
38 Maine, 528; Cochrane v. Clough, 38
Maine, 25; Emerson v. Noble, 32 Maine,
380 ; Webber v. Williams, 36 Maine, 512;
Territt v. Bartlett, 21 Vt. 184; Gassett-v.
Godfrey, 6 Fost. N. H. 415; Orcutt cv.
Nelson, 1 Gray, 586; Fisher v. McGirr,
1 Gray, 1; Lord v. Chadbourne, 42 Maine,
429; Gray v. Kimball, 42 Maine, 299;
Dearborn v. Hoit, 41 Maine, 120; Dunbar
v. Mulry, 8 Gray, 163; Barnard v. Field,
46 Maine, 526; Foxcroft v. Crooker, 40
Maine, 308; Charlton v. Donnell, 100
Mass. 229; Aiken v. Blaisdell, 41 Vt.
655 ; Smith v. Hickman, 68 IIL. 314; Mc-
Gunn v. Hanlin, 29 Mich. 476; Becker v.
583
OFFENCES MORE PURELY STATUTORY.
§ 1082 [BOOK VI.
§ 1031 @. Civil-damage Laws. — In some of the States there are
statutes, in varying terms, giving to wives and others injured by
the purchasers of intoxicating drinks in consequence of their
using them, or deprived thereby of their services or support, a
civil suit against the sellers for the damages.
It is not within the
scope of this work to discuss’ these statutes, but a reference to
some of the cases may be serviceable.!
§ 1032. Questions special to Particular States — have been less
considered in the foregoing elucidations than those of a more
general nature.
It is not proposed to enter into them more mi-
nutely, but to refer in the note to various cases involving them,
some of which have been already cited and others have not.?
Betten, 39 Iowa, 668; Street v. Sanborn,
47 Vt. 702; Abberger v. Marrin, 102
Mass. 70; Ely v. Webster, 102 Mass. 304;
Brockway v. Maloney, 102 Mass. 308;
Dolan v. Green, 110 Mass. 322; Carlin
v. Heller, 34 Iowa, 256; Thayer v. Par-
tridge, 47 Vt. 423; Hamilton v. Goding,
55 Maine, 419; Lindsey »v. Stone, 123
Mass. 382; Cottle v. Cleaves, 70 Maine,
256; Donahoe v. Coleman, 46 Conn. 319.
1 Bates v. Davis, 76 Il. 222; Brannan
v, Adams, 76 Ill. 331; Hackett v. Smels-
ley, 77 Ill. 109; Horn v. Smith, 77 Il.
381; McEvoy v. Humphrey, 77 Ill. 388;
Martin v. West, 7 Ind. 657; Schafer v.
The State, 49 Ind. 460; Barnaby v.
Wood, 50 Ind. 405; English v. Beard, 51
Ind. 489; Welch v. Jugenheimer, 56 Iowa,
11; Kreiter v. Nichols, 28 Mich. 496 ;
Ganssly v. Perkins, 30 Mich. 492; Bodge
v. Hughes, 53 N. H. 614; Bedore v. New-
ton, 54 N. H. 117; Kilburn v. Coe, 48
How. Pr. 144; Hayes v. Phelan, 4 Hun,
733; Dubois ». Miller, 5 Hun, 322; Jack-
son v. Brookins, 5 Hun, 530; Duroy v.
Blinn, 11 Ohio State, 331; Schneider v.
Hosier, 21 Ohio State, 98; Mulford uv.
Clewell, 21 Ohio State, 191; Granger
v. Knipper, 2° Cin. 480; Stanton v. Simp-
son, 48 Vt. 628; Peterson v. Knoble, 35
Wis. 80; Church v. Higham, 44 Iowa,
482. :
2 Alabama.— Smith v. The State, 22
Ala. 54; Lodano v. The State, 25 Ala.
64; Holt v. School Commissioners, 29
Ala. 451; Mulvey v. The State, 48 Ala.
316; Campbell v. The State, 46 Ala. 116;
Lillensteine v. The State, 46 Ala. 498;
584
Nicrosi v. The State, 52 Ala. 336; Ulmer
v. The State, 61 Ala. 208.
Arkansas. — Ramsey v. The State, 6
Eng. 35.
Connecticut. — Hine v. Belden, 27 Conn.
884; The State v. Wolfarth, 42 Conn.
155; The State v. Cady, 47 Conn. 44.
Illinois. — Sullivan v. People, 15 IN.
233 ; Bennett v. People, 16 Ill. 160; Zar-
resseller v. People, 17 Ill. 101; President,
&c. uv. Holland, 19 Ill. 271; Myers v. Peo-
ple, 67 Ill. 503; Ferguson v, People, 73
Ill. 559; Mullinix v. People, 76 Ill. 211;
Gunnarssohn v: Sterling, 92 Ill. 559; Flora
v. Lee, 5 Bradw. 629.
Indiana. — The State v. Turner, 6
Blackf. 253; Cable v. The State, 8
Blackf. 531; Place v. The State, 8 Blackf,
319; Sloan v. The State, 8 Blackf. 361;
Cheezem v. The State, 2 Ind. 149; King
v. The State, 2 Ind. 523; Thompson v.
Bassett, 6 Ind. 685; Hanning v. The
State, 6 Ind. 432; Brosee v. The State, 5
Ind. 75; Howard v. The State, 5 Ind.
183; Rust v. The State, 4 Ind. 528; Cas-
sett v. The State, 9 Ind. 87; The State
v. O'Conner, 4 Ind. 299; Rosenbaum v.
The State, 4 Ind. 599; Leyner v. The
State, 8 Ind. 490; Hanson v. The State,
43 Ind. 650; Zeller v. The State, 46 Ind.
304; Layton v. The State, 49 Ind. 229;
The State v. Woulfe, 58 Ind. 17; Me-
Laughlin v. The State, 66 Ind. 198; The
State v. Mulhisen, 69 Ind. 145; The
State v. Christman, 67 Ind. 328; Doug-
lass v. The State, 72 Ind. 885; Elliott v.
The State, 73 Ind. 10; Payne v. The
State, 74 Ind. 203.
CHAP. LV.]
LIQUOR SELLING — THE LAW.
§ 1082
The Decisions — on the subject of this chapter are in some re-
spects a little inharmonious ; but, on the whole, they are less in
Towa. — Rogers v.Alexander, 2 Greene,
Iowa, 448; The State v. Keehler, 6
Iowa, 398; The State v. Shawbeck, 7
Iowa, 822; The State ve. Smouse, 50
Iowa, 48.
Kansas. — The State v. Pittman, 10
Kan. 593.
Kentucky. — Lawson v. Commonwealth,
14 B. Monr. 225.
Maine. — Foster v. Haines, 18 Maine,
807; The State v. Davis, 23 Maine, 403;
New Gloucester v. Bridgham, 28 Maine,
60; The State v. Gurney, 33 Maine, 527;
The State v. Robinson, 33 Maine, 564;
Parsons . Bridgham, 34 Maine, 240; The
State v. Tibbetts, 836 Maine, 553; Black
v. McGilvery, 38 Maine, 287 ; Androscog-
gin Railroad v. Richards, 41 Maine, 2838;
The State v. Elder, 54 Maine, 381; Gup-
till v. Richardson, 62 Maine, 257; The
State v. Nowlan, 64 Maine, 581.
Maryland. — Brown v. Maryland, 12
Wheat. 419; Bode v. The State, 7
Gill, 326; Keller v. The State, 11 Md.
525; Downs v. The State, 19 Md. 571;
Cearfoss +. The State, 42 Md. 403; The
State v. Popp, 45 Md. 482.
Massachusetts. — Commonwealth v. Od-
lin, 23 Pick. 275; Harris v. Common-
wealth, 23 Pick. 280; Commonwealth v.
Herrick, 6 Cush. 465; Commonwealth v.
Bralley, 3 Gray, 456; Commonwealth
v. Newell, 5 Gray, 76; Commonwealth
v. Certain Intoxicating Liquors, 13 Allen,
561; Commonwealth v. Doe, 108 Mass.
418; Commonwealth v. Kevill, 108 Mass.
422; Commonwealth v. Locke, 114 Mass.
288; Commonwealth v. Costello, 118
Mass. 454. ,
Michigan. — People v. Hart, 1 Mich.
467; Smith v. Adrian, 1 Mich. 495;
People v. Bartow, 27 Mich. 68; In re
‘Buddington, 29 Mich. 472.
Minnesota.— The State v. Hanley,
25 Minn. 429; The State v. Kobe, 26
Minn. 148.
Mississippi. — Brittain v. Bethany, 31
Missis. 331; Pons v. The State, 49
Missis. 1; Blakely v. The State, 57 Missis.
680.
Afissor~t. — Bledsoe v. The State, 10
Misso. 38; The State v. Huffschmidt,
47 Misso. 73; The State v. Stewart, 47
Misso. 382; The State v. Edwards, 60
Misso. 490 ; The State v. Jaeger, 63 Misso.
403.
New Hampshiree—The State v.
Fletcher, 5 N. H. 257; The State v. Per-
kins, 6 Fost. N. H.9; The State v. Rund-
lett, 33 N. H. 70; Pierce v. Hillsborough,
54 N. H. 483; The State v. Tufts, 56
N. H. 187; Piece v. Hillsborough, 57
N. H. 3824.
New Jersey.— The State v. Passaic,
13 Vroom, 87.
New York. — Blasdell v. Hewit, 3
Caines, 137; Griffith v. Wells, 3 Denio,
226; People v. Townsey, 5 Denio, 70;
Wright v. Smith, 13 Barb. 414; Andrews
v. Harrington, 19 Barb. 348; Cattaraugas
v. Willey, 2 Lans. 427; Wynehamer v.
People, 2 Parker C. C. 877; s. c. nom.
Wynhamer v. People, 20 Barb. 567 ; Peo-
ple v. Quant, 2 Parker C. C. 410; Van
Zant v. Péople, 2 Parker C. C. 168; Peo-
ple v. Page, 3 Parker C. C. 600; Foote v.
People, 56 N. Y. 821; Rau v. People, 63
N. Y. 277; People v. Smith, 69 N. Y.
175; People v. Hislop, 77 N. Y. 331.
North Carolina. — The State v. Plun-
ket, 1 Ire. 115; Lincolnton v. McCarter,
Busbee, 429; The State v. Hix, 3 Dev.
116; The State v. Smitherman, 1 Ire.
14.
Ohio. — Hirn v. The State, 1 Ohio
State, 15; Miller v. The State, 3 Ohio
State, 475.
Pennsylvania. — Commonwealth v.
Saal, 10 Philad. 496; Specht v. Com-
monwealth, 12 Harris Pa. 103; Van
Swartow v. Commonwealth, ‘12 Harris,
Pa. 181; Commonwealth v. Jessup, 13
Smith, Pa. 34.
Rhode Island.— Hanley v. Powers,
11 R.T. 82; The State v. Read, 12 R. I.
185; The State v. Carver, 12 R. I. 285;
The State v. Collins, 12 R. I. 478.
South Carolina. —The State v. Mooty,
3 Hill, S. C. 187; The State v. Evans, 3
Hill, S. C. 190; The State v. Chamblyss,
Cheves, 220; Commissioners v. Dennis,
Cheves, 229.
Tennessee. — Dyer v. The State,
Meigs, 287; Campbell v. The State, 3
585
§ 1032
OFFENCES MORE PURELY STATUTORY.
[BOOK VI.
conflict than those which relate to the procedure, to be treated
of in the next chapter.
Humph. 9; The State v. Eskridge, 1
Swan, Tenn. 413; Levi v. The State, 4
Baxter, 289; Brady v. The State, 7 Bax-
ter, 87; The State v. Staley, 3 Lea, 565.
Texas. — Manning v. The State, 36
Texas, 670; Conntz v. The State, 41
Texas, 50; Halfin v. The State, 5 Texas
Ap. 212.
Vermont.— The State v. Conlin, 27
Vt. 318; Street v. Hall, 29 Vt. 165; The
State v. Peterson, 41 Vt. 504; In re
Pierce, 46 Vt. 374; Morrill v. Thurston,
586
46 Vt. 732; The State v. Preston, 48 Vt.
12; The State v. Benjamin, 49 Vt. 101.
Virginia, — Clemmons v. Common-
wealth, 6 Rand, 681; Commonwealth v.
Scott, 10 Grat. 749; Thon v. Common-
wealth, 31 Grat. 887.
West Virginia. — The State v. Cain,
~ 8 W. Va. 720.
Wisconsin. — Williams v. Troop, 17
Wis. 463; The State v. Miller, 23 Wis.
634; The. State v. Gumber, 37 Wis.
298.
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 10334
‘
CHAPTER LVI.
SELLING INTOXICATING LIQUOR — THE PROCEDURE.
§ 1033. Introduction.
1033 a-1045. The Indictment.
1045 a-1053. The Evidence.
§ 1033. How Chapter divided. — We shall consider, I. The In-
dictment; II. The Evidence.
I. The Indictment.
§ 1033 a. In General of Indictment. — The statutes, the modi-
fications of the offence created by them, and the views special to
the tribunal, relating to this subject, so differ in our several
States, and in the same State at different times, that the pro-
viding of forms for general use becomes too complicated to be
profitably carried far. Often indictments very loosely drawn —
perhaps inadequately, as tested by the rules of pleading which
control other cases — have been sustained for this offence. Yet
there is no just reason why specially loose allegations should be
permitted. The subject has no intrinsic difficulties; nor, if the
very strictest rules were enforced, would the indictment, under
any of these statutes, require to be long. Still, by the practice
as we find it, —
Adherence to Canons of Pleading and Statutes. — The pleader, in
these cases, while not held to the strictest rules, is compelled to
follow the statutes in substance, and conform in substance to the
canons of good pleading.1 For example, —
1 Mulvey v. The State, 43 Ala. 316;
Campbell v. The State, 46 Ala. 116; Ni-
crosi v. The State, 52 Ala. 336; The
State v. Miller, 24 Conn. 522; Prather v.
People, 85 Ill. 36; Ulmer v. The State,
61 Ala. 208; The State v. Joyner, 81 N. C.
634; The State v. Smouse, 49 Iowa,
634; Wilson v. Commonwealth, 14 Bush,
159; The State v. Thompson, 44 Towa,
399; Glass ». Commonwealth, 33 Grat.
827; The State v. Graffmuller, 26 Minn.
6; The State v. Lavake, 26 Minn. 526;
Allman v. The State, 69 Ind. 387; The
State v. Martin, 34 Ark. 340; The State
587
\
OFFENCES MORE PURELY STATUTORY. [Book VI.
Time and Place.— The allegations of time! and place? must
accord with the requirements in other like cases.
§ 1024. Unlicensed Selling. — If the thing forbidden is the sell-
ing, by an unlicensed person, of a quantity, less than so. much,
of a particular kind of intoxicating liquor, the allegation may
be, that, at a time and place named, the defendant, not being
then and there -licensed to sell intoxicating liquor, did sell to
one B a certain quantity less than [so much], to wit, one gill
of whiskey, the same then and there being intoxicating liquor,
against, &c.3
§ 1034 a. To Minor — To Drunkard.— If a sale, or if a gift of
the liquor, was to a minor, the fact of the minority —and, under
a statute making it material, the absence of any permit from the
§ 1004
v. Conner, 30 Ohio State, 405; The State
v. OnGee How, 15 Nev. 184; The State
v. Strauss, 77 N. C. 500; The State vo.
Stamey, 71 N. C. 202; Ward v. The State,
48 Ind 293; The State v. Lisles, 58 Misso.
359; The State v. Wentworth, 65 Maine,
234; The State v. Gorham, 65 Maine,
270; Blakely v. The State, 57 Missis.
680; Miller v. The State, 3 Ohio State,
475; Peer’s Case, 5 Grat. 674; The State
v. Brown, 31 Maine, 520; The State v.
Bartlett, 43 Vt. 86; Herine v. Common-
wealth, 18 Bush, 295; Hainline v. Com-
monwealth, 13 Bush, 350; Whiting vo.
The State, 14 Conn. 487; The State v.
Crabtree, 27 Misso. 232; Devine v. The
State, 4 Iowa, 448; Woodworth v. The
State, 4 Ohio State, 487; Commonwealth
v. Baker, 2 Gray, 78; Benalleck v. People,
31 Mich. 200; Commonwealth v. Burke,
15 Gray, 408 ; Commonwealth v. Hickey,
126 Mass. 250; The State v. Cottle, 15
Maine, 473; The State v. Haynes. 35 Vt.
565; The State v. Freeman, 27 Iowa,
333; Blackwell v. The State, 36 Ark.
178; Wilson v. The State, 85 Ark. 414;
The State v. Stamey, 71 N. C. 202; The
State v. Odam, 2 Lea, 220; The State v.
Irvine, 3 Heisk. 155.
1 The State v. Kcbe, 26 Minn. 148;
Commonwealth v. Butler, 1 Allen, 4;
Atkins v. The State, 60 Ala. 45; Collins,
v. The State, 58 Ind. 5; Clark v. The
State, 84 Ind. 486; Commonwealth v.
Kingman, 14 Gray, 85; Commonwealth
‘v. Donnelly, 14 Gray, 86, note; Koch
v. The State, 82 Ohio State, 353; Com-
588
monwealth v. McKiernan, 128 Mass.
414,
2 The State v. Pittman, 10 Kan. 593;
The State v..Odam, 2 Lea, 220; Ault-
father v. The State, 4 Ohio State, 467;
The State v. Graeter, 6 Blackf. 105; Con-
ley v. The State, 5 W. Va. 522; Hafter v.
The State, 51 Ala. 37.
3 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. Marcus, 20 Ark.
201; Commonwealth v. Odlin, 23 Pick.
275; The State v. Williamson, 19 Misso.
384; Commonwealth v. Wilcox, 1 Cush.
503; The State v. Lane, 33 Maine, 536;
Commonwealth v. White, 18 B. Monr.
492 ; Commonwealth v. Macuboy, 3 Dana,
70; McCuen v. The State, 19 Ark. 630;
Burch v. Republic, 1 Texas, 608; The
State v. Cox, 29 Misso. 475; White. v.
The State, 11 Texas Ap. 476; Needham
v. The State, 19 Texas, 332; Higgins v.
People, 69 Ill. 11; Byars v. Mt. Vernon,
78 Ill. 11; The State v. Abbott, 11 Fost.
N. H. 434; Commonwealth v. McKiernan,
128 Mass. 414; The State v. Lavake, 26
_ Minn. 526; Commonwealth v. Davis, 121
Mass. 352; Wilson v. Commonwealth,
14 Bush, 159; Austin v. The State,
10 Misso. 591; Goodhue v. Common-
wealth, 5 Met. 553; Anderson v. People,
63 Ill. 68; The State v. Allen, 32 Iowa,
248,
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1035
parent — should also be alleged; with the defendant’s knowl-
edge of the minority, or not, according to the terms of the statute,
under the principles already explained.!_ And the like rules gov-
ern an indictment for disposing of liquor to a drunkard? It has
been adjudged ill simply to say, that the purchaser ‘‘ was in the
habit of getting intoxicated,” not specifying time; the existence
of the habit at the time of the sale should appear.’
§ 1034 0. Drank on Premises. —It must likewise be alleged
that the liquor was sold to be drank on the premises, or other
designated place, where such is an element in the offence ; oth-
erwise, where it is not. The actual drinking need not also be
stated, if without it the statutory terms are covered. So—
Drank as Beverage, — if in the statute, must be also in the in-
dictment.§
§ 1035. Common Seller. — The indictment for being, without
license, a common seller,’ may, if so the statutory terms will be
covered, aver, that the defendant was at a time and place speci-
fied a common seller of spirituous and intoxicating liquors, with-
out being thereto duly appointed or authorized.2 So, —
Pursue Business. — Where the offence is pursuing the business
of liquor-selling, there would seem to be no necessity for specific
allegations beyond the statutory terms, while yet all the particu-
lars to bring the case within the statute should be set out.
But
the authorities, as to this, have not apparently developed any dis-
' tinct rules.?
' Ante, § 1021, 1022; Meyer v. The
State, 50 Ind. 18; Aultfather v. The
State, 4 Ohio State, 467; Newman »v.
The State, 63 Ga. 583; Weed v. The State,
65 Ala. 18; The State v. Emerick, 35
Ark. 324; Grunkemeyer zv. The State, 25
Ohio State, 548.
2 Berry v. The State, 67 Ind. 222;
Zeizer v. The State, 47 Ind. 129; Buell v.
The State, 72 Ind. 523; Tatum v. The
State, 63 Ala. 147.
8 Wiedemann v. People, 92 Ill. 314.
4 Post, § 1061; The State v. Charlton,
11 W. Va. 332; Clark v. The State, 34
Ind. 436; Burke v. The State, 52 Ind.
461; Vanderwood v. The State, 50 Ind.
26; Vanderwood v. The State, 50 Ind. 295 ;
Higgins v. People, 69 Ill. 11; Plunkett c.
The State, 69 Ind. 68; Atkins v.The State,
60 Ala. 45; Commonwealth v. Young, 15
Grat. 664 ; Commonwealth v. Coe, 9 Leigh,
620; The State v. Smith, 35 Texas, 132.
5 Hisenman v. The State, 49 Ind. 511.
6 Dowdell v. The State, 58 Ind. 333.
‘T Ante, § 1018.
8 The State v. Johnson, 3 R. I. 94;
Commonwealth v. Kendall, 12 Cush. 414;
The State v. Cottle, 15 Maine, 473; The
State v. Stinson, 17 Maine, 154; Com-
monwealth v. Leonard, 8 Met. 529; The
State v. Barker, 3 R. I. 280; The State v.
Churchill, 25 Maine, 306 ; Commonwealth
v. Kingman, 14 Gray, 85 ; Commonwealth
v. Donnelly, 14 Gray, 86, note ; People v.
Webster, 2 Doug. Mich. 92.
9 Carr v. The State, 5 Texas Ap. 153;
Eppstein v. The State, 11 Texas Ap. 480;
The State v. Martin, 34 Ark. 340; The
State v. Woodward, 25 Vt. 616; Hafter
v. The State, 51 Ala. 37.
589
§ 1037 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 1036. Satisfying Constitutional Requirements — (Modifying
Statutes), — An obvious method for increasing the efficacy of these
laws, so difficult of enforcement,! would be to promote, by stat-
ute, true legal learning in prosecuting officers and the judges by
whom these causes are heard. But this is an experiment which
has never been tried. Instead of it, wholly uncalled-for pro-
visions have in many of our States been enacted, commanding
the tribunals to proceed on meagre and indefinite forms of alle-
gation. They are to be obeyed, except when in conflict with
constitutional guaranties, elsewhere considered.2- Upon which
question the leading rule, under our constitutions as ordinarily
drawn, is, that every fact which the law has made an affirmative
element in the offence must, in distinct terms, and with identify-
ing particularity, be charged ; and a statute which undertakes to
dispense with anything of this, is, so far, unconstitutional and
void.?
§ 1037. Name of Person to whom sold.— Where the wrong
consists of specific sales, the most ready and apt way of pointing
out and identifying the transaction* is to give the names of the
persons to whom the sales were made. And, in the absence of
any other adequate identification,> such names should, in prin-
ciple, be alleged if known, or the fact of their being unknown:
should be averred in excuse. Yet there is a good deal of au-
thority, more in the older cases than in the later ones,® to the
proposition that the names are not essential.’ On the other
1 Ante, § 987. -
2 Crim. Proced. I. § 86-88, 95-112.
3 Byran v. The State, 45 Ala. 86, 87,
88; McLaughlin v. The State, 45 Ind.
338. .
4 Crim. Proced. I. § 571; ante, § 894-
897, 944.
5 Burch v. Republic, 1 Texas, 608.
And see Alexander v. The State, 29
Texas, 495.
6 Thus it was held in Rhode Island,
that the name must be averred; Dur-
fee, C. J. observing: “In this State the
practice is to omit the name. This prac-
tice has prevailed for more than a genera-
tion. We do not know that it has ever
been questioned. If it has, it has doubt-
less been sustained. We should be glad
if we could sanction it for pending com-
plaints, but we are declaring the law,
590
not simply for pending complaints, but
for them and all others after them, and
we do not see how, upon either prin-
ciple or precedent, the practice can be
upheld.” The State v. Doyle, 11 R. I.
674, 576.
* The State v. Spain, 29 Misso.
The State v. Munger, 15 Vt. 290;
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. 630; Green v. People,
21 Ill. 125; The State v. Ladd, 15 Misso.
430, overruling Nealea v. The State, 10
Misso. 498; The State v. Muse, 4 Dev. &
Bat. 319; The State v. Blelby, 21 Wis. 204;
The State v. Gummer, 22 Wis. 441; Com-
monwealth v. Dove, 2 Va. Cas. 26; Riley
v. The State, 43 Missis. 397; Rice v. Peo-
415;
Hul-
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1038
hand, it has been even held that a statute dispensing with this
allegation is unconstitutional and void;! and, in one way or
another, the doctrine which requires the name, or the averred
excuse for its omission, is widely maintained.2 Where the charge
is being a common seller,’ no names of persons to whom sales are
made need be set out;‘ for, in this offence, not even instances of
sale are required to be averred.®
§ 1088. Name of Liquor.— The statutes on which depends the
question of naming or describing the liquor sold are in varying
terms, indicating diverse answers. Therefore, and because the
decisions are not all quite satisfactory, the reader is referred to
some earlier discussions, wherein the principles involved appear.®
If the prohibition is of the sale of a particular kind of liquor
named, the better doctrine requires the indictment to designate
it by the statutory word.’
States, and under all forms of the law.®
ple, 88 Ill. 485; The State v. Hickerson,
3 Heisk. 375; The State v. Staley, 3 Lea,
665; The State v. Rogers, 89 Misso. 431;
The State v. Kuhn, 24 La. An. 474; Riley
v. The State, 43 Missis. 397; The State
v. Schweiter, 27 Kan. 499; The State v.
Jaques, 68 Misso. 260. In People ».
Adams, supra, Nelson, C. J., referring to
some English precedents, maintains that
so is the English law. And Rex v. Gibbs,
8 Mod. 58, 1 Stra. 497, might seem, from
some language in the report, to confirm
this view; but, in fact, the indictment
averred that the purchasers were, as said
in Strange, “ to the jury unknown.”
1 McLaughlin v. The State, 45 Ind.
838.
2 The State v. Steedman, 8 Rich. 312;
Capritz v. The State, 1 Md. 569; The
State v. Faucett, 4 Dev. & Bat. 107; Dor-
man v. The State, 34 Ala. 216; The State
v. Walker, 3 Harring. Del. 547; The
State v. Jackson, 4 Blackf. 49; The State
v. Allen, 82 Iowa, 491, 493; Wilson v.
Commonwealth, 14 Bush, 159; The State
v. Schmail, 25 Minn. 368, 369; The State
v. Doyle, supra; Wreidt v. The State,
48 Ind. 579.. And see Commonwealth v.
Cook, 18 B. Monr. 149; The State v.
Carter, 7 Humph. 158; Commonwealth
v. Smith, 1 Grat., 553; Commonwealth r.
Taggart, 8 Grat. 697; Hulstead cv. Com-
But this is not necessary in all the
Where the statutory
monwealth, 5 Leigh, 724; The State v.
Stinson, 17 Maine, 154; Commonwealth
v. Blood, 4 Gray, 31; The State v. Nut-
well, 1 Gill, 54; The State v. Cox, 29
Misso. 475; Commonwealth v. Trainor,
123 Mass. 414; Commonwealth v. Craw-
ford, 9 Gray, 129; Commonwealth v.
Remby, 2 Gray, 508; The State v. Went-
worth, 35 N. H. 442.
8 Ante, § 1018.
4 Commonwealth v. Hart, 11 Cush.
130; Commonwealth v. Wilcox, 1 Cush.
503; The State v. Cottle, 15 Maine, 473.
5 Commonwealth v. Pray, 13 Pick.
859; Commonwealth v. Odlin, 23 Pick.
275. See, as to different form of the
provision, Commonwealth v. Thurlow, 24
Pick. 374.
6 Ante, § 426, 440-442.
7 The State v. Fox, 1’ Harrison, 152.
And see Murphy v. Montclair, 10 Vroom,
673.
8 The State v. Mullinix, 6 Blackf. 554;
Fetterer v. The State, 18 Ind. 388; Dow-
ney v. The State, 20 Ind. 82; The State
v. Carpenter, 20 Ind. 219; Leary v. The
State, 39 Ind. 360; Noonan v. The State,
1 Sm. & M. 562; Connell v. The State,
46 Ind. 446; Wells v. The State, 69 Ind.
286; The State v. Rogers, 39 Misso. 431;
Hooper v. The State, 56 Ind. 153.
591
§ 1089 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
expression was “any fermented and distilled liquor,” it was ad-
judged sufficient for the indictment to say “ whiskey ;”” because
the court knows! judicially that whiskey is distilled liquor.?
And, in principle, the rule plainly is, that, under the very com-
mon term ‘intoxicating liquor” in the statute, the indictment
may simply mention by name any liquor which the’ court judi-
cially knows to be intoxicating ;% but, if any other liquor is thus
specified, there must be the additional averment that it is intoxi-
cating.* Under which form of the statute also it is widely held
good to say “intoxicating liquor,” and no more.® But the cor-
rectness of this is not so clear in principle ® as one might desire.
If the statute has a provision that, for example, “ cider” shall be
deemed intoxicating within its meaning, sales of unfermented
cider may be indicted and punished as sales of “ intoxicating
liquor.” 7 :
§ 1039. Quantity.—If the statute does not make the offence
or punishment vary with the quantity sold, it need not be al-
leged ;° otherwise, it must be.® Or, in the former case, the aver-
ment may simply be, that the defendant sold of the liquor, for
example, one pint or one “glass.” There is authority for main-
taining, that, where the quantity is material," it must be ex-
pressed by some term known to the law, and “one glass of
rum” or “one drink”? of it will not do; though, by other
opinions, “glass” will suffice.+ Probably, in a just view, either
of these forms is well enough when the proper addition is made,
while without more neither is good. Thus, if the statute forbids
the sale of less than fifteen gallons and permits it of more, and
the averment is of one pint, it will be supported by proof of
1 Ante, § 1006 a.
2 The State v. Williamson, 21 Misso.
496; The State v. Munger, 15 Vt. 290.
3 Ante, § 1006a; The State v. Packer,
80 N. C. 439.
4 The State v. Packer, supra.
5 Commonwealth v. Conant, 6 Gray,
482; Commonwealth v. Ryan, 9 Gray,
137; The State v. Blaisdell, 33 N. H. 388;
Plunkett v. The State, 69 Ind. 68; Buell
v. The State, 72 Ind. 528.
6 Ante, § 440.
7 Commonwealth v. Dean, 14 Gray, 99.
And see Plunkett v. The State, 69 Ind.
68,
592
8 Plunkett v. The State, 69 Ind. 68;
White v. The State, 11 Texas Ap. 476.
® Manvelle vw. The State, 58 Ind. 63;
The State v. Zeitler, 63 Ind. 441; Bridge-
ford v. Lexington, 7 B. Monr. 47; The
State v. Clayton, 32 Ark. 185.
10 Commonwealth v. Brown, 12 Met.
622.
11 Hubbard v. The State, 11 Ind. 554.
12 The State v. Reed, 35 Maine, 489.
13 Cool v. The State, 16 Ind. 355.
' The State v. Rust, 385 N. H. 438;
Wrocklege v. The State, 1 Iowa, 167;
Hintermiester v. The State, 1 Iowa, 101.
‘CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1042
twenty gallons, whereof it constitutes a part; so that it alone
will not suffice, but the averment should contain the additional
idea that the quantity was less than fifteen gallons. ‘‘ We do
not consider,” said Shaw, C. J. “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 defendant did sell one
pint, without some words negativing a larger quantity, is not
bringing the case within the statute.” ?
§ 1040. Price. —It has in some States been held necessary to
say for what price the liquor was sold,? but the general doctrine
and practice do not require this averment.? Hence, —
§ 1041. Other Things with Liquor.— Where the sale is of liquor
and other things in one transaction and for one sum, it is ade-
quate to charge a sale of the liquor only, with no mention of
the other things.!
§ 1042. Negativing Authority to sell. —In ‘Criminal Pro-
cedure,” the rules are stated as to when the indictment on a
statute must negative the matter of ‘its exceptions and provisos,
and in what form of words. Now, in the present class of cases,
assuming that there must be a denial of the defendant’s authority
to make the sales charged, the rule for it is, that it may be in
general language, yet it must be as broad as the law;® thus, if
1 Commonwealth v. Odlin, 23 Pick.
275, 280; The State v. Shaw, 2 Dev.
192; Struckman v. The State, 21 Ind.
160; Arbintrode v. The State, 67 Ind. 267.
There are cases, at least in Indiana, in
real or apparent dissent. For these, and
for others, most of which are in confirma-
tion of the text, see Willard v. The State,
4 Ind. 407, 408; Reams v. The State, 23
Ind. 111, 113; Commonwealth v. Pearson,
23 Pick. 280, note; The State v. Arbogast,
24 Misso. 863; The State v. Paddock, 24
Vt. 312; Redding v. Commonwealth, 3 B.
Monr. 339; Haskill v. Commonwealth, 3
B. Monr. 342; The State v. Young, 5
Coldw. 51; Zarresseller v. People, 17 Ill.
101; The State v. Jacks, 54 Ind. 412.
2 Crim. Proced. I. § 514; Neales v.
The State, 10 Misso. 498; Segur v. The
State, 6 Ind. 451; Hubbard v. The State,
38
11 Ind. 554; The State v. Ladd, 15 Misso.
430. And see Miles v. The State, 5 Ind.
239; Harrison v. Bryant, 5 Ind. 240; The
State v. Jacks, 54 Ind. 412. See O’Con-
nor v. The State, 45 Ind. 347; Farrell v.
The State, 45 Ind. 371.
3 Crim. Proced. I. § 514; Clare v. The
State, 5 Iowa, 509; Commonwealth v.
Roberts, 1 Cush. 505; The State v. Finan,
10 Towa, 19; The State v. Miller, 24
Misso. 532 ; The State v. Rogers, 39 Misso.
431; The State v. Downer, 21 Wis. 274.
4 Commonwealth v. Thayer, 8 Met.
525, 526. See The State v. Munger, 15
Vt. 290.
5 Crim. Proced. I. § 631-642.
® Ib. § 641; The State v. Adams, 6
N. H. 632; Commonwealth v. Hoyer, 125
Mass. 209; The State v. Shaw, 35 N. H.
217. For illustrations in analogous cases,
593
§ 1048 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
licenses from different sources or in different forms are provided
for, and any one of them would justify the sales, the denial must
cover all the sources and forms, being of no avail if less broad.
Brief expressions like the following have been adjudged adequate:
“not being first duly licensed,” &c.;? ‘ without then having a
grocer’s license, dram-shop keeper’s license, an innkeeper’s li-
cense, 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 au-
thority therefor, first duly had and obtained according to law ;” #
and various other phrases of the like kind.8 And it is sufficient
if the affirmative allegation necessarily involves the required
negative.® There is a distinction to be noted as to the dis-
junctive —
§ 1043. “or.” — We have seen in other connections, that, while
“or” is ordinarily a dangerous word in allegation, there are cir-
cumstances in which it is proper and even necessary. For ex-
ample, it should be used in charging a duty, thus following the
statute literally ; though, in alleging a breach of duty, the statu-
see The State v. Moreland, 27 Texas, 726;
Reg. v. Smith, 7 Mod. 77; Schutze v.
The State, 80 Texas, 508.
1 The State v. McBride, 64 Misso. 364;
The State v. Webster, 5 Halst. 293; Com-
monwealth v. Roberts, 1 Cush. 505; 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; Meier. v. The State, 57 Ind. 386;
Henderson v. The State, 60 Ind. 296;
Newman v. The State, 63 Ga. 533; The
State v. Pitzer, 23 Kan. 250; The State
», Pittman, 10 Kan. 693; O’Brien v. The
State, 68 Ind. 242; The State v. Emer-
ick, 35 Ark. 824; Burke v. The State, 52
Ind. 622; 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.
2 Commonwealth v. Pray, 13 Pick.
359; Commonwealth v. Leonard, 8 Met.
529; The State v. Wickey, 57 Ind. 596;
The State v. Wickey, 54 Ind. 438.
594
8 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. 800; Common-
wealth v. Burke, 121 Mass. 39.
4 Commonwealth v. Conant, 6 Gray,
482.
5 The State v. Wishon, 15 Misso. 503.
8 Commonwealth v. Murphy, 2 Gray,
510; Commonwealth v. Roland, 12 Gray,
182; Commonwealth v. Lafontaine, 3
Gray, 479; Commonwealth v. McSherry,
38 Gray, 481, note; Commonwealth »v.
Clapp, 5 Gray, 97; Commonwealth v.
Keefe, 7 Gray, 332; Commonwealth 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.
5 Sword v. The State, 5 Humph. 102.
19 Crim. Proced. I. § 484-448, 484, 585-
692; IL. § 438-440, 647.
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1044
tory “or” must commonly be made “‘and” in the. indictment.}
In the nature of a duty is the procuring of the authorizing
license ; so that, as the examples cited in the last section dis-
close,? if by the statute the offence consists of selling without
this license, or that license, 07 that, the negative would be bad
should it say, “not having this license and that one and that
one.” The statutory “or” should be retained in this averment.
Thus, in Kentucky, a statute prohibited a sale to an infant with-
out “ the written consent or request” of the father; and it was
held ill to say “ without the written consent and request.” 3
§ 1044. When Negation of Authority required. — If the law has
forbidden such a sale as the indictment sets out, with no pro-
vision authorizing it under any circumstances, there is no author-
ity to negative, and no allegation of this sort is required.
And
there may be other circumstances wherein no negative averment
is necessary.*
But the cases, under our statutes as ordinarily
drawn, show but few exceptions to the proposition that the au-
thority to sell must be negatived. The same rules apply here as
in other classes of criminal statutes.®
1 Crim. Proced. I. § 436, 484, 486, 591.
2 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.
3 Commonwealth v. Hadcraft, 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 re-
quest’ of the father, mother, or guardian
of the minor; but the 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, ac-
cording to the indictment, to have exon-
erated 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.
4 Commonwealth v. Tuttle, 12 Cush.
502; The State v. Jaques, 68 Misso. 260;
Stein »v. The State, 50 Ind, 21; The State
v. Hutzell, 53 Ind. 160; Meyer v. The
State, 50 Ind. 18.
5 United States v. Winslow, 3 Saw.
337; The State v. Savage, 48 N. H. 484;
Commonwealth v. Thurlow, 24 Pick. 374;
The State v. Watson, 5 Blackf. 155; The
State v. Robbins, 9 Ire. 356; The State v.
Miller, 7 Ire. 275; The State v. Wade, 34
N. H. 495; The State »v. Gurney, 37
Maine, 149; The State v. Shaw, 85 N. H.
217; The State v. Crowell, 30 Maine,
115; The State v. Abbott, 11 Fost. N. H.
454; The State v. Fuller, 33 N. H. 259;
The State v. Blaisdell, 33 N. H. 888;
Sword r. The State, 5 Humph. 102; The
State v. Buford, 10 Misso. 703; Common-
wealth v. Shaw, 5 Cush. 522; Becker «.
The State, 8 Ohio State, 391; The State
v. Miller, 24 Conn. 522; Bode v. The
State, 7 Gill, 8326; 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; Kinser v. The State, 9 Ind.
643; Commonwealth cv. Edwards, 12
Cush. 187; Commonwealth v. Hill, 5
Grat. 682; The State v. Powers, 25 Conn.
48.
595
§ 1045 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 1044 a, Second Offence. — When the offence is the second
or third, and the punishment is to be made heavier by reason of
former convictions, they must be alleged,' as explained in another
connection.”
§ 1045. Joinder.— The common rules, as to the joinder of of-
fences and offenders, prevail in these cases.3 Thus, —
Combined Offenders — (One Sale one Offence).— “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, if the prosecutor pleases, they may be proceeded against
jointly. Sales made by an agent may, at the election of the
pleader, be charged against the principal as if made by his own
hand.’ Where the sales are neither in law nor fact joint, the in-
dictment should not be so;° or, if it is, only one defendant can
be convicted.’ Two separate sales, made to two distinct persons,
though at one time, constitute two offences.2 One who has
made several unlawful sales may be charged with them in as
many separate counts; and, on his conviction, a judgment for all
the penalties will be rendered against him, as explained else-
where.2 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.”
1 The State v. Gorham, 65 Maine, 270;
Rauch v. Commonwealth, 28 Smith, Pa.
490; The State v. Robinson, 39 Maine,
150; Maguire v. The State, 47 Md. 485.
2 Crim. Law, I. § 961, 962.
8 Stephens v. The State, 14 Ohio, 386 ;
Commonwealth v. Moorhouse, 1 Gray,
470; Commonwealth v. Tuttle, 12 Cush.
605; The State v. Priester, Cheves, 103.
4 The State v. Caswell, 2 Humph. 399.
And see Commonwealth v. Major, 6 Dana,
298; The State v. Wadsworth, 30 Conn.
55. :
See Crim. Proced. I. § 332-334,
6 Farrell v. The State, 3 Ind. 573. A
defect sometimes cured by a statute.
The State v. Edwards, 60 Misso. 490.
See also Jackson v. Boyd, 53 Iowa, 536.
1 The State v. Simmons, 66 N. C. 622;
Commonwealth »v. Griffin, 3 Cush. 523.
8 Commonwealth v. Dove, 2 Va. Cas.
26; Commonwealth v. Very, 12 Gray,
124. Perhaps this may not be exactly so
596
5 Commonwealth v. Park, 1 Gray, 553.
under every form of the inhibition.
Thus, in South Carolina, it is laid down
that, in an indictment for retailing, sev-
eral acts of selling to different persons
may be united in one count. “ Retail-
ing,” said the court, ““may be complete
by one act, or it may consist of a succes-
sion of acts. In this indictment, various
acts of retailing to different persons are
grouped together in one count as consti-
tuting a single offence. In this, there is
ho 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.
People, 89 N. Y. 449; Peer’s Case, 5
Grat. 674; The State v. Barron, 87 Vt.
57; McPherson v. The State, 54 Ala. 221.
9 Crim. Proced. I. § 452, 458, 1035-
1087, 1826, 1327.
1 Broschenious v. People, 41 Ill. 236.
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1047
II. The Evidence.
§ 1045 a. In General. — Practically, in these cases, most of the
evidence will depend on familiar rules, common under all issues,
the elucidations whereof in ‘* Criminal Procedure” ! will suffice
for this place. Some of the decisions of this class are cited in a
note.?
§ 1046. Every Fact — which is an indispensable element in the
offence must be proved, but no more need be. For example, —
Common Seller — (Within alleged Time). — A charge of being
a common seller continuously between specified dates may be
sustained, though it appears, that, during a part of the time, the
defendant had a justifying license. Since this offence can be
committed in asingle day,® its existence during an entire alleged
period is not essential.®
Sale. — The proof of a transaction which comes short of a sale
will not sustain a charge of selling.
It was so where the liquor
called for was supplied by the defendant, who thereupon refused
to accept pay therefor.’
§ 1047. Quantity. — Though the allegation is precise as to the
quantity soid, the same quantity is not therefore as of course
required to be proved.$
punishment as that alleged.®
1 Crim. Proced. IL. § 1046-1262.
2 The State v. Fierline, 19 Misso. 380;
Elam v. The State, 25 Ala. 53; Common-
wealth v. Leonard, 9 Gray, 285; Tatum
v. The State, 63 Ala. 147; Garst v. The
State, 68 Ind. 37; Barnes v. The State,
20 Conn. 232; Williams v. The State, 35
Ark. 480; Long v. The State, 56 Ind. 206;
Barnes v. The State, 20 Conn. 254; Smith
v. The State, 19 Conn. 493; Common-
wealth v. Ayers, 115 Mass. 187; The
State v. McCafferty, 63 Maine, 223; Com-
monwealth v. Munsey, 112 Mass. 287;
The State v. Munger, 15 Vt. 290; Com-
monwealth v. Page, 6 Gray, 361; The
State v. Kingston, 5 R. 1.297; The State
v. Curley, 33 Iowa, 359; Winsett v. The
State, 57 Ind. 26; Curry v. The State, 35
Texas, 364; The State v. Terry, 35 Texas,
366 ; In re Morton. 10 Mich. 208; Com-
monwealth v. Sullivan, 123 Mass. 221;
It need be only what calls for the same
Rossett v. The State, 16 Ala. 362; The
State v. McGlynn, 84 N. H. 422; The
State v. Stuart, 28 Maine, 111; Pearce
v. The State, 40 Ala. 720.
8 Murphy v. The State, 28 Missis. 637 ;
Long v. The State, 56 Ind. 117; Long v.
The State, 56 Ind. 206: Garst v. The
State, 68 Ind. 87; Massie v. Common-
wealth, 30 Grat. 841.
* Commonwealth v. Putman, 4 Gray,
16.
5 Ante, § 1018, 1035.
8 And see The State v. Hynes, 66
Maine, 114.
7 Commonwealth ». Packard. 5 Gray,
101. See Seibert ». The State, 40 Ala. 60.
8 Ante, § 1039; Crim. Proced. I.
§ 488 6, 488 c.
8 The State rv. Connell, 88 N. H. 81;
The State v. Moore, 14 N. H. 451; Brock
v. Commonwealth, 6 Leigh, 634; Schlict
597
§ 1048 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
Name of Purchaser.— Where the name of the purchaser must
be and is averred,! it must appear also in the proofs; and a vari-
ance herein—as, where the sale is alleged to have been to A,
and a joint sale to A and B appears,? or the like,’ or the two
names are not idem sonans * — will be fatal.®
Mixed. — Proof of the sale of a liquor mixed with sugar and
water will sustain a charge of selling the liquor.‘
§ 1048. Circumstantial Evidence —is admissible in these cases.
the same as in others.’ Thus, as steps in the path to the conclu-
sion of guilt, such facts may be shown as the presence of liquor
in the defendant’s place of business, the hustling out of bottles
of it'on the entrance of the officers of the law, tumblers on the
bar, strong beer in the beer-pnmp; °* declarations of the defend-
ant that he had kept and would keep liquor for sale, though not
pointing specially to. the transaction in controversy ;° his asser-
tion that he deemed the law unconstitutional, and he meant to
violate it; the liquor on tap, and the implements around for
measuring and drinking it; a bar, and bottles in it; a coming
and going with bottles," especially when they are empty at the
entering and full of liquor at the exit.4 The one competent fact
may not be alone sufficient; and, unless all combined satisfy the
jury beyond a reasonable doubt of the defendant’s guilt, the case
fails.
It is not even permissible to show a mere common report,
or public notoriety, that the defendant has sold liquors.
Instances. — It was adjudged admissible for a witness to testify,
v. The State, 31 Ind. 246; The State v.
Andrews, 28 Misso. 17.
1 Ante, § 1087.
® Brown v. The State, 48 Ind. 38.
3 The State v. Wolf, 46 Misso. 584.
4 Crim. Proced. I. § 688.
5 Commonwealth v. Mehan, 11 Gray,
$21; Commonwealth v. Brown, 2 Gray,
858; Commonwealth v. Shearman, 11
Cush. 546; Dyer v. People, 84 Il. 624.
6 Commonwealth v. White, 10 Met.
14.
7 The State ». Hynes, 66 Maine, 114,
115; Rater v. The State, 49 Ind. 507;
The State v. Cunningham, 25 Conn. 195;
The. State v. Wilson, 5 R. I. 291; Stone
v. The State, 830 Ind. 115; Needham »v.
The State, 19 Texas, 332.
8 Commonwealth v. Cotter, 97 Mass.
836; Commonwealth v. Van Stone, 97
598
Mass. 548; Vallance v. Everts, 3 Barb.
553.
9 New Gloucester v. Bridgham, 28
Maine, 60; The State v. Bonney, 39
N. H. 206.
10 Commonwealth v. Kimball, 24 Pick.
366.
1 Commonwealth v. Levy, 126 Mass.
_ 240.
12 People v. Hulbut, 4 Denio, 188; The
State v. Knott, 5 R. I. 293.
18 Commonwealth vo. Intoxicating Li-
quors, 105 Mass. 595.
14 The State v. Long, 7 Jones, N. C.
24, 27; Huey v. The State, 31 Ala. 349;
Pannell v. The State, 29 Ga. 681.
15 Crim. Proced. I § 1078-1079; New
York v. Walker, 4 E. D. Smith, 258;
United States v. Furlong, 2 Bis. 97.
16 Cobleigh v. McBride, 45 Iowa, 116.
CHAP. LVI.] LIQUOR SELLING — THE PROCEDURE. § 1049
that he and others went to the defendant’s place of business, and,
one of them calling for whiskey, he set out some liquid in a bottle,
and they drank it.! So, where a witness had heard parties call for
brandy, whereupon bottles labelled “brandy ” were handed them,
and they poured out what looked like brandy and drank it, this
was held. to be sufficient evidence that the liquor was brandy.?
And —
A Non-expert — may testify.to the kind of liquor drank.?
Before Grand Jury. — There is no need to confine the evidence
to sales actually testified to before the grand jury.‘
§ 1048 a. To Minors and Drunkards. — The facts required to
be alleged. where the sale is to a minor or drunkard® must be
proved. How the age’ and being a drunkard® are shown. we
saw in earlier chapters.
§ 1049. Sale by Agent. — A sale by one acting as clerk or
other agent of the defendant must appear also to have been au-
thorized by him.® If he was present, the authority will ordinarily
be inferred ; if absent, it may be presumed from the circum-
stances and other proofs. The mere fact that the person making
the sale was the defendant’s clerk in a lawful business is not
enough; for an authorization to do what is lawful is not an
authority.to commit a crime.’2 Within this principle, if the clerk
or bar-tender of a licensed retailer, whom the law forbids to sell
to minors and drunkards, makes such sale in his absence, he can-
not be punished without some evidence indicating his consent to
what is thus unlawful: But, where the business itself, wherein
the defendant is engaged, is unlawful, the common authorization
of a clerk, as in civil cases, is all that need be shown.“ Or, if
1 The State v. Jarrett, 35 Misso. 357.
And see Commonwealth v. Boyden, 14
Gray, 101.
2 Baurose v. The State, 1 Iowa, 374.
3 Commonwealth v. Timothy, 8 Gray,
480.
* Commonwealth v. Phelps, 11 Gray,
73; Crim. Proced. I. § 872. See Crain v.
The State, 14 Texas, 634.
“ 5 Ante, § 1084 a.
" Vangorden v. The State, 49 Ind.
618.
7 Ante, § 491; The State v. Cain, 9
W. Va. 559; Johnson v. People, 83 II.
431; Robinius v. The State, 63 Ind. 235;
Thinger v.. The State, 53 Ind. 251.
8 Ante, § 979, 982.
® Crim. Proced. I. § 488 d; The State
v. Tibbetts, 85 Maine, 81; The State v.
Foster, 3 Fost. N. H. 348.
lo Hall v. McKechnie, 22 Barb. 244.
11 The State v. Williams, 3 Hill, 8. C.
91.
2 Crim. Law, I. § 892; Seibert v. The
State, 40 Ala. 60, 63.
'8 Anderson v. The State, 39 Ind. 553 ;
The. State v. Mahoney, 28 Minn. 181;
Thompson v. The State, 45 Ind. 495.
14 Crim. Law, I. § 892; Molihan v. The
State, 80-Ind. 266; Anderson v. The
State, 22 Ohio State, 805.
599
§ 1051 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the jury are satisfied that the defendant did not restrain the sell-
ing in premises over which he had control,! or that he in person
had sold at other times,? or had suffered his clerk to sell at other
times,? they may infer the authority. Nor will it avail the de-
fendant that he forbade his clerk to make the sale, if the for-
bidding was not in good faith.* The question is, what was “ the
real understanding between the principal and agent;”’® for, in
exact law, the principal, to be criminally liable, must consent,
not merely know.6 And whether or not he consented, and the
effect of the presumptions’ as to this, are plainly, in reason, mere
facts for the jury.®
§ 1050. Statutory Presumptions. — These statutes, in some of
the States, make the delivery of the liquor under specified cir-
cumstances prima facie evidence of a sale. Such a provision is
constitutional.?
§ 1051. Proof of Negative of Defendant’s Authority. — Must the
negative averment, that the defendant was not licensed or other-
wise authorized to make the sales,!° be proved? Now, —
In Principle, —as this negative matter is a part of the govern-
ment’s case against the defendant, it must in some way be made
prima facie to appear at the trial. But not all of every case is
established by oral testimony, depositions, and other documents.
Much is derived from presumption.2 One of the presumptions
is, that what is common in general prevails in the particular ; ¥
another, that a fact the existence of which is once shown, con-
tinues.14
1 Commonwealth v. Major, 6 Dana,
2938. And see Scott v. The State, 25
Texas Supp. 168.
2 The State v. Bonney, 39 N. H. 206.
8 The State v. Foster, 3 Fost. N. H.
848. But see Patterson v. The State, 21
Ala. 571.
4 Riley v. The State, 43 Missis. 397.
And see Commonwealth v. Kimball, 24
Pick. 366.
5 White, J. in Anderson v. The State,
supra, at p. 308.
8 Commonwealth v. Putnam, 4 Gray,
16.
* Crim. Proced. I. § 1096-1101.
® And see Commonwealth ». Nichols,
10 Met. 259; Parker v. The State, 4 Ohio
State, 563.
600
Therefore, where the general law withholds from the
® Commonwealth v. Williams, 6 Gray,
1; Commonwealth v. Rowe, 14 Gray, 47;
The State v. Hurley, 54 Maine, 562;
Commonwealth v. Wallace, 7 Gray, 222;
The State v. Day, 87 Maine, 244; Jones
v. McLeod, 103 Mass. 58. And see ante,
§ 1035.
10 Ante, § 1042, 1043.
11 Crim. Proced. I. § 1049-1052.
Th. § 1096-1101.
138 1 Greenl. Ev. § 40; Peake Ev. Nor.
ed. 410, 411; Green v. Brown, 2 Stra.
1199; Wallace v. Hull, 28 Ga. 68; Bush
v. Guion, 6 La. An. 797; Oppenheim v.
Leo Wolf, 8 Sandf. Ch. 571; Sutton v.
Sadler, 3 C. B. n. 8. 87.
14 Brown v. Burnham, 28 Maine, 38;
Brown v. King, 5 Met. 173; Bell v. Young,
CHAP. LVI.] LIQUOR SELLING— THE PROCEDURE. § 1052
mass of the people the right to make the particular sale in con-
troversy, and permits it only to exceptional persons, of every
one of whom it is certainly true that. at some time he was not
allowed to do it, the prima-facie presumption is double, first, that
the instance in controversy accords with what is general; and,
secondly, that as at one time the defendant had no license he
has none now. Hence, if he has a license, he mustshow it. And
this doctrine promotes alike convenience and justice; for it is
troublesome and it may be even impossible to prove a negative,
while if the defendant has a license he can readily produce it.
Still, —
§ 1052. In Authority,— this question is sometimes muddled,
and the decisions on it are contradictory. The principles gov-
erning it, as just explained, seem not often, if ever, to have
occurred to the judges. In some of the States, wherein the
courts had adjudged it necessary for the prosecution to prove in
the first instance that there was no license, legislation has re-
versed the rule. In other States, this rule remains ; but, in most,
the decisions have established the reverse. The question relates,
not only to the want of a license from the public authorities, but
to the want also of the consent of parents, guardians, and the
like. How it stands in various States the reader will see in the
note! While in much the greater number of our States, the re-
1 Grant, Pa. 175; Far v. Payne, 40 Vt.
615; Prather v. Palmer, 4 Pike, 456;
Randolph v. Easton, 23 Pick 242; Ers-
kine v. Davis, 25 Ill. 251; Hix v. Whit-
timore, 4 Met. 545.
1 Alabama. — On a trial for selling toa
minor, “ the defendant, if licensed by the
consent of the parent, guardian, or person
having charge of the pupil, has peculiar
knowledge of it, and.can 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, 32 Ala.
557, 559. See post, Mississippi and North
Carolina.
Arkansas. — The State need not prove
the defendant’s want of a license; he, if
he has one, must produce it. Williams v.
The State, 385 Ark. 480.
Georgia. —The government is not re-
quired to prove, that the defendant had
no license. Sharp v. The State, 17 Ga.
290. If it were, the clerk of the licens-
ing court would be a competent witness.
Elkins v. The State, 18 Ga. 435.
Iilinois. — The burden, to prove the
license, is on the defendant. Noecker v.
People, 91 Ill. 468; Gunnarssohn ». Ster-
ling, 92 Ill. 569; Flora v. Lee, 5 Bradw.
629. But the other party could prove
it by his prior plea of guilty to a like
charge. Pendergast v. Peru, 20 Ill. 51.
Indiana. — At one time it seems to
have been necessary for the prosecutor
to prove that the defendant had no li-
cense. Shearer v. The State, 7 Blackf.
99. But it is not now. Taylor v. The
State, 49 Ind. 555. See also Howard v.
The State, 5 Ind. 516.
Jowa.— On a charge of using a build-
ing for the unlawful sale, the burden is
on the defendant to prove that the wine
sold was made from fruits grown in the
State. The State v. Miller, 53 Iowa, 84.
Kentucky. — The defendant must show
601
§ 1052
OFFENCES MORE PURELY STATUTORY.
[BOOK VI.
sult indicated by principle has been reached, the reasons for it
have been, in general, but imperfectly apprehended.
the license.
B. Monr. 342. z
Maine. — The burden to prove the li-
cense is on the defendant. The State v.
Woodward, 34 Maine, 293; The State v.
Crowell, 25 Maine, 171.
Massachusctts. — Except as statutes
have provided otherwise, the State must
show that the defendant had no license.
Commonwealth v. Bolkom, 3 Pick. 281.
The common yet not exclusive proof was
its absence from the records or memoranda
of the licensing board. Commonwealth v.
Tuttle, 12 Cush. 502; Commonwealth v.
Kimball, 7 Met. 304. But the burden
has been changed to the defendant by
statutes applicable to most cases, not all.
Commonwealth v. Lahy, 8 Gray, 459;
Commonwealth v. Kelly, 10 Cush. 69;
Trott v. Irish, 1 Allen, 481; Common-
wealth v. Keenan, 11 Allen, 262; Com-
monwealth v. Putnam, 4 Gray, 16;
Commonwealth v. Cashman, 8 Allen, 580;
Commonwealth v. Leo, 110 Mass. 414;
Commonwealth v. Curran, 119 Mass.
206.
Michigan. —Tn an action for the pen-
alty, the averment that the defendant
had no license will be taken as true
unless shown to he otherwise by the de-
fendant. Smith v. Adrian, 1 Mich. 495.
Minnesota. — “ The burden of proving
license was upon the defendant; because,
all sales being prohibited except licensed
sales, prohibition is the general rule, and
license the exception. Hence, where a
sale is shown, the presumption prima
facie is that it is unlawful, and this pre-
sumption makes out a case of unlawful
sale, unless it is overcome by proof of
license. Bishop Stat. Crimes, § 1061.”
Berry, J. in The State v. Schmail, 25
Minn. 370, 371.
Mississippi.—On an indictment for
selling to a slave, “ without the permis-
sion of the owner, master, or overseer,”
the prosecution, it was held, must affirm-
atively establish the want of permission.
“We know of no exception to the rule,”
said Smith, J. “ that whatever it is mate-
rial to aver in an indictment it is neces-
sary to prove.” McGuire v. The State,
602
Haskill v». Commonwealth, 3
138 Sm. & M. 257, 259. Afterward, on
an indictment for ordinary selling with-
out license, the court held, that it was
for the defendant to produce 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 pecu-
liarly within the knowledge of one of the
parties, so that he can have no difficulty
in showing it, the presumption of inno-
cence, 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, 37 Missis. 353; Pond v. The
State, 47 Missis. 89. See North Carolina
for a reconciliation of the apparent
discrepancy in these decisions.
Missouri. —It devolves on the defend-
ant, if he has a license, to produce it.
Schmidt v. The State, 14 Misso. 137;
The State v. Lipscomb, 52 Misso. 32;
The State v. Edwards, 60 Misso. 490.
New Hampshire. — The decisions on this
question in this State furnish an instance
of the unhappily common course of things
in our courts, the avoidance whereof by
the present writer in his discussions has
enabled him to render his books useful
in correcting judicial errors and settling
conflicts. The matter is explained in
various places, and particularly in Crim.
Law, 7th ed. “Introduction.” The doc-
trine which the elucidations in the text
show to be just, was first laid down in a
series of decisions ; namely, that the bur-
den devolved, not on the State to prove
the defendant’s want of authority, but on
him to produce it. The State ». Foster,
83 Fost. N. H. 348; The State v. Shaw,
35 N. H. 217; The State v. Simons, 17
N. H. 83; The State v. McGlynn, 34
N. H. 422. And, in the civil action by
one seeking to recover the price of liquors
sold, he was required affirmatively to
prove his authority to sell them. Bliss v.
Brainard, 41 N. H. 256, Afterward the
court discovered, that the reasons which
had been judicially assigned for this doc-
trine were unsound; hence, not inquir-
ing whether it did not admit of support
by sound reasons, leaped to the conclusion
CHAP. LVI. ] LIQUOR. SELLING — THE PROCEDURE.
§ 1058
§ 1053. In Conclusion, — the discussions of this chapter might
be easily extended; but, as every practitioner will and should
have before him the statutes and adjudications of his own State,
it is believed that the foregoing will abundantly suffice.
that, of course, it was’ wrong, dividing on
the further question whether the rule of
stare decisis would permit its reversal.
To quote: :“In Lisbon v. Lyman, 49
N. A. 553, 568-582, the court were unan-
imously of opinion that the burden of
proof, on the question of payment of all
taxes duly assessed, was not shifted from
the plaintiff to the defendant by any rule
or supposed rule in relation to a subject-
matter peculiarly within the knowledge
of one of the parties. It was held, p.
582, that, if there was any such rule oper-
ating as a rule of law to shift the burden
of proof, it was not applicable to that
case; because it did not appear that the
proof in relation to the assessment and
payment of taxes was so peculiarly or
exclusively in the power of the defend-
ant as to require him to produce it, —a
reason which (as was shown in that case)
would forbid the application of the rule
to cases like the present. It was there
shown, that, if there is any such rule, it
has often been misapplied, and that its
misapplication ought not to be extended.
For reasons there stated, we are all of
opinion that its application to cases like
the present, as a matter of legal princi-
ple, is erroneous.” The State v. Perkins,
53 N. H. 435.
North Carolina. — The prosecutor need
not prove the’want of a license, but the
defendant, if he has one, must produce it.
The State v. Morrison, 3 Dev. 299. Yet
under a statute which made penal the
selling of liquor to a slave without the
master’s written permission (see Jissis-
sippi, in this note), the prosecutor was
required to prove the want of permission.
It was deemed that the former case pro-
ceeded on the ground of “necessity,” or
the “great difficulty in procuring the
proof” of there being no license. But
here the master or his representative
could easily be called in negation of the
giving of a permit. The State rv. Evans,
5 Jones, N. C. 250, 251, 252. And see the
State v. Woodly, 2 Jones, N. C. 276. See
ante, Alabama, and Jéississippi, in this
note. :
Ohio. — On an information under the
statute to prevent adulterations, the pros-
ecutor must give some evidence to the
negative averment that the liquor sold
by the defendant had not been inspected.
Cheadle v. The State, 4 Ohio State, 477.
Oregon. — The defendant must produce
his license. The State v. Cutting, 3 Ore-
gon, 260.
South Carolina. — It is for the indicted
person to prove that he had ua license.
Geuing v. The State, 1 McCord, 573.
Wisconsin. — Some presumptive evi-
dence must be given that the defendant
had no license, before he is required to
prove the contrary. Mehan v. The State,
7 Wis. 670.
England. — On a prosecution against a
licensed victualler, for selling liquors on
a Sunday otherwise than to travellers,
the burden of proving the case not to be
within the exception is on the informer.
Taylor v. Humphries, 17 C. B.n. s. 539.
And, on an indictment for killing deer
in an enclosed park, without the owner’s
leave, the prosecutor must show that he
did not give permission. Rex v. Rogers,
2 Camp. 654.
603
§ 1056 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
CHAPTER LVII.
KEEPING INTOXICATING LIQUOR FOR UNLAWFUL SALE.
§ 1054. At Common Law. — The mere having of a thing, while
not using it, with the intent to commit therewith a crime, even
a felony, is not indictable at the common law.! Hence, a fortiori,
it is not a common-law offence to be in possession of liquors with
- the intent to commit the misdemeanor of selling them contrary to
the regulations of a statute? But—
§ 1055. Under Statutes.— Some of the more recent statutes
make it punishable, most of them providing also for the for-
feiture of the liquors, to have them in possession with the intent
unlawfully to sell them.2 And —
Transporting Liquors, — sold or to be,sold unlawfully, is in some
of the States put on the like footing with keeping them for un-
lawful sale.‘
§ 1056, Constitutional. — These statutes, when not incumbered
by objectionable details, are clearly within the legislative power
conferred by most or all of our constitutions. Yet, in Michigan,
the search-warrant clause of a former act of this sort was ad-
judged void, because it did not require any notice to the accused,
or even provide for informing him when, where, or before whom
the warrant was to be returned ;* and something like this was
1 Crim. Law, I. § 204.
2 Crim. Law, I. § 657-659, 759-761;
ante, § 1029.
3 Ante, § 988, 993, 994; The State v.
Kaler, 56 Maine, 88; Commonwealth »v.
O'Reilly, 116 Mass. 16.
4 Commonwealth v. Commeskey, 13
Allen, 585; Commonwealth »v. Bentley,
97 Mass. 551; Mason v. Lothrop, 7 Gray,
354; The State v. Smith, 61 Maine, 386;
Jones v. Root, 6 Gray, 4385; Kennedy »v.
Favor, 14 Gray, 200; Commonwealth v.
Kenney, 115 Mass. 149; Commonwealth
v. McCluskey, 116 Mass. 64; The State
604
v. Grames, 68 Maine, 418 ; Commonwealth
v. Doherty, 116 Mass. 18 ; Commonwealth
v. McLaughlin, 108 Mass. 477.
5 Jones v. Root, 6 Gray, 435; Mason
v. Lothrop, 7 Gray, 354; Lincoln v. Smith,
27 Vt. 828; The State v. Prescott, 27 Vt.
194; Gray v. Kimball, 42 Maine, 299;
ante, § 993, 994.
6 Hibbard v. People, 4 Mich. 126,
Green, J. observing: “It is said, that the
proceedings under the liquor law may be
so conducted, consistently with its provi-
sions, as to secure the person whose prop-
erty is seized all his constitutional rights.
CHAP. LVII. ] KEEPING LIQUOR FOR SALE. § 1057
held under former statutes in Rhode Island,' Massachusetts,? and
some of the other States.2 These decisions occurred in the
early period of this form of temperance legislation, and they
were pronounced under great public excitement and pressure
upon the courts. Still, beyond doubt and most plainly, they
were right if the statutes were correctly interpreted. But were
the questions to be freshly argued, ably, and on just grounds,
the conclusion would probably be reached by most enlightened
judges, that the constitutional, statutory, and common-law pro-
visions, all of which are equally laws,‘ should be interpreted
together,® as commanding the notice which the courts justly said
was required. Indeed, such is the doctrine established under
other statutes, by a mass of judicial authority overwhelming.®
The rules to determine when the forfeiture in rem is permissible
are explained in “ Criminal Law.” *
§ 1057. The Procedure — under these enactments differs so
much in our States that a detailed discussion of it here is not
deemed advisable. Yet a reference to leading cases explaining it
will be helpful to the reader.
alone.’
If this is possible, that is not enough. The
law must afford to the accused the means
of demanding and enforcing his constitu-
tional rights, and if it authorizes a course
of procedure which could deprive him
of them it is void. It is 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 conformity
with the requirements of the Constitu-
tion, as they may elect.” p. 180, 181.
1 The State v. Snow, 3 R. I. 64;
Greene v. James, 2 Curt. C. C. 187.
2 Fisher v. McGirr, 1 Gray, 1.
3 Ante, § 992, 993.
4 Ante, § lla.
5 Ante, § 86, 89, 90, 113 5-121, 128.
6 Ante, § 141.
* Crim. Law, I. § 816-835.
8 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. 384; The State
v. Maxwell, 86 Conn. 157; The State vu.
Burrows, 37 Conn. 425; The State v.
Among them are some on the law
Mead, 46 Conn. 22. And see Boles v.
Lynde, 1 Root, 195.
Iowa.— Santo v. The State, 2 Iowa,
165; Bowen v. Hale, 4 Iowa, 480 ; Vaughn
v. The State, 5 Iowa, 869; The State c.
Munzenmaier, 24 Iowa, 87; The State v.
Harris, 36 Iowa, 136; The State v. Thomp-
son, 44 Iowa, 399; Walker v. Shook, 49
Iowa, 264; Fries v. Porch, 49 Iowa, 351;
The State v. Mohr, 53 Iowa, 261.
Maine.— The State v. Robinson, 33
Maine, 564; The State v. Gurney, 33.
Maine, 527; Barnett v. The State, 36
Maine, 198; The State v. Leach, 38 Maine,
432 ; The State v. Moran, 40 Maine, 129;
Androscoggin Railroad v. Richards, 41
Maine, 233; Thurston v. Adams, 41
Maine, 419; Gray v. Kimball, 42 Maine,
299; The State v. Stevens, 47 Maine, 357 ;
The State v. Bartlett, 47 Maine, 388; The
State v. Kaler, 56 Maine, 88; The State
v. McCann, 61 Maine, 116; The State v.
Smith, 61 Maine, 386; The State v. In-
toxicating Liquors, 61 Maine, 520; The
State v. Intoxicating Liquors, 63 Maine,
121; The State v. Connelly, 63 Maine,
212; The State v. Plunkett, 64 Maine,
605
§ 1058
OFFENCES MORE PURELY STATUTORY.
[BOOK Vi.
§ 1058. Intent to sell. — The defendant’s intent to sell the
liquors, and in a manner to violate the law, must be proved.!
634; The State v. Kenniston, 67 Maine,
658; The State v. Intoxicating Liquors,
68 Maine, 187; The State v. Grames, 68
Maine, 418; The State v. Intoxicating
Liquors, 69 Maine, 524; The State v.
Knowlton, 70 Maine, 200; Weston v.
Carr, 71 Maine, 356.
Massachusetts. — Commonwealth v. Ed-
wards, 12 Cush. 187; Fisher v. McGirr, 1
Gray, 1; Jones v. Root, 6 Gray, 485;
Allen v. Staples, 6 Gray, 491; Mason v.
Lothrop, 7 Gray, 354; Commonwealth vw,
Kimball, 7 Gray, 328; Commonwealth v.
Timothy, 8 Gray, 480; Downing v. Por-
ter, 8 Gray, 589; Commonwealth v. Pur-
tle, 11 Gray, 78; Commonwealth v.
Intoxicating Liquors, 14 Gray, 375;
Commonwealth v. Intoxicating Liquors,
13 Allen, 52; Commonwealth v. Intoxi-
cating Liquors, 13 Allen, 561; Common-
wealth v. Commeskey, 13 Allen, 685;
Commonwealth v. Intoxicating Liquors,
97 Mass. 332; Commonwealth v. Bentley,
97 Mass. 551; Commonwealth v. Intoxi-
cating Liquors, 97 Mass. 601; Common-
wealth v. Chisholm, 103 Mass. 213 ; Com-
monwealth v. Desmond, 103 Mass. 445;
Commonwealth v. Intoxicating Liquors,
103 Mass. 448; Commonwealth v. Intox-
icating Liquors, 103 Mass. 454; Common-
wealth v. Intoxicating Liquors, 105 Mass.
181; Commonwealth v. Leddy, 105
Mass. 881; Commonwealth v. Cleary, 105
Mass. 384; Commonwealth v. Kimball,
105 Mass. 465; Commonwealth v. Maro-
ney, 105 Mass. 467, note; Commonwealth
v. Intoxicating Liquors, 107 Mass. 216;
Commonwealth v. Intoxicating Liquors,
107 Mass. 386; Commonwealth v. Intoxi-
cating Liquors, 107 Mass. 396 ; Common-
wealth v. Intoxicating Liquors, 108 Mass.
19; Commonwealth v. Grady, 108 Mass.
412; Commonwealth v. McLaughlin, 108
Mass. 477; Commonwealth v. Hazcltine,
108 Mass. 479; Commonwealth v. Stoehr,
109 Mass. 365; Commonwealth v. Berry,
109 Mass. 366; Commonwealth v. Dear-
born, 109 Mass. 868; Commonwealth v. In-
toxicating Liquors, 109 Mass. 371; Com-
606
monwealth v. Intoxicating Liquors, 109
Mass. 373, note ; Commonwealth v. Intoxi-
cating Liquors, 110 Mass. 182 ; Common-
wealth v. Intoxicating Liquors, 110 Mass.
172; Voetsch v. Phelps, 112 Mass, 407;
Commonwealth v. Intoxicating Liquors,
113 Mass. 28; Commonwealth v. Haher,
113 Mass. 207; Commonwealth v. Malo-
ney, 113 Mass. 211; Commonwealth v.
Hayes, 114 Mass. 282; Commonwealth v.
Kenney, 115 Mass. 149; Commonwealth
v. Shaw, 116 Mass. 8; Commonwealth v.
Doherty, 116 Mass. 13; Commonwealth
v. Intoxicating Liquors, 116 Mass. 21, 24,
26, 27; Commonwealth v. McCluskey,
116 Mass. 64; Commonwealth v. Mason,
116 Mass. 66; Commonwealth v. Intoxi-
cating Liquors, 116 Mass. 342; Com-
monwealth v. Intoxicating Liquors, 117
Mass. 427; Commonwealth v. Davis, 121
Mass. 852; Commonwealth v. McCue,
121 Mass. 358; Commonwealth v. Dolan,
121 Mass. 374; Commonwealth v. Hoar,
121 Mass. 375; Commonwealth v. Hanley,
121 Mass. 877; Commonwealth v. Intoxi-
eating Liquors, 122 Mass. 8, 14, 36;
Commonwealth v. Powers, 123 Mass. 244;
Commonwealth v. Wallace, 123 Mass.
400; Commonwealth v. Wallace, 123
Mass. 401; Commonwealth v. Newton,
128 Mass. 420; Commonwealth v. Galla-
gher, 124 Mass. 29; Commonwealth v.
Kahlmeyer, 124 Mass. 322; Common-
wealth v. Fraher, 126 Mass. 56; Com-
monwealth v. Byrnes, 126 Mass. 248;
Commonwealth v. Intoxicating Liquors,
128 Mass. 72; Commonwealth v. Sprague,
128 Mass. 75; Commonwealth v. Mat-
thews, 129 Mass. 487; Commonwealth v.
Ramsdell, 180 Mass. 68.
Missouri. — McCoy v. Zane, 65 Misso. 1.
New Hampshire. — The State v. Mc-
Glynn, 34 N. H. 422; The State v. Rum,
35 N. H. 222; The State v. Barrels of
Liquor, 47 N. H. 369; The State v. Col-
ston, 53 N. H. 483; The State v. Keggon,
65 N. H. 19; The State v. Tufts, 56 N. H.
137.
Rhode Island. — The State v. Snow, 3
1 The State v. Harris, 36 Iowa, 136.
CHAP. LVII.] KEEPING LIQUOR FOR SALE. § 1058
Necessarily the evidence of it will in general be circumstantial ;!
as, for example, if he sells some of them, the presumption is that
he means to sell the rest. Therefore sales before, after, and at
the time of the alleged keeping for sale may be shown in proof
of the intent to sell? And it is the same of a prior? or subse-
quent‘ keeping for sale. But there is no necessity for the circum-
stantial evidence to assume this form. ‘ The jury,” said Eastman,
J. “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.”5 That there were found on
the premises jugs which recently contained liquor,® or that liquors
were concealed there,’ or that packages apparently containing
liquor were often consigned to the defendant,’ or that he kept a
saloon,® ora public bar and its ordinary accompaniments,” — these
and other like facts are pertinent to the question of intent, the
decision whereof is for the jury." In Vermont, under the statute
of 1852, the finding of liquor in one’s house was prima facie evi-
dence of his having it for sale.”
R. I. 64; Fenner v. The State, 3 R. I.
107; The State v. Campbell, 12 R. I. 147.
5 The State v. McGlynn, 34 N. H. 422,
427,
South Carolina. — Weikman v. City
Council, 2 Speers, 371.
Vermont.— Lincoln v. Smith, 27 Vt.
328; Gill v. Parker, 31 Vt. 610; The
State v. Intoxicating Liquors, 44 Vt. 208 ;
The State v. Hoffman, 46 Vt. 176; The
State v. Reynolds, 47 Vt. 297.
1 Crim. Proced. I. § 1101.
2 The State v. Munzenmaier, 24 Iowa,
87; The State v. Raymond, 24 Conn.
204; The State v. Plunkett, 64 Maine,
534, 589; The State v. Neagle, 65 Maine,
468; The State v. Mead, 46 Conn. 22.
3 The State v. Colston, 53 N. H. 483.
4 Ante, § 681, 682; Commonwealth v.
Matthews, 129 Mass. 487.
§ Commonwealth v. Timothy, 8 Gray,
480.
7 Commonwealth v. Gallagher, 124
Mass. 29.
8 The State v. Mead, 46 Conn. 22.
3 Commonwealth v. Intoxicating Li-
quors, 107 Mass. 386.
10 Commonwealth v. Wallace, 123 Mass.
401.
11 Commonwealth v. Wallace, 123 Mass.
400; Commonwealth v. Powers, 123 Mass.
244; Commonwealth v. Hayes, 114 Mass.
282.
12 Lincoln v. Smith, 27 Vt. 328.
607
i
§ 1060 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
CHAPTER LVIII.
LIQUOR NUISANCES.
§ 1059. Introduction.
1060-1063. Selling to be drank on Premises.
1064-1067. Tippling-shops.
1068-1070. Buildings for Illegal Sales.
1070 a, 1070 6. Keeping open at Forbidden Times.
§ 1059. At Common Law, — houses wherein are sold intoxi-
eating drinks are indictable only when disorderly... But, —
By Statutes, — with us, this sort of offence has been greatly
extended. The statutes are in terms so varying as scarcely to
admit of classification ; yet, for convenience, —
How Chapter divided.— We shall consider, I. The Selling of
Liquor to be drank on the Premises; II. Tippling-shops ;
III. The Nuisance of keeping a Building for Illegal Sales ;
IV. The keeping open of Liquor-selling Places at Forbidden
Times,
I. The Selling of Inquor to be drank on the Premises.
§ 1060. Already, — scattered through this chapter and the one
before the last, something has been explained on the subject of
this sub-title.
Terms and Effect of Provision. — Statutes forbidding the sale of
liquor to be drank where sold are indirect prohibitions of tippling-
shops.2, Their terms are various. Generally they make the
essence of the offence consist in the seller’s intent to have the
liquor drank on the premises; so that, as observed in a Tennessee
case, if he “did not so intend he would not be guilty, though
the purchaser against” his will drank it there. Or, “on the
1 Ante, § 984; Rex v. Fawkner,2 Keb. Moore v. The State, 12 Ohio State, 387;
606, pl. 79. Commonwealth v. Moulton, 10 Cush. 404;
2 The State v. Slate, 24 Misso. 530; Noecker v. People, 91 Ill. 468. 7
The State v. Shearer, 8 Blackf. 262;
608
CHAP. LVIII.] LIQUOR NUISANCES. § 1062
other hand, if he intended it to be drank there, he would be
guilty, though the purchaser might take it away from the
place.” ! Yet where the statutory expression is, ‘if the same is
drank on or about the premises,” a different interpretation is
required.2?_ The prohibition includes places not under the seller’s
legal control, if so near and so situated as to be within the mis-
chief to be remedied. But where the purchaser takes the liquor,
in the seller’s quart measure, to a place out of view on the oppo-
site side of the street, some fifty feet away, and there drinks it in
front of another store, the court cannot say, as of law, that this
place is within the statutory prohibition.
§ 1061. The Indictment — may be the same as for simple sell-
ing, explained in the chapter before the last, augmented by
the allegation of the intent or actual drinking just stated.*
But this added matter is likewise an added identification of.
the transaction ;> so that possibly, by reason of this, the courts
may accept as sufficient some of the other allegations in forms
less minute than when only the selling is charged. The statu-
tory terms must be duly covered ; and, where they were “sell,
by retail, wine, ardent spirits, or a mixture thereof, to be drank
in or at the store or other place of sale,” it was adjudged ill to
omit the words “by retail,” and simply aver that the defendant
“did, without license so to do, sell ardent spirits to be drank
where sold, in a room occupied by him.”* |
§ 1062. Adequate.— Under a statute making it an offence to
sell liquor “‘ ¢f intended to be drank,” &c. an indictment was ad-
judged good which charged, that the defendant, at a time and
place specified, did unlawfully sell and retail spirituous liquor to
a person named, by the quart, to be drank on the premises, and
which was then and there drank on the premises, &c. without
1 Sanderlin v. The State, 2 Humph. 3 Met. 449; The State v. Auberry, 7
315, 319; 8. p. Wrocklege v. The State, Misso. 304; People v. Gilkinson, 4 Parker
1 Iowa, 167. C. C. 26; Commonwealth ». Head, 11
2 Christian v. The State, 40 Ala. Grat. 819; Kilbourn v. The State, 9 Conn.
376. 560; The State «. Freeman, 6 Blackf.
3 Easterling v. The State, 80 Ala. 248; Commonwealth v. Stowell, 9 Met.
46. : 669; Rawson v. The State, 19 Conn. 292;
* Ante, § 1034 d. Sanderlin v. The State, 2 Humph. 315.
5 Ante, § 1087. * Boyle v. Commonwealth, 14 Grat.
® Overshiner v. Commonwealth, 2 B. 674.
Monr. 344; Commonwealth v. Pearson,
39 609
OFFENCES MORE PURELY STATUTORY. [BooK VI.
§ 1065
having obtained a license so to do. “*To be drank,” in the
allegation, satisfied the statutory words “intended to be
drank.” 1
§ 1063. Evidence.—If the purchaser drinks the liquor on the
premises without objection from the seller, the presumption is
that it was sold to be drank there,? or was drank with the seller's
consent.? Or if the seller furnished bottles, glasses, sugar, water,
&c. the jury are justified in inferring the intent that the liquor
should be drank where sold.‘
Il. Tippling-shops.
§ 1064. Elsewhere —Common Law. — A tippling-shop, or tip-
pling-house, when disorderly, is indictable at the common law.
But this subject is explained elsewhere.®
Statutes,—in some of our States, have made the keeping of
such a place though not disorderly an offence. Thus, in Ken-
tucky: ‘‘ 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.”® And, in Maine:
“No person shall keep a drinking-house, or tippling-house,
within this State;’ proceeding, in another section, to de-
fine the offence.’ We have also other forms of the statutory
inhibition.®
§ 1065. What a Tippling-shop. — While some of our statutes
‘ define, as just seen, ‘“tippling-shop” or “ tippling-house,” the
1 Bilbro v. The State, 7 Humph. 634.
2 Sanderlin v. The State, 2 Humph.
815. :
3 Casey v. The State, 6 Misso. 646.
See Lucker v. Commonwealth, 4 Bush,
440.
4 Sanderlin v. The State, supra.
8 In Iowa, “houses where drunken-
ness, quarrelling, fighting, or breaches of
the peace are carried on or permitted, to
the disturbance of others, are nuisances,
and may be abated and punished.” There-
upon one who at his farm-house sold wine
of his own manufacture, and the buyers
5 Crim. Law, I. § 818, 1113-1117. See
post, § 1068.
6 Commonwealth v. Harvey, 16 B.
Monr. 1; Commonwealth v. Allen, 15 B.
Morr. 1.
7 The State v. Casey, 45 Maine, 435.
610
became intoxicated on it in the highway,
and disturbed the neighbors from one half
to one and a half miles from his house,
was held not to have committed the of-
fence. The State v. Dieffenbach, 47
Iowa, 688.
CHAP. LVIII. ] LIQUOR NUISANCES. § 1067
meaning of the term in others doubtless varies somewhat with
the. connection in which it stands.!_ But, in general, it may be
said to be a building or room wherein intoxicating liquors are
habitually sold to be drank there. This definition is framed
from a consideration of the principles which govern this sort of
subject ; though, simply from the few cases we’ have on the ques-
tion, it might not be easy to say exactly what constitutes a tip-
pling-house.2 It is not created by a single sale;* though, in
matter of proof, the evidence of one sale is competent.*
§ 1066. The Indictment — is required only to charge, in the
general words of the statute,> if so its terms are duly covered,
that, at a specified time and place, the defendant “did keep a
drinking-house and tippling-shop.”* And this is held to be so
though, in the language of Davis, J. ‘there is another section
{or clause*] of the same statute defining the offence and pro-
viding that it shall consist in certain specified acts.” $
§ 1067. Negativing Authority.— The question of negativing the
authority to sell, discussed in a previous chapter,® has arisen in’
some of these cases, but they have developed no distinguishing
principles.
Statutory Terms. — The indictment must reasonably pursue the
1 Ante, § 82, 86, 87, 92 d, 93, 246.
2 See Moore v. The State, 9 Yerg.
353; Morrison v. Commonwealth, 7 Dana,
218; Howard v. The State, 6 Ind. 444;
Bush v. The Republic, 1 Texas, 455;
Burner v. Commonwealth, 18 Grat. 778;
Commonwealth v. Worcester, 126 Mass.
256; Lucker v. Commonwealth, 4 Bush,
440. ‘A tippling-shop, literally, is a place
where liquor is drank habitually, in small
quantities, without reference to the place
where purchased. But such is not the
well-understood legal definition. (Bishop
Stat. Crimes, § 1065) ; nor is it in accord-
ance with the statutory definition, R. S.
c. 27, § 31. On the contrary, to consti-
tute a drinking-house or tippling-shop,
the liquor must be drank on the premises
where purchased. The’ State v. Inness,
53 Maine, 536, 5389. So, when cider is
sold for ‘tippling purposes,’ as the term
is used in § 22, the place of drinking and
the place of sale must be the same.”
Virgin, J. in The State v. McNamara,
69 Maine, 183, 135.
3 Dunnaway v. The State, 9 Yerg.
850; Hinton v. Commonwealth, 7 Dana,
216.
4 The State v. Gorham, 67 Maine,
247. See Lucker v: Commonwealth,
supra. :
5 Crim. Proced. I. § 494; Common-
wealth v. Riley, 14 Bush, 44, referring to
Morrison v. Commonwealth, 7 Dana, 218 ;
Commonwealth v. Turner, 4 B. Monr. 4;
Commonwealth v. Allen, 15 B. Monr. 1;
Commonwealth v. Harvey, 16 B. Monr. 1.
® To the like effect are The State v.
Allen, 32 Iowa, 248; The State wv. Free-
man, 27 Iowa, 333.
* The State v. Collins, 48 Maine, 217.
8 The State v. Casey, 45 Maine, 485;
The State v. Collins, supra. And see
Commonwealth ce. Turner, 4 B. Monr. 4;
Woods v. Commonwealth, 1 B. Monr. 74.
9 Ante, § 1042-1044.
1 The State v. Brown, 8 Misso. 210;
Webster v. Commonwealth, 7 Dana, 215 ;
Commonwealth v. Allen, 15 B. Mon. 1;
Commonwealth v. Harvey, 16 B. Monr. 1.
611
§ 1069 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
terms of the statute.! Where they were “ keep any tavern or
grocery for the retail of,” &c. an allegation that the defendant
kept a grocery, and did retail, &c. not saying that he kept it for
retailing, was adjudged inadequate.?
Other Points — appear in the cases cited in the note.?
III. The Nuisance of Keeping a Building for Mlegal Sales.
§ 1068. Common Law supplementing Statutes.— By a doctrine
explained in another connection,‘ and according to the opinion of
some courts, on a question not widely considered in our tribu-
nals, a house or other building or room wherein sales of liquor
are habitually made contrary to the inhibitions of a statute is a
common nuisance, the keeper whereof is indictable under the
common law And—
Statutes — have, in a few of the States, by express terms
made it so. Thus, in Massachusetts, “all buildings, places,
‘or tenements . . . used for the illegal keeping or sale of intoxi-
cating liquors shall be deemed common nuisances.” ® And
a provision is added for the punishment of the keeper. The
Connecticut statute makes the offence consist in keeping a place
. where it is reputed that intoxicating liquors are sold.’
Constitutional. — These statutes are adjudged to be within the
constitutional power of the legislature.?
§ 1068 a. “Tenement.” — This word, in the Massachusetts stat-
ute, signifies an apartment or apartments in a building, or the
building itself.®
§ 1069. In General of the Offence. — The offence, and: the pro-
cedure for its punishment, are within the principles of the law of
nuisance and the procedure thereon, and those of the last sub-
monwealth, 6 B. Monr. 21; Wilson v.
Commonwealth, 12 B. Monr. 2.
1 Our v. Commonwealth, 9 Dana, 30.
2 Hensley v. The State, 1 Eng. 252.
8 The State v. Brown, supra; Shilling
v. The State, 5 Ind. 443; The State v.
Rhodes, 2 Ind. 821; The State «. Tracey,
12 R. I. 216; Commonwealth »v. Sisson,
126 Mass. 48.
4 Crim. Law, I. § 1119-1121.
5 Meyer v. The State, 18 Vroom, 145;
Meyer.v. The State, 12 Vroom, 6; The
State v. Williams, 1 Vroom, 102; The
State v. Hall, 3 Vroom, 158; The State
v. Waynick, 45 Iowa, 516; Smith v. Com-
612
6 Mass. Gen. Stats. c. 87, § 6.
7 The State v. Thomas, 47 Conn. 646.
8 The State v. Thomas, supra; Mc-
Laughlin v. The State, 45 Ind. 338;
Streeter v. People, 69 Tll. 695.
9 Commonwealth v.. McCaughey, 9
Gray, 296; Commonwealth v. Godley, 11
Gray, 454; Commonwealth v. Cogan, 107
Mass. 212; Commonwealth v. Fraher,
126 Mass. 66.
CHAP. LVII. ]
title and the three chapters next preceding this.
a few States.
LIQUOR NUISANCES.
§ 1069
It is limited to
Therefore it is deemed best to close here the dis-
cussion of it, simply adding a reference to cases in the note.!
1 Connecticut. — Rawson v. The State,
19 Conn. 292; The State v. Morgan, 40
Conn. 44; The State v. Buckley, 40
Conn. 246; The State cv. Thomas, 47
Conn. 546.
Indiana.— Howard v. The State, 6
Ind. 444; Joseph v. The State, 42 Ind.
870; McLaughlin v. The State, 45 Ind.
338; Davis v. The State, 52 Ind. 488;
The State v. Jacks, 54 Ind. 412; The
State v. Wickey, 54 Ind. 488.
- lowa.— Our House v. The State, 4
Greene, Iowa, 172; Part of Lot v. The.
State, 1 Iowa, 507; Bowen v. Hale, 4
Towa, 480; The State v. McGrew, 11
Iowa, 112; The State v. Collins, 11 Iowa,
141; The State v. Kreig, 13 Iowa, 462;
The State v. Schilling, 14 Iowa, 455; The
State v. Baughman, 20 Iowa, 497; The
State v. Hass, 22 Iowa, 193; The State v.
Munzenmaier, 24 Iowa, 87; The State wv.
Verden, 24 Iowa, 126; The State v. Free-
man, 27 Iowa, 333; The. State v. Harris,
27 Iowa, 429; The State v. Allen, 82
Iowa, 248; The'State v. Norton, 41 Iowa,
20; The State v. Dean, 44 Iowa, 648.
Maine. — The State v. Lang, 63 Maine,
215; The State v. Page, 66 Maine, 418;
The State v.- Stafford, 67 Maine, 125;
The State v. Ruby, 68 Maine, 543.°
Massachusetts. — Commonwealth — v.
Kimball, 7 Gray, 328; Commonwealth v.
Buxton, 10 Gray, 9; Commonwealth
v. Skelley, 10 Gray, 464 ;; Commonwealth
v. Godley, 11 Gray, 454; Common-
wealth v. McArty, 11 Gray, 456; Brown
v. Perkins, 12 Gray, 89; Commonwealth
v. Logan, 12 Gray, 136; Commonwealth
v. Kelly, 12 Gray, 175; Commonwealth
v. Farrand, 12 Gray, 177; Common-
wealth v. Quinn, 12 Gray, 178 ; Common-
wealth v. Howe, 138 Gray, 26; Com-
monwealth v. Langley, 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;
Commonwealthi v. Edds, 14 Gray,. 406;
Commonwealth v. Donovan, 16 Gray, 18;
Commonwealth v. Higgins, 16 Gray, 19;
Commonwealth v. Welsh, 1 Allen, 1;
Commonwealth 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; Commonwealth
v. Wright, 12 Allen, 190; Commonwealth
v. McDonough, 13 Allen, 581; Common-
wealth v. Hogan, 97 Mass. 122; Com-
monwealth v. Kennedy, 97 Mass. 224;
Commonwealth v. Austin, 97 Mass. 595;
Commonwealth v. Carpenter, 100 Mass.
204; Commonwealth v. Smith, 102 Mass.
144; Commonwealth v. Heffron, 102
Mass. 148; Jones v..McLeod, 103 Mass.
58;. Prescott v. Kyle, 103 Mass. 381;
Commonwealth v. Cogan, 107 Mass. 212;
Commonwealth v. Kinsley, 108 Mass. 24;
Commonwealth v. Bacon, 108 Mass. 26;
Commonwealth v. Bennett, 108 Mass.
27; Commonwealth v. Martin, 108 Mass.
29, note; Commonwealth v. Kennedy, 108
Mass. 292; Commonwealth v. Ryan, 108
Mass. 415; Commonwealth v. Carney,
108 Mass. 417; Commonwealth v. Doe,
108 Mass. 418; Commonwealth v. Calla-
han, 108 Mass. 421; Commonwealth v.
Conneally, 108 Mass. 480; ~Common-
wealth v. Reichart, 108 Mass. 482; Com-
monwealth v. Finnegan, 109 Mass. 363;
Commonwealth v. McCurdy, 109 Mass.
364; Commonwealth v. Foran, 110 Mass.
179; Commonwealth v. Welsh, 110 Mass.
359; Commonwealth v. Pease, 110 Mass.
412; Commonwealth v. Carr, 111 Mass.
423; Commonwealth v. Dunn, 111
Mass. 425; Commonwealth v. Bossidy,
112 Mass. 277; Commonwealth v. Mc-
Namee, 113 Mass. 12; Commonwealth
v. Owens, 114 Mass. 252; Commonwealth
v. Aaron, 114 Mass. 255; Common-
wealth v. Dowdican, 114 Mass. 257 ; Com-
monwealth ». Dowling, 114 Mass. 259;
Commonwealth v. Burke, 114 Mass. 261;
Commonwealth v. Shaw, 116 Mass. 8;
Commonwealth v. O’Reilly, 116 Mass.
15; Commonwealth v. Campbell, 116
Mass. 82; Commonwealth v. Mason, 116
613
§ 1070 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 1070. Private Abatement.— The right of private: persons to
abate public nuisances, and its limits, are considered in other con-
nections. Precisely how far the nuisance’ created by the stat-
utes now in contemplation may be thus abated we may find it
difficult to say. Under the Massachusetts statute,? persons whose
friends frequented the forbidden nuisance to their injury broke
open the place and destroyed a quantity of the liquor. But the
court held this to be an unlawful proceeding, for which they
must answer in damages to the owner.? So, in Rhode Island,
under a similar enactment, the right to destroy the building by
Mass. 66; Commonwealth v. Kelley,
116 Mass. 341; Commonwealth v. McIvor,
117 Mass. 118; Commonwealth v. Cro-
nin, 117 Mass. 140; Commonwealth v.
Costello, 118 Mass. 454; Commonwealth
v. Twombly, 119 Mass. 104; Common-
wealth v. Gafley, 122 Mass. 334; Com-
monwealth v. Sullivan, 128 Mass. 221;
Commonwealth v. McCluskey, 123 Mass.
401; Commonwealth v. Hart, 123 Mass.
416; Commonwealth v. Brown, 124 Mass.
318; Commonwealth v. Finnegan, 124
Mass. 324; Commonwealth v. Sisson, 126
Mass. 48; Commonwealth v. Fraher, 126
Mass. 56; Commonwealth v. Ronan, 126
Mass. 59; Commonwealth v. Fraher,
126 Mass. 265; Commonwealth v. Robin-
son, 126 Mass. 259.
Ohio. —Clinton v. The State, 83 Ohio
State, 27.
Rhode Island. —The State v. Hopkins,
5 R.I. 58; The State v. Paul, 5 R. I. 185;
The State v. Knott, 5 R. I. 293; The
State v. Kingston, 5 R. I. 297; The State
v. Keeran, 5 R. I. 497.
Vermont. — The State v. Paige, 50 Vt.
445; The State v. Cox, 52 Vt. 471; The
State v. Haley, 52 Vt. 476.
1 Crim. Law I. § 490, 821, 823, 828,
829, 1080, 1081.
2 Ante, § 1068.
3 Brown v. Perkins, 12 Gray, 89. The
questionable feature of this case is, not
probably that the court arrived at a wrong
conclusion, but that it assigned a wholly
untenable reason. It laid down the doc-
trine (see Crim. Law, I. § 1081), that the
right to abate a public nuisance can be ex-
ercised only by those who are personally
and specially injured by it. Certainly the
614
authorities are not so, as the reader will
see who consults them as cited in “ Crim-
inal Law.” What is said sustaining this
view in the cases referred to by the
Massachusetts court is mere dictum.
Moreover, in principle, if an evil-minded
person has laid a dangerous obstruction
upon a public highway, but at a place
where I have never occasion to travel,
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 threatened
injury to life or limb, it would be con-
trary 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 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, I. § 231, 235 et seq.), and, in
like manner, is injured by a public nui-
sance of the abatable sort; therefore,
where the right to abate the public
nuisance exists, it may be exercised by
any person. If, in legal theory, the ele-
ment of individual interest is important,
as probably it is not, still the interest
need not be special’to the particular indi-
vidual, but the general interest which is
participated in by every member of the
community is sufficient. I am speaking
now of nuisances which are admitted to
be abatable. Not everything which is
indictable under the name of nuisance is
abatable; at least, not every such thing
is so by every means which a person igno-
rant of law might suggest.
CHAP. LVIII. } LIQUOR NUISANCES. § 10704
way of abating the nuisance was denied.!_ Under the terms of
the statutes in these States, the question might arise, whether
the nuisance consists of the liquor, or the building, or both —
whether it is not the business. And certainly it is not abating a
nuisance to destroy what is not the nuisance. The words in
Towa are different ; namely, that the building in which the un-
lawful manufacture, sale, or keeping for sale is carried on may
be abated as a nuisance, and whosoever shall use a building for
such purposes shall be deemed guilty of a nuisance, and may be
prosecuted, &c. accordingly.? Here is foundation for a different
construction, whatever the true construction may be? This sub-
ject in its wider extent, and that of forfeitures, both with and’
without judicial proceedings, comprise a chapter in “ Criminal
Law.” 4
IV. The Keeping open of Liquor-selling Places at Forbidden
Times,
§ 1070 a. In General.— For the protection of particular inter-
ests, we have statutes forbidding the keeping open of liquor-sell-
ing places at special times ; as —
Lord’s Day.— The statutes on this subject® are in varying
terms. They are to have a reasonable interpretation ; as, for
example, not forbidding boarding-house keepers to supply regu-.
lar boarders with meals. And to keep open the doors of a store,
and even suffer people to congregate in it,’ without traffic, is not
to “keep open store,” within these statutes;® while, on the
other hand, one whose doors are shut breaks the inhibition if he
permits access through the back door and supplies the liquor.
So the word ‘closed ” requires ‘that the sales be entirely stopped,
and the conveniences for drinking be rendered practically inac-
cessible.© Again, —
1 The State v. Paul, 5 R. I. 185; The * Weidman v. People, 7 Bradw. 28
State v. Keeran, 5 R. I. 497. 8 Snider v. The State, 59 Ala. 64.
2 The State v. Freeman, 27 Iowa, 333, But see Baldwin v. Chicago, 68 Ill. 418.
336; ante, § 1064, note. 9 Kroer v. People, 78 Ill. 294; Blahut
3 Bowen v. Hale, 4 Iowa, 480; Our v. The State, 34 Ark. 447. And see Crim.
House v. the State, 4 Greene, Iowa, 172. Law, II. § 963.
* Crim. Law, I. § 816 et seq. 10 Kurtz v. People, 33 Mich. 279. And
5 Crim. Law, II. § 961. see Harvey v. The State, 65 Ga. 568.
6 The State v. Gregory, 47 Conn. 276. See also, on the subject of this section,
615
§ 10706 OFFENCES. MORE. PURELY STATUTORY. [BOOK VI.
§ 1070 b. Election Days. — The statutes against keeping open
liquor-selling places on election days are in various terms. But
they are not attended with difficulties demanding special exposi-
tions in this place.!
Fant v. People, 45 Ill. 259; Coulbertv. Conn. 44; Haines v. The State, 7 Texas
Troke, 1Q. B.D.1; The State v. Crab- Ap. 30; English v. The State, 7 Texas
tree, 27 Misso. 232. Ap. 171; Hoskey v. The State, 9 Texas
1 Ante, § 603; The State v. Cady, 47 Ap. 202.
616
CHAP. LIX.] . HAWKERS AND PEDDLERS. § 1078
CHAPTER LIX.
HAWKERS AND PEDDLERS,
§ 1071. Introduction.
1072-1080. Law of the Offence.
1081-1088. The Procedure.
§ 1071. What for this Chapter and how: divided. — The unli-
censed hawking and peddling of goods will here be considered
in the following order: I. The Law of the Offence; II. The
Procedure.
I. The Law of the Offence.
§ 1072. In England, — from an early date, statutes, more or
less modified from time to time, have provided for the licensing
of hawkers and peddlers, and made infringements of their pro-
visions punishable ; partly for the protection of the community
against frauds to which itinerant dealers in commodities are
specially tempted, and partly for revenue. At the time of this
writing, the latest enactment, revising and consolidating what
had gone before, is 34 & 35 Vict. c. 96; supplemented by 44 &
45 Vict. c. 45, and 44 & 45 Vict. c. 67. And—
§ 1073. With us—a like fact prevails. The statutes differ in
the respective States, and more or less at different ‘periods in the
same State. And —
By-laws. — Municipal by-laws may, within the limitations of
power explained in an earlier chapter,? and they sometimes do,
forbid, except by license for which they provide, hawking and
peddling in their respective localities.?
1 Jacob Law Dict. tit. Hawkers; Burn - % People v. Mulholland, 82 N. Y. 324;
Just. tit. Hawkers and Peddlers. And Chicago v.-Bartee, 100 Ill. 57; Common-
see Stats. 25 Hen. 8, c. 9; 33: Hen. 8, c. wealth v. Elliott, 121 Mass. 367; Hunt-
4; 8& 9 Will. 8, c. 25; 22 & 28 Vict. c. ington v. Cheesbro, 57 Ind.74; Thomas
86 ; 383 & 34 Vict.c. 72; and multitudes v. Hot Springs, 34 Ark. 558-; Sledd v.
of others. Commonwealth, 19 Grat. 813.
2 Ante, § 18 et seq.
617
§ 1076 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
§ 1074. Terms defined. — Aside from any statutory definings,
the words ‘ hawker” and “ peddler” are almost equivalents in
meaning: either denotes an itinerant vendor of goods which he
carries with him, and perhaps it should be added that the vend-
ing must be by retail.1_ Formerly, and doubtless still, ontery
was specially prominent in the idea of hawking, and the putting
off of petty articles in that of peddling. In England,? and some
of our States, and in the legislation of Congress,’ there are statu-
tory definings of these terms; and, wherever they exist, the
meanings so ascertained prevail over those of the unwritten law.
§ 1075. Single Act — Business.—- Hawking or peddling is a
business, to the extent that it is not constituted by a single offer-
ing or selling, or even by occasional sales, made outside of one’s
ordinary employment.*
§ 1076. Other Business — Supplying Orders — Itinerancy. —
“The leading primary idea of a hawker and peddler is,” said
Shaw, C. J. “that of an itinerant or travelling trader, who car-
ries 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.”
Therefore the court deemed, that one would commit this offence,
under the statute then in contemplation, though his sales were
in connection with a non-prohibited employment, and at the
unsolicited request of purchasers. But the unlicensed agent of
a city firm could lawfully go about the country delivering to cus-
tomers previously-ordered goods made by his principals, some-
times adding more than had been ordered. Again, —
Selling by Sample. — Except by express words, sometimes found
in astatute,® it is not a violation of the law for one to sell by sample
1 And see and compare Higgins v.
Rinker, 47 Texas, 393, 402; The State v.
Wilson, 2 Lea, 28; Commonwealth »v.
Ober, 12 Cush. 493, 495; Commonwealth
v. Farnum, 114 Mass. 267; Morrill v. The
State, 38 Wis. 428; Burbank v. Mc-
Duffee, 65 Maine, 185; Commonwealth
v. Cusick, 120 Mass. 183; Chicago v.
Bartee, 100 Ill. 67.
2 By 34 & 35 Vict. c. 96, § 3.
8 See, for example, Stat. 1864, c. 173,
§ 79, cl. 32, 18 U. 8. Stats. at Large,
2565.
4 Rex »v. Little, 1 Bur. 609, 613; Rex
618
v. Buckle, 4 East, 346; Commonwealth v.
Farnum, 114 Mass. 267, 271; Alcott uv.
The State, 8 Blackf. 6; The State v.
Belcher, 1 McMul. 40. And see Merriam
v. Langdon, 10 Conn. 460; Common-
wealth v. Willis, 14S. & R. 898; Colson
v. The State, 7 Blackf. 590; Page v. The
State, 6 Misso. 205.
5 Commonwealth v. Ober, 12 Cush.
493, 495. And see Rex v. McKnight, 10
B. & C. 734.
6 Burbank v.. McDuffee, 65 Maine,
135; Ex parte Robinson, 12 Nev. 263;
Speer v. Commonwealth, 23 Grat. 935;
CHAP. LIX.] HAWKERS AND PEDDLERS. § 1080
the goods of a permanent dealer.! The permanency of the real
vendor, from whose place of business the sales are made within
the spirit of the law, takes the case out of the reason? of the
prohibition,
§ 1077. Manner of Travelling. — It is immaterial how the trav-
elling is done, “ whether,” in the words of Rogers, J. ‘on foot
or horseback, in wagons, carts, sleighs, or canal boats.” 3
§ 1078. On Commission — By Auction.— Neither the fact that
the travelling trader sells the goods on commission, nor that he
sells them by auction, prevents — it was held under 50 Geo. 8,
C. A, § 6 — his being a hawker or peddler.t So likewise —
Through Local Auctioneers. — An itinerant-vendor of goods is no
less a peddler, though he makes his sales through auctioneers
residing in the several places which he visits.
§ 1079. Local Questions. — Some questions have arisen, so local
to particular States, that a special consideration of them here is
not desirable.®
§ 1080. Constitutional Restrictions. — In general, the legisla-
tion discussed in this chapter is not violative of our State con-
stitutions or of the Constitution of the United States.7 But the
latter furnishes some restrictions ; and some things, once deemed
by the State courts permissible under it, have been adjudged by
the Supreme Court of the United States, the tribunal of the last
resort, not to be.
Commonwealth v. Smith, 6 Bush, 803;
Mork v. Commonwealth, 6 Bush, 397.
1 Commonwealth v. Jones, 7 Bush,
502; Commonwealth v. Farnum, 114
Mass. 267. But see Morrill v. The State,
38 Wis. 428.
2 Ante, § 1072.
8 Fisher v. Patterson, 1 Harris, Pa.
336, 338; Commonwealth v. Cusick, 120
Mass. 183.
4 Rex v. Turner, 4 B. & Ald. 510;
Dean v. King, 4 B. & Ald. 517. See
Allen v. Sparkhall, 1 B. & Ald. 100.
5 Attorney-General v. Tongue, 12
Price, 51. And see Attorney-General v.
Woolhouse, 1 Y. & J. 463, 12 Price, 65;
The State v. Hodgdon, 41 Vt. 189; Myer-
dock v. Commonwealth, 26 Grat. 988;
Gibson v. Kauffield, 13 Smith, Pa. 168.
And see Benjamin v. Andrews, 5 C. B.
Nn. 8. 299,
Like the statutes restraining liquor-selling,®
§ Wolf v. Clark, 2 Watts, 298; 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,
837; Jones v. Berry, 33 N. H. 209.
* Biddle v. Commonwealth, 13 S. & R.
405; Wynne v. Wright, 1 Dev. & Bat.
19; Beall v. The State, 4 Blackf. 107;
Ex parte Robinson, 12 Nev. 263; Sey-
mour v. The State, 51 Ala. 52; The State
v. Norris, 78 N. C. 448; Howe Machine
Co. v. Cage, 9 Baxter, 518; Common-
wealth ». Ober, 12 Cush. 498; contra, The
State v. North, 27 Misso. 464. See Hart
v. Willetts, 12 Smith, Pa. 15; Speer v.
Commonwealth, 23 Grat. 935; ayED v.
* The State, 46 Wis. 260.
8 Ante, § 990.
619
§ 1080 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
these upon peddling cannot be made to interfere with the vend-
ing of imports in the original packages,! or with any other rights |
under the Constitution and laws of the United States.2 Nor,
though Congress has not exercised its constitutional power to
regulate commerce between the States,.can they fetter it. There-
fore they cannot discriminate against goods which are the growth,
product, or manufacture of other States, — or, probably, imported
goods whereon duties have been paid, — by requiring a license to
peddle or otherwise vend them, while none, or one at a less price,
is exacted for selling in the same way what is- grown or made in
the State.2 In Louisiana, a statute required a license tax of
‘all travelling agents from other States, offering any species of
merchandise for sale or selling the same,” not including therein
the people of the State; and this was by the State court held to
violate the provision of the Constitution of the United States,4
that ** the citizens.of each State shall be entitled to all privileges
and immunities of citizens in the several States.”® Apparently
more or less in contradiction of this are various adjudications in
other States.6 But, if we should assume the Louisiana court to
be wrong in attributing this consequence to this particular pro-
vision while thus standing alone, we might still inquire whether
it does not result from it and the clause of the fourteenth amend-
ment combined, that ‘no State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States.” To burden a “citizen of the United States”
with a tax not imposed on the citizens of the State would seem,
in reason, to abridge his ** privileges’ and ‘ immunities,”’ *
1 People v. Moring, 47 Barb. 642;
Cook v. Pennsylvania, 97 U. S. 566. See
Woodruff v. Parham, 8 Wal. 123.
2 The State v. Butler, 3 Lea, 222.
3 Welton v. The State, 91 U. S. 275
(reversing The State v. Welton, 55 Misso.
288); Hall v. De Cuir, 95 U. S. 485, 490 ;
Webber v. Virginia, 103 U. S. 344;
Mobile v. Kimball, 102 U. 8. 691; Tier-
nan v. Rinker, 102 U. S. 123; The State
v. McGinnis, 37 Ark. 362; The State v.
Browning, 62 Misso. 591; Van Buren v.
Downing, 41 Wis. 122. -And see ante,
620
§ 9906; Guy. v. Baltimore, 100 U. S.
434.
4 Const. U. S. art. 4, § 2.
5 McGuire v. Parker, 32 La. An. 882.
§ Davis v. Dashiel, Phillips, N. C. 114;
Mork v. Commonwealth, 6 Bush, 397;
Ward v. The State, 31 Md. 279; Com-
monwealth ». Smith, 6 Bush, 303.
7 And compare with Guy v. Balti-
more, 100 U.S. 484; Liverpool Ins. Co.
v. Massachusetts, 10 Wal. 566; San Mateo
v. Southern Pacific Railroad (Railroad
Tax Cases), Sept. 25, 1882, by Judges
Field & Sawyer, 18 Federal Rep. 722.
CHAP. LIX.] HAWKERS AND PEDDLERS. § 1084
II. The Procedure.
§ 1081. Indictment.— The terms of our statutes against hawk-
ing and peddling so vary as to render difficult the laying down
of rules for the indictment, beyond the general ones which gov-
ern all indictments on statutes.!. A few questions, hitherto con-
sidered, are —
§ 1082. As Hawker and Peddler. — Under a statute making it
an offence for a peddler, &c. to go about without license “ ex-
posing to sale any goods,” au allegation, that, at a time and place
mentioned, the defendant was a peddler, &c. and then and there
went about exposing to sale goods, &c. and then and there sold
a specified article, was held to be inadequate ; because not charg-
ing that he sold the article as, or while going about as, such
peddler.2. Now, —
§ 1083. In Reason, — this decision is wrong ; because the stat-
ute did not make a selling an element in the offence, so that the
allegation of it was mere surplusage ; and because, if it did, to
say that the defendant was a peddler and sold was to charge him
with selling as peddler. Again, —
§ 1084. How specific as to Act or Sale. — Under a statute the
terms whereof do not appear in the report, but it contained the
word “business,” an indictment was sustained which charged,
that, at a time and place named, the defendant “ 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.; not further particularizing the peddling, or
specifying any sale. Said Goldthwaite, J.: “The term ‘busi-
ness,’ as employed in the statute, being continuous in its charac-
ter, not necessarily implying a single act or any number of acts,
forms an exception to the general rule, and falls within the prin-
ciple 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.’ For this doc-
trine, there are analogies in the rulings respecting the form of the
1 Crim. Proced. I. § 593-642.
2 Commonwealth v. Bruckheimer, 14 Gray, 29.
8 Sterne v. The State, 20 Ala. 48,
621
§ 1088 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
indictment for being an unlicensed common seller of intoxicating
liquors. But, —
§ 1085. Inadequate. — Under another statute, it was adjudged
insufficient to say, that, at « specified time and place, the defend-
ant “did sell and expose to sale divers goods, wares, and mer-
chandise,” he ‘‘then and there being a peddler, and not having
obtained a lawful license for that purpose.’”” An accused person
should,” said the court, be so definitely charged that he may
know how to shape his defence.” * Here, it is perceived, indi-
vidual sales, in distinction from a business, are the gravamen of
the accusation, and they are not specifically set out. Again, —
§ 1086. Averment of Business. — Under a statute not given in
the report, it was held inadequate to charge, says the reporter,
that the defendant, ‘not having any license or authority to vend
clocks within the county of Wayne, did, in: that county, unlaw-
fully sell and vend to a certain person three brass clocks, for the
sum of twenty dollars each, whereby the revenue of the county
was diminished and defrauded.” The court deemed, that the
offence consisted, not in making a single unlicensed sale, but in
being employed in the selling, and this was not charged.’
§ 1087. On the Whole, — while these illustrations will be help-
ful, the main reliance of the pleader, under statutes so diverse as
those on the present subject, will be upon the general principles
of the art.
§ 1088. Negativing.— The indictment must negative that there
was a license.*
Other Points, — not of much general interest, appear in the
cases cited in the note.®
1 Commonwealth v. Pray, 13 Pick.
859.
2 The State v. Powell, 10 Rich. 373,
374.
3 Alcott v. The State, 8 Blackf. 6.
4 May v. The State, 9 Ala. 167.
5 Higby v. People, 4 Scam. 165; Mer-
riam v. Langdon, 10 Conn. 460; Hirsch-
622
felder v. The State, 18 Ala. 112; The
State v. Sprinkle, 7 Humph. 36; Com-
monwealth v. Samuel, 2 Pick. 103 ; Com-
monwealth v. Dudley, 3 Met. Ky. 221;
The State v. Hirsch, 45 Misso. 429; The
State v. Richeson, 45 Misso. 575; Camp-
bell v. Thompson, 16 Maine, 117.
CHAP. LX.] FURTHER OF UNLICENSED BUSINESS. § 1090
CHAPTER LX.
FURTHER OF UNLICENSED BUSINESS.
§ 1089. Introduction.
1090-1092. Dealing as Merchant.
1093-1097. In Violation of Public Order.
1098. In Breach of Revenue Laws.
§ 1089. Already, —in the last five chapters, and in those on
Gaming and Lotteries, the leading principles relating to unli-
censed business have been brought to view. Still, —
Here. — There being other occupations the conducting whereof
without a license is by statutes made punishable, we shall in this
chapter call to mind some of them, cite the principal cases, and
add such explanations as seem desirable.
Classification — (Order of Society — Revenue). — No attempt at
precision in the classification of these statutes will be made. For
mere convenience, we shall distinguish between those the princi-
pal object whereof is-the good order of society, and those whose
‘chief aim is revenue. But the double motive — neither alone —
has prompted the enactment of many of them; so that this
division is unscientific and largely arbitrary. For convenience,
then, —
How Chapter divided. — We shall consider, I. Dealing as a
Merchant without License ; II. Unlicensed Business violative
of Public Order; III. Unlicensed Business in Breach of the
Revenue Laws.
I. Dealing as a Merchant without License.
§ 1090. Statute — (“Deal” — “ Merchant” — “ Merchandise”).
— A statute in Missouri, and in one or more of the other States,
makes punishable any person who, individually or as a partner,
“shall deal as a merchant without a license.” And the Missouri
statute defines a merchant to be one “ who shall deal in the sell-
ing of goods, wares, and merchandise, at any store, stand, or
623
§ 1093 OFFENCES MORE PURELY: STATUTORY. [BOOK VI.
place occupied for that purpose.” A single sale does not consti-
tute a dealing! Nor is one who, by manufacture from goods
which he keeps on hand, yet not for sale, supplies articles to
order, a merchant.2 The term “ merchandise” includes as well
animals trafficked in as inanimate property.
Indictment.— The indictment must charge a dealing as mer-
chant; merely to set out individual sales is not enough. Yet
the exact word “deal,” though it ought to be employed, may in
some circumstances be dispensed with where equivalents are used.4
§ 1091. Specific Sales and to whom.— Where the dealing is
adequately charged in general terms, it would seem, on principle,
not to be necessary to allege also specific sales.5 Yet, in eases be-
fore the writer, something like this has been added to the gen-
eral allegation ;* and, under the Maryland statute, the names of
the persons to whom the sales are made, it is held, must be given.’
§ 1092. Goods changed by Labor. —It was in Michigan adjudged
immaterial that the defendant had changed the goods in form by
expending labor upon them.®
Other Points — appear in cases cited in the note.®
II. Unlicensed Business violative of Publie Order.
§ 1093. Constitutional — (At Common Law). —In the absence
of statutory restraints, any person is entitled to carry on any
manufacture, business, trade, or domestic or foreign commerce,
if he does not infringe the rights of another, or commit a public
nuisance.” But within principles already explained," regulations
such as we are now considering are constitutionally competent to
our legislatures.!2. And —
1 The State v. Cox, 32 Misso. 566.
And see Porter v. The State, 58 Ala. 66;
ante, § 1016.
2 The State v. Richeson, 45 Misso.
575.
- 8 Weston v. McDowell, 20 Mich. 353;
United States v. One Sorrel Horse, 22
Vt. 655.
4 The State v. Cox, supra; The State
v. Jacobs, 38 Misso. 379; The State v.
Willis, 37 Misso. 192.
5 Ante, § 1084.
8 The State v. Jacobs, 88 Misso. 379;
The State v. Willis, 37 Misso. 192; The
State v. Cox, 32 Misso. 566.
624
7 Spielman v. The State, 27 Md. 520.
8 The State v. Whittaker, 33 Misso.
457.
9 The State v. Hunter, 5 Misso. 360;
The State v. Martin, 5 Misso. 861; Tracy
v. The State, 8 Misso. 1; Williamson v.
The State, 16 Ala. 431.
10 Hast India Co. v. Sandys, Skin.
182, 133; Custom’s Case, 12 Co. 83; Mer-
chant Adventurer’s Co. v. Rebow, 3 Mod.
126; Rex v. Kilderby, 1 Saund. 311, and
the notes.
1 Ante, § 989-996, 1080.
12 Walters v. Duke, 31 La. An. 668;
Shepperd v. Sumter, 59 Ga. 535. And
CHAP, LX.] FURTHER OF UNLICENSED BUSINESS.
'
§ 1097
Municipal By-laws — may and do more or less regulate things
of this sort. Among the subjects for statutes and by-laws, with-
in our present sub-title, are —
''§ 1094. Auctioneers. — It is common, for the protection of the
community against frauds, as well as for revenue, to require auc-
tioneers to act under license and not otherwise.?_ One who sells
by auction his own goods is an auctioneer equally with one who
after the common course thus sells the goods of others.3» The
essential principle of an auction consists of the endeavor to
get an enhanced price for a thing through competition among
buyers.? It is not an auction where no one but the auctioneer is
present.6 Nor is it such where the seller adheres to a fixed price,
though he employs outcry otherwise after the manner of an auc-
tioneer.© But he is an auctioneer who, contrary to custom, offers
goods at a price which he lowers till he finds a purchaser.’
§ 1095. Practising Medicine. — We have statutes, in varying
terms, forbidding any one to practise medicine except under a
license.8
§ 1096. Places of Amusement — are pretty generally forbidden
to be opened except on license.®
§ 1097. Other Business, — of various sorts, is in like manner
regulated; but nothing further on this head seems to be required,
except a simple reference to cases.”
see Sawyer v. State Board of Health,
125 Mass. 182. ’
1 Ante, § 18-26; Downham v. Alex-
andria, 10 Wal. 173; Goshen v. Kern, 63
Ind. 468; Deposit v. Pitts, 18 Hun, 475.
American Union Express v. St. Joseph,
66 Misso. 675; Chicago Packing, &c. Co.
v. Chicago, 88 Ill. 221; Thomas v. Hot
Springs, 34 Ark. 553; Burlington v.
Bumgardner, 42 Iowa, 673.
2 St. Louis Church v. Bonneval, 13 La.
An. 321; Stone v. The State, 12 Misso.
400 ; Commonwealth v. Harnden, 19 Pick.
482; Clark v. Cushman, 5 Mass. 505;
Hunt v. Philadelphia, 11 Casey, Pa. 277;
The State v. Rucker, 24 Misso. 557; The
State v. Conkling, 19 Cal. 501; George-
town v. Baker, 2 Cranch C. C. 291; Davis
v. Commonwealth, 3 Watts, 297; Fret-
well v. Troy, 18 Kan. 271; Daly v. Com-
monwealth, 25 Smith, Pa. 331.
8 Goshen v. Kern, 63 Ind. 468.
40
+
4 Crandall x. The State, 28 Ohio State,
479.
5 Campbell v. Swan, 48 Barb. 109,
118.
® Crandall v. The State, supra.
T Deposit v. Pitts, 18 Hun, 475.
8 The State v. Hale, 15 Misso. 606;
Ellison v. The State, 6 Texas Ap. 248;
Logan v. The State, 5 Texas Ap. 3806;
Antle v. The State, 6 Texas Ap. 202;
Hilliard v. The State, 7 Texas Ap. 69;
The State v. Goldman, 44 Téxas, 104.
For the principles which ought to govern
this sort of legislation, see ante, § 988 a.
® Crim. Law, I. § 1147-1149; Com-
monwealth v. Fox, 10 Philad. 204; Reg.
v. Tucker, 2 Q.B. D. 417, 18 Cox C. C.
600; Gillman v. The State, 55 Ala. 248;
Garrett v. Messenger, Law Rep. 2 C. P.
583, 10 Cox C C. 498.
10 Merritt v. The State, 59 Ala. 46;
Eastman v. Chicago, 79 Ill. 178; Carter
625
[Book VI.
§ 1098 OFFENCES MORE PURELY STATUTORY.
III. Unlicensed Business in Breach of the Revenue Laws.
§ 1098. In General. — Statutes of the sort now in contempla-
tion are a competent method of taxation} sometimes resorted to.
They are construed and enforced like the others; and, beyond
some reference to cases,” nothing more need be said of them in
this connection.
Under authorizing statutes this form of tax
may be provided for by municipal by-law.’
v. The State, 44 Ala. 29; Sledd v. Com-
monwealth, 19 Grat. 813; Little Rock
v. Barton, 33 Ark. 486; The State v.
Farmer, 49 Wis. 459; Wooddy v. Com-
monwealth, 29 Grat. 837; Norfolk v.
Chamberlaine, 29 Grat. 534; People v.
Doty, 80 N. Y. 225; The State v. Hall,
73 N. C. 252; The State v. Smith, 44
Texas, 443; Elsberry v. The State, 52
Ala. 8; Commonwealth v. Smith, 6 Bush,
303; Mork v. Commonwealth, 6 Bush,
397; Slaughter v. Commonwealth, 13
Grat. 767; Reg. v. Bishop, 5 Q. B. D.
259, 14 Cox C. C. 404.
1 The State v. Cohen, 84 N. C. 7m;
Webber v. Commonwealth, 33 Grat. 898 ;
Sacramento v. Crocker, 16 Cal. 119.
Cousins v. The State, 50 Ala. 113; Gold-
thwaite v. Montgomery, 50 Ala. 486;
McCaskell v. The State, 53 Ala. 510.
2 The State v. Chapeau, 4 S. C. 378;
The State v. Hayne, 4 S. C. 403; The
626
State v. Graham, 4 S. C. 380; Henback
v. The State, 53 Ala. 523; Weil v. The
State, 52 Ala. 19; Spears v. The State,
8 Texas Ap. 467; Childs v. The State,
52 Ala. 14; Iberia Parish v. Chiapella,
30 La. An. 1148; Williams v. Garignes,
30 La. An. 1094; Crews v. The State, 10
Texas Ap. 292; Archer v. The State, 9
Texas Ap. 78; The State v. Chadbourn,
80 N. C. 479; Cousins »v. Commonwealth,
19 Grat. 807; New York Rectifying Co.
v. United States, 14 Blatch. 549.
8 New Iberia v. Megius, 32 La. An.
923; Lafayette v. Cummins, 3 La, An.
673. And see Tallapoosa v. Tarver, 21
Ala. 661; The State v. Demarest, 3
Vroom, 528; New Orleans v. Turpin, 13
La. An. 66; Bordelon v. Lewis, 8 La. An.
472; Cumming ». Police Jury, 9 La. An.
608; New Orleans v. Elliott, 10 La.
An. 59.
CHAP. LXI.] CRUELTY TO ANIMALS. § 1101
CHAPTER LXI.
. CRUELTY TO ANIMALS.
§ 1099. Introduction.
1100-1113. Law of the Offence.
1114-1122. The Procedure.
§ 1099. How Chapter divided. — We shall consider, I, The
Law of the Offence ; II. The Procedure.
I. The Law of the Offence.
§ 1100. at Common Law — (Distinguished from Malicious Mis-
chief). — Cruelty to animals should not be confounded with
malicious mischief! to such of them as have owners.2, We saw,
in “Criminal Law,” that, while the latter is indictable at the
common law, the former is not ;? yet that if the cruelty is pub-
licly inflicted, it may be punishable as a public nuisance ;* or,
though private, it may be an element in some other indictable
wrong.?
§ 1101. Offence as recent.— This statutory offence, in its pres-
ent forms, is of recent date. But—
Early Statutes. — There were some inefficient enactments earlier.
The first of them is said to have been one in the Massachusetts
Colony in 1641, providing, “that no man shall exercise any
tyranny or cruelty towards any brute creatures, which are usually
kept for the usé of man.” ® And probably something on this
head always remained among the statutes of the colony and
State; extending also, in comparatively early times, to some of
1 Ante, § 481-449. Cranch C. C. 483; United States v. Me-
2 The State v. Rector, 84 Texas, 565; Duell, 5 Cranch C. C. 391.
Benson v. The State, 1 Texas Ap. 6. 5 The State v. Briggs, 1 Aikens, 226 ;
8 Crim. Law, I. § 594-597 a. Commonwealth v. Tilton, 8 Met. 232,
1 United States v. Logan, 2 Cranch 234; Kilpatrick v. People, 5 Denio, 277,
C. C. 259; United States v. Jackson, 4 279.
® Old Colony Laws, p. 95.
627
§ 1104 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
the others.! The first English statute, “to prevent the Cruel
and Improper Treatment of Cattle,” was enacted in 1822;
namely, 3 Geo. 4, c. 71. 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.” But the prosecution must
be commenced within ten days; and, if the magistrate deemed it
“ frivolous or vexatious,” he was to order the complainant 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.” In
1883, 8 & 4 Will. 4, c. 19, § 28, 29, added some provisions. In
1835, all were superseded by more ample. ones, constituting 5 &
6 Will. 4, c. 59, in twenty-one sections, entitled “ An Act.to con-
solidate 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.” This statute has constituted a sort of foundation for
the present ones, English and American; though, in form, it is
superseded. Succeeding English statutes are 12 & 13 Vict.
c. 92, amended by 17 & 18 Vict. c. 60, and 89 & 40 Vict. c. TT.
§ 1102. Present Enactments.— The present. enactments, Eng-
lish and American, are so far similar in terms, that, as the reader
will have before him those of his own State, it is not deemed
necessary to insert their provisions here.
§ 1103. Constitutional.— Their constitutionality has not been
much discussed in our courts; but there can be no doubt that,
in general, they aré within the constitutional power of our legis-
latures. Even as to one’s own animals, the method of keeping
and using them is a proper subject for legislation.”
§ 1104. Expositions. — The expositions of these statutes involve
such questions as —
The Animal — (Fowls — Birds). — In some, there are terms
explained by interpretation clauses. By 12 & 13 Vict..c. 92,
§ 2, cruelty to “any animal” is forbidden, and by § 29, “the
word ‘animal’ shall be taken to mean any horse, mare, gelding,
bull, ox, cow, heifer, steer, calf, mule, ass, sheep, lamb, hog, pig,
1 Wew York.— ‘As to New York, see 315; Walker v. Special Sessions, 4 Hun,
People v. Brunell, 48 How. Pr. 435. 441; ante, § 989, 993, 995.
2 Noffzigger v. McAllister, 12 Kan. 3 Ante, § 54, 55.
628
CHAP. LXI.] CRUELTY TO ANIMALS, ; § 1108
sow, goat, dog, cat, or any other domestic animal.” But not-
withstanding the restraining influence of the particular words,
and the contention that only quadrupeds were meant by the
expression ‘any other domestic animal,” ! it was held to include
~ domestic fowls; and, in particular, a cock.2 So likewise, in a
statute imposing duties, the term “live animals” includes sing-
ing birds. Under the statute of 8 Geo. 4, ¢. 71, already quoted,!
it was held that a bull was not within the expression “ other cat-
tle,” not being of.the same class with any enumerated.? But it
is not certain that the construction would now be so either in
England or generally in our States.®
§ 1105. one’s Own. — This offence may be committed as well
on one’s own animal as on that of another.’
§ 1106. “Overload.” —— Under many of these statutes, it is an
offence to ‘‘overload” an animal. In reason, an overloading
consists of compelling the animal to bear or tug at such a weight
or draft as to cause pain or strain of muscle not incident to proper
or necessary work. One extreme form of overloading is to put
upon a vehicle, which it is compelled to endeavor to draw, an im-
possible weight. By how much less than this the offence may,
as a question of authority, be constituted, the reported decisions
have not greatly enlightened us.
§ 1107. “Overdrive " 9 — “Overwork ” -—— “Deprive of Necessary
Sustenance” —are like statutory terms, not hitherto much illu-
mined by decision. In reason, there is a point better indicated
by good sense than exact definition to which the wrong must be
carried to be indictable; perhaps the criterion is, that it must
proceed so far as to be “cruel.” Between which point and the
utmost imaginable extreme there is a wide distance.
§ 1108. “Cruelly ill-treat, abuse, torture.". — To cut the combs
of cocks, in order to fit them for cock-fighting or winning prizes
at exhibitions, thereby inflicting great pain, is, however quickly
done, “to cruelly ill-treat, abuse, and torture” them. ‘“ As,”
1 See ante, § 245-248. 458, 459; Benson v. The State, 1 Texas
2 Budge v. Parsons, 3 B. & S. 382. Ap.6,10. See Dargan v. Davies, 2 Q. B.
3 Reiche v. Smythe, 7 Blatch. 285. D. 118.
4 Ante, § 1101. 8 People v. Tinsdale, 10 Abb. Pr.
5 Ex parte Hill, 3 Car. & P. 225. n. 8. 874,
§ Ante, § 246-248, % Commonwealth v. Wood, 111 Mass.
7 The State v. Avery, 44 N. Hi 392; 408; The State v. Comfort, 22 Minn.
Commonwealth v. Whitman, 118 Mass. 271.
629
§ 1112 OFFENCES MORE PURELY STATUTORY. [BOOK YI.
said Kelly, C. B. “it does not better fit the animal for the ~
use of man or for any other lawful or proper purpose, it is
wholly unjustifiable, and is a criminal act which comes within
the statute.” }
§ 1109. “Baiting.” — It has been held that, if rabbits are put
into a field of three or four acres from which they cannot escape,
and two dogs are set upon them in a match to see which will kill
the most, this is not a “ baiting ” of the rabbits. It is a hunting
of them. The term “ baiting,” said Cockburn, C. J. “is usually
applied when an animal is tied to a stake or confined so that it
cannot escape.” 2
§ 1110. “Kin” — (“Cruelly "— “Needlessly ”).— The mere kill-
ing of an animal was never made an offence. Some of the stat-
utes make punishable the killing of it ‘cruelly ;”’ others, “ need-
lessly ;” 3 each of which expressions requires something more.! |
§ 1111. “Cockfighting ” — is a form of evil sport always deemed
in the law reprehensible.2 And it is cruelty to the creature, with-
in some of the statutes.®
§ 1112. Justification.— These statutes are construed in accord
with their spirit and reasons ;* so as, following the obvious legis-
lative intent, not to interfere with the proper use of the animal,
and the higher claims of human beings to protection. “ Cruelty
in the statute,” said the Lord Justice-Clerk in a Scotch case,
““means cruelty without reason, cruelty in making one of the
lower animals suffer without any reasonable object or to an un-
reasonable extent.” ® For example, blows inflicted on a horse in
training, when reasonable and not prompted by evil passion ;
a necessary “surgical operation, occasioning the most intense
suffering” to the animal; the driving of “a horse at a rate of
speed most distressing to the brute, when the object is to save
1 Murphy v. Manning, 2 Ex. D. 307,
313.
2 Pitts v. Millar, Law Rep. 9 Q. B.
380, 382,
3 Grise v. The State, 37 Ark. 456;
The State v. Bogardus, 4 Misso. Ap.
216.
4 And see Jones v. The State, 9 Texas
Ap. 178; Colam v. Hall, Law Rep. 6
Q. B. 208.
5 Ante, § 859; Commonwealth v. Til-
ton, 8 Met. 232.
6 Budge v. Parsons, 3 B. & S. 382;
630
Clark v. Hague, 2 Ellis & E. 281, 8 Cox
C. C. 824; Morley v. Greenhalgh, 3 B.
& 8. 374.
T Ante, § 1019, 1020, and places there
referred to.
8 Murphy v. Manning, 2 Ex. D. 307,
814; Walker v. Special Sessions, 4 Hun,
441; Cornelius v. Grant, 7 Scotch Sess.
Cas. 4th ser. Just. 13.
9 Cornelius v. Grant, supra, at p. 14.
10 The State v. Avery, 44 N. H. 392;
Commonwealth v. Lufkin, 7 Allen, 579.
CHAP. LXI.] CRUELTY TO ANIMALS. § 1117
human life ;”1 the severe wounding of a dog to prevent a boy’s
being torn to pieces by him,?— are specimens of what is permis-
sible, though not in terms excepted out of the statute.
§ 1118. Evil Intent — (Intoxication). — There must be such
malice or other evil intent as the statute by its terms or inter-
pretation requires. But one is presumed to intend the natural
and necessary consequences of his act.! Nor is it an excuse for
him that he was drunk.é
II. The Procedure.
§ 1114. The Indictment —should, after the usual manner of
indictments on statutes,® cover the statutory terms.’ Further as
to which —
§ 1115. “Beat."— Under the statutory word “ beat,” as in the
expression “cruelly beat any horse,” it is sufficient to say, in
allegation, that the defendant “ did beat” the animal, not specify-
ing more minutely the beating.§ For the idea is simple, and this
word alone adequately particularizes the act and the instance.®
But —
§ 1116. “Torture,” —in the statute, is less definite; and the in-
dictment must state the method of torture and its effects ; so far,
at least, as to enable the court to see that it was of the sort and
degree which the statute is construed to forbid.” But the omis-
sion of this particular is a formal defect, which, under the
enactments as to procedure of some of our States, can be objected
to only at an early stage of the cause. Again, —
§ 1117. “Overload” — appears to have been deemed of the same
1 Commonwealth v, Lufkin, supra, at
p. 582, opinion by Hoar, J.
2 Cornelius v. Grant, supra.
8 Cases cited to the last section; The
State v. Brocker, 32 Texas, 611; Rembert
v. The State, 56 Missis. 280; The State
v. Rector, 34 Texas, 565.
4 Commonwealth v. Wood, 111 Mass.
408.
5 The State v. Avery, 44 N. H. 392.
6 Crim. Proced. I. § 593, et seq.
7 Commonwealth v. Brooks, 9 Gray,
299; The State v. Comfort, 22 Minn.
271; Benson v. The State, 1 Texas Ap.
6; Commonwealth v. Brigham, 108 Mass.
457; Commonwealth v. Thornton, 113
Mass. 457; Commonwealth v. Whitman,
118 Mass. 458; Rembert v. The State, 56
Missis. 280; The State v. Rector, 34
Texas, 565.
8 Commonwealth v. McClellan, 101
Mass. 34; Commonwealth v. Lufkin, 7
Allen, 579.
9 Crim. Proced. I. § 509, 514, 517, 520,
556-584, 619, 624, 625.
10 Ib. § 629; ante, § 447; The State v.
Pugh, 15 Misso. 509; Commonwealth »v.
Whitman, 118 Mass. 458 ; Commonwealth
v. Thornton, 113 Mass. 457.
0 Commonwealth v. Brigham, 108
Mass. 457.
631
§ 1120 OFFENCES MORE PURELY STATUTORY. [BOOK ‘VI.
class, requiring expansions of the averment into the particulars.!
And, in reason, simply to say that the defendant.“ overloaded ” a
designated animal is not the sort of precise and full charge to
which he ought to be required to answer. And —
§ 1118. “Overdrive,” — while more definite, is perhaps not suf-
ficiently so to take it quite out of the same rule. But under the
Minnesota statute it was adjudged adequate to say, that, at a
specified time and place, the defendant “did cruelly, wilfully,
and with force and arms, overdrive two horses, . . . by reason of
which said overdriving the said two horses were tortured and tor-
mented.”? Here, it is perceived, there is greater precision than
simply to charge, that the defendant, at the time and place, “did
overdrive ” the horses.
§ 1119. “Ki”— We have seen that, in malicious mischief,
“kill,” without specification of the manner, will suffice? But,
in this offence, it is otherwise of the law itself.4| And where the
terms of the statute are “cruelly kill,” some specification of the
cruelty would appear, in reason, to be required; though the pre-
cise question has probably not been adjudicated.5
§ 1120. The Ownership — of the animal, not being important
in the law of the offence,® need not be averred.’
Yet it is de-
scriptive of the particular creature ; so that, if alleged, it must be
proved as laid to avoid a variance.’
1 People v. Tinsdale, 10 Abb. Pr. nN. 8.
874. -
2 The State v. Comfort, 22 Minn. 271;
And see the State v. Shenton, 22 Minn. 311.
3 Ante, § 446. :
# Ante, § 1110.
5 In an excellent little manual of
“Forms of Complaints,” issued by the
“ Massachusetts Society for the Preven-
tion of Cruelty to Animals,” this question
is treated as follows: “It has been held,
in numerous cases, that in proceedings
under a statute punishing the wilful and
malicious killing of the beasts of another
person, it is unnecessary to set forth in
the complaint the mode of the killing,
and that the statutory words alone are
sufficient. Commonwealth v. Sowle, 9
Gray, 804. The case is widely different
under a statute prohibiting the cruel kill-
ing of any animal. In the one case, the
injury resulting to the owner of the ani-
mal killed is that which the law chiefly
682
¢
regards, viewed in connection with the
evil mind of the offender; and that in-
jury is properly set forth in. the very
words of the statute, the manner in which
the offender performed the prohibited act
being immaterial. In the other case,
the manner in which the act was done is
all-important, the owner’s loss being en-
tirely immaterial, and it is essential that
such particulars of the defendant’s act be
averred, that it will appear from the
averments of the complaint that the act
performed constituted a cruel killing.”
See Collier v. The State, 4 Texas Ap. 12;
Darnell v. The State, 6 Texas Ap. 482;
Reid v. The State, 8 Texas Ap. 4380.
6 Ante, § 1105.
7 The State v. Brocker, 32 Texas, 611;
Benson v. The State, 1 Texas Ap. 6.
8 Crim. Proced. I. § 488 b; Collier v.
The State, 4 Texas Ap. 12; Darnell v.
The State, 6 Texas Ap. 482; Rose v. The
State, 1 Texas Ap. 400.
CHAP. LXI.] CRUELTY TO ANIMALS. § 1122
§ 1121. One Offence or more. — How many offences are consti-
tuted by a transaction contrary to these statutes may be deter-
mined by analogies from other crimes. If a man overdrives or
overloads two horses harnessed together, the wrong is evidently
but one. Yet, if in the one transaction he beats the two sever-
ally, the case will, in reason, be governed by analogies from
assault and battery, and from homicide, into which we need not
enter.?
§ 1122. Injunction —is a remedy in equity, not pertaining to
crime.3 One, therefore, cannot have an injunction against the
agent of a society for preventing cruelty to animals, to restrain
him from interfering in the applicant’s business.!
1 People v. Tinsdale, 10 Abb. Pr. n.s. 208. And consult Crim. Law & Crim.
874; The State v. Comfort, 22 Minn. Proced. .
271. 3 Crim. Proced. I. § 1412-1417.
2 And see Rex v. Mogg, 4 Car. & P. * Davis v. American Society, &c. 75
364; The State v. Avery, 44 N. H. 392; N.Y. 362, affirming 16 Abb. Pr. n. s, 73.
Commonwealth v. O’Brien, 107 Mass.
633
§ 1125 OFFENCES MORE PURELY STATUTORY. [BOOK VI. :
CHAPTER LXII.
OTHER STATUTORY OFFENCES.
§ 1128. Introduction.
1124-1127. Adulterated Milk.
1128-1132. Protection of Fish.
1183-1135. - Protection of Game.
1136-1189. Cattle at Large.
‘
§ 1123. What for Chapter and how divided. — Having consid-
ered most of those offences which are exclusively or essentially
statutory, we shall briefly call to mind the leading doctrines per-
taining to, I. The Selling of Adulterated Milk; IT. Statutes for
the Protection of Fish; III. Statutes for the Preservation of
Game; IV. Cattle at Large.
I. The Selling of Adulterated Milk.
§ 1124. In General — The putting off, upon the community,
of unwholesome food is indictable at the common law.! But,
without reference to the unwholesomeness, wherein the common-
law offence consists, statutes, in some of our States, have made it
punishable to sell any sort of adulterated milk.2?, And these
statutes are within the legislative power.? Their terms differ ;
but, —
§ 1125. Knowledge of Adulteration. — In the absence of special
words in the statute, it is not an affirmative element in the
offence that the seller knew of the adulteration, and it need not
be alleged or proved against him.t But some of the statutes re-
People v.
! Crim. Law, I. § 484, 491, 558.
2 Commonwealth v. Smith, 103 Mass.
444; Commonwealth v. Flannelly, 15
Gray, 195; Phillips v. Meade, 75 Ill. 334;
Bainbridge v. The State, 830 Ohio State,
264.
3 Commonwealth v. Waite, 11 Allen,
264. Municipal By-laws — sometimes
634
accomplish fhe same object.
Mulholland, 82 N. Y. 324. And see Chi-
cago v. Bartee, 100 III. 57.
4 Commonwealth v. Nichols, 10 Allen,
199; Commonwealth v. Farren, 9 Allen,
489; Commonwealth v. Smith, 103 Mass.
444; The State v. Smith, 10 R. I. 258.
This is probably the correct doctrine;
CHAP. LXI. ] OTHER STATUTORY OFFENCES. § 1127
. . quire such knowledge, and the indictment under them must aver
and the evidence prove it.1_ Beyond this, — ,
§ 1126. Mistake of the Fact.— One or two of our courts have
holden, that, where the statute is silent concerning the seller’s
knowledge, if, however honestly and after whatever precautions,
he is misled to believe the milk to be pure, he is punishable
should it turn out to be adulterated. Yet, by the just doc-
trine, an unavoidable mistake of the fact, by one whose purpose
it is to obey the law, relieves him from legal guilt, the same as
from moral, precisely as in other criminal cases.”
The question
is sufficiently examined in other connections.’
§ 1127. Indictment and Evidence. — Some questions have arisen
relating to the indictment and evidence ; as to which, a mere
reference to the cases will suffice.4
though, in analogous cases, various stat-
utes which are silent as to the criminal
intent are construed to require it as an
affirmative element in the offence; when,
of course, it must be alleged and proved.
Crim. Proced. I. § 522. Thus, Alum in
Bread. — Almost precisely in accordance
with the forms of our leading statutes
against selling adulterated milk, the Eng-
lish statute of 6 & 7 Will. 4, c. 87, made it
an offence for a “ baker or other person ”
making “bread for sale,” to “use any
mixture,” &c. and provided for the pub-
lication of the names of convicted offend-
ers. And it was held that, on a simple
allegation in the terms of the statute, of'
mixing alum in bread, and proof of the
fact and no affirmative evidence of guilty
knowledge, a conviction could not be sus-
tained. Said Hannan, J.: “The pro-
visions of the Act cast great responsi-
bility on a master baker; but I cannot
think it to have been the intention of the
legislature that he should be liable to a
penalty for anything that occurs by acci-
dent. If this were so, the master might
be punished when some foreign ingredient
had fallen into the flour without the
knowledge of either himself'or his ser-
vant; and Iam the more inclined to think
that the legislature had not this inten-
tion, because the name of the master who
has been convicted under the Act is to
be made public in order that persons may
be warned against dealing at a shop
where something wrong has been done,
either by the servant or his employer.”
Core v. James, Law Rep. 7 Q, B. 135, 188.
Yet the just doctrine as to mistaking
the fact, explained in the next section of
the text, would seem to satisfy this rea-
soning.
1 Commonwealth v. Smith (the Mass.
case), supra; Bainbridge v. The State, 30
Ohio State, 264; Phillips v. Meade, 75
Ill. 334; Commonwealth v. Flannelly, 15
Gray, 195.
2 Crim. Law, I. § 303 a, note, par. 22.
3 Tb. § 301-310 and the long note at
§ 803 a; ante, § 596 a, 596 6, 681 a-632 a,
663-665, 729, 819, 825, 1022.
4 Commonwealth v. Luscomb, 130
Mass. 42; Dilley v. People, 4 Bradw. 52;
Lammond v. Volans, 14 Hun, 263; Com-
monwealth v. O'Donnell, 1 Allen, 593;
Commonwealth v. Nichols, 10 Allen, 199;
Commonwealth v. Flannelly, 15 Gray,
195; Stearns v. Ingraham, 1 Thomp. & C.
218; Commonwealth v. Farren, 9 Allen,
489.
635
§ 1130 OFFENCES MORE PURELY STATUTORY. . [BOOK VI.
Il. Statutes for the Protection of Fish.
§ 1128. Common-law Right of Fishing. — A full explanation of
the common-law right of fishing in the waters would occupy con-
siderable space. But for the purposes of the present discussion
it is sufficient to say, that, in the absence of anything to the con-
trary, the owners of the soil along unnavigable streams are exclu-
sively entitled to fish therein; and, where there are different
owners of the opposite banks, the right of. each extends to the
centre of the stream.! And in navigable waters, whether sea or
river, the right of fishing is prima facie common to all the people?
But, —
§ 1129. Obstructing Passage — (When Indictable).— As, in the
rivers not navigable, each owner of the soil is entitled to fish, it
results, at least as a question of principle, and it is believed also
as of authority, that no owner can, without subjecting himself to
a civil suit by the others, erect any permanent obstruction — cer-
tainly without some special occasion — to the passage of the
fish. Yet such erection, not being an injury to all the people, is
not at the common law an indictable nuisance. But in a navi-
gable river, where the public rights of fishing attach, it is indict-
able at the common law... Now, —
§ 1180. Statutory Regulations — (Constitutional). — Since it is
constitutionally competent for our legislatures to regulate the
exercise of even private rights and the use of private property,®
18 Kent Com. 411, 412, 418; Ingram
v. Threadgill, 8 Dev. 59; Carter v. Mur-
cot, 4 Bur. 2162, 2164; Adams v. Pease,
2 Conn. 481; Waters v. Lilley, 4 Pick.
145; Hooker v. Cummings, 20 Johns. 90;
Fitzwalter’s Case, 1 Mod. 105; Marsh v.
Colby, 39 Mich. 626. On Lakes. — The
rule of the river is not applicable to our
large lakes. Sloan v. Biemiller, 34 Ohio
State, 492.
23 Kent Com. 413, 418; Bagott v.
Orr, 2 B. & P. 472; Carter v. Murcot, su-
pra; Fitzwalter’s Case, supra; Malcom-
son v. O’Dea, 10 H. L. Cas. 593; Parker
v. Cutler Mill Dam Co. 20 Maine, 353 ;
Preble v. Brown, 47 Maine, 284; Coolidge
v. Williams, 4 Mass. 140, 144; Freary v.
Cooke, 14 Mass. 488; Commonwealth v.
Chapin, 5 Pick. 199; Yard v. Carman, 2
636
Penning. 936; Collins v. Benbury, 6 Ire.
118; The State v. Glen, 7 Jones, N. C.
821; Warren v. Mathews, 6 Mod. 73;
Paul v. Hazleton, 8 Vroom, 106; Skinner
v. Hettrick, 73 N.C..63; Lay v. King, 5
Day, 72; Chalker v. Dickinson, 1 Conn.
882; Trustees of Brookhaven v. Strong,
60 N. Y. 56.
3 Woolever v. Stewart, 36 Ohio State,
146, and the authorities cited; Stoughton
v. Baker, 4 Mass. 522; Leconfield v. Lons-
dale, Law Rep. 5 C. P. 657, 725; Weld v.
Hornhy, 7 East, 195.
4 People v. Platt, 17 Johns. 195; Lecon-
field v. Lonsdale, supra.
5 Weld v. Hornby, 7 East, 195, 199 ; The
State v. Franklin Falls Co. 49 N. H. 240.
6 Ante, § 995 and places there referred
to.
CHAP. LXII.]-. OTHER STATUTORY OFFENCES. § 1132
they may provide rules for the taking of fish and their protec-
tion in private or non-navigable rivers; and, for special and ob-
vious reasons, proceed therein further than would be justifiable
in respect of most other private interests.1 Palpably, the private
fisheries in streams not navigable, where each proprietor’s rights
are connected with those of every other, and the stream itself
flows into navigable waters, are, though not public, semi-public.
A fortiori, legislation may properly regulate fishing in the navi-
gable waters.”
§ 1181. State and United States Jurisdiction.— Upon this sub-
ject, differing from commerce and some others, the jurisdiction of
the States, to the exclusion. of the United States, even over the
navigable waters within their territorial limits,’ is complete. So
ample is this doctrine, that a State may limit to its own citizens
the right of fishing. in its navigable waters ; in subjection, how-
ever, to the superior rights * of navigation.®
§ 1132. Concerning the Statutes. — In pursuance of these prin-
ciples, various and diverse statutes concerning fish and fisheries
-have been enacted. in the several States, making violations of
their regulations penal. But into:their particulars it is deemed
best not to enter. Some of the cases are cited. in the note.®
1 Commonwealth v. Look, 108 Mass.
452; Stuttsman v. The State, 57 Ind. 119;
The State v. Boone, 30 Ind. 225; The
State v. Snover, 13 Vroom, 341; Dough-
ty v. Converse, 13 Vroom, 193; Tinicum
Fishing Co. v Carter, 9 Norris, Pa. 85;
Blydenburgh v.. Miles, 39 Conn. 484;
Maney v. The State, 6 Lea, 218; Com-
monwealth v. Weatherhead, 110 Mass.
175; Lunt v. Hunter, 16 Maine, 9; Peables
v. Hannaford, 18 Maine, 106; Vinton »v.
Welsh, 9 Pick. 87.
2 Paul v. Hazleton, 8 Vroom, 106;
Moulton v. Libbey, 37 Maine, 472; Com-
monwealth v. Bailey, 18 Allen, 541; Peo-
ple v. Reed, 47 Barb. 235. vod
8 Crim. Law, I. § 145 et seq.
4 As to the limit whereof see Cobb v.
Bennett, 25 Smith, Pa. 326; Lewis v.
‘Keeling, 1 Jones, N. C. 299. 8
5 McCready ». Virginia, 94 U. S. 391;
McCréady: v. Commonwealth, 27 Grat.
985; Haney v. Compton, 7 Vroom, 507 ;
Corfield v. Coryell, 4 Wash. C. C. 871;
Dunham v. Lamphere, 3 Gray, 268.
8 Commonwealth v. Perley, 180 Mass.
469 ; Commonwealth v. Tiffany, 119 Mass.
300 ; Commonwealth v. Ruggles, 10 Mass.
891; Commonwealth v. Weatherhead, 110
Mass. 175; Maney v. The State,.6 Lea,
218; McCready v. Commonwealth, 27
Grat. 985; Power v. Tazewells, 25 Grat.
786; Morgan v. Commonwealth, 26 Grat.
992; Commonwealth v. Bailey, 13 Allen,
641; Stuttsman v. The State, 57 Ind. 119;
The State v. Snover, 13 Vroom, 341;
Commonwealth v. Look, 108 Mass. 452;
Werfel:v. Commonwealth, 5 Binn. 65;
Smith v. Look, 108 Mass. 189; The State
v. Thompson,-70 Maine, 196; Common-
wealth v. Vincent, 108 Mass. 441; The
State v. Skolfield, 63 Maine, 266; The
State v. Cottle, 70 Maine, 198; Willing
v. Bozman, 52 Md. 44; The State v.
Decker,: 46 Conn. 241; The State vw
Hooffman, 9 Md. 28.
687
§ 1135 OFFENCES MORE PURELY STATUTORY. [BOOK VI.
TII. Statutes for the Protection of Game.
§ 1133. Wild Animals and Birds, — in their unreclaimed state,
belong to no one; but they, or their carcasses or hides, will be
the property of him who kills or otherwise sufficiently reclaims
and possesses them.1_ Under some circumstances, the owner of
the soil whereon an animal lives, though wild, has a sort of own-
ership therein before it is reclaimed,? —a question which, with
various others, is not within the present subject. Now, —
§ 1184. Legislation concerning. — These creatures, while wild
and unreclaimed, sustain important relations to the human popu-
lation; and their protection or destruction is, according to their
natures and numbers, matter of public concern. Hence there
has been, in our States, various legislation on the subject; and,
as its importance becomes better understood, the statutes in-.
crease. Some of the adjudications are referred to in a note;#
but the topic will not be further pursued, except as to the —
§ 1135. United States Constitution.— It has been deemed, in a
State, court, not. to be competent for State legislation to prohibit
the transportation of particular animals and birds out of the
State ; the question being one of inter-State commerce,* within
the exclusive jurisdiction of Congress.6 But when they: have
been brought into the State from another State or country, and
mingled with the general property, their sale, or the keeping of
them for sale, may be prohibited the same as though captured or
‘killed in the State.6 The Massachusetts statute. was, not as a
question of constitutional restraint, but of interpretation, held
not to apply to such import from another State.’
1 Crim. Law, IL § 771-779; 2 Kent
Com. 348; Buster v. Newkirk, 20 Johns.
75; Pierson v. Post, 3 Caines, 175; Amory
v. Flyn, 10 Johns. 102; Woolf v. Chalker,
81 Conn. 121; Parker v. Mise, 27 Ala.
480. See Case of Swans, 7 Co. 15 b.
2 Goff v. Kilts, 15 Wend. 550; Gillet
v. Mason, 7 Johns. 16; Ferguson v. Miller,
1 Cow. 243; Wallis v. Mease, 3 Binn.
.646; Churchward v. Studdy, 14 East,
249; Sutton v. Moody, 5 Mod. 375, 2
Salk, 556, 1 Ld. Raym. 250; Deane v.
Clayton, 7 Taunt. 489; Blades v. Higgs,
12 C. B. yn. 8. 501.
3 The State v. Shannon, 36 Ohio State,
638
423; Bellows v. Elmendorf, 7 Lans. 462;
Aldrich v. Wright, 53 N. H. 398; Com-
monwealth v. Hall, 128 Mass. 410; Un-
derwood v. The State, 19 Ala. 532; Mag-
ner v. People, 97 Ill. 820; Phelps v.
Racey, 60 N. Y. 10; Hart v. The State,
29 Ohio State, 666.
* Railroad v. Husen, 95 U. S. 465.
5 The State v. Saunders, 19 Kan. 127.
6 Magner v. People, 97 Ill. 320; Phelps
v. Racey, 60 N. Y. 10; The State v. Ran-
dolph, 1 Misso. Ap. 15; The State v.
Judy, 7 Misso. Ap. 524.
7 Commonwealth v. Hall, 128 Mass.
410.
CHAP. LXII.] OTHER STATUTORY OFFENCES.
§ 1139
IV. Cattle at Large.
§ 1186. In General. — There are statutes forbidding, or lim-
iting to particular times and places, the running of cattle at
large.} :
§ 1137. Meaning of “at Large” — “Suffer..— They are not at
large when the herder accidentally falls asleep.2 And one does
not “suffer” an animal to go at large, if, without his fault, it
escapes.2’ But these enactments are hardly within the strict do-
main of the criminal law. Partly criminal may be deemed some
of the — .
§ 1188. Restraining Municipal By-laws. — It is competent for
the legislature to authorize cities and towns to restrict the run-
ning at large of animals within their respective localities. And
this is not unfrequently done.4 Within these by-laws, —
§ 1189. Dog “at large.” — A dog, playing with its owner’s son
on the owner’s premises, is not “at large;”® but one is, while
following its master through the public streets at such a distance
as not to be within his control.®
1 Weir v. Cram, 37 Iowa, 649; Mari-
‘etta, &c. Railroad v. Stephenson, 24 Ohio
Scate, 48.
2 Thompson v. Corpstein, 52 Cal. 653.’
Compare with Commonwealth v. Dow, 10
Met. 382; McAneany v. Jewett, 10 Allen,
151; Marietta, &c. Railroad v. Stephen-
son, supra.
8 Montgomery v. Breed, 34 Wis. 649.
4 Dillard v. Webb, 55 Ala. 468; Fritz
v. First Division, &c. Railroad, 22 Minn.
404; Oil v. Rowley, 69 Ill. 469; Grover v.
Huckins, 26 Mich. 476; Higley v. Bunce,
10 Conn. 486, 567; Commonwealth ».
Leavitt, 12 Allen, 179; Spect v. Arnold,
52 Cal. 455.
5 McAneany »v. Jewett, 10 Allen, 151.
® Commonwealth v. Dow, 10 Met.
382.
639
INDEX OF SUBJECTS.
Notr.— The figures refer to the sections.
ABATED PROCESS, statute cannot revive, 180, note.
ABATEMENT, (See NuIsANcE.)
of nuisance, under power of by-laws, 21.
in connection with other remedies, 169, 1070 and note.
' when statute gives other remedy, 252.
private, of liquor nuisance, 1070.
ABATEMENT OF PROCEEDINGS,
effect of, as to statute of limitations, 262. qi
A B C. TABLE, statute making punishable, 864, 865.
‘“ ABDUCTION,” meaning of the word, 614.
ABDUCTION OF WOMEN, (See SepUcTION oF WoMEN.)
of girl, mistaking age, 631 a-632 a.
what the “ possession ”’ of parent, &c., 636.
Law of the offence of, 616-621.
Indictment and evidence, 622-624.
ABETTOR, ABETTING, (See ArpER — Seconp DEGREE.)
meaning of term, 272.
how in polygamy, 594; abortion, 749; gaming, 881; liquor selling,
1029, 1045.
ABORTION, (See Homicrpe.)
why treated as statutory, 740.
Law of the offence of, 742-750.
The procedure, 751-762. ;
indictment, 751-759; evidence, 760-762.
ABROAD, when statutes bind citizens, 141.
ABSENCE, proof of the seven years, in polygamy, 607.
ABSURDITY, in statute, avoided by interpretation, 82, 90, 98, 200.
‘¢s ABUSE,”’ word, in carnal abuse, and indictment therefor, 487, 489.
‘“¢ ACCEPTANCE,”’
meaning of the word, 338, note.
is not an offer, 1016, note.
41 641
ADM INDEX OF SUBJECTS.
ACCESSORY, (See ABETTOR— PRINCIPAL AND ACCESSORY.)
who, in statutory felony, 139.
not included under word ‘ aider,’’ 272.
in child murder, 770, 771, 775; in gaming, 881; in selling liquor, 1029.
ACCOMPLICE, (See AbeTTor — ArpER — Particers CRIMINIS —
PRINCIPAL AND ACCESSORY.)
how as to confessions of unindicted, in adultery, 678.
whether woman is, in her own abortion, 749, 760.
why testimony of, needs confirmation, 760.
effect of presence of, in concealment of birth, &c., 770, 771, 775.
whether can be, in concealment of birth, 775; how in gaming, 881.
“ ACCOUNTABLE RECEIPT,” meaning of the words, 341, note.
‘ACCUSED OF CRIME,” meaning of phrase, in statute, 242.
ACCUSED PERSONS, (See CrrminaL DEFENDANTS — LIBERAL In-
TERPRETATION — STRICT INTERPRETATION.)
provisions in favor of, to be liberally, construed, 227.
statutes contract and expand in favor of, 230.
ACCUSTOMED RANGE,
moving stock from, is ‘‘ theft’? in Texas, 413.
animals on, deemed in owner’s possession, 428,
offence of driving cattle from, 452.
“ ACQUITTANCE,”’ meaning of the word, 343.
ACT, (See STATUTES.)
one, may constitute parts of several offences, 143.
legislative acts of different dates, construed together, 82, 86, 87.
under mistake of fact, how, see Mistake oF Fact.
subsequent to adultery charged, how as evidence, 681.
ACT OF CONGRESS, precedence of, among laws, 11, 15.
ACT OF INCORPORATION, (See Crry Caarter — Incorpora-
TION — MunicrpaL CORPORATION.)
whether, a public statute, 405.
whether complaint on municipal by-law must set out the, 405, 406.
ACTION, : ‘(See Crviz Action —Qui TAM AcTION.)
not, for thing contrary to statute, 254, 255, 1080, 1031.
term, may include criminal suit and suit in equity, 350.
“ ACTUAL VIOLENCE,”
words, in statute against rape and carnal abuse, 494.
“ ACTUALLY OCCUPY,” meaning of words, in statute, 145.
‘“ ADAPTED TO COINING,”’ meaning of expression, 211.
ADDITION, what is an, to a building, 292, note.
« ADJOINING,”’ dwelling-house, what is, 223.
ADJUDICATION, how, establishes legal doctrine, 125.
‘© ADMINISTER POISON,” (See Supply or PRovIpDE.)
meaning of, in attempt to murder, 225; in abortion, 747.
with intent, &c., offence of, 746-748.
642
INDEX OF SUBJECTS. AGA
ADMINISTRATOR,
may stand for ‘‘ executor,’’ in statute, 190 6.
limitations statute not run against, 261 a.
ADMISSIONS,
of constitutional existence of statute, effect of, 37 a.
of marriage by defendant, admissible in polygamy cases, 610.
ADOPTED, a
terms and provisions, from other statutes, how construed, 97.
same from foreign laws, 97.
ADULTERATED MILK. (See SELLING ADULTERATED MILK.)
ADULTERATION OF LIQUOR,
importance of preventing the, 988 b, note.
how the, as to unlicensed selling, 1013.
ADULTEROUS INTENT, proof of, on indictment for adultery, 679-684.
ADULTERY, (See Living In ADULTERY.)
conviction of, on indictment for seduction, 643.
how fornication differs from, 691.
Law of the offence of, 654-668.
at common law, under statutes, 654, 654 a.
defined, and conflicting views as to what is, 654 a-658. -
aider at fact, 659.
consent of non-accused party, 660.
what carnal knowledge required, 661.
mistakes of law and fact, 662-665.
marriage, whites and blacks, attempts, conspiracies, degree, &c.,
666-668. #
The procedure, 669-690.
indictment, 669-676; evidence, 677-690.
“ ADVERTISEMENT,”
sign-board may. be an, of lottery tickets, 207.
how as to, of foreign lotteries, 959.
« ADVERTISING,”
lottery tickets, punishable under statutes, 958.
how the indictment for, 962 a.
ADVICE,
as to divorce and right to marry, how in adultery, 662.
effect of, in illegal. voting, 820, 824, 825.
AFFIDAVIT, not in form prescribed by statute, may be good, 255.
AFFIRMATIVE STATUTE,
defined, 153; repeals by, 126, note, 154-162.
in derogation of prior law, strictly construed, 189 a.
AFFRAY, in what place, must be committed, 298.
‘‘ AFTER,”
statute excluding evidence “ after,” not permission of it before, 249 a.
“AGAINST FORM OF STATUTE,”
words, rejected as surplusage, 164..
648
ALL INDEX OF SUBJECTS.
‘AGAINST FORM OF STATUTE,” — continued.
when, to be singular and when plural, 167 and note.
how of words, in indictment, 164, 167.
in indictments for larceny of animals, 427.
‘AGAINST HER WILL,”
words, in definition of rape, 480-482.
not, in indictments for carnal abuse, 486.
AGE, (See Minors.)
of estray, not necessary to be set out in indictment, 464.
whether aver woman’s, in rape and carnal abuse, 482, 486.
mistaking girl’s, in carnal abuse, 490.
proof of, in carnal abuse, 491.
mistaking girl’s, in seduction, 631 a, 682.
proof of, in liquor selling, 1048 a.
“AGE OF CONSENT,” meaning of, in polygamy statutes, 584.
AGENCY, (See PRINCIPAL AND AGENT.)
when, can be delegated, or not, 36.
doctrine of, extended to statutory creations, 134.
falsely assumed, 271.
how, and how proved, in criminal law, 1049.
AGENT, (See Clerk — Principat anp AGENT — SERVANT — Town
AGENT.)
of State, effect of laches of, 103, note.
false pretence made to, 134.
permit from, same as from principal, 134.
meaning of the word, 271.
married woman may be an, 423.
cannot do business on own account, 1002.
partner is, of firm, 1004.
may sell liquor under license to principal, 1004, 1024.
when, incurs guilt for self and principal in liquor selling, 1024.
how allege sales of liquor made by, 1045.
proof of seller of liquor being the alleged principal’s, 1049.
AGGRAVATIONS OF OFFENCE, as to punishment, 171.
AGREEMENT, (See Conrracts.)
against statute or its policy, void, 188 a, 254, 1030, 1031.
a mere, to sell, not a sale, 1013.
AIDER, (See Accessory — Accomplice — Seconp DEGREE.)
meaning of the word, 272.
AIDERS AT FACT,
doctrine of, in poaching, 88; polygamy, 594; adultery, 659.
ALEHOUSE, (See Trppiinc-Hovse.)
disorderly, common-law nuisance, 982.
ALIEN, punishing, for voting out of State, 813.
ALIENATION, statutes in restraint of, construed strictly, 119.
‘C ALL,” word, restricted in meaning by context, 102.
‘“* ALL OTHERS,”’ effect of words, in statute, 245, 246.
' 644
INDEX OF SUBJECTS. 7 ANY
‘ALL PROPERTY,” words, limited by construction, 156.
ALLEGATIONS, (See InpicTMENT.)
proofs cover so much of the, as shows offence, 800.
’ expanding the, beyond statutory words, 942, 943.
ALLEGIANCE, (See OaTH oF ALLEGIANCE.)
ALLEY, (See STREET.)
how as to statute against being found drunk in any, 973.
“ ALTER,” ‘ ALTERING,” (See Marx or ANIMALS.)
what is not to, in forgery, 217.
what — the word in indictment, 459, 461. ,
ALTERNATIVE PROVISIONS, (See Anp — Or.)
how, interpreted, 244; how pleadings drawn on, 244.
ALUM IN BREAD,
construction of English statute against putting, 1125, note.
AMBIGUITY, effect of, in statute, 41.
AMENDATORY STATUTES,
constitutional provisions concerning, 36 b, note.
effect of, as a repeal, 152 a.
AMERICAN ART UNION, is a lottery, 955.
AMERICAN STATUTES,
follow more nearly later English models than earlier, 118,
AMUSEMENT. (See PLaces or AMUSEMENT.)
ANALOGOUS OFFENCES, not within limitations statute, 260.
ANCIENT INTERPRETATION, compared with modern, 118.
ANCIENT AND MODERN, division of statutes into, 42.
“ AND,” (See ConsuncTIVE SENTENCES.)
interpreting word, as ‘“ or,’’ 243.
in indictment, for ‘‘or’’ in statute, 244, 487, 489, 701, 758.
not usually proper in alleging negative, 1043.
ANIMALS, (See CatTLE—CruELTY To ANIMALS—EsTRAY ANI-
MALS — GAME.)
are ‘‘chattels,’’ 344.
larceny of, under statutes, discussed, 425-429.
malicious mischief to, 431-449.
malice toward the, and owner, in malicious mischief, 433-487.
term to designate the, in indictment, 426, 440-443.
word, includes fowls and birds, 1104.
“ ANIMALS AT LARGE,” (See At Larce— EstRays.)
construction of statute against permitting, 223.
Offence of, as to cattle, 1186-1139.
ANTAGONISTIC IN PART, how provisions, construed, 126.
“ ANY BANK-NOTE,”’ (See Banx-Nore.)
words, include notes of other States, 205.
‘ANY OTHER PROPERTY,” meaning of the words, 246.
‘““ ANY PERSON,” words, limited by legal doctrine, 182.
645
ASS INDEX OF SUBJECTS.
APPEAL,
old law gives, in new case, 87.
constitution combining with statute may give, 89.
statutes extending, construed liberally, 120.
in other circumstances, how, 126, note.
judgment vacated by an, effect of repeal of statute, 177.
whether marriage pending an, from divorce, polygamous, 229.
hearing on, not deemed part of “ trial,’’ 347 a.
APPEAL CLAUSE, in statute, concerning, 60.
APPROPRIATION ACT,
effect of, on salary previously established, 130.
successive appropriations from insufficient funds, 156 a.
‘‘ APPURTENANCES,”’ meaning of the word, 291, note.
, ARBITRATION, statutes providing for, liberally construed, 120.
ARBITRATORS, whether, administer oath, 137.
ARMS, (See Bear Arms.)
a writing is not, 217; what are, 793.
ARRAIGNMENT, not deemed part of ‘‘ trial,’? 347 a.
ARREST, (See WARRANT OF ARREST.)
statute and by-law in conflict as to, 23.
how statutes providing for, construed, 198.
right of, on Lord’s day, 198.
breaking to make an, and in burglary, compared, 290.
trial of polygamous marriage in place of, 587, 599.
averring, as to lawfulness, 796.
ARREST OF JUDGMENT,
whether hearing on motion for, part of trial, 347 a.
ARRESTED, having weapon when, how the indictment, 796.
ARSON, (See Burn.)
jail is inhabited dwelling-house within statutes against, 207.
when place improperly laid as ‘‘ dwelling-house,’’ 218.
what — indictment for, has ‘‘ house,’’ not ‘‘ dwelling-house,” 277, 289.
when word should be “ dwelling-house”’ in statutory, — when commit-
ted of barn, — church a ‘‘ house”’ in statutory, 289,
what the burning in, 310, 311.
ART UNION, is a lottery, 955.
ASPORTATION,
not an element in ‘‘ theft ’’ in Texas, 414.
the, in larceny of animals, 428.
ASSAULT, ‘
term, in statute, means actual, not constructive, 216.
whether, was with dangerous weapon is for jury, 320, note.
to commit rape, carnal abuse, how, 496-499.
attempted abortion may be an aggravated, 744.
ASSAULT AND BATTERY,
Something of statutory, 500-515.
in Indiana, Texas, &c., 512-515.
646
INDEX OF SUBJECTS. BAL
‘“¢ ASSES,’’ included in the term ‘cattle,’ 212, 442.
ASSIGNABLE, whether office is, 88 and note.
ASSIGNEE, of liquor license, not empowered to sell, 1004.
ASSISTANT CLERK OF COURT, whether, an officer, 271 a.
“AT,” substitute for ‘‘ with ’’ in allegation, 908.
“AT END OF YEAR,” how, construed in:statute, 111, note.
“AT LARGE,” (See ANIMALS AT LARGE.)
meaning of, as applied to domestic animals, 1187, 1139.
“AT LEAST,” meaning of, connected with ‘‘ days,’’ 110 and note.
ATTACHED TO FREEHOLD, when what is, not subject of larceny, 416.
“ ATTAINT,” meaning of the word, 348.
ATTEMPT, (See Homicipz — SoxicrTaTION.)
to commit statutory crime, indictable at common law, 188.
doctrine of uttering, analogous to, 306.
in rape and carnal abuse, 492-499.
to kidnap or steal heiress, indictable, 619.
to debauch, woman a witness, 623.
whether solicitation to incest an indictable, 730.
at abortion, indictable, 744, 748.
how the indictment, 752.
ATTORNEY, prosecuting, a ‘‘ public officer,”’ 271 a.
AUCTION, AUCTIONEER,
defined and described, 1094.
whether selling by auction is peddling, 1078.
AUCTION POOL, upon a horse-race, is a lottery, 955.
AUDITOR. (See County AvDITOR.)
AUTHORITY, (See LicENSsE.)
statutory terms granting an, to be strictly followed, 119.
what is, on statutory interpretation, 104.
allegation and proof of want of, 1042-1044, 1051, 1088.
“ AUTHORIZED BY LAW,”? lottery, meaning of words, 205.
AUTREFOIS CONVICT. (See Szconp JEOPARDY.)
AVERMENT. (See NecativE AVERMENTS.)
AWNING, spreading an — keeping spread, 208, note.
BAILEES,
Larcenies by, under statutes, discussed, 417-424.
BAILMENT,
averring the, in indictment, 422 and note.
what. constitutes a, 423.
“ BAITING,” meaning of word, in cruelty, to animals, 1109.
BAKERS, by-law as to licensing, 25.
BALLOT,
whence right of, derived, 807-812.
647
BAT INDEX OF SUBJECTS.
BALLOT, — continued.
neglecting to put, into box for safe-keeping, 816.
what, in election laws, 826, note.
BANK NOT EXISTING, what is, 223.
‘“*BANK-BILL OR NOTE,”’ meaning of the phrase, 337.
BANK-BILLS, (See Banx-Nores.)
when, may be included in the words ‘ goods or chattels,’’ 209, note.
what it is not to ‘alter,’’ 217. .
statutes to punish forgery and larceny of, 325.
when not included under term “ promissory note,’’ 326.
meaning of the term, 337; not ‘‘ money,” 346.
BANK-CHECK, is an ‘order,’’ 328; not ‘‘ money,’’ 346.
BANKING GAMES, in classification of gaming, 866.
BANK-NOTES, (See Any Banx-NotE— Banx-Bit1s.)
of another State, are such here, 205.
word, in plural, includes singular, 213.
cut apart, the halves sent by mail, 214, note, 345.
meaning of term, 337, 346, note.
not subjects of larceny at common law, 344. And see 845.
are ‘valuable things,’’ but not ‘‘ lawful money,” 346, note.
whether, ‘‘ money,” 874; whether, ‘‘ goods and chattels,’’ 344, 345.
BANKRUPT ACT,
the old, proving exact time of repeal of, 29.
effect of repeal of, on prior perjury, 183.
BANKRUPT’S LETTERS, detaining, from him, 825,
BANKRUPTCY,
whether discharge in, bars claim of State, 103.
false swearing in case of, punishable under prior statute, 129.
BARGE, not include a brig or steam-tug, 246 a, note.
BARN,
when, deemed part of dwelling-house, 278, 286.
when burning of, arson, 289.
when, may be broken into, 290.
is an outhouse, 291, note.
“BARTER,” what, and distinguished from “sale,” 1014.
BASTARD CHILD,
construction of English statute as to maintaining, 159, note.
relations of, to natural parents, 633.
same as legitimate child, in incest, 727.
protecting life of, see ConcEALMENT or Birru.
BASTARDY,
in act concerning, ‘‘single woman ”’ includes married, 190 a.
conviction of, on indictment for seduction, 643.
evidence of, in concealment of birth, 780.
Criminal, law and procedure in, 691-694.
BAT, whether an ‘ offensive weapon,”’ 321.
648
INDEX OF SUBJECTS. BET
BATTERY. (See AssAULT AND BaTTERY.)
BAWDY-HOUSE, .
punishing keepers of, by by-law, 21.
tent may be a, 279.
visiting, in proof of adultery, 679. |
BAY, waters of a, when not deemed of the high seas, 304.
“ BEACH,” meaning of the word, 305, note.
“BEAR ARMS,” (See Krer anp Bear ARMS.)
when ‘‘ carry”? a synonym for ‘ bear,”’ 787.
effect of words, in constitution, 792, 793.
‘“ BEAST,” (See ANIMALS — CATTLE.)
meaning of the term, 440-442.
what corresponding word to be employed in indictment, 440.
“ BEAT,”
pulling one to ground is not to, him, 216.
word, in indictment for malicious mischief, 447.
word, in cruelty to animals, — how allege, 1115.
BED AND BOARD, i
when divorce from, renders second marriage not penal, 229, 583.
’ “BEER,” meaning of the word, 1007, 1008.
“BEFORE,” in statute, as to computing time, 110.
‘BEFORE TRIAL,’’: meaning of the words, 347 a, note.
‘BEGIN TO DESTROY,”
words, in malicious-mischief statute, construed, 223.
BENEFICIAL AND REASONABLE, by-laws must be, 22, 25, 26.
BENEFICIALLY, statutes which operate, construed liberally, 192.
BENEFIT OF ACCUSED, provisions for, construed liberally, 227.
BESTIALITY,
delay in a prosecution for, 257, note.
* maiming animal to commit, not malicious mischief, 437.
BET, (See Gaminc — WaGcEerR — Winninc Money.)
what is, distinguished from wager and game, 870-872, 937.
various views concerning, 870-875; recovering, in civil suit, 933.
BETTING, (See WacEr.)
statutory offence of, 852, 854.
distinctions in gaming, as to whether there is, or not, 854.
gaming as synonymous with, 858.
what, constitutes gaming, 862; or not, 872.
various sorts of unlawful, 872-875.
with another’s money, 881.
when only the, required to be charged in ‘county of indictment, 924.
BETTING ON ELECTION, :
‘cin this State,’’ includes presidential election, 205.
indictable under statutes, 852, 984, 936.
whether gaming, or not, 872.
Law of the offence of, 9383-987.
649
BOA INDEX OF SUBJECTS.
BETTING ON ELECTION, — continued.
The procedure, 938-949.
indictment, 938-946; evidence, 947-949.
BETTING ON GAMES,
indictable under statutes, 852, 854.
Law and procedure in offence of, 918-926.
BETTING ON HORSE-RACE, ‘(See Horsz-RAcina.)
indictable under statutes, 852; further as to, 872.
how the indictment for, 929.
BETTING “ MONEY,”’ what is, 874.
BETTING ON SHOOTING-MATCH, indictment for, 930.
‘“‘BEYOND SEAS,”
meaning of the expression, 261 b, 304, note.
effect of, in limitations statute, 261 b.
in polygamy statute, 595.
t
BIGAMY, (See Potyeamy.)
the term — compared with polygamy, 577.
BILL, (See LeGisLaTiIve Recorps.)
how, enacted, 44; presenting, to Governor for signature, 109.
repeal of, before enactment complete, 151.
“BILL OF EXCHANGE,”’ (See Birts anp Notes.)
forgery, larceny, &c. of, and how statutes interpreted, 325, 326.
meaning of the term, 838. And see 328.
not ‘‘money,’’ 346.
BILLIARD-TABLE, (See GamInG.)
keeping, forbidden by statutes, 852.
in connection with house where liquors are sold, 878, note.
BILLS AND NOTES, (See Britt or ExcHanGe.)
meaning of the term ‘‘ month ”’ in, 105, note.
how the months computed, 110 a, note.
BIRTH. (See ConcEALMENT OF Birtu.)
“BISHOP OF NORWICH,”
signifying, in statute, all bishops, 190 2, note.
BITING, whether injury by, is a wound, 314.
BLACK ACT, what the, and concerning, 431, 434.
“BLACK AND WHITE HORSES,”’ meaning of expression, 94.
BLACKS AND WHITES. (See NeGRors AND WHITES.)
BLANDISHMENTS, effect of, in law of seduction, 640.
BLANKS, not necessary to a lottery, 955.
BLIND TIGER,
how indictment for, under statutory words “like or similar kind,’’ 922.
*« BLIND-HAZARD,”’ table, statute punishing, 864.
BLINDS, forcing open, when breaking in burglary, 312.
BLUDGEON, an ‘offensive weapon,’’ 321; not ‘‘ arms,” 793.
BOARDING-HOUSE, private, not an inn, 297.
650
INDEX OF SUBJECTS. BUR
BOAT, on ariver, may be a bawdy-house, 279.
BODILY HARM. (See Grizvous Bopity Harm.)
BODY AND SOUL, law consists of, 93, note. ,
‘“BOHEA TEA,’ meaning of term, in statute, 99.
BOILING WATER, is ‘‘ destructive matter,’ 324.
BONDS, eo
appropriation statute to pay, designated, when not repealed, 156 a.
when, may be included in the words “ goods or chaittels,’’ 209, note.
not following statutory form, may be good, 255.
statutes to punish forgery and larceny of, 325, 326.
by licensee in liquor selling, 1000.
“BOOK OF ACCOUNTS,” what is a, 340.
BOOKS, what, are ~‘ materials for lottery,” 209.
BOOTH, in fair or market, not a ‘‘ dwelling-house,’’ 279.
‘“BOWIEKNIFE,” ‘carrying, forbid, 786; what ‘ like”? a, 790.
BOWLING ALLEY, indictable under statutes, 852.
“BRAND” OF ANIMALS,
offence of altering, &c., 454-461.
of estray need not be set out in indictment, 464.
in proof of ownership, 428.
BREACH OF DUTY, defined by statute, remedy for, 138.
“ BREACH OF THE PEACE,”
meaning of the words, in statute concerning arrest, 198.
houses where, statutory nuisance, 1064, note. And see 1068.
BREAD, by-law regulating weight of, 25.
‘“ BREAKING,” what is a, 290, 312, 318.
BRIBERY, (See ELEcTION OFFENCES.)
in respect of election, 803, 818, 843.
“ BRIDGE,’”’ meaning of the word, — what a, 301.
BRIDGE COMPANY, effect of repealing part of charter of, 151, note.
BRIG, not included in the words wherry, lighter, &c., 246 a, note.
BUFFALO, not included in term “ cattle,’? 442.
“BUILD.” (See Erect anp BuILp.)
BUILDING, (See WoopENn Burtpines.)
statutes restricting erection of, 208, 211; what a, 292.
Keeping a, for illegal sales of liquor, 1068-1070.
‘« BULLION,”’ meaning of the word, 346, note.
BURDEN OF PROOF, (See Presumption — Proor.)
doctrine of, in polygamy, 607.
as to the necessity of an abortion, 762.
BURGLARY, (See DwELLING-HOUSE — Howse.)
statutory words ‘‘ enter without breaking,’’ &c. in, 221.
breaking and entering in different forms of statutory, 234.
in shop, &c., statute construed, 221, 233, 234, 240.
‘ : 651
CAR INDEX OF SUBJECTS.
BURGLARY, — continued.
attempted felony in dwelling-house, when a common-law, 276.
indictment for, hag “‘ dwelling-house,’’ not ‘‘ house,” 277.
how lay place of offence, 278; various views as to place, 280, 281.
what the breaking in, 290, 312. (See BREAKING.)
BURIAL-GROUND, construction of statute forbidding street through, 156.
“BURN,” ‘“BURNING,”’ meaning of, 310, 311.
BUSINESS,
when by-law regulating places of, good, 20, 22.
word, meaning of, 1016.
how indictment for pursuing the liquor-selling, 1035.
Various statutory regulations of, 1089-1098.
BUYING COUNTERFEITS, statute against, construed, 225.
BY-LAWS, MUNICIPAL, (See ORDINANCE.)
are laws, 11 a; precedence of, 17 a.
how made, and effect of, as Jaws, 11, 11 a, 17 a-26.
may be void in part, 26, 34.
why the corporation can make, 36.
motives of makers of, 38.
repeal of, and proceedings under, 177.
whether indictment lies on, 403, 404, 407.
Explained and discussed, 18-26.
defined and described — ‘‘ ordinance,’’ 18.
how municipal corporation created — power to make by-laws, 18.
incidental and express power to make, 18-20.
what, commonly permissible, 20, 21.
requisites of, enumerated, 22.
penalty — forfeiture — binds whom, 22.
general law and, forbidding same act, 23; same arrest, 23.
second jeopardy under statute and by-law, 24.
interpretation, and further of power to make, 25.
holding, void, 26. ‘
The pleading and practice under, 403-408.
On particular subjects ; namely, —
gaming, 856; drunkenness, 973 6; liquor selling, 997; peddling, 1078;
other business, 1098, 1098; taxation, 1098; cattle at large, 1188.
CALENDAR MONTH, length of the, 105, 110 a.
CALF, is within the term ‘‘ cattle,’ 426.
CAMP-MEETING, what a disturbance of, 211.
‘ CAPITAL EXECUTION, done at different time from that ordered, 255.
CAPITAL PUNISHMENT, (See Deara.)
statutes inflicting, strictly construed, 189 d.
CARDS, (See GAMING.)
statute against playing, in ‘‘ out-house where people resort,’’ 291.
are a ‘‘ gambling device,’’ 867.
652 °
INDEX OF SUBJECTS. CAU
CARDS, — continued.
what a “ device or substitute for,’’ 869.
dealing the, having no interest in profits of game, 881.
indictment for playing at, proof of betting at faro, 896, note.
CARELESSNESS, (See Evin Invent — Mistaxe or Fact.)
‘~ supplying criminal intent in polygamy and adultery, 596 a, 664.
as to the age of minor, &c., 877, 1022.
CARNAL ABUSE OF CHILDREN, (See ABUSE.)
rejecting ‘‘of”’ in construction of statute against, 215.
Statutory, discussed, 483-499.
CARNAL KNOWLEDGE,
what the, in carnal abuse of children, 488, 489.
how allege the, in adultery, 674; how prove, 677-689.
CARNAL RAVISHMENT. (See CarnaL ABusu — Raps.)
“CARNALLY KNOW,”’ words, in indictment for carnal abuse, 487.
CARRIAGE HOUSE, part of dwelling-house, 286.
CARRIAGES, (See By-Laws.)
by-laws ordaining rules as to, for passenger transportation, &c., 20.
“CARRIED AWAY.” (See AsPpoRTATION.)
CARRIER, when, commits larceny as bailee, 424.
“* CARRIES,”’
meaning of word, in carrying weapons, 787.
how as to the indictment, 795.
CARRYING WEAPONS,
against statute, motives of curiosity not justify, 238.
Law of the offence of, 783-793.
early statute and common law, 783, 784.
our own statutes and their expositions, 785-791.
constitutionality of the statutes, 792, 793.
The procedure, 794-801.
indictment, 794-798; evidence, 799-801.
CART-WHEEL, not a ‘tool,’’ 819..
CASES. (See Decisions.)
“CASTAWAY,”’ meaning of the word, 224.
‘“‘CASTLE,” meaning of word, &c., 277, 290.
CASUS OMISSUS, what is, and doctrine of, 146.
CATTLE, « (See ANIMALS.)
what comprehended under word, 212.
by. what word designate, in charging larceny of, 426; malicious mis-
chief to, 440-442.
unlawful driving of, 452, 453.
fraudulent marking and altering marks of, 454-461.
violations ‘of estray laws, 462-464.
CATTLE AT LARGE, Permitting, discussed, 1136-1139.
CAUSE AND PROCURE, in abortion statute, how the allegation, 758.
653
CHI INDEX OF SUBJECTS.
‘‘CAUSING FALSE ENTRY,” in registry of births, what is, 210.
CERTIFICATE, not a license, 1000; what, a ‘‘ valuable security,’’ 840.
CERTIFICATE OF MARRIAGE,
neglecting to file, statute construed, 222.
official, proof of marriage in polygamy, 610.
CHAMBERS, in college may be dwelling-house, 279.
CHAMPAGNE WINE, is ‘ liquor,’’ 1010.
CHAMPERTY, not committed by judicial sale, 232.
CHANCE, (See GAME oF CHANCE.)
element of evil in gaming, 854, 862.
chief element in lottery, 952, 953, 956.
CHANCE VALUES, dealing in, is a lottery, 956.
CHANGE, making, for seller of liquor, punishable, 1029.
CHANGES, in game, effect of, 868.
CHAPTER HEADINGS, effect of, in interpretation, 46.
‘“‘ CHARACTER.” (See Previous CaasTE CHARACTER.)
‘CHARGED WITH CRIME,”’ meaning of phrase, in statute, 242.
CHARTER, (See Incorroration — Municipal CHARTER — PRIVATE
CoRPORATIONS.)
of city, how granted — legislative power over, 18.
how interpreted, 25.
whether private act — pleading and proving, 405.
not, repealing general statute, 156.
effect of repealing part of, of bridge company, 151, note.
CHASTITY, (See Previous CHasTE CHARACTER.)
evidence as to, in seduction, 648, 649, 652.
solicitations of, in evidence of adultery, 684. '
evidence of bad character and reputation for, admissible in adultery,
679.
“CHATTELS,”’ meaning of the word, 344, 345.
CHEAT, (See FatsE PRETENCES.)
limitation of indictment for, and conspiracies to, 260.
winning by false dice a common-law, 847.
Statutory enlargements of, 450-464.
introduction, 450, 451.
Unlawful driving of cattle, 452, 453.
Fraudulent marking and altering marks of cattle, 454-461.
Violations of estray laws, 462-464.
CHECK, when a, is an order, 328.
CHECKS, of faro bank, whether ‘‘ money,”’ 874. °
‘‘ CHILD,” meaning of word, in concealment of birth, 772.
CHILD MURDER. (See ConcEALMENT OF BiRTH.)
CHILDREN, carnal abuse of, discussed, 483-499.
CHIMNEY,
part of dwelling-house, 281.
entrance through, is a breaking in burglary, 312.
654
INDEX OF SUBJECTS. CLA
CHLOROFORM, inebriety from, not drunkenness, 972.
CHOSES IN ACTION,
whether, ‘‘ personal goods,’’ 209.
whether ‘‘ goods and chattels,’’ 344, 845,
CHURCH,
when, a ‘house’? other than ‘‘ outhouse,’’ ‘+ dwelling-house,”’ 289,
what it is to erect a, 292, note.
CIDER,
is not ‘‘ vinous liquor,’’ 1010.
how allege unlicensed sale of, 1038.
CITIZENSHIP, forfeiture of, as punishment, 810.
CITY, comprehended under word ‘‘ town,”’ 299 a.
CITY CHARTER. (See By-Laws — CuarTeEr.)
CITY COUNCIL, effect of ante-dated license from the, 1001.
CITY MARKET, (See By-Laws.)
by-law providing for a, 20.
CITY ORDINANCES, (See By-Laws.)
how enforced, 404.
CIVIL ACTION,
subsisting with indictment — no repeal, 156, note.
for private redress, not bar indictment for public, 170.
effect on, of repeal of statute, 177 a.
when and how, maintainable on statute, 250 a-253.
when, deemed begun, 261. :
cannot be revived after limitations bar, 265.
against officer of election for acting contrary to duty, 805.
whether, maintainable far wagers, 848, 873, 893.
for price of liquor unlawfully sold, &c., 1030-1031 a.
CIVIL AND CRIMINAL WRONG, same act may be both, 24.
CIVIL DAMAGE LAWS, in liquor selling, 1031 a.
CIVIL LAW, how terms adopted from the, construed, 97.
CIVIL PROCEEDINGS, may be concurrent with criminal, 170.
CIVIL REMEDY,
not interfere with proceeding by indictment, 171 and note.
CLAIM OF RIGHT, i
act done under, not punishable though within statutory words, 232..
not indictable malicious mischief, 482 a.
CLASSES OF PERSONS, statutes affecting, are public, 42 c.
CLASSES OF STATUTES. (See Written Laws.)
CLAUSE, (See ALTERNATIVE PROVISIONS.)
of statute, what, and how, 53-56, 59, 60.
meaning should be given to every, 82.
how the clauses operate together, 126.
when, must give way by interpretation to another, 82, 126.
strict and liberal construction of different clauses in same statute, 196.
655
CoM INDEX OF SUBJECTS.
“CLEAR DAYS,” meaning of the term, 110.
CLERGY,
statute taking away, applied to subsequent statute, 128.
circumstances to oust, must all transpire in county, 221.
statute taking away, from house-breaking,. interpreted, 240.
CLERGYMAN,
celebrating marriage without consent of parents, 237.
officiating, witness to marriage, 610.
CLERICAL ERRORS,
effect of, in statute, 79, 215, 248.
not to be presumed, 80.
CLERK, (See AGENT.)
meaning of the word, 271.
may sell liquor under employer’s license, 1004.
how further of the, and how proved, in liquor selling, 1024, 1049.
CLERK OF COURT, whether, a ‘‘ public officer,” 271 a.
a CLOSED,” meaning of, in statutes against ‘‘ keeping open,’’ &c., 1070 a.
CLUB, is an ‘offensive weapon,” 321.
COCK, is an ‘‘animal,’’ 1104.
COCK-FIGHTING, (See Gamez-Cock.)
in what sense, deemed unlawful, 859.
how, in law — in cruelty to animals, 1111.
COCKPIT, keeping a, an unlawful game, 859, note.
CODIFICATIONS, of laws, how interpreted, 98.
COFFEE-HOUSE, not an inn, 297.
‘* COHABIT,”’ word, in statute, how in allegation, 704.
COHABITATION,
under polygamous marriage, what the offence, 588, 589, 603.
not essential in polygamy, 612.
through mistake of fact, under void marriage, 663-665, 718, 729.
COIN, whether, ‘‘ goods and chattels,” 344.
“COIN RESEMBLING,”’ meaning of words, 225.
COINING, possessing any mould, pattern, die, &c., adapted for, 211.
COLLAR FOR COINING, whether, “tool or instrument,” 319.
COLLECTOR OF CUSTOMS, administering oath by deputy, 129.
COLLECTOR OF TAXES, whether, an ‘ officer,’ 271 a.
COLLEGE. (See CoamBers — YALE COLLEGE.)
COLONIAL STATUTE, effect of, 17.
COLOR, of animal, alleging, and variance in proof, 426, 443, 464.
COLOR OF RIGHT,
killing deer under, not within statute against deer-stealing, 232.
‘COLORABLE ALTERATIONS, in games, effect of, 868.
COLT, is ‘cattle’? and ‘* beast,’’ 442.
COMBINATION, as giving meaning to words, 93, 101, 102.
656
INDEX OF SUBJECTS. coM
COMBINATION POOL, is a lottery, 955.
COMMAND, in statute, directory, 255.
COMMENCEMENT OF PROSECUTION, what is the, 261.
COMMERCE,
what State legislation as to, void, 990, 990 6, 1080, 1131, 1135.
COMMERCIAL MEANING, given to commercial words, in statute, 99.
COMMISSIONERS. (See Report or COMMISSIONERS.)
“COMMIT,” word, in statute against rape and carnal abuse, 493.
‘COMMIT ADULTERY,” words, in indictment for adultery, 674.
COMMITMENT. (See WaRRANT OF COMMITMENT.)
COMMITTEES. (See Rerorts oF CoMMITTEES.)
COMMON CARRIER. (See BaILres.)
COMMON DRUNKARD, (See DRUNKENNESS.)
to be, and be abroad intoxicated, indictable at common law, 968.
statutes making, punishable, 970-972.
how the allegation, 977-979.
selling liquor to a, 1021, 1022, 1034 a, 1048 a.
COMMON GAMBLER, (See GAMING.)
_ statutory offence of being, and what constitutes a, 879.
COMMON LAW, (See Cutting SHort— DerRoGaTION or Common
Law — EXTENDING.)
mingling the, with statute in interpretation of the statute, 5-8, 82, 86,
88, 131-144.
by-laws must conform to the, 22.
to be construed with statute, touching same matter, 82.
as prevailing at time when statute passed, to be taken into account, 88.
requires interpretation, 116, 117.
construction of statutes strict as against, 119, 155.
how statutes construed in connection with, 122-146.
cutting short effect of statute, 131.
extending effect of statute, 134-157.
statutes abridging and enlarging the, 138, 138 a.
taking qualities and incidents from the, 139, 140.
otherwise construed harmoniously with the, 141-144.
not presumed to be abrogated by statute, 142.
remedy by the, for statutory right, 144, 250-250 c.
whether, repealed by custom, 150.
_ statutes in derogation of, construed strictly, 119, 155, 189 a, 193.
when statute repeals the, 154, note, 155-162.
blends with the statutes, 88, 164.
‘indictment on, or statute, at election, 164.
when conclusion of statutory indictment as at, sufficient, 167.
equality of, with statutes, 189 a.
COMMON MEANING, statutory terms ordinarily receive their, 100-102.
COMMON NUISANCE. . (See Nuisance.)
COMMON RIGHT. (See DeroGaTion or Common RIGHT.)
42 657
CoN INDEX OF SUBJECTS.
COMMON SEAMEN, included in the word “ crew,’’ 209.
COMMON SELLER,
of liquor unlicensed, statutory offence of being a, 1018.
conviction of, as to prosecution for same single sales, 1027.
how the indictment, 1035, 1037; evidence, 1047.
COMMON-LAW OFFENCE, how proceed on statute affirming, 250.
COMMON-LAW PUNISHMENT, when, may be imposed, 166.
COMMON-LAW REMEDY, statutory right enforced by, 144, 250-250 e.
COMMON-LAW RIGHTS, statutes in derogation of, how construed, 193.
COMMON-LAW TERMS, in statutes, have common-law meanings, 96, 268.
COMPLAINT, (See On Compraint.)
meaning of word, 242; remedy concurrent with indictment, 170.
before magistrate, whether commencement of prosecution, 261.
on municipal by-laws, how, 403-407.
by whom made, — wife against husband, 688.
COMPUTATION OF TIME, (See Time.)
as to when statutes will take effect, 31 a.
In statute, rules of, explained, 104 b-111.
compared with other writings, 104 5.
‘*month,”’ 105; ‘‘year,”’ 106; rule for numbers of days, &c., 107.
no fractions of day, 108.
“day ’’ — ‘‘entire day,’’ 108 a; ‘‘ one day previous,” 109.
‘‘clear day” — ‘‘ at least’? — ‘‘ before ’? — ‘from and after,” 110.
months of unequal length, 110 a.
hours, 110 6; Sunday, 110 ¢; differing words of statute — subject, 111.
how, in limitations statute, 259.
“CONCEAL,” what it is to, 769-771.
‘“‘CONCEALED,”’ word, as to carrying weapons, 787, 788, 799.
CONCEALED WEAPONS. (See Carryinc Weapons.)
CONCEALMENT, effect of, on statute of limitations, 261 c.
CONCEALMENT OF BIRTH,
Law of the offence of, 764-776.
various statutes and common law, 764-768.
interpretations of statutes and doctrines, 769-776.
The procedure, 777-780.
indictment, 777-779 a; evidence, 780.
CONCLUSION, (See Acarnst Form or STATUTE.)
of complaint on by-law, 406.
“CONCUBINAGE,”’ what, in statutes against seduction, 641.
CONCUBINE, as witness, 613.
CONCURRENT REMEDIES,
doctrine of, preventing implied repeal, 163 d-164.
civil, criminal, &c., 169, 170.
CONDENSED RULES, of interpretation, 78-82. ,
CONDITION, statutes to take effect upon, valid, 36.
658
INDEX OF SUBJECTS. CON
CONDUCT, proof of, on issue of chastity, 649, 650.
CONFESSIONS,
in evidence of adultery, 686; of marriage, 687; incest, 735; bastardy,
_ 780; liquor selling, 1048.
CONFISCATING LIQUOR,
laws for, 988 6, 1055; constitutional, 998, 994, 1056.
“CONFLICT.” (See Parriat Conr ict.)
effect of statute repealing laws in, 152.
CONFLICT OF LAWS, in liquor selling, 1030.
CONELICTING PROVISIONS, (See Provisions or STATUTES.)
repeal by force of, 153-163.
CONFLICTS OF CLAUSES, construction of statutes containing, 62-65.
‘‘CONGREGATING,”’ word, in statute against gaming by minors, 889.
“CONGREGATION ASSEMBLED,” meaning of the term, 211.
CONGRESS, (See Act or Concress — CONSTITUTION.)
power of, as to elections, 804, 810.
CONJUNCTIVE SENTENCES, interpreting, as disjunctive, 81, 248.
CONSENT, (See AGE or Consent — Not Consent.)
of one to another’s treason, effect of, 139.
of injured person, effect of, on statutory offence, 232, 234.
of young girl, to carnal knowledge, 484, 495.
takes away element of assault, 495, 496.
of girl, in seduction, 634, 643; of parent, 635.
carnal intercourse without, whether adultery, 660.
woman’s, to abortion, 744, 747, 749, 760.
CONSEQUENCES, interpretation should consider the, 82, 93.
CONSISTENT PROVISIONS, new, whether ever repeal old law, 158-162.
CONSPIRACY,
statute of limitations as to an offence named does not inciude, to com-
mit it, 260.
to seduce woman, or procure her marriage, indictable at common law,
625, 629, note.
wife as witness in, to charge her with adultery, 688.
against freedom of election, 803. ;
CONSTABLE, whether, can act by deputy, 88.
CONSTITUTION, (See EncLanp — Statutes — WRITTEN Laws.)
the, is a law, 11 a, 89.
provision of, requiring legislation or not, 11 a, note, 92 b.
of United States, place of, among laws, 11 a, 12.
of State, place of, among laws, 16.
by-law void which violates the, 20.
prohibiting ex post facto laws, 29, 85.
statutes void as contrary to the, 33, 34, 36-87 a.
who interpret the, 18 a, 35-35 5.
whether courts are sole guardians of the, 35.
how as to other departments of the government, 35-35 b.
659
CON INDEX OF SUBJECTS.
CONSTITUTION — continued.
as to retrospective legislation, 83 a et seq.
construed with, and as part of, statute, 89.
statutes to be so construed as not to violate the, 90.
how provisions in the, adopted from another State, construed, 97.
usage, as showing statute to be constitutional, 104.
right conferred by, carries remedy, 137.
to some extent, inhibits repeal of statute, 147.
Interpretation of the written, discussed, 91-92 c.
legislative duty and decision, 91.
particular constitutional provisions and statutory infraction, 91 a.
interpretation of, compared with statutes, 92.
State and United States, compared, 92.
illustrations of same rule of interpretation as for statutes, 92 a-92 c.
provision of, may be directory, 256.
CONSTITUTION OF UNITED STATES, (See ConstiTuTion.)
precedence of, as law, 11, 12.
interpretations of, by United States courts, controlling, 35 b.
CONSTITUTIONAL LAW, (See ConstITUTION.)
as to holding statutes void, 33-37.
As to particular subjects; namely, —
civil and criminal limitations statutes, contrasted, 258 a, 265-267.
reviving what is barred by statute of limitations, 265-267; place of
trial in polygamy, 587, 588; punishing Mormon polygamy, 596 6;
carrying weapons, 792, 793; elections, 804, 808-813; gaming, 856;
lotteries, 957; alleging second offence, 981; liquor selling, 989-
996, 998; indictment for liquor selling, 1035, 1037; keeping liquor
for unlawful sale, 1056, 1068; peddling, 1080; other business,
1098; cruelty to animals, 1103; selling adulterated milk, 1124;
fishing, 1130, 1181; killing game, 1135.
CONSTITUTIONAL PROVISION, (See ConsTITUTION.)
intent of makers of, prevail over meanings of words and phrases, 92 a.
when a retrospective application of, will be made, 92 a.
how as to, adopted from another State, 97. :
CONSTITUTIONAL REGULATIONS, of sale of intoxicating liquors, 997.
CONSTITUTIONAL RIGHTS, waiving, regulating, forfeiting, 809.
CONSTRUCTION, (See INTERPRETATION CLAUSE.)
statute directing the, of statute, 85 5.
offence not created by, 220.
CONSTRUING LAWS TOGETHER, (See One System — Tocertuen.)
Doctrine of, explained, 86-90.
defined, 86; some of its parts, 86.
illustrations: term of office — appeal — powers recited, then conferred
— limitations — intent from prior laws — notice — restraining pro-
vision, 87.
common law with statute, 88; statute with constitution, 89.
partial conflicts in the laws, 90.
660
INDEX OF SUBJECTS. CON
CONTEMPORANEOUS INTERPRETATION, of statute, effect of, 104.
CONTEMPORANEOUS USAGE,
effect of, on construction of statute, 104, 149.
CONTEMPT, implied power of punishing for, 187.
CONTEXT, meaning of words determined by the, 82, 86, 87, 246.
CONTINUANDO, (See TiME.)
whether, in indictment for living in adultery, 703, 772; for incest, 734;
drunkenness, 979.
“CONTINUE TO COHABIT,”’ in statute against polygamy, 588, 603.
CONTRACT, (See Contracts — Expand AND CONTRACT.)
whether, an essential element in bailment, 423.
franchise of lottery not a, 957.
a sale is an executed, 1013.
about unlawful selling of liquor, void, 1030, 1031. (See PRoMISE.)
CONTRACTING, (See Currinc Snort — Errect — EXPANDING
MEANINGS.)
and how, the meanings of words, 119-121.
CONTRACTING AND EXPANDING,
one law by another, doctrine of, defined, 123.
Meanings of statutes under differing pressures of reasons, 188-190 e.
doctrine defined, 188.
general and legal interpretation compared, 188.
distinctions — present purpose, 189.
illustrations of doctrine, 189 a-189 e.
how far expansion permissible, and illustrated, 190-190 c.
contracting — and compared with expanding, 190 d, 190 e.
Meanings of statutes, — what ones and under what circumstances, 191-199 a.
not, where meaning plain, 191.
things odious, contract — favored, expand, 192.
illustrations of liberal, 192 — of strict, 193.
strict defined and described, 194. ‘
how of taxation and revenue statutes, 195.
costs — double costs, 195 a.
strict and liberal in different clauses of one statute, 196.
conflicting demands for strict and liberal, 197.
exceptions as to strict in criminal statutes, 198.
different degrees of strict and liberal, 199. |
statutory changes of rules as to, 199 a.
{Nors. — Contracting and expanding the effect of statutes is a different
thing. See Curtine Sport, Errect, &c.]
CONTRACTS, (See AGREEMENT — ConTRACcT — PRIVATE WRITINGS.)
interpretation of, and of statutes, compared, 4, 77.
and statutes, interpreted by subject, 98 a.
word ‘‘month ”’ in, calendar, 105, note.
private statutes are quasi, 113.
contrary to statute or its policy, void, 138 a, 254, 1030.
“CONTRARY TO FORM OF STATUTE.” (See Acarnst Form.)
661
cou INDEX OF SUBJECTS.
‘“CONTRARY TO LAW,”’ in indictment for gaming, 909.
‘‘CONTRAVENING,”’ effect of repealing all, statutes, 152.
CONVERSION, what the, in larceny by bailee, 424.
“CONVICTED OF FELONY,”’’
as, disqualifying for liquor license, includes past conviction, 84 a.
CONVICTION,
meaning of the word, 348.
must precede forfeiture of right to vote, 809.
for selling liquor, not a license, 1005.
‘CORD OF WOOD,” meaning of, in statute imposing penalty, 222.
CORN-CRIB, what constitutes a breaking of a, 312.
CORPORATION, (See By-Laws — Coarter — Private Corpora-
TIONS.)
whether, included in word ‘‘ person,’’ 212.
power of, to elect officers after statutory time expires, 256.
statutes modifying proof of, 402.
pleading and proof of power of, to make by-laws, 405.
CORPUS DELICTI,. proof of, in child murder, 780.
“ CORROBORATING CIRCUMSTANCES,”
what, in election bribery, 843.
CORROBORATION, of woman’s testimony to her own chastity, 650 a.
COSTS,
whether statute as to, retrospective, 84, note.
whether, discretionary or not, 112, note, 255.
effect of repeal of statute governing, 178.
how statutes imposing, construed, 195 a; mandatory, 255.
‘“‘COTTAGE,”’ meaning of the word, 291, note.
COUNSEL, statute for allowing, how construed, 227.
COUNTERFEIT COIN, (See UTTER.)
‘ statute against having ‘‘ similar pieces ’’ of, how interpreted, 214.
meaning of ‘coin resembling,” &c., 225.
various implements for making, 319.
COUNTERFEIT MONEY,
statute against passing, construed, 223.
statute against purchasing, construed, 225.
uttering of, 806; putting off, 307; passing, 308; having, in possession,
309, note.
COUNTERFEITING, bank-bills, &c., 217.
COUNTERS, of faro bank, whether ‘ money,’’ 874.
‘“‘COUNTERSIGNED BY CASHIER,”
in statutory forgery, meaning of, 217.
‘‘ COUNTING-HOUSE,”’ meaning of the term, 295, note.
COUNTRY, statutes extend only to offences within the, 141.
COUNTS, and indictments, equivalent, 262, note.
COUNTY, (See VENUE.)
polygamy ‘tried in what, under statute, 112, 587, 588.
662
INDEX OF SUBJECTS. CRI
COUNTY — continued.
divided, where prior crimes prosecuted, 144.
construction of statutes as to the, of trial, 198.
giving servant forged stamps to be transmitted to another, 306.
COUNTY AUDITOR, whether, an * officer,’’ 271 a.
COUNTY CLAIMS, not ‘‘ money,’ 346.
“COUNTY COURT,”’ statutory words, include other courts, 190 3, note.
COURTS, (See JupGE — JURISDICTION.)
powers of, over treaties, 13 a, 14.
whether, interpreters of treaties, 13 a.
over by-laws, 26; over constitutions, 33-35 b.
not to follow personal views in interpretation, 70.
duty of, when statute is void, 91.
when permission to, is command, 112.
oftener interpret statutes too little than too much, 118.
foreign laws not confer jurisdiction on, 142.
United States laws, not on State, 142.
proceedings pending in one court, bar same in another, 164.
being abolished, cause transferred to new jurisdiction, 180.
whether, are ‘‘ public places,’’ 298.
when, declare whether weapon, dangerous or not, 320, note.
required to notice by-laws, judicially, 406.
facts of which, take judicial cognizance, 1006 a.
not assist parties in violating statute, 1030.
COVERTURE, (See Huspanp AnD WIFE — WIFE.)
incapacity of, in statutory crimes, 131, 613, 688.
‘“COW,”’ meaning of word — whether proper in indictment, 426, “442,
COW-HOUSE, part of dwelling-house, 278.
CRAFT, (See Sure or VESSEL.)
does not include a steam-tug, 245.
entering by, is breaking in burglary, 290, 312.
“CREDIT TO STUDENT,”
meaning of the expression, 100.
construction of statute about giving, 222.
* CREW,”? of vessel, includes under officers, 209.
CRIME, (See OFFENCE — STATUTORY CRIME.)
where, tried when county divided, 144.
under statutes silent as to punishment, common law punishes, 188, 166.
statutes creating, construed strictly, 193, 195, 199, 199 a, 203.
CRIMINAL AND CIVIL WRONG, same act may be both, 24.
CRIMINAL DEFENDANTS, (See Accusep Persons.)
statutes construed strictly against, liberally in favor of, 196.
CRIMINAL MIND. (See Evit INTENT.)
CRIMINAL PROSECUTION,
cannot go on after repeal of law, 177.
how as to the time of the commencement of, 257 et seq.
authorizing, after bar of statute of limitations, 265-267.
663
DAN INDEX OF SUBJECTS.
CRIMINAL SUIT, sometimes termed an ‘action,’’ 350.
CROWN, when statute in England binds the, 103.
CRUCIBLE, not a ‘tool,’ 319.
‘““CRUELLY ILL-TREAT,” meaning of, in cruelty to animals, 1108.
‘““CRUELLY KILL,”’ means more than ‘ kill,” 1110.
CRUELTY TO ANIMALS,
Law of the offence of, 1100-1113.
common law and the statutes, 1100-1102.
constitutionality of the statutes, 1103.
expositions of particular provisions, 1104-1111.
justification and intent, 1112, 1113.
The procedure, 1114-1122.
indictment, 1114-1121; injunction, 1122.
‘CRUSHED SUGAR,”’ loaf sugar is not, 99.
CRUTCH, whether, an ‘offensive weapon,’’ 321.
CUMULATIVE, statutory remedies, when, 143, 144, 156, note, 251.
CURTAILING, (See Curtinc Snort.)
one law by another, doctrine of, defined, 123; explained, 126, 127, 131-
133, 138, 138 a. :
‘“‘CURTILAGE,”’ meaning of the word, 286.
CUSTODY, ;
indictment for polygamy in place of, 599.
offence of taking girl under sixteen out of, 631 et seq.
CUSTOM, effect of, in law, and whether repeals statute, 150.
“CUT,” meaning of the word, 315.
“CUT DOWN,” trees, meaning of, 224.
CUTTING, bank-bills, is not ‘altering ’’ them, 217.
CUTTING SHORT, (See Common Law — ConTRACTING AND Ex-
, PANDING — CURTAILING.)
Statute, in its effect, by statute, 126-127.
doctrine defined, 126.
antagonistic — partly so — specific and general, 126.
other illustrations, 126, 126 a.
provisions as to punishment, 127.
Common law, in its effect, by statute, 131-133.
doctrine defined, illustrations, 131.
further illustrations, and explanations, 132, 133.
DAIRY-HOUSE, part of dwelling-house, 278.
DAMAGES, (See DousLe DAMaGEs.)
the, and laying and proving, in malicious mischief, 445.
giving, to persons injured through liquor selling, 1081 a.
“DAMAGING,” meaning of the word, 313, note.
DANGEROUS BUSINESS, power to regulate, by by-law, 20.
664
INDEX OF SUBJECTS. DEE
“DANGEROUS WEAPON,”’ meaning of term, 242, note, 320.
DANGEROUS WEAPONS, going armed with, 784, 785.
DATE OF STATUTE,
how anciently — how determine the, 27-31 a.
effect of the, and diverse dates, on interpretation, 251.
alleging the, in recital of statute, 397, 398, 402.
‘“ DAUGHTER,”’ effect of word, in statute against rape, 481.
DAY, (See Fractions or Day — NumBers or Days.)
begins at midnight, 29.
whether fractions of, 28, 29, 105, 108.
two meanings of word, 95 a; meaning of word, 108, 108 a and note.
rule for computing numbers of days, 107 and note.
DAY’S WORK, statute providing what shall constitute a, directory, 255.
“DAYTIME,” meaning of the word, 276. .
“DEADLY WEAPON,” (See WEAPON.)
meaning of the words, 320.
‘“‘DEAL,”’ word, meaning of, 1090.
“DEAL IN SELLING,” meaning of expression, 210, 1016.
“DEALER,” meaning of word, 210, 1016.
DEALING AS MERCHANT, (See MrerRcHANT.)
without license, offence of, 1090-1092.
DEAD, voter, personating one, 818 a.
DEATH, (See Capitan PuNISHMENT — CONCEALMENT OF BirRTH —
HomicipE — Mistake oF Fact.)
hearier punishment than whipping and imprisonment, 185.
effect of statute changing from, to milder punishment, 185.
statutes inflicting, construed strictly, 189 6.
effect of mistaken information of, in polygamy, 596 a.
mistaken belief of, in adultery and fornication, 663-665.
abortion, or attempt at, resulting in, 742, 759.
alleged, in concealment of birth, 779.
‘““DEBAUCH.”’ (See Sepuce AND DEBAUCE.)
DEBT TO STATE, payment of, not presumed from lapse of time, 103.
DEBTORS, construction of constitutional provision to protect, 92 0.
“DECEIT,” meaning of word, in criminal statute, 260.
DECISIONS, how the, establish doctrine, 125.
DECLARATORY STATUTE,
construed by common law, 144; repeal of, by custom, 150.
DEED, (See Contract — ConTRACcts.)
showing by parol moment of recording, 29.
of foreign lands, may be subject of forgery, 205, note.
not following statutory form, may be good, 255.
placing a, on record, is uttering, 306.
meaning of the word, 340.
DEER STEALING, not, by act under color of right, 282.
665
DIF INDEX OF SUBJECTS.
DEFEATED, interpretation to avoid statute being, 82, 98, 200.
DEFENCE, statutes taking away rights of, construed strictly, 193.
DEFENCE OF PROPERTY, ‘
what is done in the, not malicious mischief, 432 a.
DEFENDANTS, (See CriminaL DerENDANTS.)
criminal statutes to be construed liberally for, 227.
and expanded in meanings in favor of, 239, 240.
DEFILEMENT OF WOMEN, (See SEDucTION or WoMEN.)
statute against, how interpreted, 215.
DEGREES OF OFFENCE,
one indictment may charge different, 171.
effect, on punishment, of statute dividing offence into, 185.
DELAY, in criminal prosecutions, effect of, 257.
“DELIVER MANIFEST,” to, must be true manifest, 211.
DELIVERY, what, of liquor, to constitute sale, 1013.
‘* DEMOLISH,” house, meaning of, 214.
DEPORTMENT, evidence of, on issue of chastity, 649, 650.
‘““DEPRIVE OF NECESSARY SUSTENANCE,”
meaning of, in cruelty to animals, 1107.
DEPUTY, doctrine of officer acting by, 88 and note.
DEPUTY COLLECTOR, admiuister oath in place of collector, 129.
DEPUTY TREASURER, whether, an “ officer,’’ 271 a.
DEROGATION OF COMMON LAW, (See Common Law.)
statutes in, construed strictly, 119, 155, 193.
DEROGATION OF COMMON RIGHT,
statutes in, strictly construed, 119.
DEROGATION OF PRIOR LAW,
statutes in, construed strictly, 155; why, 189 a.
DESERTING SEAMEN, construction of statute for commitment of, 218.
‘DESIGNED FOR EXPORTATION,” (See ExrortaTion.)
how the words, construed, 205.
“ DESTROY,”
meaning of word, as to thrashing machine, 214.
as to trees, 224; as to vessel, 214, note, 224.
how lay a ‘‘ destroying ’’ in malicious mischief, 446.
DESTROYING HOUSE, statute against, construed, 223.
DESTROYING LIQUORS, policy of laws for, 988 }; constitutional, 994.
‘««DESTRUCTIVE MATTER,” meaning of the words, 324.
“DEVICE OR SUBSTITUTE FOR,” (See NameE or Device.)
words, in statute against gaming, 869.
DICE, what a “device or substitute for, ’’ 869.
DIE, possessing, for coining, construction of statute against, 211.
DIFFERENT NATURES, remedies of, may stand together, 169, 170.
DIFFICULTIES, special, of interpretation, 7, 8, 10.
666
INDEX OF SUBJECTS. DOG
DIRECTORY,
whether constitutional requirement of one subject and in title is, 36 a.
constitutional provision may be, 256.
DIRECTORY STATUTE, (See IMPERATIVE.)
defined, doctrine of, and mandatory, distinguished, 255, 256.
DIRK, statute against carrying, 786; not, ‘‘arms,’’ 793.
“DISABLING,” meaning of the word, 316.
‘DISCHARGE LOADED ARMS,” meaning of — by what act, 322.
“DISCHARGE FOR MONEY,” meaning of term, 343, note.
DISCIPLINE, acts of, whether cruelty to horse, 1112.
DISCRETION OF COURT, non-user of statute, as influencing the, 149.
DISCRETIONARY, when statutory power is, or not, 112.
DISCRETIONARY POWER, cannot be delegated, 36.
* DISFIGURE,” meaning of word, 316, note, 448.
DISJUNCTIVE CLAUSES, (See Or.)
in statute, interpreting as conjunctive, 81, 243.
how indictment on, 244; same, in living in adultery statute, 701.
indictment on, in malicious mischief, 447 a.
“DISPOSE,” meaning of word, in statutes against child murder, 771.
DISTILLATION, of grain, not unconstitutional to prohibit, 996.
“DISTILLED LIQUOR,”’ how allege unlicensed sale of, 1038.
‘*DISTILLER,” “ DISTILLERY,” meaning of word, 273, 1011.
“DISTURB CONGREGATION,” words, extend to camp-meeting, 211.
DISTURBING MEETING. (See Camp-MEETING.)
DISUETUDE, in Scotland, when repeal of statute, 149, note.
DIVISIBILITY OF LAWS, (See REPEAL.)
doctrine of, avoiding necessity of repeal, 164 a-174.
DIVORCE, (See Bep anv Boarp.) :
statutes authorizing, may be retrospective, 84.
new statute as to, not repeal old Jaw, 160, note.
for wife’s cruelty, after revision of statutes omitting repeal, 160, note.
meaning of word, in statute against polygamy, 229, 583.
form of sentence of, from bed and board, 583.
forbidden marriage after, not polygamy, 604 a. See 666.
proof of, as defence in polygamy, 608.
invalid, no defence in adultery, 662.
guilty party marrying after, contrary to statute, 666.
action for, and indictment for adultery, compared as to evidence, 677-
688.
DOCK, enclosed, in a foreign port, not. deemed high seas, 304.
DOG, (See Maxicious MiscuieEr.)
whether by-law may tax keepers of, 21.
whether ‘‘ other property,” in statutory malicious mischief, 246.
not ‘‘ goods and chattels,’’ in statute against larceny, 344.
ownership of, in malicious mischief, 443.
wounding, in self-defence, permissible, 1112.
667
DUT INDEX OF SUBJECTS.
DOG-RACE, how, under statutes against gaming, 862.
DOMESTIC ANIMALS. (See AnImMaLs.)
DOMICIL, distinguished from residence — for voting, 817, 842.
DOMINOES, how, in gaming, 860, 869.
DOORS, in house-breaking, 281, 312.
DOUBLE COSTS, statutes imposing, construed strictly, 195 a.
DOUBLE DAMAGES, statutes giving, how construed, 193, note.
DOUBLE FUNCTIONS, in nature — in law, doctrine of, 163 d.
DOUBLE MEANING, interpretation giving, to words, 94, 95.
DOUBLE PROSECUTION, under by-law and general law, 23, 24.
DOUBLE VOTING, offence of, 825; indictment for, 837.
DOUBT, (See Meanines or LANGUAGE.)
what, of meaning, calls for interpretation, 201.
as to interpretation, giving to accused the benefit of, 194, 218.
DOUBTFUL POWER, (See PowEr.)
statute construed to avoid imputing exercise of, 82.
“DRAFT FOR PAYMENT OF MONEY,” meaning of, 338, note.
DRANK AS BEVERAGE, how indictment for selling liquor to be, 1034 d.
DRANK ON PREMISES, how indictment for selling liquor to be, 1034 6.
Offence of selling liquor to be, 1060-1063.
DRAUGHTSMAN, opinion of, as to meaning of statute, 76.
DRIVING. (See Fast Drivine — Furious Drivine.)
DRUG, (See Mepicinz.)
naming the, in indictment for abortion, 756, 757.
intoxicating liquor not a, 1019.
DRUGGIST, selling, unlicensed, liquor for medicine, 238, 1019, 1020.
DRUNK, larceny from pocket of one, 428, note.
DRUNK IN STREET, offence of being, 973.
DRUNKARD, (See Common Drunkarp.)
offence of selling liquor to, 1021, 1022.
how the indictment, 1034 a; proof of being a, 1048 a.
evidence of agent’s authorization, 1049.
DRUNKEN WOMAN, connection with, adultery or rape, 660.
DRUNKENNESS, (See Common DrunkKARD.)
arrests for, without warrant, 796.
mistake of fact through, 825.
houses nuisances where, is carried on, 1064, note, 1068.
Law of the offence of, 968-973 b.
The indictment and evidence, 974-982.
DRUNKENNESS IN OFFICE, offence of, 969; indictment, 976.
DUPLICITY, what is not, in indictment for abortion, 759.
DUTIES, statutes for collection of, directory, 255.
DUTY, (See Statutory Dury.)
statutory imposition of a, gives means of performance, 137.
668
INDEX OF SUBJECTS. ELE
DUTY, — continued.
remedy for breach of statutory, 138.
statute imposing a, and giving remedy, mandatory, 256.
how allege a, in indictment, 1048.
‘“ DWELLING-HOUSE,”’ (See Hovsz.)
term, includes jail, 207.
one who converts livery stable into, “ erects,’’ 208, note.
distinguished from ‘‘ house,’ 213.
statutes against larceny from, how construed, 283, 234.
property under protection of the, 233, note.
breaking, and stealing in, with putting in fear, 240. :
meaning of word, in exemption laws, in burglary, 242 a.
attempted felony in, when a burglary, 276.
what an out-house ‘‘ within protection ’’ of the, 291, note.
meaning of the term, 277-288, 1011.
in malicious mischief to, in whom ownership laid, 443.
statutory offence of gaming near, 852.
DYING DECLARATIONS, admissible or not in abortion, 761 a.
EAR-KNOBS, are “‘jewelry,’? 347.
EARLIER STATUTE, may qualify one enacted later, 128.
ECCLESIASTICAL AFFAIRS, meaning of ‘‘ month ”’ in, 105,
EFFECT, (See MEANING OF STATUTE.)
statute so interpreted as to have, 82, 98.
of statute, distinguished in interpretation from meaning, 118 a, 189.
cutting short statute in, 231. :
express declaration in statute of its, excluding implied, 249.
Of statute, interpretation curtailing and extending, 122-146.
general doctrine, 123-125.
one statute cutting short another, 126-127.
one statute extending another, 128-130.
common law shortening statute, 131-133.
common law extending statute, 134-187.
statute abridging and enlarging common law, 138, 138 a.
taking qualities and incidents from common law, 139, 140.
construed harmoniously with common law, 141-144.
construction adhering to terms of statute, 145, 146.
‘“EFFECTS.” (See SecuRITIES AND EFFECTS.)
EFFECTUAL, statute to be made, by construction, 82, 187.
EIGHT-HOUR LAW, of Congress, directory, 255.
ELASTIC,
all language is, in meaning, 92 d, 188.
how far criminal and other strictly-construed statutes are, 188-240.
ELASTICITY OF STATUTES. (See ContracTinG — CoNTRACTING
AND Expanpinc —CuTtine SHort— Errect —Expanpine, &c.)
ELECTION, on what statute or offence to proceed, 164, 1027.
669
-ENG INDEX OF SUBJECTS.
ELECTION, — continued.
of methods in the law, 163 d-164.
how allege the, in indictments for election frauds, 882-834.
betting on an, 872, 935; proof of an, 947.
ELECTION DAY,
selling intoxicating liquor on, 803.
opening liquor-selling places on, 1070 b.
ELECTION OBSTRUCTIONS, (See THREATENING OFFICER.)
resisting illegal questions, 223.
ELECTION OFFENCES, (See Berrina on Erzctions.)
Law of the various, 803-826.
In general, 803, 804.
at common law,.and elsewhere discussed, 803.
as between States and United States, 804.
Offences by the election officers, 805-806 a.
By voters and others as to voting, 807-826.
elective franchise and how established, 807, 808.
limits of legislative power over, 804, 809-812.
voting out of State, 811-813.
validity of election, and informalities, 814.
expositions of various specific offences, 815-826.
The procedure, 828-848.
indictment, 828-840; evidence, 841-843.
“ELECTION IN THIS STATE,” meaning of words, in statute, 205.
ELECTIVE FRANCHISE, (See Rerusine Vore.)
nature of the, 807-809; forfeiture of, 809.
ELUDED,
statute to be so construed as not to be, 82,200.
so even in strict interpretation, 200.
EMBEZZLEMENT, (See BAILEE.)
who servant, &c., in, 271.
is ‘‘ theft’? by Texas Code, 413.
EMISSION, (See Sexuay INTERCOURSE.)
whether, essential in carnal abuse, 488; in adultery and incest, 661.
‘*EMPLOYMENT,”’ word, meaning of, 1016.
ENACTING CLAUSE, (See CLAUSE.)
of statute, what, and concerning, 56.
whether, restrained by preamble, 49, 51.
constitutionally prescribed style of, whether directory, 37, note.
ENACTMENT, (See STATUTE.)
old English methods at the, 44.
_ repeal before formalities of the, complete, 151.
ENCLOSURE, effect of, as to buildings within curtilage, 285, 286.
‘ENGLAND,
constitutional law in, distinguished from ours, 33.
judicial cognizance of early laws of, 97.
670
INDEX OF SUBJECTS. EXC
ENGLISH STATUTE, (See StatuTss.)
which is here common law, what act repeals, 161.
ENGROSSED BILLS, (See LEGISLATIVE RECORDS.)
looking into, on question of statute, 37.
“ENTER WITHOUT BREAKING,”
meaning of, in statute against burglary, 221.
ENTICEMENT, essential in seduction, 634.
“ENTICING,” to gaming, offence of, 876, 881.
“ENTIRE DAY,” (See Day.)
meaning of term, in statute, 108 a.
ENUMERATION, weakening effect of, in statute, 245, 246.
E O TABLE, statute making, punishable, 864.
EQUALITY OF LAWS, doctrine of, 189 a.
EQUITY, (See InsuNCTION.)
suit in, may be termed an “ action,’’ 350.
‘ERECT AND BUILD,” meaning of the words, 208.
“ ERECTING,”’ statutes against, what may become nuisance, 208, note.
“ERECTION,” meaning of the word, 291, note.
‘‘ ERECTS,”’ when one, a livery stable, 208, note.
ERRONEOUS, proceeding, being, as to statute of limitations, 262.
ERRORS. (See CreRIcaL Errors.)
ESCAPE, (See Nearicent EscaPe.)
of statutory traitor, offence of, 136.
writing is not “instrument, arms,” &c., for, 217.
“ ESTATE,”’ word, not sufficient to describe owner, 457.
ESTOPPEL, as to constitutional existence of statute, 37 a.
ESTRAY, (See Anrmmats aT LARGE.)
violating laws relating to, 462-44.
EVASIONS OF LAWS, against liquor selling, 1013.
EVIDENCE, . (See Proor — Testimony — WITNESS.)
statutes excluding, strictly construed, 119.
confined within period of limitations, 264.
of adultery in divorce and criminal causes compared, 677-688.
(And see under the several offences.)
EVIL INTENT, (See FELonrous Intent — Mistake oF Fact.)
required, in statutory crime, 1382; to concur with statutory act, 231.
form of the, under statute against malicious mischief, 432 a.
in carrying weapon, 789; in election offences, 805, 806, 820-825; in
liquor selling, 1022, 1023; in cruelty to animals, 1113.
‘““EWE,”’’ is a sheep, 212; whether a sheep is a, 247.
EXAMPLE, statute putting thing by way of, 190 6.
EXCEPTION, (See Proviso.)
in statute, defined, and how operates, 58.
making, in statute, by construction, 117 a, 1019, 1020.
671
EXP INDEX OF SUBJECTS.
EXCEPTION, — continued.
one statute construed to create an, in another, 156.
engrafting exceptions on statute to prevent repeal, 156.
in criminal statute, liberally construed, 226, 227, 229.
engrafted by unwritten law on statute of limitations, 261 0.
in statutes against polygamy, 595-596 a; negativing 505, 506.
in statute, express prevents presumptive, 1019.
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.
‘* EXCHANGE,” what, and distinguished from sale, 1014.
EXECUTION. (See HaneGine.)
EXECUTION OF SENTENCE, at different time from that ordered, 255.
EXECUTIVE ACT, when, takes effect, 29, note.
“EXECUTOR,”
may stand for ‘‘ administrator ’’ in statute, 190 b.
limitations statute not run against, 261 a.
when aver, in indictment for civil homicide, 467.
EXEMPTION LAWS, meaning of word “ dwelling-house” in, 242 a.
EXEMPTION s, in criminal statute, liberally construed, 226, 227.
EXERCISING TRADE, (See TRADE.)
not qualified, construction of statute against, 196.
EXISTING RIGHTS, (See Ricut.)
statute construed not to interfere with, 85 and note.
further as to, 249, 250 a.
EXPANDING. (See ContracTING AND ExpanpiInG — EXTENDING.)
EXPANDING MEANINGS,
in what statutes, permissible, 120.
when, and how far, 120.
how far liberal interpretation permits, 189 d-190 c.
EXPERT EVIDENCE, admissible to age of girl in rape, 491.
EXPIRED STATUTES, (See REPEAL.)
interpreted with existing, 82, 86.
how re-enactment of, interpreted, 97.
whether proceedings under, 182.
effect of a repealing statute having expired, 187.
“EXPORTATION,” (See ‘‘ DesiGNED FoR EXPoRTATION.’’) —
word includes, to another State, 205.
EX POST FACTO LAWS, (See Past OrrENcE — RETROSPECTIVE.)
doctrine of, as to fractions of the day when statutes take effect, 29.
doctrine of, — distinguished from retrospective, 85.
statute is, which increases punishment for past offences, 176.
not, which creates new jurisdiction to punish past offences, 180,
changing punishment not necessarily, 184; increasing, is, 185.
672
INDEX OF SUBJECTS. FAL
EX POST FACTO LAWS, —continued.
authorizing prosecution after bar of limitations statute, not, 266, 267.
EXPRESS MENTION,
of remedy or other thing in statute, excludes implied, 249, 249 a, 1019.
EXPRESS REPEAL, (See REPEAL.)
doctrine of, explained, 151-153.
EXPRESS WORDS, distinction as to repeal by, 153.
EXPRESSED INTENT, of legislature, carried out in interpretation, 82.
EXTENDING, (See Common Law — Errect — Expanpine.)
One statute by another, in its effect, 128-130.
doctrine defined, 128. And see, 123. r
clergy — earlier qualifying later, 128.
perjury — powers of deputy, 129.
salaries under successive statutes, 130.
Common law by statute, in its effect, 134-187.
doctrine defined, and illustrations, 134.
applied to principals of second degree, 185.
same in misdemeanor and treason, 186.
remedy for statutory right, 137.
EXTORTION, (See ILLEGAL FEEs.)
‘greater or other fees’ in statutory, 217.
by officer out of office, 217.
allegation and proof of thing obtained by, 346, note.
EXTRAJUDICIAL USAGE, effect of, in interpretation, 104.
EXTRA-TERRITORIAL FORCE, what, permitted to statutes, 141.
FACT, (See Mistake or Fact— Recirations or Facts.)
recited in statute, how taken, 50.
FACT OF MARRIAGE, proof of, 609-613, 687.
FALSE ANSWERS,
at election, offence of giving, 826, note.
indictment for, 840; proof, 841.
FALSE DICE, winning with, a common-law cheat, 847.
“FALSE ENTRY,’ meaning of term, 210. :
FALSE GRAMMAR, (See Ciericat Errors — Inaccuracy.)
statute not rendered inoperative by, 81, 243.
no more injurious in criminal statutes than in civil, 215.
FALSE IMPRISONMENT,
of seamen, how statute construed, 209.
forcible abduction may be, 619.
FALSE PRETENCES,
limitations of general words of statutes against, 183, 134, 231.
made to agent or clerk, 134. :
‘FALSE RUMOR,” words, in polygamy statute, 597.
“FALSE STATEMENT,” in registry of births, what, 210.
43 678
FIN INDEX OF SUBJECTS.
“FALSELY AND FRAUDULENTLY,”
‘wilfully ’? not equivalent for, 840.
FAMILIARITIES, in proof of adultery, 680-684.
FAMILIES. (See SzpaRATE FAMILIES.)
FAMILY DISCUSSIONS, in proof of age of child, 491.
FARMER, not included in 29 Car. 2 against Sabbath breaking, 245.
“FARO,” “FARO BANK,” (See Device.)
guilt of aiders at felonious, 135; game of, 366.
proof of betting at, supports indictment for unlawful cards, 898, note.
keeping, forbidden by statutes, 852, 864, 866.
what a sufficient allegation of, 908, 925.
FARO TABLE, statute forbidding, in enumerated places, 221.
FAST DRIVING, prohibited by city by-laws, 20.
FATHER, (See Szepuction or Women.)
taking girl from custody of, 631 et seq.
meaning of word, in statutes against seduction, 633.
FAVORED, liberal interpretation of what, by law, is, 192.
FEBRUARY, as to, in computing time by calendar, 110 a.
FELONIES, statutes construed not to multiply, 218.
FELONIOUS GAMING, owner of funds, &c., in, 135.
FELONIOUS INTENT, (See Evit INTENT.)
the, in larceny of animals, 429.
‘*FELONIOUSLY,’’ whether allege, in malicious mischief, 439.
FELONY, (See Misp—EmEaNnoR— SEconD DEGREE.)
principals of second degree in statutory, how regarded, 135.
statutory, follows rules of common-law felony, 189.
same act cannot be, and misdemeanor, 174.
effect of statute changing the one to the other, 174.
indictment for, as to word ‘‘ feloniously,” 387, 439.
whether particular offences are, or not, 668, 750, 880, 1028.
as disqualifying to vote, 810.
FEME COVERT, (See CoverturE — WIFE )
proceeding against, without husband, under penal statute, 131, note.
FEMININE, in statute, including and included by masculine, 212.
FENCE, not part of dwelling-house, 281; as to curtilage, 286.
FENCE-RAILS, are not ‘‘timber,’’ 449.
FENCING RAILROAD, statute requiring, includes existing railroads, 84 a.
FERMENTED LIQUORS, not included under word “spirituous,” 1009.
“FERRY,” meanirig of word, in statute, 301, a.
“FICTITIOUS NAME,” sending threatening letters with, signed, 228.
FILLIES, included in words, “horse, gelding,’”’ &., 247, note.
FINAL JUDGMENT, (See SENTENCE.)
how, where statute repealed before, 177.
how, as to repeal of law after, 177.
674
INDEX OF SUBJECTS. FOR
FINE, (See PunrsHMeEnt.)
power of by-law to impose, 22, 25.
for obstructing way, stand with common-law punishment, 170.
compared with other punishments, 185.
whether, ‘conviction ’’ in ‘suit to recover a, 348.
as penalty for violation of municipal by-law, 404.
“FIRE-ARM,” what, in statutes against carrying weapons, 790.
FISH,
Laws for the protection of, 1128-1182.
common-law right of fishing, 1128.
civil and criminal obstructions of passage of, 1129.
constitutionality of statutory regulations of, 1130.
State and United States jurisdiction as to, 1131.
concerning the statutes, 1132.
FISHING, by-law regulating, 20.
“FIVE DAYS BEFORE,”’ meaning of the phrase, 110.
“FLEEING FROM JUSTICE,”
may be, before prosecution begun, 242.
effect of, on statute of limitations, 261 c.
FLEXIBILITY, of language, explained, 92 d.
FOAL, included in words ‘horse, gelding,’’ &c., 247, note.
FETUS, (See ABORTION.)
how far grown, in abortion, 744-746.
secretion of, as evidence in abortion, 761.
distinguished from ‘‘ child,’’ 772.
FOOT-PATH, “ within ten feet ’’ of, &c. — road, 211.
FORCE, not an element in seduction, 634.
FORCIBLE ABDUCTION. (See ABpucTION oF WoMEN.)
‘“‘FORCIBLE PASSING,’’ meaning of the words, 313, note.
“FORCIBLY BREAK,’’ meaning of the words, 313.
FOREIGN COMMAND, not binding in our States, 205.
FOREIGN LAWS,
courts do not know, judicially, 97; not operative over us, 205.
FOREIGN LOTTERIES, how far statutes extend to, 959.
FOREIGN MARRIAGE, (See MarRIAGE.)
proof of, 610.
FOREIGN SECURITIES, how as to statutes comprehending, 326.
FOREIGN STATUTES,
re-enacted with us, meanings of, 97; how interpreted, 115.
FOREIGNER,
while here, bound by our statutes, 141.
when, within statutory words ‘‘ English subject,’’ 205.
illegally casting vote, out of State, 813..
675
FRA INDEX OF SUBJECTS.
FORFEITURE,
how far by-law may ordain, 22, 408.
notice essential to a, under by-law, 25.
how time computed in statute declaring, 110.
statutory, in general terms, not extend to married women, 131.
statutes imposing, construed strictly, 192, 193, 195.
implies prohibition, — what is contrary to statute imposing, void, 254.
of constitutional right to vote, when, 809, 810.
of liquors kept for sale, 988 b, 998, 1055, 1086.
of license to sell them, 1003 a.
FORGERY, (See Utter.)
statute changing punishment for, effect of, 185.
may be, of deed of lands lying in another State, 205, note.
of orders for money, &c., 206.
what cutting of bank-bills not ‘ altering’ in, 217.
countersigning cashier’s name in, 217.
construction of statute against, of bills of non-existing bank, 223.
what an uttering in, 306.
various instruments of statutory, described, 325-343.
FORMER PROSECUTION, (See Seconp JEoparpy.)
effect of, on subsequent indictment for selling liquor, 1027.
FORNICATION, (See Livine 1n FornicaTIon.)
conviction of, on indictment for seduction, 643.
by one party, while the other commits adultery, 656, 659.
carnal intercourse without consent, whether, 660.
act meant for, is adultery if unknown marriage, 665.
punishment for, may be heavier when between whites and blacks, 666 a.
province of jury as to fact of, 689.
conviction of, on indictment for adultery, 690.
And criminal bastardy, 691-694.
defined — at common-law — under statutes, 691.
procedure in bastardy, 691 a.
joinder — indictment, 692.
whether negative marriage, &., 693, 694.
“FOUND,”’ in statute against drunkenness, must be in indictment, 980.
‘FOURTEEN DAYS AT LEAST,” meaning of, in statute, 110.
FOX RIVER, is adjudged navigable, 303.
FRACTIONS OF DAY, (See Day.)
, how, as to time when statutes take effect, 28, 29.
no, in lunar month, 105.
ordinarily no, in computing time in statute, 108.
FRANCHISE, (See CHARTER.)
statutes granting, how construed, 193, note; mandatory, 256.
making lottery penal after, granted, 957; liquor selling, 992 a.
FRAUD, (See Suppressinc FRAUD.)
practised on legislature, effect of, on statute, 38.
statutes to suppress and prevent, how construed, 192, 199.
676
INDEX OF SUBJECTS. GAM
FRAUD, — continued.
goods obtained by, in bailment, 419, 423.
as removing bar of consent, in assault, 496.
consent of parent obtained by, in seduction, 635.
FRAUDULENT WINNING, indictment for, and evidence, 885, 887.
‘“ FRAUDULENTLY,”’ (See KNowInGLy AND FRAUDULENTLY.)
not supplied by ‘‘ wilfully and feloniously,’’ 458.
word, in statute against illegal voting, 823.
“FREE NEGRO,” (See Necro.)
effect of omitting words, from penal part of statute, 222.
selling, for slave under claim of right, 282.
statute to prevent kidnapping, applicable to white men, 236.
FREEHOLD, when not larceny of, under statute, 416.
‘* FREEMAN,” woman not a, in election laws, 826, note.
FRENCH POOL, is a lottery, 955.
‘“FROM,”’ when, interpreted as “ to,’’ 215,
“FROM AND AFTER,”
effect of words, on time of statute’s going into effect, 31 a.
in statute, as to computing time, 31 a, 110.
“FROM AND AFTER PASSAGE,”’ effect of, on date of statute, 28.
FUGITIVES FROM JUSTICE,
treaties for surrender of, require legislation, 14.
FULLY DONE, act must be, to constitute the statutory crime, 225, 244.
FUNCTION. (See LeGisiaTIVE FUNCTION.)
FUNDAMENTAL J USTICE, statutes against, whether valid, 40.
FURIOUS DRIVING, of horse, to save life, permissible, 1112.
“FURNISHING,” meaning of the word, 1011.
“ FUTURE,” (See ‘‘ HEREAFTER.’’)
effect of word, in statute creating crime, 184.
GAMBLING, (See GAMING.)
meaning of word, in statute, 857 et seq.
inferred from circumstances, 895, note.
substitute, in indictment, for statutory ‘‘ gaming,’’ 908.
GAMBLING DEVICE, (See DEvIcE.)
meaning of, 867; offence of setting up a, 876.
whether dog-race or horse-race is, 862.
how allege the setting up of a, 890.
GAMBLING-HOUSE, (See Pusiic GAMBLING-HOUSE.)
made a statutory offence, 853.
GAMBLING TABLE, how indictment for permitting, 892.
“GAME,” (See NaME oF GaME — UNLAWFUL GAME.)
meaning of the word, 857-863, 936.
wager, a species of, 848.
whether betting on election is a, 986.
6TT
GAM INDEX OF SUBJECTS.
GAME (ANIMALS), ‘
when night under game laws begins, 277, note.
Statutes for the protection of, 1133-1135.
ownership of, 1133; legislation concerning, 1134.
restraints from United States constitution, 1135.
“GAME OF CHANCE,”
distinguished from game of skill, 854.
what is — statutes punishing, 862, 863; kinds of, 864.
“GAME OF HAZARD,”
meaning of the term, 862. And see 858, note.
a lottery is a, 953, note. And see 951.
“ GAME-COCKS,”’ not ‘‘ implements of gaming,’ 216, 319.
GAMING, (See FeLonious GamiInc — GAMBLING.)
meaning of word; in statute, 857 et seq., 861, 936.
distinguished from ‘ betting,’’ 872.
in statute, supplied by “gambling ’’ in indictment, 908.
interpretation clause in statutes against, 55.
who guilty of, as aiders, 135.
statute enumerating places not violated by, in other places, 221.
statute against, in storehouse for retailing, construed, 294.
when places of, not ‘‘ public,’’ 298, 299.
Law of the offence of, 844-881.
introduction, 844, 845.
The common law and old statutes, 846-851.
Our American legislation and its validity, 852-856.
topics stated and cases cited, 852-854 a.
interpretations and constitutionality, 855, 856.
Expositions of particular provisions, 857-881.
meanings of ‘‘ gaming”’ and kindred words, 857-861.
other words and phrases in the statutes, 862-872.
continued, and expositions of doctrines, 873-881.
The procedure, 882-930.
introduction, 882, 883.
For some particular forms of gaming, 884-892.
in general, 884.
fraudulent winning, 885, 886; more than given sum, 887, 888.
permitting, by minors, 889.
permitting, setting up device, &c., 890-892.
Particular questions of procedure, 893-917.
Specially of betting on games, 918-925.
Specially of horse-racing and the like, 927-930.
GAMING CONTRACT, whether civil suit on, 848.
GAMING-HOUSE,
is nuisance, 844, note, 847, 848; taxing, 856.
statutory offence of frequenting, 853.
GAMING-PLACE, keeping and licensing, 852, 854 a.
GAMING-TABLE, keeping, permitting, &c., 864, 892, 895.
678
INDEX OF SUBJECTS. Goo
ts GELDING,”
whether, embraced in the term ‘‘horse,’’ 247, note, 248, 426.
is ‘‘ cattle ’? — proper word in indictment, 212, 440, 442.
is ‘‘ beast,’’ 442.
GENERAL LAW, consequence of, and by-law forbidding same act, 28.
GENERAL AND PARTICULAR,
construction of statutes combining, 64, 112 a, 126, 131, 152, 156, 298.
provisions, stand together, 152.
’ doctrine of, applied to prevent repeal, 156.
GENERAL PROVISION, (See ParTicuLar Provision.)
controlled by specific, 126.
does not work repeal of particular, 126 and note.
‘construed as subject to exceptions required by common law, 181.
carries with it consequential particulars, 137.
not repealed by subsequent specific provision, 152, 156.
and particular, standing together, 165.
enactment of, to cure particular defect, 236.
GENERAL REASONS, expanding special language, 102.
GENERAL AND SPECIAL, division of statutes into, 42 a.
GENERAL STATUTE,
what is a, 42 a, 42 b.
not, have a local meaning, 101.
when, supersedes local or special, 112 6; private, 113.
GENERAL TERMS,
limited by construction, 93.
to receive their general, not restricted sense, 102.
how construed in connection with particular, 245, 246 and note.
GENERAL WORDS,
when, construed both retrospectively and prospectively, 84.
following particular, how interpreted, 245-246 b.
mingling, with specific, 245.
GIFT, distinguished from sale, 1012, 1013.
GIFT EXHIBITION, what, is a lottery, 956.
GIFT SALE, is a lottery, 955.
GIRL UNDER SIXTEEN, (See SepucTion oF WoMEN.)
taking, out of custody, &c., 631 et seq., 644 et seq.
GIVING AWAY LIQUOR, offence of, 1012, 1013.
GOLD, when, not included in words ‘“‘ other metals,’’ 246 a, note.
GOLD DUST, bailee converting to own use, 422, note.
GOLD RINGS, are “ jewelry,” 347.
GOLD AND SILVER, when, not ‘ other metal,’’ 346 a, note.
‘GOOD REPUTE FOR CHASTITY,” meaning of, 639.
‘‘GOODS,’’ meaning of the word, 344, 345.
GOODS OR CHATTELS, what included in words, 209, note, 345.
“GOODS AND MERCHANDISE,” meaning of the term, 209, 344.
679
HAW INDEX OF SUBJECTS.
GOOSE-HOUSE, part of dwelling-house, 285.
GOVERNOR’S SIGNATURE,
to enacted bill, withdrawing, 39; repeal before, attached to bill, 151.
GRAIN, is ‘ goods and chattels,’’ 344; regulating distillation of, 996.
GRAMMATICAL CONSTRUCTION, (See FatszE GRAMMAR.)
how regarded in statute, 81, 243.
GRAND JURY, ° (See Jurors.)
“power of, over witness, 1387.
indictable for getting drunk when on duty, 969.
evidence at trial need not be confined to that before the, 1048.
GRAND RIVER, in Michigan, navigable, 303.
GREENBACKS, whether, included in term ‘‘ money,’’ 346.
GRIEVANCES, to be remedied, considered in construing statute, 82.
“GRIEVOUS BODILY HARM,”’’ meaning of the term, 318.
GROCERY, how the indictment for playing cards at a, 904, 905.
GROUPED, leading doctrines of interpretation, 82.
GUARDIAN, consent of, in seduction, 635; possession of, 636, 637.
GUILTY, repeal of law after plea of, ends proceedings, 177.
GUN, an ‘offensive weapon,” 821; blow from, a ‘‘ wound,” 314.
“HABITUAL DRUNKARD,”’ . (See Common Drunxkarp.)
meaning of the words, 970-972.
selling liquor to, 1021, 1034 a, 1048 a, 1049.
HANGING, statute providing time of, directory, 255.
“‘ HAP-HAZARD,”’ table, statute punishing, 864.
HAPPINESS, statutes depriving of, construed strictly, 193.
HARDSHIPS, (See InsusrTice.)
avoided, in construing statutes, 82.
statutes imposing, construed strictly, 192.
HARMONY WITH INTENT, statutes construed in, 82.
HARMONY OF LAWS, statutes construed to promote, 64.
HARMONY OF PROVISIONS, (See ConrLicTING PROVISIONS.)
to be obtained by construction, 123.
HAVENS, waters of, whether ‘‘ high seas,’’ 304.
HAVING FOR SALE, (See Krrpine Liquor.)
lottery tickets, how, 958; how the indictment, 963.
‘HAVING IN POSSESSION,” as to, 309, note.
HAVING WEAPON, when arrested, how the indictment, 796.
‘+ HAWKER,” (See Pepper, &c.)
meaning of term, 210, 1072, 1074.
HAWKERS AND PEDDLERS,
Unlicensed, law of the offence of, 1072-1080.
in England and here in general, 1072, 1073.
defined — not single instance, 1074, 1075.
680
INDEX OF SUBJECTS. HOR
HAWKERS AND PEDDLERS, — continued.
expositions of doctrines, 1076-1079.
constitutional restraints and their limits, 1080.
The procedure, 1081-1088.
indictment, 1081; various questions as to allegation, 1082-1088.
HAY-PRESS, by-law prohibiting, within limits, void, 20, note.
HAZARD. (See Gamr or Hazarp.)
HEADINGS. (See CuarreR HEADINGS.)
HEALTH AND SPIRITS, evidence of woman’s, in abortion, 761.
HNEARSAY EVIDENCE, not sufficient in charge of open lewdness, 725.
HIEIFER, whether, is a ‘‘ cow,’’ 426. ‘
“ HEREAFTER,”’ (See THEREAFTER.) :
effect of word, in statute creating offence, 183. And see 184, 185.
‘* HERETOFORE,” how, construed in statute, 111, note.
‘HIGH SEAS,” meaning of the term, 304.
HIGHWAY, (See Pustic Way — Way.)
whether, a ‘‘ public place,’”’ 298.
a public bridge is part of a, 301.
meaning of the word, in statutes against gaming, 878.
how the indictment for gaming in, 906, 927.
what is proof of place being, 928.
statute against drunkenness in street, &c., not include, in country, 973.
‘HIS,’’ woman may be included under, 212.
HISTORICAL FACTS,
how far, considered iu interpreting constitution, 92 a.
in interpretation of statutes, 74-77.
HISTORY, how, in interpretation of statutes, 50, 77 and note.
‘‘HOG,’’ whether word, includes ‘ pig,’’ 247, note; and what, 426, 442.
HOMICIDE, (See CoNCEALMENT OF BIRTH.)
how, punishable after change of statute dividing, into degrees, 185.
‘¢administer poison,’’ as attempted, 225.
when statute of limitations attaches in, 260 a.
committed through abortion, 742, 743; how the indictment, 759.
Statutory, explanations of, 465-477.
S introduction, 465, 466.
Making the civil wrong indictable, 467-470.
Felonious, purely and partly statutory, 471-477.
like, and varying from, common-law, 471, 472.
in New York, 473, 474; Ohio, 475; other States, 476.
statutory manslaughter, 477.
HONESTY, statutes to promote, construed liberally, 192.
‘“*HORSE,”’ (See ANIMALS.)
is ‘‘ cattle,” ‘* beast ’’— and how in indictment, 212, 426, 440, 442.
whether, includes ‘‘ gelding ”’ or not, 247, note, 248.
what it is to ‘‘ disfigure” a, 448; what, ‘‘injure,’’ 449.
: 681
IGN INDEX OF SUBJECTS.
HORSE-RACE, (See Furious Drrvina.)
how, under statutes against gaming, 862; betting on, 872.
HORSE-RACING, (See Bettina on Horse-Race.)
indictable under statutes, 852, 873.
whether, a game, and what, 862, 871-873.
Law and procedure in offence of, 927-930.
HORSE-STEALING,
how statute against, construed, 248.
statutory larcenies of animals, 425-429.
HORSEWHIP, whether, an ‘‘ offensive weapon,’’ 321.
‘‘HOTEL,”’ meaning of the word, 297.
HOURS, how time computed by, in statute, 110 5, 110 c¢.
“HOUSE,” (See Dweiiine-Hovse.)
term, includes jail, 207, note.
distinguished from ‘+ dwelling-house,” 213.
to ‘‘demolish,’’ what is, 214.
breaking, stealing in, &c., statutes construed, 233, 234, 240.
meaning of the word, 277, 289; what to ‘erect ’’ a, 292, note.
HOUSE OF CORRECTION,
statute concerning management of, construed, 246, note.
HOUSE DIRT, by-law forbidding unlicensed removal of, good, 20.
HOUSE OF ENTERTAINMENT,
meaning of the term, 297.
how allege gaming at a, 902.
HOUSE OF ILL-FAME. (See Bawpy-House.)
HOUSE OF PUBLIC WORSHIP, “commonly is public place,’’ 298, note.
‘HOUSE FOR RETAILING LIQUORS,”
gaming at, and how allege, 878, 902, 905.
HOUSE-BREAKING, (See “ House.’’)
statute taking away clergy from, how interpreted, 240.
keys, when instruments for, 319.
HUSBAND, (See CoverturE — WIFE.)
statute requiring, to maintain wife’s ante-nuptial bastard, 159, note.
as witness in wife’s polygamy, 613; adultery, 688.
wife may be a witness against, charged with procuring abortion on
her, 760.
HUSBAND AND WIFE, (See Marriep Woman — WIFE.)
. how as to, in liquor selling, 1025. ;
HYMEN, breach of, in carnal abuse, 488.
IGNORANCE OF FACT. (See Mistake or Fact.)
IGNORANCE OF LAW, (See KnowLepGE or Law.)
inducing belief that an invalid divorce is valid, 662.
in election officers, effect of, 805..
otherwise in election offences, 820-825,
682
INDEX OF SUBJECTS. INA
ILLEGAL FEES,
statute superseding common law as to taking, 159, note.
’ proceeding for taking, 171, note.
ILLEGAL SALE, license not legalize an, already made, 1001.
ILLEGAL VOTING, (See ELEcTION OFFENCES.)
distinguished from perjury, 815; indictment for, 833.
“TLLEGALLY,”’ in statute, may be ‘‘ unlawfully ” in indictment, 840.
ILLEGITIMATE CHILD. (See BasTarp CHILD.)
ILLEGITIMATE CONSANGUINITY, effect of, in incest, 727.
ILL-FAME. (See Bawpy-Houss.)
ILLUSTRATION, statutory words putting a thing by way of, 190 6.
IMPERATIVE, (See Directory Statute — Manparory.)
when statute is, and when permissive, 112.
‘“ IMPLEMENT,” meaning of word, 319.
“IMPLEMENTS OF GAMING,”
game-cocks are not, 216.
keeping, punishable under statutes, 852.
IMPLICATION,
from statute, doctrine of, defined, 187.
doctrine of repeals by, 153-162. (See Reprat.)
not, beyond words, in strict interpretation, — punishment, 194.
things proceeding from statute by, 249.
IMPLIED INTENT, (See LecisLative INTENT.)
of legislature, followed in interpretation, 82.
IMPLIED REPEAL, (See REPEAL.)
doctrine of, explained and illustrated, 153-162.
doctrine of, combining with other doctrines, 163 6-174.
IMPOSSIBLE,
knowledge of statute, still it binds, 30.
statute cannot perform the, 41.
to procure license, not authorize acting without, 1006.
IMPRISONING SEAMEN, by master, his first mate, 209.
IMPRISONMENT, (See PunIsHMENT.)
milder punishment than death, 185.
whether, milder than whipping, 185.
construction of statutes authorizing, 193, 197, 198.
as penalty for violation of city ordinance, 404.
IMPRISONMENT FOR DEBT, how statutes against, interpreted, 197.
“IN,” (See LocaTeD 1N.)
meaning of, in statute against wooden buildings, 216.
“IN LIEU,” of another statute, provision operates as repeal, 152 a.
IN PARI MATERIA, (See One System — TOGETHER.)
' statutes, construed together, 82, 86, 124, 160, note, 191.
“IN WRITING,” words, in statute requiring permit, 237.
INACCURACY, effect of, in statute, 41, 79, 81, 145, 146.
683
IND INDEX OF SUBJECTS.
INACCURATE EXPRESSIONS, (See Farsz GRAMMAR.)
in statute, given the meaning intended, 81.
INCAPACITY FOR CRIME, doctrine of, includes statutory crimes, 117.
INCEST,
the carnal knowledge in, 660, 661.
evidence of other acts of, 681, note.
Law of the offence of, 727-730.
The procedure, 731-736.
INCOMPLETE. (See ENACTMENT.)
‘¢ INCONSISTENT,”
repeal of what is, with present act, 152; in unconstitutional act, 152.
INCONSISTENT PROVISIONS, (See REPEAL.)
repeal of, by force of the repugnancy, 154-162, 165 et seq.
INCONVENIENCE, interpretation should be such as will avoid, 82.
INCORPORATION, (See CuarrTer.)
acts of, how construed, 119.
INDECENT ASSAULT, doctrine of, 496-499.
INDEPENDENT CLAUSES, (See Or.)
indictment on, how, 244.
INDEPENDENT RULES, statutes are not, 117 a.
INDIAN, is a ‘‘ person,” 212.
INDIAN TRIBES, power of Congress to forbid selling liquor to, 990 a.
INDICTMENT, (See Acainst Form or Statute — INDEPENDENT
CLAUsEs — PuNISHMENT, &c.)
punishing same act by, and by proceeding on by-law, 28.
effect of punctuation marks in, 78, note.
defective, on statute, may be good at common law, 164.
to allege all which concerns the punishment, 167.
form of, where statute provides a new punishment for old offence, 167.
to conclude ‘ against form of statute ’’ or not, 167 and note.
may be concurrent with civil proceedings, 170.
no, on statute repealed or otherwise not in force, 177.
when, maintainable on statute, 250-253, particularly 250 c.
whether finding of, essential to commencement of prosecution, 261.
where there is an, within statutory period, and abated on plea of mis-
nomer, 262.
a fresh, deemed a count added to old, 262, note.
How the, on private statute, 395-402.
reciting statute, 395, 396.
as to date, preamble, provision, 397-401.
modifications of doctrine, 402.
How the, on municipal by-laws, 403-408.
ancient and modern, in general, 403, 404.
act of incorporation as to, 405.
by-law, setting out and proving, 406.
how allegations conclude, 406.
diversities in formalities, 407.
684
INDEX OF SUBJECTS. INS
INDICTMENT, — continued.
analogous to other indictments, 408.
On public statutes, —how the, for particular offences, 414, 421, 422, 426,
440, 447 b, 458, 471, 486, 513, 515, 598, 622, 644, 669, 692, 699,
719, 732, 751, 777, 794, 828, 884, 893, 913, 914, 927, 938, 961, 974,
1033 a, 1061, 1066, 1081, 1090, 1114, 1127. (See the names of
the offences.)
“INDORSEMENT,”’ meaning of the word, 338, note.
“INFAMOUS CRIME,’’
solicitation to sodomy, not, 242.
meaning of term, in constitution, 242, note.
INFANCY, common-law rules of, extend to statutes, 7, 117.
INFANTS, below seven, not embraced by general terms of statute, 131.
INFERIOR, general words after enumeration of, not include superior, 246 a.
INFERIOR COURTS, (See JupicraL Decision.)
follow interpretations of constitution by superior, 35 a.
INFORMALITIES, in elections, effect of, 814; in license, 1001.
INFORMATION, (See CompLaint — INDICTMENT.)
may be withheld because of non-user of statute, 149.
before magistrate, whether commencement of prosecution, 261.
INFORMATION QUI TAM, defeated by outlawry, 132.
INHABITED, building must be, to be dwelling-house, 279.
‘“INHABITED DWELLING-HOUSE,”’ a jail is an, 207.
INJUNCTION,
in support of statutory right, 250 0.
not a criminal process — not, in cruelty to animals, 1122.
“INJURE,” INJURY,
what, in malicious mischief, 449; how lay and prove, 446, 447.
INJUSTICE, interpretation to be such as to avoid, 82, 90, 93.
INN, (See Disorperty Inn — Liquor SELLING.)
meaning of the word, 297.
whether keeping, indictable, 984.
INN OF COURT, is dwelling-house, 279.
INNOCENCE, presumption of, conflicting with that of life, 611.
' INSANE PERSONS, bound, or not, by statutes, 131.
INSANITY, defence of, to statutory crime, 7, 131.
INSIDE DOORS, breaking, in burglary — to serve process, &c., 290.
INSPECTOR OF ELECTIONS, duties and liabilities of, 824, note.
INSTALMENTS, sale of goods payable by, a bailment, 423.
INSTRUMENT, (See IMPLEMENT.)
meaning of the word, 319.
with which wound inflicted, immaterial, 314.
abortion by, how the allegation, 758 a.
defendant's possession of, as evidence of abortion, 761.
685
INT INDEX OF SUBJECTS.
“INSTRUMENT, ARMS,” &c.,
for escape, written information is not, 217.
INSTRUMENT IN WRITING. (See Written INSTRUMENT.)
INTENT, (See AputTzRovs Intent — Evin Intent — FELoniovs
Intent — LEGISLATIVE INTENT.)
to do what law forbids, sufficient in polygamy, 596 8.
how in adultery, 679; in election offences, 819.
evidence of the, to sell liquor, 1058.
INTENT CLEAR, interpretation not resorted to when, 201.
INTENT OF MAKERS, (See Lecis.ative INTENT.)
how far, regarded in interpreting constitution, 92 a.
INTENT OF STATUTE, (See Lecisyative INTENT.)
purpose of interpretation to ascertain the true, 70, 75, 76.
gathered from whole, 93.
liberal interpretation bringing case within the, 190.
INTEREST, (See New Interest — Party’s INTEREST.)
how proceed on statute creating an, 250 a.
INTERNAL COMMUNICATION,
how where, between parts of dwelling-house, 280, 281, 285.
INTERPRETATION, (See the ‘‘ Contents’’ at the beginning of this
volume, and the several apt titles in this ‘‘ Index of Subjects.’’)
introductory views as to, 1-10.
concerning the, of treaties, 13 a, 14.
purpose and means of, 68-77.
what, aims to accomplish, 70-78.
ascertain meaning of makers, 70.
not follow personal view of the judges, 70.
indispensable — limits of, 71, 72.
‘importance of rules of, 73.
office and importance of, 73, 74.
rules of, presumably known by legislature, 74.
courts should follow rules of, 74.
methods of, 78-256 a.
how far statute may direct the, of statute, 85 0.
expanding and contracting statute by rules of, 102.
all laws require, 116.
ancient and modern compared, 118.
skill, practice, and study needful for, 121.
general and legal, compared, 188.
different degrees of strict and liberal, 199.
governed by varying rules, 199, 200.
caution as to, of statutes against concealment of birth, 769.
INTERPRETATION CLAUSE,
what, and how interpreted, 54, 55.
further concerning, 199 a.
INTER-STATE COMMERCE,
liquor selling in conducting, 990 6. And see 990.
686
INDEX OF SUBJECTS. JUD
INTER-STATE COMMERCE, — continued.
right of, — what peddling statutes violate the, 1080.
as to fishing, 1131; hunting and game, 1135.
INTIMIDATION, ;
procuring by, one in building to open door, a breaking, 312.
annulling consent to assault, 496.
INTOXICATING LIQUOR, (See Liquor SrLurinc — Minors, &c.)
one need not sell, to be a tavern keeper, 297.
gaming in places where, is sold, 852.
meaning of the term, 1007.
effect of, believed not intoxicating when it is, 1022.
how allege unlicensed sale of, 1038.
INTOXICATION, (See DRUNKENNESS.)
inducing mistake of fact in illegal voting, 825.
no excuse in cruelty to animals, 1113.
“INVEIGLE,” meaning of word, in seduction statutes, 640.
IRRECONCILABLE, how statutes construed when provisions are, 65.
“IT SHALL BE LAWFUL,” meaning of, in statute, 112.
JACK, unlicensed standing of, 214.
JAIL, is ‘‘ dwelling-house,’’ 207, 279; and ‘‘ house,’’ 207, note, 289.
‘ JEOPARDY,”’ (See Former Prosecution — SECOND JEOPARDY.)
meaning of word, in statute, 242, note.
“ JEWELRY,”’ meaning of the word, 347.
JOINDER,
of offences and offenders in larceny of animals, 428; adultery, 670-672;
living in adultery, 708; open and notorious lewdness, 721; incest,
733; gaming, 912; lotteries, 961; liquor selling, 1045; cruelty to
animals, 1121.
JOINER’S SHOP, (See Erect anp BuItp.)
converting, into a dwelling-house, 208.
JOINT DEFENDANTS, in treason, how as to counsel, 227.
JOINT LICENSE, how as to a, to sell liquor, 1004.
JOURNALS. (See LEGISLATIVE JOURNALS.)
‘‘ JOURNEY,” what is a, in statutes against carrying weapons, 788 a.
JUDGE, (See Courts.)
respect due from, to all laws alike, 189 a, 189 8.
holding court, is a ‘* person,’ 212.
not to follow private views, 235.
‘‘ JUDGES OF COMMON PLEAS,” meaning, all judges, 190 8, note.
JUDGES OF ELECTIONS,
offences by, 805, 806; how the indictment, 838, 839.
JUDGES’ SALARIES, statutes regulating, 130.
687
JUR INDEX OF SUBJECTS.
JUDGMENT, (See SENTENCE.)
cannot be rendered on repealed statute, 177.
word “conviction” in statute may denote final, 348.
JUDGMENT LIEN, whether construe limitations statute to alter, 265.
JUDICIAL, as to acts of election officers being, 806, 820-825.
JUDICIAL BUSINESS, Sunday in computing time as to, 110 c¢.
JUDICIAL COGNIZANCE, interpreter looks at all within the, 74.
JUDICIAL DECISION, (See Inrerror Courts — Stare Decisis.)
effect of, on construction of statute, 104.
JUDICIAL KNOWLEDGE,
courts take, of what statutes, 87; of what, in construing statutes, 74-77.
JUDICIAL ORDER, disobedience of, for support of bastard, 691, note.
JUDICIAL PROCEEDINGS, (See PRrocrepines.)
statutes concerning, retrospective, 84.
not without notice, though statute silent, 141.
JUDICIAL SALE, champerty not committed by, 232.
JUDICIAL STEPS, statutes as to, directory, 255.
JUDICIAL TRIBUNAL. (See Contempr — Courts.)
JUDICIAL USAGE, effect of, in interpretation, 104.
‘“* JUNK SHOP,”’ meaning of the word, 296.
JURISDICTION, (See LimiTED JURISDICTION.)
transfer of, over offence after committed, 84, note.
in suits between States, no legislation required, 92 5.
statutory permissive, does not take away common-law, 112.
interpreting statutes of another, 115.
of statutes beyond territorial limits, 141.
whether, conferred on State courts by national statute, 142.
concurrent — election as to, 164.
one court taking, bars another, 164.
after offence committed, changed, 180.
statutes as to, how construed, 142, 197.
statutes as to, penal and remedial construed alike, 198.
how various statutes as to, construed, 198.
of United States over elections in States, 804, 810.
JURISDICTION OF CRIME,
after county divided, 144.
in county of prisoner’s arrest, 599.
JURISDICTION TO MAGISTRATE,
act giving special, may stand with one giving general, 126.
JURORS,
statutes regulating qualifications of, retrospective, 84, note.
statutes as to bringing in, directory, 255.
indictable for being drunk, 969.
JURY, (See Granp Jury.)
province of, in adultery cases, 689.
what for the, in indictments for gaming, 907.
688
INDEX OF SUBJECTS. KNO
JURY, — continued.
what for, what for court, as to kind of liquor, 1006 a, 1007.
JURY TRIAL,
how, secured by construction, 89.
court refusing to try cause, by reason of delay, 257, note.
JUST, statutes to be so construed as to be, 82, 90, 93.
JUSTICE. (See FUNDAMENTAL JUSTICE.)
JUSTICE OF PEACE,
appeal from, by force of constitution, 89.
new powers given to, how must proceed, 119.
statutes concerning jurisdiction of, how construed, 126.
office of, a ‘‘ public house,’’ 299.
indictable for being drunk, 969.
“KEEP AND BEAR ARMS,”
constitutional right to, explained, 792, 793.
KEEPING GAMING PLACE, punishable under statutes, 852.
KEEPING LIQUOR, (See Liquor SELLING.)
with intent to sell, offence distinct from selling, 1027.
| For unlawful sale, 1054-1058.
under common law — statutes, 1054, 1055.
constitutionality of statutes, 1056.
how in different States, 1057.
proof of intent to sell, 1058.
KEEPING OPEN, (See Lorp’s Day.)
what is a, 1070 a.
liquor-selling places at forbidden times, 1070 a, 1070 8.
KENO, is game of chance, 863; gambling device, 867.
KEYS,
whether, ‘‘ instruments for house-breaking,”’ 319.
left in door, whether entering by, is breaking, 312, note.
KIDNAPPING, (See AspucTION or WomEN — FREE NEGROES.)
command from another State does not justify, 205.
statute made to prevent the, of negroes extended to whites, 236.
by stealing an heiress, 619.
KILL,
word, in indictment for malicious mischief, 446.
in cruelty to animals, 1110; how allege, 1119.
KING, whether the, bound by statute, 103.
‘““KNOW,”’’ how as to the word, in statute against polygamy, 596.
“KNOWINGLY,” (See WILFULLY.)
word, in statute against incest, 729.
if, in statute, must be in indictment, 733; further as to, 1022.
in statutes as to election offences, 821, 824, 825.
44 689
LAR INDEX OF SUBJECTS.
“KNOWINGLY AND FRAUDULENTLY,”
words, in statute against illegal voting, 820, 821, 823, 824.
KNOWLEDGE, (See CarnaL KnowLepGe — JUDICIAL KNOWLEDGE
— Mistake or Fact.)
of the relationship in incest, 732-734.
how the indictment on statute silent as to defendant’s, 1022.
KNOWLEDGE OF LAW, (See Ignorance or Law — MisTaKe
oF Fact.)
when conclusively presumed, and when not, 805, 806, 820-825.
KNOWLEDGE OF STATUTE,
conclusively presumed, even where actual knowledge impossible, 30.
LACHES, of agent of State, effect of, 103, note.
LAGER BEER, what, and how far judicially known, 1006 a.
‘‘LAMB,” whether, included in word ‘ sheep,” 212, 247.
LAND, (See Reatty.)
construction of statutes about taking, for public use, 119, 193, note.
out-buildings separated from dwelling-house by another’s, how, 284.
“LANE,” (See STREET.) -
meaning of, — statute against smoking in, construed, 206.
LANGUAGE, (See Worps.)
flexibility of, and capacity to convey new ideas, 92 d.
meanings of the, of statutes, 92 d-104 a.
contracting and expanding meanings of, 188 et seq.
how, made technical by decision, 269.
LAPSE OF TIME, payment to State not presumed from, 103.
LAPSED RIGHT,
after repealed statute, revived by subsequent enactment, 180.
‘LARCENY, (See AnrimaLs — Bartees — PrivateLy Steat— VaLve.)
illustrations of nature of statute from law of, 7.
- statutes punishing values differently, construed together, 127.
statutory, in one county and carrying into another, 140.
of bank note, when of another State, 205.
from vessel — ‘‘ merchandise,’’ ‘‘ personal goods,”’ &c., 209.
killing sheep to steal part of carcass, 211, note.
plural term of statute includes singular in, 213.
“private,” construction of statute against, 222.
of deer, statutes against, construed, 232.
in particular places, statutes against, construed, 233, 234.
whether ‘‘ other property ’’ in, includes dogs, 246.
of ‘‘ sheep or ewe,’’ &c., how construed, how indictment, 247, 248.
of horses, how statute against, construed, 248.
various instruments, subjects of statutory, described, 325-343.
dog not subject of, as “ goods and chattels,” 344; how as to coin, 344.
fraudulent marking of cattle as, 454.
690
INDEX. OF SUBJECTS. LEG
LARCENY, — continued.
Statutory enlargements of the common-law, 409-429.
introduction, 409-411.
In general of, purely or partly statutory, 412-416.
‘‘ theft’ in Texas, &c., 418, 414.
when statutory, follows common law, 415, 416.
how the indictment, 416.
Under bailments, 417-424.
trespass and dispensing with it, 417, 418.
how at common law — by statute, 419, 420.
how the indictment, 421, 422.
what the bailment — bailee’s act of, 423, 424,
Of animals, 425-429.
at common law — the statutes, 425.
word to designate animal in indictment, 426.
value — “against form of statute,” 427.
joinder of counts, &c., 428.
ownership — aspartation, &c., 428.
the feloriious intent, 429.
“LASCIVIOUS BEHAVIOR,” meaning of the words, 714.
“LASCIVIOUS CARRIAGE,”
statutory offence of, 713, 714.
as to allegation, 723, 724.
LATCH, lifting the, of a door, is a breaking, 290, 312.
LAW, (See GenzeraL Law — Prior Law — Written Laws.)
what the term includes, 11, 11 @; no, without penalty, 22.
origin of, immaterial in interpretation, 116.
all, requires interpretation, 116.
written and unwritten, interpreted by like rules, 117.
LAW BOOKS,, something concerning, 631 0.
LAW AND FACT, (See IanorancE or Law — KNowLeDGE oF
Law — Mistake or Fact.)
distinctions between, in proceedings for gaming, 907.
as to the kinds and quality of liquor, 1006 a, 1007.
LAW OF NATIONS, statutes construed by the, 141.
“ LAWFUL,” word, in indictment for polygamy, 602 a, 603.
“LAWFUL MONEY,”’ bank-notes are not, 346, note.
LAWS, (See Starures —WRiTTEN Laws.)
jurisdiction of, limited, 11.
the various, enumerated, 11 a; precedence, of the, 11-17 a.
all, written and unwritten, to be construed together, 86.
LAWYER, whether office of, a “ public house,” 299.
LAWYERS, opinions‘of, to influence court, 76, 77.
LEADING RULES, of interpretation, epitomized, 78-82.
LEARNING, statutes to advance, bind State, 103.
“LEGAL CHARGE,” meaning of the words, in seduction statute, 633.
691
LEG INDEX OF SUBJECTS.
LEGAL DOCTRINE, how, established, 125.
LEGAL MEANING, (See Tecunicat Meanina.)
legal terms in statutes to be given their, 96, 97, 100.
words having, how construed, 224.
LEGAL OPINIONS, weight of, in authority, 76.
LEGAL RULE, how to determine a, 125.
LEGAL TREATISES, weight of, in authority, 76; how, constructed, 631 b.
LEGAL VOTERS, applicant for liquor license recommended by, 156.
LEGISLATION, (See SraTuTes.)
to give effect to constitution, 11 a, note, 14, 92 5; to treaty, 14.
LEGISLATIVE EXPOSITION, of statute, effect of, 104.
LEGISLATIVE FUNCTION, acts not within, not valid, 39 a.
LEGISLATIVE INTENT, (See Inrent or STAruTE.)
looking into title for the, 46; same into preamble, 48-51.
interpretation to ascertain the, 70, 75, 76, 82, 93, 200, 231, 235, 237.
determined by the words, 80, 193, note. Compare with, 102.
interpretation to give effect to the, 81, 82, 112, 118.
prior laws, &c., as to the, 87.
construction compressing and enlarging statute to the, 121.
prevails as to repeal, 151, 154, 158, 159, note, 160.
latter provision repealing former, because of presumed, 170.
prevails in liberal interpretation, 190, 190 c.
also in strict interpretation, 191, 193, note, 200-202, 204.
how as to the, when meaning clear, 201.
followed in construing criminal statute, 231, 235.
statute directory or mandatory as the, requires, 255 a.
LEGISLATIVE JOURNALS,
looking into the, for precise date of statute, 29.
whether, regarded in interpretation, 77.
LEGISLATIVE MEANING, (See LeaistaTive INTENT.)
how the actual, regarded in interpreting statute, 74~77.
LEGISLATIVE OPINIONS, weight of, in interpretation, 76.
LEGISLATIVE POLICY,
legislature itself to determine its, 235, 995.
contract contrary to, void, 138 a, 254.
LEGISLATIVE POWER, (See ConstiTUTION — STATUTES.)
how, limited with us, 12, 16, 32 a-41.
LEGISLATIVE RECORDS, (See Recorps.)
consulting the, as to statutes, 37.
whether look into, in interpreting statute, 76, 77.
LEGISLATIVE WORDS, are the primary guide to intent, 236.
LEGISLATURE, (See Orrnions or LEGISLATORS.)
duty of the, to legislate constitutionally, 14, 35, 91.
effect of decision of, on constitutional question, 14, 91.
one cannot bind subsequent one as to future acts, 31, 147.
when, bound by judicial interpretations of constitution, 35.
692
INDEX OF SUBJECTS. LIC
LEGISLATURE, — continued.
law-making power of people transferred to the, 36.
to construe constitution, 35, 36, 91.
cannot exercise function not in its nature legislative, 39 a.
presumed to know rules of interpretation, 74.
interpreter to stand in position of the, 75.
opinions of present and subsequent, as to meaning of statute, 76, 77.
decision of, entitled to respect of court, 91 and note.
presumed to have intended what it said, 93.
intention of, ascertained from words of statute, 158.
LETTER, (See Sprrit anp Letrrr— Strict INTERPRETATION.)
statutes not interpreted by the, 93; maxim about adhering to the, 93.
cases not within the, but within spirit, 190.
what is not within the, excluded in strict construction, 230.
LETTER CARRIER, whether, is a ‘‘ public officer,’? 271 a.
LETTERS, wittingly, &c., detaining, 823.
LEWD, &c. PERSON, indictment for being, how, 723.
“LEWDLY AND LASCIVIOUSLY ASSOCIATE,”’
meaning of phrase, 712; as to allegation, 723.
LEWDNESS, (See Open anp Notorious LEwpDNESS.)
meaning of the word, 716.
what, indictable at common law, 654, 691, 711, 728.
LIBERAL INTERPRETATION, (See Strict anD LIBERAL.)
what signified by, and to what applied, 120.
what expansion permissible in, explained, 189 d-190 c.
and strict, in same statute, 196.
conflicting demands for, and strict, 197.
followed in what classes of cases, 192, 197-199 a.
different degrees of, 199.
for the accused, liberal; against him, strict, 196.
whether, applied to limitations statute, 259.
not so as to protect offences merely analogous, 260.
applied to statutes against gaming, 855.
The, which mingles with the strict, 226-240.
General explanations of doctrine, 226-230.
doctrine defined, 226.
liberal in favor of accused, 227; illustrations, 227-230.
In favor of accused, the statutes contracted, 231-235.
illustrations of doctrine, 231-235.
limits of doctrine, with illustrations, 236-238.
In favor of accused, the statutes expanded, 239, 240.
illustrations, 239, 240.
LIBERTY, statutes against, construed strictly, 119, 193.
LICENSE, (See AuTHority — Liquor LicENsEs.)
city charter conferring exclusive right to grant, 156.
whether, required to constitute innkeeper, 297.
of gaming places, 854 a.
693
LIQ INDEX OF SUBJECTS.
LICENSE, — continued.
of lottery, not prevent subsequent prohibition, 957. And see 992 a, 1001.
a tax on a business, not a, 991.
averment and proof of, 1043, 1050, 1052.
LICENSE LAWS. (See Liquor SELLING.)
LIEN. (See JupGMENT LIEN.)
LIFE, (See CapiraL PuNISHMENT.)
statutes so construed as to preserve, 189 b.
statutes taking away, construed strictly, 193.
presumption of, of former husband or wife at time of second marriage,
611.
LIGHTER, not, include a brig or steam-tug, 246 a, note.
“LIKE KIND,”’ (See Same or Like Kinp.)
of weapon as bowie-knife, what, 790.
how allege gambling device of, 909.
LIMITATIONS STATUTE,
extends to offences under subsequent statute, 87.
when, runs for and against the State, 103, 142, note.
applies to after-created offences, 126.
what a fleeing from justice within, 242.
how the, in gaming, 916.
In criminal cases, discussed ,'257-267.
not at common law — statute, 257, 258.
civil and criminal compared, 258 a.
how as to strict and liberal interpretation, 259, 260.
when, begins to run, 260 a, 261.
continuing to run, 261 a.
exceptions to its general terms, 261 b, 261 ¢.
to what offences applied, 261 d.
shifting proceedings — valid — erroneous, 262.
whether, applied to past offences — future, 263.
how avail of, 264; pertaining to remedy, 264 a.
vested rights as to, 265.
statute authorizing prosecution after bar of, 265, 266.
legislation connected with Secession War, 267.
LIMITED JURISDICTION, how statutes creating, construed, 198.
LIMITING AUTHORIZED ACT, effect of clause, 249.
‘“ LIQUOR,” meaning of the word, 1010.
LIQUOR LICENSES, (See Liquor SELLING.)
statutes providing fot, construed together, 156.
to principal, protect agent, 1024.
LIQUOR NUISANCE, (See Trppittnc-SHop.)
whether conviction both for, and for sales, 1027.
The law and procedure relating to, 1059-1070 b.
at common law — under statutes, 1059.
Selling to be drank on premises, 1060-1063.
Tippling-shops, 1064-1067.
694
INDEX OF SUBJECTS. LIQ
LIQUOR NUISANCE, — continued.
Keeping building for illegal sales, 1068-1070.
Keeping open place at forbidden times, 1070 a, 1070 b.
LIQUOR SELLING, (See Keeping Liquor — Locat Option Laws.)
statute prohibiting, includes liquors on hand, 84 a.
qualifications for license for, 84 a.
act forbidding, in town, not affected by subsequent general act, 126.
profanation of Lord’s day may violate statute against, 143.
same of unlicensed peddling, 143.
city charter as repealing general statute, concerning, 156.
statute prohibiting, in specified places, construed, 223.
to minors, statute requiring parental consent, construed, 287.
defence of medical use, or necessity, 238, 1019, 1020.
Law of the offence of, 983-1032.
introduction, 983.
History and policy of laws against, 984-988 b.
at common law, 984.
scope and nature of the statutes, 985-987.
specially of the ‘* Maine law,’ 988-988 b.
Constitutionality of these laws and further of their forms, 989-998.
under State and United States constitutions, 989-996.
sale to Indian tribes, 990 a.
in inter-State commerce, 990 b.
national taxation of selling, 991.
forbidding sales after license, 992 a.
confiscating and destroying the liquor, 993, 994.
manufacture, 996.
municipal by-laws and local statutes restraining, 997.
constitutional provisions relating to, 998.
The license, 999-1006.
Expositions of statutes and doctrines, 1006 a-1032.
terms designating the liquor, 1006 a-1010.
other terms in brief, 1011.
giving away, selling, bartering, 1012-1015.
in particular quantities, special places, 1013.
special forms of sale and dealing in liquors, 1015-1017.
common seller, 1018. :
medical use, 1019, 1020.
to particular classes of persons, 1021.
mistake of the facts, 1022.
deeming the selling rightful, 1023. |
principal and agent, 1024; husband and wife, 1025.
punishment, 1026; electing offence to prosecute, 1027.
former jeopardy, 1027.
misdemeanor — abetting, 1028, 1029.
civil consequences, civil damage laws, 1030-1081 a.
questions special to particular States, 1032.
The procedure, 1038 a-10538.
Indictment, 1033 a-1045.
695
LOR INDEX OF SUBJECTS.
LIQUOR SELLING, — continued.
Evidence, 1045 a-1053.
LIQUOR-SELLING PLACES,
statutory offence of gaming in, 852.
Keeping open, at forbidden times, 1070 a, 1070 b.
* LIQUOR SHOP,” (See Liquor NuISANCE.)
words, meaning of, 1011.
LITIGATION, interpretation not to open way to, 82.
“LIVE ANIMALS,” (See ANIMALS.)
words, include singing birds, 1104.
“LIVE TOGETHER,”
words, in statute, how indictment, 699, 702, 706, 721.
LIVERY STABLE, when one ‘‘erects’’ a, 208, note.
LIVING IN ADULTERY, &c.,
distinguished from simple adultery, 656, note.
one act, as evidence of, 680, note.
Law of the offence of, 696-698.
The indictment and evidence, 699-709.
LIVING IN FORNICATION, (See Livine in ADULTERY, &e.)
construction of Tennessee statute against, 221.
whether, indictment negative marriage, 693, 700.
_ **LOADED ARMS,”’ what are, 322; indictment for, 795.
“LOAF SUGAR,” meaning of term, in statute, 99.
LOCAL LIMITS, statutes bind all within their, 141.
LOCAL MEANING, whether words of statute may have, 101, 104.
LOCAL OPTION LAWS, constitutionality of, 36.
LOCAL STATUTE,
what is a, 42 b.
“effect of submission of, to people, 36.
may be either public or private, 42 6.
local usage may give meaning to, 104.
how, construed with general, 112 5.
when, not affected by subsequent general, 126.
in restraint of liquor selling, 997.
LOCALITY, within what, by-laws have force, 22.
‘© LOCATED IN,” meaning of expression, 216.
LODGER, whether rooms of, are dwelling- houses, 233, note, 287.
LODGING-HOUSE, private, not au inn, 297.
LOFT, may be dwelling-house, 279.
‘‘ LONDON,” statutory word, as including all cities, &c., 190 b, note.
LORD’S DAY, (See Sunpay.)
may be violated by unlicensed liquor selling or peddling, 143.
construction of statute forbidding arrests on, 198.
statute forbidding ‘‘ tippling-houses ’’ on, construed, 213.
statutes against profaning, extend to observers of seventh day, 237.
696
INDEX OF SUBJECTS. MAL
LORD'S DAY, — continued.
construction of 29 Car. 2 against violating, 245.
gaming on, indictable under statutes, 852.
opening liquor-selling places on, 1070 a.,
LOT, by whom, cast, in lottery, 954.
LOTTERY, (See Materrats ror Lorrery — Sign-Boarp.)
when, is ‘‘ not authorized by law,’’ 205.
what is ** advertisement ’’ of tickets of, 207.
whether statutes against, constitutional, 856, 957.
The law of the offence of, 951-960.
in general, and historical, 951.
what is a lottery, 952-956.
constitutionality of prohibiting statutes, 957.
particular provisions and how interpreted, 958-960.
The procedure, 961-966.
indictment, 961-965; evidence, 966.
LOTTERY TICKETS, (See MaTERIALS FOR LOTTERY — QUARTER-
* TICKET.)
meaning of statute against selling, 205, 207.
rules for construing these statutes, 55.
term, includes quarter-tickets, 211.
statutes providing for seizure of, constitutional, 957.
statutes against having or selling, 958 et seq.
how the indictment, 962, 965.
on indictment for selling them, should be produced as evidence, 966.
LUGGAGE OF PASSENGER,
whether, ‘‘ goods or merchandise,”’ 209, 344.
LUNAR MONTH, (See Montz.)
how many days —no fractions, 105.
MAGISTRATE, (See JustTicE or Pract.)
statute giving new powers to, how construed, 119.
what proceedings before, are commencement of prosecution, 261.
MAIM, (See MAYHEM.)
meaning of the word, 316, 448.
word, in indictment for malicious mischief, 447.
what, and distinguished from ‘ disfigure’’ in malicious mischief, 448.
“MAINE LAW,”’ history and policy of the, 988-988 5 and note.
“MAINTAIN OWNERS NO RIGHT,” meaning of statutory words, 223.
MALFEASANCE IN OFFICE,
drunkenness in office is a, 969; how the indictment, 976.
MALICE, (See Evi. INTENT.)
the, in malicious mischief, explained, 432 a—437.
‘““MALICE AFORETHOUGHT,” in statute against mayhem, 484, note.
MALICIOUS MISCHIEF,
statutes forbidding, when not repugnant, 156, note.
697
‘4
MAN INDEX OF SUBJECTS.
MALICIOUS MISCHIEF, — continued.
words ‘‘begin to destroy ’’ in statute against, 223.
whether statutes against, include dog, 246.
Statutory enlargements of, 430-449.
introduction, 430.
Generally of the statutes, 431, 432.
The nature of the malice, 432 a—437.
evil intent always necessary, 432 a.
malice against owner, or not, 433-487.
The indictment and evidence, 438-447 b.
“in general — “ feloniously,” 438, 439.
words to designate animal, 440.
specific terms followed by general, 441.
** cattle ’? — ** beast,’’ 442.
color — ownership — value, 443, 444.
damage and injury to the property, 445, 446.
“kill,” ‘‘destroy,”’ ‘injure,’ “ torture,” 446, 447.
allegation on disjunctive words, 447 a..
cover statutory terms — how much in one count, 447 5.
Further of the offence, 448, 449.
meaning of words, — “maim,” “ disfigure,” 448.
“injure ” — timber, 449.
MALICIOUS SHOOTING, guilt of one encouraging another in, 185.
‘¢ MALICIOUSLY,”’ meaning of the word, 434, 435, 436.
“MALT LIQUOR,” (See Liquor.)
what, whether judicially known, 1006 a.
how allege unlicensed sale of, 1006 a, 1038.
“* MAN,” in statute, may include woman, 212.
“MAN, DOG, OR CAT,” signifying all escaping animals, 190 3, note.
“MANDAMUS OR CAPIAS,”’ meaning of expression as to executing, 95.
MANDATORY STATUTE, (See Directory.)
as to one subject expressed in title, 36 a.
defined, and doctrine as to, 254-256.
whether, statutes prescribing duties of officers of dlections; 805.
“ MANIFEST,” of cargo, delivered by captain, must be true, 211.
MANNER, of official act, statutes as to, generally directory, 255
“ MANSION-HOUSE,”’ meaning of the term, 277-289.
MANSLAUGHTER, (See HomicrvE.)
making degrees after, committed, as to punishment, 184, note, 185.
word, in statute has common-law meaning, 242.
how where statute makes, indictable, employing the common-law term,
471.
abortion as, under statutes, 743.
“ MANUFACTURE,”
what a “stage,” &c., of, 211; meaning of word, 1011.
of liquor, laws forbidding, constitutional, 996.
698
INDEX OF SUBJECTS. MAX
“MARE,” (See Horsr.)
meaning of the word, 426; is “cattle” and “beast,” 442.
‘a racing with, is a ‘+ horse-race,’’ 873.
MARGINAL NOTES, to the sections in statutes, effect of, 61.
MARINE LEAGUE, :
waters within a, of shore, included in the term “high seas,” 304.
“MARINER,” meaning of the word, 209, note.
MARK OF ANIMAL,
in proof of ownership, 428.
Offence of altering the, discussed, 454-461.
MARKET, when by-law establishing a, good, 20.
MARRIAGE, (See Divorce — Promise or MarriaGe — RecorD
or MARRIAGE.)
law for solemnizing, whether or when obsolete, 149.
neglecting to file certificate of, statute construed, 222.
of minors, statute construed, 237.
valid, though forbidden by statute, 254, note.
what and where the, in polygamy statute, 585-587, 589-593.
allegation and proof of, in polygamy, 601-604, 609, 610, 612, 613.
punishing foreign, 587.
what the, in adultery, 666; averring and proving, 673, 677, 687-690.
whether indictment negative, in fornication, &c., 693, 700, 720.
when cohabitation under a merely voidable, not a crime, 727.
Offences against; namely, —
polygamy, 577-613; forcible abduction of women, 614-624; seduction
of women, 625-652; adultery, 653-690; living in adultery or for-
nication, 695-709 ; incest, 726-736; miscegenation, 738.
MARRIAGE CELEBRATION,
construction of statute requiring parental consent to, 237.
statute requiring record of, construed, 222.
MARRIED WOMAN, (See CoveRTURE — WIFE.)
when, not within general terms of statute, 131.
whether, can be bailee, 423; can commit larceny, 423.
liquor-selling under statutes enlarging rights of, 1025.
“MARRY,” meaning of word, in statute against polygamy, 590.
MARTIAL LAW, in one State, not extend into another, 205.
MASCULINE, in statute, interpreted to include feminine, 212.
‘‘MATERIALS,” effect of word, in statute, 273.
MATERIALS FOR LOTTERY, (See LoTTERY.)
what are — the books, 209.
statute may authorize seizure of, 957.
MATTER. (See SpecraL Matter.)
MAXIMS,
cessante legis procemio cessat et ipsa lex, 51.
qui heret in litera heret in cortice, 93.
leges posteriores priores contrarias abrogant, 126, note, 156.
699
MEA INDEX OF SUBJECTS.
MAXIMS, — continued.
ubi jus, ibi remedium, 137.
quando aliquid mandatur, mandatur et omne per quod pervenitur ad
illud, 187.
a verbis legis non est recedendum, 145, note.
expressio unius est exclusio alterius, 249, 249 a.
“MAY,” meaning of, in statute, and when read as *‘ shall,’’ 112.
MAYHEM, (See Marm.)
how, punished, in Mississippi, 185.
what, at common law and under statutes, 316.
MEANING OF MAKERS, (See Mortrves.)
object of interpretation to ascertain the, 70, 75, 76.
not interpret, when the, plain, 72.
MEANING PLAIN,
where, interpretation deals only with effect of statute, 191, 201.
interpretation, in such case, not required, 201.
MEANING OF STATUTE, (See ConTRACTING AND ExPANDING —
Errect — Lega Meaning —O_p Meanrnc — One MEANING.)
value of rules to determine the, 9, 73.
limit to power of bending the, 80.
distinguished, in interpretation, from effect, 118 a, 118 4, 189.
how, construed to contract and expand, 119, 120.
non-user ag showing the, 149.
cases not within the letter within the, 190.
of particular words, discussed, 268-330.
MEANINGS, necessity of using words in different, 92 d, 246.
MEANINGS OF LANGUAGE, (See Worps.)
Doctrine as to the, discussed, 92 d-104 a.
numerous and flexible, 92 d.
statutes are words in combination, 93.
all to be read together, 93.
unity of meaning, — illustrations, 94, 95.
same word in same statute, &c., 95 a.
legal meaning — re-enacted statute, 96, 97. *
language adopted from other State or country, 97:
principle applicable to constitution, 97.
revisions and codifications, 98.
subject of statute giving the meaning, 98 a.
technical meaning other than legal — commercial, 99.
exceptions as to technical meaning, 100.
not technical — popular — local, 100-102.
larger meaning, or restricted, 102.
including or excluding State, 108.
same of municipal corporations, 103 a.
contemporaneous interpretation, 104.
judicial and extra-judicial usage, 104.
stare decisis as to interpretation, 104 a.
700
INDEX OF SUBJECTS. MIN
MEANINGS OF WORDS, (See Worps.)
how broad, in strict interpretation, 204.
overlying one another, 246 c-248.
MEDICAL PRACTICE,
rightful sphere of legislation as to regulating, 988 a.
legislation regulating, 1095.
MEDICAL USE, defence of, in liquor selling, 238, 1019, 1020.
MEDICINE, (See Drue.)
how allege the, in abortion, 756, 757.
administering liquor as a, by a physician, not a sale, 1013.
intoxicating liquor viewed as a, 1019, 1020.
MEMORANDUM, what, is a valuable thing, 875.
MEMORANDUM BOOK, may be:a ‘ book of accounts,’’ 340.
MERCHANDISE, (See Goops AnD MERCHANDISE.)
subjecting to fine vendor of, not product of United States, 151.
word, includes animals trafficked in, 1090.
goods are still, after labor expended on them, 1092.
MERCHANT, word, meaning of, 1011, 1090.
MERCHANTS, following vocabulary of, in interpreting statutes, 99.
‘““MESSUAGE,”’ the word ‘ house ’’ in a deed or will equivalent to, 277.
METALLIC COIN , only, is meant by ‘‘ money,”’ 346.
METHODISTS, disturbing, at camp-meeting, 211.
MILK. (See SeLttinc ADULTERATED MILK.)
MILL-SAW, not a “tool,” 319.
MINISTERIAL OFFICERS, (See OFrricer.)
power of, to appoint deputy, 88.
corruptly refusing or granting licenses, indictable therefor, 999.
MINOR, (See Inrants.)
marrying, and selling liquor to, without father’s consent, 237.
ownership by, in malicious mischief, 443.
voting through mistake of age, 819.
statutory offence of gaming by or with, 852.
suffering, to play at games, 877.
indictment and evidence for permitting gaming by, 889.
offence of selling liquor to, 1021, 1022.
how the indictment, 1034 a.
proof of one’s being a, 1048 a.
evidence of agent’s authorization, 1049.
MINOR OFFENCE, (See OFFENCE.)
conviction for, on indictment for a major, as to limitations statute,
261 d.
MINORITY, (See Acre — Minor.)
common-law doctrine of, extends to statutes, 117.
how prove, in permitting gaming by minors, 889.
701
MOD INDEX OF SUBJECTS,
MISCARRIAGE, (See AnorTion.)
word, in statute against abortion, 746.
attempt to procure one’s own, whether indictable, 749.
MISCEGENATION, statutes against, 738.
MISCHIEF, (See Maricrous Miscuier — ParticuLaR MIscHIEF.)
considered in construing statute, 49, 51, 82.
construing statytes to meet the, 190.
liberal interpretation bringing cases within the, 190.
what not within the, excluded in construction, 190 d.
case within the, in strict construction, when nof within statute, 220.
act to be punishable must be within the, of statute, 232, 235.
statutes sometimes extend beyond the, prompting, 236.
things within the, of statute, 232, 235, 236.
MISDEMEANOR, (See FELony.)
guilt of procurer of statutory, 136.
statutory, has common-law incidents, 140.
raising, to felony repeals former law, 174.
attempted felony in dwelling-house, when a, 276.
indictment for, as to word “feloniously,” 439, 452.
whether adultery is a, 668; abortion, 750; gaming, 880; liquor-selling,
1028.
MISNOMER, (See Name.)
in statute, corrected in construction, 243.
indictment abated for, as to limitations statute, 262.
MISPRISION, of statutory treason, how, 139.
MISSISSIPPI RIVER, whether the, deemed navigable, 303.
MISTAKE, effect of, on statute, 39; of election officers, 805, 806.
MISTAKE OF FACT, (See Evit Intent —IGnorance or Law —
KNOWLEDGE OF STATUTE.)
case of, excepted out of statute, 132.
Effect of, in particular cases ; namely, —
as to girl’s age in carnal abuse, 490.
as to dissolution of marriage by death, &c., in polygamy, 594, 596-
596 b, 608.
as to age of girl in seduction, 631 a-632 a.
as to father’s consent to the taking, 632 a.
as to the person, or marriage, in adultery, 663-665, 675.
in incest, as to relationship, 720.
in election offences, 805, 819-821, 824, 825.
produced by drunkenness, 825,
as to age of minor, in gaming, 877.
in liquor selling, 1020, 1022; and how the indictment, 1022.
how, in selling adulterated milk, 1125, 1126.
MITIGATION OF PUNISHMENT, statute in, good, 185.
MIXING LIQUOR, (See Liquor SELLING.)
with other ingredients, as to offence of selling it, 1013, 1020.
how allege sale of mixture, 1041; how the proofs, 1047.
702
INDEX OF SUBJECTS. NAM
MODERN INTERPRETATION, compared with ancient, 118.
MODIFICATION, (See REPEAL.)
of prior law, instead of repeal, 126, 131, 157, 165.
MONEY, (See Banx-BiI113.)
not included in words ‘‘ security for money,” 217.
meaning of the word, 346.
whether ‘‘ goods and chattels,”’ 844, 345.
meaning of the word, in statutes against gaming, 874.
statutory offence of betting, 874; how, allegation, 898, 899; proof, 901.
how indictment for fraudulent winning of, 885; evidence, 886.
“ MONTH,”’ (See CompuTATION OF TIME.)
lunar, calendar, — meaning of, in statute, 105, 107, 109, 110.
unequal lengths of, 110 a; in notes and other contracts, 105, note.
MORAL WRONG, intent to commit, sufficing under statute, 632.
MORMON POLYGAMY, statute against, constitutional, 596 b.
MORTGAGE, is a deed, 340; is a sale, 1015.
MORTGAGE-DEED, not ‘ goods and chattels,’’ 344.
MOTION, statute authorizing proceedings by, construed strictly, 119.
MOTION IN ARREST, ‘‘trial,’? when may include a, 347 a.
MOTIVES, (See Meanine or Makers.)
of makers of statutes and by-laws, how far material, 38.
of legislature, how regarded in interpretation, 76.
good, for violating statute, 238, 239.
MOULD, whether ‘tool or instrument,’ 319.
‘MOULD ADAPTED TO COINING,”’ meaning of expression, 211.
‘“ MULATTO,”’ meaning of the word, 274. .
“MULE,” whether, included in word “ horse,’’ 426, note.
MULES, a race with, is a ‘‘ horse-race,’’ 878.
MULTIPLY FELONIES, statute construed not to, 218.
MUNICIPAL BY-LAWS. (See By-Laws.)
MUNICIPAL CHARTER, “(See CuartTer.)
whether public or private statute, — setting out, in complaint, 42 b, 405.
what words in, not construed to authorize lotteries, 960.
MUNICIPAL CORPORATION, (See By-Laws.)
how, created and controlled, 18, 22, 36.
submitting statutes affecting, to people, 36.
whether general statute extends to, 103 a.
whether indictable to vote illegally for officers of, 818.
construction of statute authorizing, to dispose of property, 960.
MUNICIPAL TAXATION, (See Tax.)
statutes in exemption from, when repealed, 156.
MURDER, (See Homicrpe.) »
statute creating, under word ‘‘ murder,”’ 471.
abortion as common-law, 742.
708
NEG INDEX OF SUBJECTS.
NAME, (See OwnersuP.)
supplying the, to whom order is addressed, 335.
variance in the, in polygamy, 604.
averring the, in indictment for adultery, 673.
averring, of person terrified, in carrying weapons, 795.
exhibiting gaming-table, 895, 896.
played with, alleging, in gaming, 894, 895, 928.
must be proved as laid, 910.
bet with, whether to be averred, 944.
how in indictment for lottery, 964.
buying liquor, whether allege, 1037; how the proofs of, 1047.
NAME OF DEVICE, alleging the, in gaming, 897.
NAME OF GAME, alleging the, in gaming, 896, 897.
NAME OF LIQUOR, sold without license, whether allege, 1038.
“NAME SUBSCRIBED,” in threatening letters, construed, 228.
NATIONAL TAXATION, how as to, 991.
NATURAL RIGHTS, statutes in derogation of, construed strictly, 119.
‘““NATURAL-BORN SUBJECT,” meaning of the expression, 205.
NATURALIZATION PAPERS, voting under, 826, note.
NATURE OF OFFENCE, rendering only actual doer criminal, 145.
NATURE OF SUBJECT, as manifesting legislative intent, 158.
NATURES. (See Dirrerent Natures.)
‘‘NAVIGABLE RIVER,” (See River.)
what — meaning of the words, 303.
‘“NAVIGABLE STREAM,” what is a, 302, note.
NAVIGABLE WATERS, ° (See By-Laws.)
power of city to regulate by by-law quarantine, wharves, &c., on its, 20.
meaning of the term, 303.
NECESSITY, (See War.)
power of, in interpretation, 124, 125, 137.
excuses breach of statute, 132; defence of, in liquor selling, 238.
when indictment for abortion must negative, 755.
‘““NEEDLESSLY KILL”? means more than ‘ kill,’’ 1110.
- NEGATIVE, doctrine as to averring and proving a, 1042-1044, 1051, 1052.
NEGATIVE AVERMENTS,
in carrying weapons, proving the, 800 a.
as to defendant’s want of qualification to vote, 835.
want of license in liquor selling, 1042-1044.
how the burden of proof of the, 1051, 1052.
as to, in keeping tippling-shop, 1067; in hawking and peddling, 1088.
NEGATIVE STATUTE, defined — repeals by, 153.
NEGATIVE WORDS, may make statute mandatory, 255 a.
‘“‘NEGLIGENT ESCAPE,” term, in statute has common-law meaning, 242.
“ NEGRO,”
in statute, is a “ person,’’ 212; meaning of word, 274.
704
INDEX OF SUBJECTS. NUI
NEGRO, — continued.
offence of, carrying arms, 785, note.
gaming with, 854; selling liquor to, 1021.
NEGROES AND WHITES, (See WuitE Person.)
construction of statute against, cohabiting, 221.
mixing of races — intermarriage, 738.
NEW INTEREST, created by statute, governed by old law, 184.
NEW POWERS, statute giving, to magistrate, how construed, 119.
NEW STATUTE, interpreted like some words in old, 97.
NIGHT-TIME, meaning of the term, 276.
NON-EXPERT WITNESS, (See Opinion o¥ WITNESS.)
may testify to one’s being drunk, 982.
NON-OFFICIAL PERSONS,
statutes providing acts to be done by, may be directory, 255.
advice of, in illegal voting, 820.
NON-RESIDENCE, proof of, in election offences, 842.
NON-USER, (See Usace.).
as explaining ambiguity, 104.
whether, works repeal of statute, 149, 150.
custom as a species of, 150. ;
NON-VESTED RIGHTS, (See Vestep Ricurts.)
are ended by repeal of statute, 177 a, 178.
“NOT AUTHORIZED.” (See AuTHORIZED By Law.)
“NOT CONSENT,”’ words, in definition of rape, 480.
NOT GUILTY, statute of limitations available under plea of, 264.
“NOT QUALIFIED,” statutory words, in election offences, 821.
NOTE, (See Bank-NotEs — Promissory Norte.)
when, included in words “goods and chattels,” 209, note.
NOTICE, (See SzRVICE oF Process.) —
by-law void which authorizes proceedings without, 25.
statute before it takes effect is not, 31.
construction of provisions as to, 87.
statutes authorizing, how construed, 119.
must be given, though statute silent respecting, 141.
“NOXIOUS THING,” (See ABORTION.)
words, in statutes against abortion, 747.
how the allegation of administering, 756, 757.
NUISANCE, (See ABATEMENT — Liquor Nuisance.)
by-law providing a regulation to prevent, 20.
abating or creating, authorized by by-law, 21.
statute against, not repeal common law of, 156, note.
proceeding for abatement, or by indictment, 169.
statutes against ‘‘ erecting’? what may become a, 208, note.
of standing jack for mares, 214.
abatable, though statute gives other remedy, 252. =
45 705
OFF INDEX OF SUBJECTS.
NUISANCE, — continued. :
when statute of limitations attaches in, 260 a.
being publicly drunk, 968, 973; how the indictment, 974-977.
NUMBERS OF DAYS, (See CompuTaATION oF TIME.)
in statute, how computed, 107.
OATH, (See Persury.)
when, may be administered by deputy, 129.
power to take, implies power to summon to give, 187.
affirming qualifications as voter, not prevent indictment, 815.
OATH OF ALLEGIANCE, how, under English statute, 190 6.
OBLIGATION OF CONTRACTS,
statute cannot have effect to impair, 85.
OBSOLETE, (See Non-UsEr.)
and half obsolete, statutes in Scotland, 149, note.
whether statutes with us become, 149, 150.
OBSTRUCTING HIGHWAY,
whether imposing fine for, supersedes common-law punishment, 170.
OBSTRUCTING OFFICER, by threatening officer of elections, 223.
OBSTRUCTING PASSAGE, (See Fisu.)
for fish, when, indictable — civil wrong, 1129.
OBTAINING MONEY, &c., by gaming, statutory offence of, 853.
‘©OCCUPY.” (See AcTUALLY OccuPyY.)
ODIOUS, provisions deemed, strictly construed, 192, 193.
“OF,” when, rejected in interpretation, 215.
OFFAL, (See By-Laws.)
by-law forbidding unlicensed removal of, good, 20.
OFFENCE, (See ALTERNATIVE OFFENCE — ANALOGOUS OFFENCES —
Nature oF Orrenck — ONE OFFENCE — PasT OFFENCES —
SreconD OFFENCE.)
punishable both under by-law and statute, 22 and note, 23, 24.
and punishment, separable as to repeal, 166; how of indictment, 167.
repeal of statutes as to the, in distinction from punishment, 173, 174.
statutes creating various offences of one act not repugnant, 173.
not punishable after repeal of law, 177.
statute creating, how proceed on, 250, 250 c.
offence within, as to limitations statute, 261 d.
limitations statute applied to past as well as to future, 263.
barred by statute of limitations, whether, can be revived, 263-267.
‘OFFENSIVE ARMS,” meaning of the words, 321.
“OFFENSIVE WEAPON,” meaning of the words, 321.
“OFFER TO SELL,’ meaning of the words, 1016.
“OFFER TO VOTE,” meaning of the words, 811.
‘¢ OFFERING,” reward to voter, what is, 818.
706
INDEX OF SUBJECTS: ONE
OFFICE, (See Satary-—— Term or Orricr.)
not assignable, 88, note.
effect of repeal of statute creating, 178 a.
construction of statute for removal from, 246, note.
of justice of peace, is a “ public house,”’ within statute against gaming, ,
299.
‘OFFICER, (See ConstaBLz — ReEsISTANCE TO OFFICERS.)
whether special deputy is an, 216.
of election, threatening an, 228.
when statute governing, directory, 255, 256.
of corporation, elected after statutory time expires, 256.
liability of, for neglecting directory duties, 256.
meaning of the term, 271 a.
right of, to break doors, 290.
carrying weapons in official places, 788 e.
liability of, presiding at elections, 806,
how indictment against, for refusing to put name on voting list, 839.
drunkenness of, 969; how the allegation, 976.
OFFICER OF ELECTIONS,
concerning, 805, 806, and see ELecTIon OrFENCEs.
OFFICIAL ACTS,
when statutes concerning time and manner of, directory, 255.
OFFICIAL BOND, statute authorizing summary proceedings i 119.
OFFICIAL CHARACTER, proof of, 841.
OFFICIAL DUTY,
act performed in the discharge of an, not malicious mischief, 432 a.
OFFICIAL STEPS, statutes as to, directory, 255.
OLD LAW, applied to new interests and rights, 134.
OLD MEANING, given to new statute, 97.
OLD STATUTE, interpreted by old meanings, 75.
OMISSION FROM STATUTE, not an enactment of its opposite, 2a) a.
OMNIBUS, indictment for malicious injury to, how, 447.
‘“ON,’’? when word, interpreted as ‘ or,’’ 2438.
“ON COMPLAINT,” meaning of words, in statute, 242.
“ONE CALENDAR MONTH,” meaning of the expression, 110, note.
ONE DAY, several offences of liquor-selling may be on, 1016.
“ONE DAY’S NOTICE,” (See Notice.)
how, computed, 108.
“ONE DAY PREVIOUS,” meaning of expression, in statute, 109.
ONE MEANING, to a single phrase, 94, 95.
ONE OFFENCE, (See JoINDER.)
what is, in malicious mischief, 447 0b.
in driving cattle, 453.
ONE SUBJECT, expressed in title, constitutional requirement of, 36 a.
T07
ORD INDEX OF SUBJECTS.
ONE SYSTEM, (See Construine Laws ToceTHEr — System or
Laws — ToGETHer.)
making the law, by meanings given to statutory words,.242 b.
Doctrine of construing all laws into, 113 b-121.
following ordinary modes of procedure, 114.
foreign written and unwritten laws together, 115.
origin of law not material to interpretation, 116.
all laws require interpretation, 116.
written and unwritten follow like rules, 117.
minority — incapacity for crime, 117.
in general of the doctrine, 117 a.
ancient and modern interpretation compared, 118.
two methods, — effect and meaning, 118 a, 118 5.
expansion and contraction of meanings, 119-121.
OPEN. (See Krepine Open.)
OPEN BOAT, is not a ‘ship or vessel,’’ 216.
OPEN AND CLOSE,
statutes regulating the right to; construed together, 156.
“OPEN AND GROSS LEWDNESS,”’ &c., words, in statute, 714, 724.
‘OPEN AND NOTORIOUS,” (See ADULTERY, & ) _
words, in statutes against adultery and fornication, 698. And see 712,
714, 716.
OPEN AND NOTORIOUS LEWDNESS,
Law of the offence of, 711-718.
Indictment and evidence, 719-725.
OPINION OF WITNESS, (See Non-Expert WITNESS.)
competent, to kind of liquor drank, 1048.
OPINIONS OF LEGISLATORS, (See LegaLt Oprntons— Private
OPINION.)
weight of, in interpretation, 76, 77.
OPIUM, inebriety from, not drunkenness, 972.
OPPORTUNITY, proof of, on indictment for adultery, 679 et seq.
“OR,” (See ALTERNATIVE Provisions.)
effect of, in statute against deserting seamen, 218; carnal abuse, 489.
when, interpreted as “and,”’ 243.
clauses of statute connected by, how the indictment, 244.
in statute against living in adultery “ or’? fornication, 701.
proper in alleging a duty, 1043; and in alleging a negative, 1043.
ORDER, (See GovERNMENTAL ORDER.)
defined, 827; not ‘ money,’’ 346.
averment and proof to make, appear, 331, 335.
“ORDER FOR DELIVERY OF GOODS,” meaning of, 827-331, 335.
‘ORDER FOR PAYMENT OF MONEY,”
need not be commercial order, 206; or specify sum, 829, note.
meaning of the words, 206, 327-331, 335.
‘}ORDINANCE,”’? what is, 18. (See By-Laws.)
708
INDEX OF SUBJECTS. OVE
“ORDINARY,”’ word, meaning of, 1011.
ORDINARY PROCEDURE, - (See PRocepure.)
statutes construed in accord with the, 114.
ORIGIN OF LAW, not material to its interpretation, 116.
ORIGINAL JURISDICTION,
of Supreme Court of United States, what, without statute, 92 5.
- OTHER,”
effect of word, in statute, 298; against rape, 481.
enumerating games, 866, 906. ‘
“OTHER BEAST,”
meaning of — what corresponding pont in indictment, 441.
“ OTHER, CAUSE,” effect of term, in statute, 246, note.
“OTHER. CRAFT,” effect of term, in statute, 245, 246 a, note.
“OTHER METALS,” effect of words, in statute, 246 a, note.
OTHER OFFENCE, proving, in proof of adultery, 680-683.
“OTHER PERSON,”’’ words, in statute, 245; against seduction, 633.
“OTHER PROPERTY,” effect of term, in statute, 246.
“OTHER PUBLIC PLACE,” meaning of the phrase, 298.
OTHER STATES, laws of, with us, 205.
“OTHER THING,’ statutory words, construed, 217.
OTHER WRITINGS,
compared with statutes as to interpretation, 4, 77, 92, 95 a, 97, 98 a.
as to computation of time, 104 d.
OUT-BUILDINGS,
what, parts of ‘‘ dwelling-house,’’ 284-286; of ‘‘ house,’’ 289.
“ OUT-HOUSE,”’
meaning of the word, 291; other than, &c., 289.
méaning of the word, in statutes against gaming, 878.
when a privy is not an, 298, note.
statutory offence of gaming at an, 878; how allegation, 902.
‘“OUT-HOUSE WHERE PEOPLE RESORT,”
meaning of the phrase, 291.
meaning of the wards, in statutes against gaming, 878.
how allege and prove, 902.
“ OUTLAW,”
meaning of word, 242 a, note.
when, not given common-law meaning in statute, 242 a.
when, defence to statutory action, 132.
OUTLAWED PERSON, when, not within general statute, 132.
OUTLAWRY, conviction may be upon an, 348, note. .
OUTSIDE OF STATUTE, what, considered in interpretation, 74-77, 82.
“OVERDRIVE,”’
meaning of, in cruelty to animals, 1107.
how the allegation, 1118. i
709
PAR INDEX OF SUBJECTS.
OVERLIE IN MEANING,
statutory provisions may be construed to, one another, 148, 160, 326.
doctrine of meanings of words overlying one another, 246 c-248, 441.
“OVERLOAD,” ‘
meaning of, in cruelty to animals, 1106.
how the allegation, 1117.
OVERSEER, permit from, same as from master, 134.
OVERSEER OF POOR, whether, an “ officer,” 271 a.
‘OVERWORK,’ meaning of, in cruelty to animals, 1107.
OWNER, whether malice against the, in malicious mischief, 433-437.
OWNERSHIP, (See Name.)
alleging and proving the, in larceny of animals, 428.
-of animal, in malicious mischief, 443.
alleging and proving, in driving cattle, 453.
alleging, &c., in fraudulent marking of cattle, 457.
of place of gaming, proof of, 911.
immaterial in liquor-selling, 1004, 1034.
whether allege and prove, in cruelty to animals, 1120.
PAPER-MOTLD, not a ‘ tool,’”’ 319.
PARDON, reviving forfeited right to vote, 809, 810.
PARENT, (See Caitp — CHILDREN.)
consent of, in seduction, 633, 635; possession of, 636, 637.
selling liquor to minor without consent of, 237, 1021, 1022, 1034 a.
delivering liquor to minor for use of, 1021.
PARI MUTUEL, instrument of gaming, 862.
PARLIAMENT, | (See LEGISLATURE.)
in England, omnipotent and supreme, 33, 40.
former rule of, restraining repeal, 147, note.
Tepugnancy in averment of time of holding, 398.
PARLIAMENT ROLLS, how, made up, &c., 28, 44.
PAROL, (See EviIDENCE.)
proving time of registering deed by, 29.
proving time of enactment of statute by, 29.
whether, meanings of statutes provable by, 76, 77.
owner’s mark proved by, 460; and result of election, 947.
‘license by, when not suffice, 1000.
PART, (See Parts.)
statutes void in, as unconstitutional, 34.
statute as to a, in larceny, 211, note.
PART OF HOUSE, as dwelling-house, 280, 282, 287.
PART FOR WHOLE, construction of statutes which put, 190 b.
PARTIAL CONFLICT,
of by-law and statute, 26; of statute and constitution, 90.
of statutes with each other, 126, 131, 152, 154, 156-157.
710
INDEX OF SUBJECTS. PAS
PARTIAL REPEAL, when, and how viewed, 157, 164 a-174.
PARTICEPS CRIMINIS, (See ACCOMPLICE.)
in polygamy, whether and how punishable, 594.
in adultery, for what offence punishable, 659.
testimony of, in incest, 681, note.
testimony of the, in adultery, 688, 689. .
PARTICULAR AND GENERAL. (See GENERAL AND. PARTICULAR.)
PARTICULAR LAW,
when, not repealed by a subsequent general law, 165, note.
PARTICULAR MISCHIEF, (See Miscuter.)
extending act beyond the, meant, 49, 51, 236.
PARTICULAR POWER, derivable by construction from general, 187.
PARTICULAR PROVISION, (See Speciric Provision.)
of statute, not extended beyond general scope, 87.
and general, standing together, 165, note.
PARTICULAR TERMS,
how, construed in connection with general, 245, 246 and note.
PARTICULAR WORDS, (See GenrERAL Worps.)
followed by general, how the interpretation, 245.
meanings of, in criminal law, 268-358.
PARTNER,
ownership, in burglary, of dwelling-house of a, 280.
whether, sell liquor under license to other partner, 1004.
selling firm’s liquors, 1024.
PARTNERSHIP, liquor license to, 1004, 1024.
PARTS, (See Part-PRovVISIONS OF STATUTES.)
of statutes, construction to harmonize the, 82.
all, to be construed together, 82, 123. '
“PARTY,” meaning of word, in statute, 242, note.
PARTY’S INTEREST, effect of repeal of statute destroying, 151, note.
- PASS,” (See UTTER.)
the word “ utter” not an equivalent for the word, 806.
“ PASSAGE-WAY,”’ (See Way.)
meaning of, in statute against smoking in, 206.
outbuilding separated from dwelling-house by, not part of it, 284.
PASSENGER TICKET, is a “chattel,” 344.
PASSENGERS,
by-law regulating conveyance of, good, 20.
who are, on railway, 470.
PASSING, (See UTrer.)
counterfeit money, statute against, construed, 223.
what is a, 308; a paper, what, 308.
PASSION WITH ANIMAL,
not the malice required in malicious mischief, 437.
PAST OFFENCES, (See OFFENCE.)
whether statutes of limitations apply to, 263.
711
PEN INDEX OF SUBJECTS.
PAST OFFENCES, — continued.
reviving, after barred by statutes of limitations, 265-267.
PAST TRANSACTIONS, (See RETROSPECTIVE.)
how statutes construed as to, 82, 83 a-85 b.
remedy in respect of, changed at the legislative pleasure, 176.
‘PATTERN,’ possessing, adapted for coining, statute how violated, 211.
“PAY OR PUT OFF,” meaning of the phrase, 307.
PAYMENT, (See PRESUMPTION OF PAYMENT.)
may be essential to a license, 1000.
not necessary element in a sale, 1013.
PEACE. (See Breacu oF THE Pegacr.)
‘““PEDDLER, HAWKER, PETTY CHAPMAN,”
who is a, 210; detined, 1074, 1075.
offence of, unlicensed, see HAWKERS AND PEDDLERS.
PEDDLING, act of, may be breach also of liquor laws, 143.
PEDIGREE, proof of, in incest, 735.
PEG-MACHINE, not a “tool,” 319. )
PENAL ACTION, (See Crvit Action.)
may be concurrent with indictment, 170.
effect on, of repeal of statute, 177.
how, in case of a vested right, 178.
not criminal, and concerning, 250 d.
statutes of limitations for, 257, 258.
PENAL CONSEQUENCES,
construction not extend statute to involve, beyond express words, 199.
PENAL STATUTE,
when, technical words have popular meaning in, 100.
differing from ciyil, in computation of time, 110.
construed strictly, 119, 193, 195, 199, 199 a, 200.
liberally in exceptional States, 199 a.
case to be within, must be within, words of, 190 e.
not construed so strictly as to defeat intent of legislature, 193, note.
or work an absurdity, 200.
construction of, strict against accused, liberal in his favor, 196, 226-240.
PENALTIES, concurrent, for same offence, 166-171.
PENALTY, (See PUNISHMENT.)
inseparable from law, 22. -
how far by-law may ordain, 22 must be reasonable, 25.
may be, and criminal punishment, 24.
summary process for, not favored, 114. :
statute cumulative which changes mode of enforcing, 156, note.
statutes imposing, stand with common-law indictment, 164, note.
whether more than one, for one wrong, 171.
new law providing less, for higher grade of offence, 171.
statutes subjecting to, how construed, 193, 199, 222.
must be incurred in full, to authorize punishment, 222, 225.
712
PA ddd
INDEX OF SUBJECTS. PHO
PENALTY, — continued.
statutory, how recovered, 250 d, 251.
what is done contrary to statute imposing, void, 254.
meaning of the word, 260.
under municipal by-law, how sue for, 403, 404.
recoverable, by indictment, for causing death, 467.
not collectible in form of tax, 957.
PENETRATION,
in carnal abuse, 488; failing, is attempt, 495.
in adultery and incest, 661.
PEOPLE,
cannot directly enact laws, 36.
effect of legislative submission of statute to, 36.
PEPPERMINT CORDIAL, whether, ‘‘ spirituous liquor,’’ 1009. '
PEREMPTORY WORDS, in statute, as making it mandatory, 253.
PERJURY,
statute punishing, may include false swearing under subsequent, 129.
construction of act of Congress of 1825 as to, 129.
when, not punishable under repealed bankrupt law, 183.
commission of, not bar indictment for illegal voting, 815.
PERMISSIVE, (See Drrecrory.)
when statute is, and when imperative, 112.
PERMIT, (See License.)
required by statute, given through agent, 134.
in statute requiring, effect of words ‘‘ in writing,”’ 237.
“PERMIT DRUNKENNESS,”’ meaning of the words, 973 a.
PERMITTING GAMING, (See GAMING.)
construction of statute against, 859.
statutory offence of, 876, 877.
indictment and evidence, 889-892, 895.
“ PERSON,”’ (See Name.)
includes negro, Indian, judge, 212.
whether, includes State, United States, corporations, 212.
‘ when larceny from the, not from dwelling-house, 233.
“PERSON OF COLOR,” meaning of the term, 274.
g a5 30h: PERSON AND PROPERTY, legislative control of, 995, 1180.
‘‘PERSONAL GOODS,” choses in action not, 209; meaning of words, 344.
PERSONAL VIEWS,
of judges, not prevail in interpretation, 70, 189 a, 285.
PERSONATING VOTER, offence of, 818 a.
“ PERSONS,”’ allegation in plural, not proved by singular, ‘ person,’’ 889.
‘““PERSITADING TO ENLIST,” meaning of expression, in statute, 225.
PETTY CHAPMAN, (See PEppLER, &c.)
meaning of the term, 210.
PHOTOGRAPHIC LIKENESS, in proof of identity, 610.
713
POL INDEX OF SUBJECTS. :
PHRASES, (See Worps.)
re-enacted, interpretation of, 97.
PHYSICIAN, (See ABORTION.)
administering and prescribing liquor, 1013, 1019, 1020.
statutes requiring license to, for practising medicine, 1095. .
‘¢ PIG,” (See Hoa.)
included in term *‘ cattle,’’ 212, 242.
whether, in term ‘‘ hog,’’ 247, note.
PIGEON-HOLE, is game of chance, 863.
PIGSTY, when an outhouse, 291.
PILLORY, (See PunIsHMENT.)
compared with other punishments, 185.
changing punishment of, to imprisonment, 185.
PISTOL, (See Carrying WEAPONS.)
a ‘¢ dangerous weapon,’’ 320; an ‘ offensive weapon,’’ 321.
when, ‘‘ loaded arms,’’ 322; what is a — loaded — lock, 791.
when indictment need not allege that, was loaded, 795.
charge that defendant carried a, about his person, how sustained, 800 a.
PLACE, (See Pusric PLacz — VENUE.)
law of, for right and remedy, 175.
of voting, how fixed, 811.
allegation of the, in indictment for illegal voting, 834.
word, in statute against gaming, 878.
how allege and prove the, of gaming, 902-907.
whether license specify the, wherein sales to be made, 1003.
PLACE OF GAMING, _— (See Gamine.)
keeping, punishable under statutes, 852.
offence as depending on the, 878.
how allege the, 902-904; proof, 911.
-whether, question of law or fact, 907.
“PLACE OF PUBLIC RESORT,’ words, meaning of, 1011.
PLACE AND TIME, statutes as to, apply to after-created offences, 126.
PLACES OF AMUSEMENT, regulated by statutes, 1096.
PLANS EXHIBITED,
during passage of bill, weight of, in interpretation, 77, note.
« PLANTATION,” meaning of the word, 300, 1011.
PLEA IN BAR, not required as to limitations statute, 264.
PLEA OF GUILTY, constitutes ‘‘ conviction,’’ 348.
PLEAS, giving in the, not deemed part of “ trial,”’ 347 a.
PLURAL, in statute, may include singular, 213.
POACHING, (See Game.)
construction of statute against, —aiders at fact, 88.
limitation of proceedings for, 257, 261.
«« POISON,” -word, in statutes against abortion, 747.
POISONING, (See Abortion — ADMINISTER Porson.)
statute against, construed, 225.
714
INDEX OF SUBJECTS. PRE
POLICE POWER, what, 990; legislature cannot bargain away, 957, 992 a.
POLICEMAN, whether, an * officer,”’ 271 a.
POLICY OF LAW, (See LeaisLatrvE Poticy — Pusuic Pottcy.)
statutes in contravention of, strictly construed, 119, 189 c.
in what sense all laws are within the, 189 a.
statutes in accord with, construed liberally, 189 d.
contracts against, void, 138 a, 254.
lotteries are against the, 960.
POLITICAL DEPARTMENT, expounder of treaties, 13 a, 14.
POLYGAMY,
statutory jurisdiction in, 112, 586-588.
in what country the indictment for, 112, 599.
exception of divorced in statute against, construed, 229, 583.
when statute of limitations attaches in, 260 a.
the term — compared with bigamy, 577.
Law of the offence of, 579-597.
common law and legislation, 579-582.
expositions of statutes and doctrines, 583-597.
Procedure for offence of, 598-613.
indictment, 598-606; evidence, 607-613.
POOR, statutes for support of the, bind State, 103.
“POP,” what, whether judicially known, 1006 a.
POPULAR MEANING, (See Meaning, &.)
when words of statute have, 100-102.
may be given words even in strict interpretation, 204.
PORTABLE MACHINE, for spinning and making cloth, not a tool, 319.
POSSESSION, (See Havine ry Possession.)
of a thing, not a “ receiving,’’ 208, note.
taking out of lawful, what in seduction, 636.
POSTDATED, a check, may be an “ order,’’ 828.
POSTMASTER, detaining bankrupt’s letters, 825.
“POT,” a “ weapon drawn,”’ 323.
POWER, (See DiscrETIONARY PowER— DouBtFruL Powrr — New
Powers.)
under new law, may be derived from old, 87.
statute creating, mandatory, 256.
PRACTICE, adhering to a, founded on interpretation, 104 a.
PRACTISING MEDICINE,
statute against, construed, 238; regulating, 1095.
PREAMBLE,
recital of, in pleading private statute, 399.
to Black Act, 434, note.
The, of statute, considered, 48-51.
similar to title — no part of statute, 48.
weight of, in interpretation, 48, 49.
.Tecitations of facts in the, 50.
715
PRI INDEX OF SUBJECTS.
PREAMBLE, — continued.
in general of the, 51.
looking into the, as to statutory meaning, 82.
same in strict interpretation as in liberal, 200.
PRECEDENCE OF LAWS,
the, explained, 11-17 a.
statutes bearing same date, — proving actual precedence of time, 29.
PRECEDENCE OF PROVISIONS,
In same statute, considered, 62-65.
all provisions construed together, 62.
conflict between parts — effect of location, 63-65.
parts controlling one another, 64.
proviso and saving clause, 65.
PRECEPT, whether set out the, in indictment for election fraud, 832-831.
PREGNANCY, at what stage of, abortion indictable, 744, 746.
‘*PREGNANT WITH CHILD,” words, whether foetus alive, 746.
‘¢ PREMISES,”
meaning of the term, 291, note, 1011.
permitting, to be used for gaming, 852.
in law of gaming, 878; in liquor-selling, 1011, 1013, 1065, note.
selling liquor to be drank on the, 1060-1063.
PRESENTMENT, ;
by grand jury, whether commencement of prosecution, 261.
PRESIDENT’S PROCLAMATIONS, when, take effect, 29, note.
‘““PRESUME TO BE SELLER,” words, meaning of, 1017.
PRESUMPTION, (See Knowiepce or Law— Statutory Pre-
SUMPTIONS.)
of malice against owner, in malicious mischief, 487.
effect of, in proof of marriage, 607-613.
as to domicile, 842; as to license to do an act, 1051, 1052.
PRESUMPTION OF CHASTITY, effect of the, 648.
PRESUMPTION OF LIFE, in polygamy, 611.
PRESUMPTION OF PAYMENT,
lapse of time does not create, against State, 103.
“PREVIOUS CHASTE CHARACTER,”
words, in statute against seduction, 639.
the indictment, 647, 648; the evidence, 648.
PRICE, whether aver the, in indictment for unlicensed selling, 1040.
PRINCIPAL, , (See Agent — CLerK — Szconp DEGREE.)
who, in first degree in child murder, 775.
selling liquor by agent, 1024, 1027; proof of agency, 1049.
PRINCIPAL AND ACCESSORY,
doctrine of, extends to statutory felony, 139, 142, 145.
distinction of, not presumed taken away by statute, 142.
but taken away by particular statutory words, 145.
or not extend to some offences by reason of their special natures, 145.
716
INDEX OF SUBJECTS. ® PRI
PRINCIPAL AND AGENT,
both, may be liable for same offence, 1027.
doctrine of, illustrated in liquor selling, 1024, 1049.
PRINCIPAL IN SECOND DEGREE, (See Szconp DEGREE.)
PRINTING-PRESS, not a “ tool,’’ 319.
PRIOR INTERPRETATION, (See Stare Decisis.)
from another State or country, following, or not, 97.
PRIOR LAW; (See Common Law — Derogaation, &c.)
all, considered in construing statute, 4-7, 75, 82, 134.
presumed known by legislature — important presumption, 75.
intent of legislature derived from, 87.
custom may supplement, not supersede, 150.
not inconsistent with void statute, 152.
what part of, repealed by affirmative statute, 154.
statutes in derogation of, construed strictly, 119, 155, 189 a, 193.
statute as repeal of the conflicting, 160 and note. And see RePea..
PRIORITY OF ACTS, when, may be shown, 29.
PRISON. (See Jai.)
PRIVATE BOARDING-HOUSE, is not an inn, 297.
PRIVATE CORPORATIONS, (See CHARTER.)
charters of, are private statutes,.42d.
PRIVATE DUTY, imposed by statute, consequences of violating, 138.
PRIVATE DWELLING-HOUSE, whether, may be ‘ public place,’’ 298.
PRIVATE HARDSHIPS, statutes construed to avoid, 82.
PRIVATE INTERESTS,
interpretation to avoid impairing, 82, 90, 93.
statute creating, but silent as to remedy, how, 250 a.
PRIVATE LAND,
strict interpretation for statutes taking, for public use, 119.
PRIVATE OPINIONS, (See Jupgr — Opinions or LEGISLATORS —
Personal VIEWS.)
of judges, not to influence interpretation of statute, 235.
PRIVATE PROPERTY, (See Property.) °
by-law cannot authorize destruction of, 21.
whether statute can convey away vested, 40.
PRIVATE RIGHTS,
statutes taking away, construed strictly, 189 c¢.
procedure on statutes creating, 250 a.
statute creating, mandatory, 255.
PRIVATE STATUTE, _ (See Pustic STATUTE.)
what isa, 42 a, 42 c, 42 d, 118.
whether, judicial knowledge of, 37.
effect on, of fraud, 38.
effect of recitations of facts in preamble of, 50.
how, interpreted, 113; repeal of, 160, note.
indictment and proceedings on, 394-402,
- recognized by public statute, is public, 402. -
717
PRO INDEX OF SUBJECTS.
PRIVATE WRITINGS, interpretation of, related to statutory, 4, 77.
“PRIVATELY,” effect of word, in statute against larceny, 222, 233.
PRIVY, (See Our-BurLpines.)
is parcel of dwelling-house, 278, 286.
when, not a ‘‘ public place ’’ or ‘+ out-house,’’ 298, note.:
PRIZE CONCERT, is a lottery, 955.
PROCEDURE, (See JupicraL Procrepincs — Remepy.)
statutes regulating the, retrospective, 84.
bind the State, 103.
ordinary, construction favors the, 114.
statutes regulating, construed together to avoid repeal, 156.
pertains to remedy — how, change, 176.
effect of repeal of statute on the, 177.
for rights reserved on repeal of statute, 179.
effect of statute omitting or not to provide, 249 6-253.
same on written law as unwritten, 352.
statutory modifications of, in gaming, 913.
PROCEEDINGS, (See SuwmMary ProcepuREz.)
pending in one court, bar same in another, 164.
to conform to law at time carried on, 176, 177.
ended by repeal of statute, 177, 177 a.
under repealed statute, validated by statute, 180, note.
authorized after statute repealed, 180.
adjudged erroneous, how as to limitations statute, 262.
PROCESS, (See Noticz — Service or Process.)
actually abated because of repeal of statute, how, 180, note.
statute construed not to defeat the, to enforce it, 200.
delivery. of, to officer, as to commencement of suit, 261.
breaking doors to serve, 290.
PROCESS OF ENACTMENT, statute of no effect during, 28, note.
‘““PROCESS OF MANUFACTURE,”’ what is, 211.
PROCLAMATION, of president, when takes effect, 29, note.
‘“PROCURE TO HAVE,” illicit intercourse, in seduction, 642 a.
PROFESSIONAL USAGE,
whether, provable to show interpretation of statute, 104, note.
PROFITS, receiving the, constitutes participation in the offence, 135.
PROGRESS OF MANUFACTURE, what is a, 211.
PROHIBITION,
by implication in statute, 249.
whether, implied from penalty or forfeiture, 254.
PROHIBITORY LAWS. (See Liquor SELLING.)
PROMISE, (See ContRAcT.)
to violate statute, not enforceable, 138 a, 254.
«PROMISE OF MARRIAGE,” (See MarrraGE )
seduction under, 638; how the indictment, 646.
718
B
INDEX OF SUBJECTS. PUL
“PROMISING,” reward to voters, how, 818.
PROMISSORY NOTE, (See Note.) :
“month” in, is calendar month, 105, note.
defined, and whether includes bank-bills, 326, 336.
as to larceny; 345; not “money,” 346.
for liquor unlawfully sold, not valid, 1030.
PROOF, (See Burpen' or Proor — Evipence — PRESUMPTION.)
of marriage, 607-613.
(And see the specific offences.)
PROOF OF STATUTES, doctrine as to, 37, 37 a.
PROPERTY, (See PrivaTE PROPERTY.)
all, in corporate limits, subject to by-laws, 22.
word, whether includes real estate, 102.
statutes taking away, how construed, 193.
statutes taking, for public use, how construed, 193, note.
may be regulated by legislation for the public good, 793, 995, 1130.
PROSECUTING ATTORNEY, whether, an officer, 271 a.
PROSECUTION, (See INDICTMENT.)
meaning of word — what is commencement of, 261.
beginning of, for one offence, not interrupt limitations statute for an-
other, 262.
authorizing criminal, after limitations bar, 265-267.
‘PROSECUTION PENDING,’’ what is a, 261, note.
PROSPECTIVE, (See RETROSPECTIVE.)
how far statutes to be interpreted as, 82-85 a.
PROSPECTIVE LEGISLATION, defined, 83; interpretation of, 82-85 a.
‘* PROSTITUTE,” (See Purpose or Prostitution.)
who is a, 641; question of law for court, 652.
PROTECTION OF FISH. (See Fisu.)
PROTECTION OF GAME. (See Game.)
PROVISIONS OF STATUTES, (See Parts.)
irreconcilably repugnant, not stand together — how, 41.
precedence of, 62-65.
differing, harmonized by construction, 82.
construed together, 82, 86, 87. ;
restrained and extended by construction, 87.
construed also with common law, 86-88.
and with constitution, 89.
PROVISO, (See Exception.)
in statute, what, how interpreted, 57.
how, construed with saving clause, 65.
in conflict with purview, how, 65.
in favor of accused, construed liberally, 226, 229.
in statute against polygamy, negativing, 605, 606.
in liquor law, negativing, 1042-1044.
PUBLIC BRIDGE, is parcel of highway, 301.
719
PUB INDEX OF SUBJECTS.
PUBLIC CONVENIENCE, statutes to promote, liberally construed, 120.
PUBLIC DRUNKARD, when, punishable, 968, 973.
PUBLIC DUTY, imposed by statute, consequences of violating, 138.
‘* PUBLIC GAMBLING-HOUSE,”’ (See Gamine )
words, in statute against gaming, 878.
PUBLIC GOOD, (See REGULATE.)
how statutes to promote the, construed, 199.
legislative power over person and property for the, 793, 995, 1130.
PUBLIC HOUSE, (See Inn.)
meaning of words, 299, 1011.
gaming in, indictable under statutes, 852.
meaning of the words, in statutes against gaming, 878.
how allege and prove, 902-907.
“PUBLIC INDECENCY,’’ meaning of the words, 717.
PUBLIC INTERESTS, interpretation to avoid impairing, 82.
PUBLIC NECESSITIES, considerations of, in interpretation, 77.
PUBLIC OFFICE, power and effect of repeal of statute creating, 178 a.
PUBLIC OFFICER, (See OFFICER.)
proceedings on official bond of, 119.
meaning of the term, 271 a.
PUBLIC ORDER, Unlicensed business violative of the, discussed, 1093-1697.
‘PUBLIC PLACE,”’’
meaning of the term, 298.
gaming in, indictable under statutes, 852.
meaning of the words, in statutes agaiust gaming, 878.
how allege and prove, 902-907.
statutes against being drunk in a, 973; how the indictment, 975.
PUBLIC POLICY, (See Poricy or Law.)
regarded in interpretation of statute, 82, 90.
contracts and things done contrary to, 138 a, 254.
PUBLIC AND PRIVATE, division of statutes into, 42 a.
PUBLIC RIGHTS,
statutes taking away, construed strictly, 189 c.
: statutes creating, mandatory, 259.
PUBLIC STATUTE, (See Private Statute.)
defined and explained, 42 a, 42 b.
courts take judicial cognizance of, 29 and note, 77.
indictment need not recite, 395; effect of misrecital, 395, 401.
when private statute becomes a, 402.
PUBLIC USE, (See PROPERTY.)
authority to take private property for, how construed, 119, 193, note.
PUBLIC WAY, (See Highway — Way.)
out-buildings separated by, not part of dwelling-house, 284.
PUBLIC WRONGS, how statutes to suppress, construed, 199.
‘* PUBLISH,”’ ‘ show forth in evidence,”’ not an equivalent for, 309.
720
INDEX OF SUBJECTS. PUR
PUNCTUATION,
effect of, on meaning of statute, 78; on indictment, 78, note.
PUNISHMENT, (See Crimes — SENTENCE — WHIPPING.)
constitutes necessary part of law, 22.
how far by-laws may declare, 22, 23.
different statutes as to, construed together, 127.
for violation of stattite not defining the, 138, 873.
not two repugnant punishments for same offence, 158.
and offence, separable, in respect of repeal, 166-174.
what concerns the, to be set out in indictment, 166, 167, 444, 445, 464.
effect of changing the, in various circumstances, 166-172.
changed by repugnance to old law, 168.
effect of reducing — increasing, 168.
statutory fine, penal action, &c., as to common-law, 170.
whether more than one, for one wrong, 171.
pertains to remedy — depends on law at time of sentence, 176.
statute increasing, for prior offences, void as ex post facto, 176.
may vary with time when offence committed, 183, 184.
whether common-law, after repeal of statute, 184.
changed, after offence committed, 184.
statute good, in mitigation of, 185.
statutes imposing, construed strictly, 193.
‘degree of, as affecting interpretation of statute, 199.
some principles relating to the, 235.
statute making, heavier for second offence, how construed, 240.
simply providing, for common-law offence, 416.
for adultery, made heavier when between whites and blacks, 666 a.
forfeiture of right to vote as a, for crime, 809, 810.
how indictment under statute providing heavier, for second offence,
981.
how the, in liquor selling, 1026.
PURCHASER, of intoxicating liquor, whether punishable, 986, 1029.
‘“*PURPORTING,”’ meaning of word, 100, note.
“PURPOSE OF PROSTITUTION,” . (See Sepuction.)
effect of words, in statutes against seduction, 641.
as to form of indictment, 646.
PURPOSE OF STATUTE, carried out by interpretation, 200.
PURVIEW, _ (See Statute.)
The, and its subdivisions, considered, 52-61.
meaning of term, 52. And see 152.
clause, and its meaning, 53.
interpretation clause, and how interpreted, 54, 55.
enacting clause, proviso, exception, 56-58.
saving clause, other clauses, 59, 60.
marginal notes, 61.
In other connections, —
prevails over title and preamble when in conflict, 62, 63.
in conflict with proviso, how construed, 65.
46 721
RAP INDEX OF SUBJECTS.
PURVIEW, — continued.
different meanings of the word, 152.
effect of statute repealing ‘all laws within its purview,’’ 152.
within ‘‘ same mischief ’’ — ‘‘ purview,”’ 220.
of private statute, how recited in indictment, 400, 401.
PUTATIVE FATHER, liability of, under English statute, 190 a.
‘““PUT-OFF,” (See Passinc —- UTTER.)
meaning of the words, 307:
QUALIFICATIONS, (See Exception, &c.)
making, in statutes, by construction, 117 a.
construed into statutes, to prevent repeal, 156.
how, where statute requires special, in licensee, 999 a.
QUALIFICATIONS OF VOTERS, (See ELEcTION OFFENCES.)
constitutional, not subject to legislation, 809.
how allege want of, 835.
QUANTITY, (See Liquor SELLING.)
of liquor sold, when material to offence, 1013.
how estimate the, when different liquors sold together, 1017.
whether and how allege the, 1039; the proofs, 1047.
QUARANTINE, by-law regulating, good, 20.
QUARTER-TICKET, (See Lorrery Tickets.)
is a lottery ticket, 211.
QUASHING INDICTMENT, effect of, as to statute of limitations, 262.
“ QUICK WITH CHILD,”
meaning of, and how in abortion, 744-746, 753.
QUI-TAM ACTION,
subsisting with indictment — no repeal, 156, note.
and indictment, whether concurrent, 170:
effect on, of repeal of statute, 177.
who plaintiff in, and further concerning, 250 d.
QUOTATION MARKS, effect of, in indictment, 78, note.
RAILROAD. (See Fencinc RarLroapD.)
RAILROAD BRIDGE, whether, in law, a “ bridge,” 301, note.
RAILROAD DEPOT, when, is a warehouse, 293.
‘“RAM,”’ whether, a ‘‘sheep,’’ 248.
RAMPS, game of, by what words prohibited, 869.
RAPE, (See CarnaL ABusE — WomaAN.)
attempted, by negro on white woman, 211.
common-law and statutory, distinguished, 478.
statutory modifications of, 480-482.
carnal abuse of young girl termed, 485.
not also seduction, 643.
722
INDEX OF SUBJECTS. RED
RAPE, — continued.
whether, may be also adalat or fornication, 660.
victim of, not an adulteress, 663.
RATIFICATION, of treaty, as to time of going into effect, 32.
“RAVISH,’’ word, not in indictment for carnal abuse, 486.
REALTY, larceny of things pertaining to, under statutes, 416.
REASON, (See Reasons or Law.)
case within the, of statute, not within it in strict construction unless
within its words, 220.
case out of the, of statute, not within statute, 226, 232, 235.
REASONABLE AND ‘BENEFICIAL, by-laws must be, 22, 25, 26.
REASONABLE DOUBT, as to interpretation, given the accused, 194.
REASONABLE MEANING, (See Meanine or Statute.)
construction must give statute a, 93.
even in strict construction, statute may receive, 212~215.
REASONS OF LAW, (See Reason.)
looking into title and preamble for, 46, 48, 49.
statutes within the, may have retrospective effect, 84 a.
statutes interpreted by the, 102.
effect of, to contract and expand statutory meanings, 188-190 e.
(See Contracting AND EXPANDING.)
REBELLION, effect of, on limitations statute, 261 a, 267.
RECEIPT, concerning what is a, 828, note, 335, 342.
“ RECEIPT FOR GOODS,’’ meaning of the words, 341, 342.
‘“RECEIPT FOR MONEY,’ meaning of the words, 341, 342.
“RECEIVING,” mere keeping of possession is not, 208, note.
RECEIVING STOLEN GOODS,
some interpretations of statutes as to, 345, 413.
RECITAL,
of private and public statutes in pleading, 395-402, 405.
same of municipal by-laws, 405, 406.
RECITATIONS OF FACTS, in preamble, effect of, 50.
RECOGNIZANCE, (See Direcrory.)
departing from statute, good at common law, 164, note.
as to form of the, in gaming, 917.
RECONCILED, no repeal of affirmative statutes which can be, 154.
RECORD OF MARRIAGE, construction of statute requiring, 222.
RECORDS, (See LeaisuaTive Recorps.)
examining, as to time when statute was passed, 29.
looking into, as to words and validity of statute, 37.
proof of marriage by, in polygamy, 610.
in proof of age, 491.
omitting to make entry of license in the, 1000.
RECTIFIER OF SPIRITS, whether, a “ distiller,” 273.
REDEMPTION OF LAND, statutes permitting, liberally construed, 120.
723
REP INDEX OF SUBJECTS.
REDUNDANT WORDS, may be rejected in interpretation, 215.
RE-ENACTED STATUTES, meanings of, 97.
RE-ENACTMENT, of statute simultaneously with repeal, 181.
REFORMATION, of unchaste woman, recognized in law, 639.
‘REFRESHMENT SALOON,” meaning of the words, 1011.
REFUSAL, of liquor license, though wrongful, not authorize selling, 1006.
tEGISTER OF BIRTHS, causing false entry in, what, 210.
REGISTRATION, how allege unlawful, 835.
REGISTRATION LAWS, power of legislation to establish, 809.
REGULATE, (See Pusric Goon.)
legislation may, a constitutional right, 809.
RELATIONSHIP, knowledge of, in incest, 729; averring, 732; proving, 735.
RELIGION, statutes for advancement of, bind State, 103.
RELIGIOUS BELIEFS, not within sphere of legislation to regulate, 988 a.
REMEDIAL STATUTES, (See Remepy.)
construed liberally, and why, 120, 189 d, 190, note, 192, 198.
REMEDIES, (See Concurrent Remepres — DirrereNnt Natures.)
double, triple, &c., 163 d-164.
of different natures, operating together, 169-172.
under statutes, and how statutory and common-law, mingle, 249 6-253.
REMEDY, (See Cosmoyx-Law Remwepy— Duty axp Remepy —
Procepure— Statutory Rieu.)
reason of the, considered in interpretation, 52.
statutes regulating the, retrospective, 85 a.
may be changed even as to vested rights, 85 a.
implied by law, for every right created by statute or constitution, 137.
but not where the creating law defines the, 137.
common-law, for statutory right, 138, 144.
may be multifarious, 169.
distinguishable from right, — rule for each, 175.
what statute governs the, 176.
statutes taking away — rights vested or not, 178.
statute may modify, yet not so as to leave no, 178.
revived by statute after lapsed, 180.
flows from right — cumulative or not, 249.
express, excluding implied, 249-250 b.
for statutory right, what, 249-253.
limitations statutes pertain to the, 264 a, 266.
REPEAL, (See Express REPEAL — Repeatine STATUTE.)
clause in unconstitutional statute declaring, 34.
effect of submitting question of, to people, 36.
partial, by partly conflicting statutes, 126 and note, 131.
statutes restricted in operation, without, 131.
not, implied from omission, 161, 249 a.
General doctrine of, 147-163 a.
legislation cannot forbid future, 147.
724
INDEX OF SUBJECTS. BEP
REPEAL, — continued.
Whether non-user works a, 149, 150.
conflicting opinions, 149.
effect of custom, 150.
By express words, 151-152 a.
forms of direct expression, 151.
before enactment complete, 151.
within ‘“ purview ’? — “‘ inconsistent ’? — general and special, &c., 152.
by amendment — ‘‘ in lieu,” 152 a.
By implication, 153-162.
distinctions — by negative statute, 153.
by affirmative statute, 154-162.
derogation of prior law, 155
specific and general — illustrations, 156.
other forms — partial, 156 a, 157.
revision of whole subject, 158-162.
In particular States, 163, 163 a.
authorities grouped, 163.
course of the discussion, 163 a.
Doctrine of implied, combining with other doctrines, 163 b-174.
general view, 163 b.
Concurrent remedies and sources of right avoiding implied, 163 d-164.
in nature — in law, 163 d.
doctrine defined, 163:e.:
election of jurisdictions, 164.
proceedings in one court barring same in another, 164.
election between common law and statute — concurrent, 164.
Divisibility of laws, by admitting of partial, avoiding the entire, 164 a-174.
nature of divisibility — illustrations, 164 a.
partial — modification — distinctions, 165.
where provisions separable for, 166-174.
offence and punishment, separable, 166.
same as to form of indictment, 167.
changing punishment, 168.
remedies differing with punishment, 169.
remedies of different natures, 170.
two penalties, &c., for one wrong, 171.
offences variously aggravated, 171.
separate crimes in one transaction, 172.
offence, in distinction from punishment, 173.
felony and misdemeanor, 174..
Consequences following actual and attempted, 174 a-187.
complications of doctrine, 174 a. -
The general doctrine, 175-180.
right and remedy, concerning and distinguished, 175.
as to remedy or procedure — punishment, 176. ~
repeal ends proceedings — illustrations, 177, 177 a.
taking away remedy — vested: rights, &c., 178.
as to office — suing State, 178 a.
725
RES INDEX OF SUBJECTS.
REPEAL, — continued.
statutes limiting effect of, 179.
saving clause in repealing statute, 180.
reviving lapsed right, 180.
Specific questions of effect of, 11-187.
simultaneous, and re-enactment, 181.
statutes expiring by own limitation, 182.
punishment differing with time of offence, 183.
further of change of punishment, 154, 185.
repeal of repealing statute, 186.
repealing statute expiring, 187.
REPEALED STATUTES,
to be interpreted with existing, 82, 98.
how re-enactment of, interpreted, 97.
no proceeding under, 177.
REPEALING CLAUSE,
does not operate till statute goes into effect, 31.
how, interpreted, 151.
special terms of, 152.
REPEALING STATUTE, (See Express Repeat.)
how, while validity of, is in suspense, 151.
effect of repeal of, 186; of expiring, 187.
REPORT OF COMMISSIONERS, weight of, in interpretation, 77, note.
REPORTS OF COMMITTEES, effect of, in interpretation, 77.
REPUGNANCE, (See ConFiict.)
of provisions, produces nullity in statute, 41.
how cases of, dealt with in construction, 65. -
interpretation to avoid, 82.
no repeal by affirmative statute without, 157, 160, 163.
views of, as to repeal, 158.
partial repeal by, 165 et seq.
when no, between statutes providing different punishments, 172.
REPUGNANT STATUTES, (See REPUGNANCE.)
repeals of, by affirmative, 154-162.
REPUTATION, (See CHastity.)
as to chastity, evidence in seduction, 639.
of parties in neighborhood, not admissible in adultery, 678.
relationship and pedigree in incest may be proved by, 735.
‘REQUEST FOR DELIVERY OF GOODS,” meaning of, 334, 335.
“REQUEST FOR PAYMENT OF MONEY,” meaning of, 334, 335.
RESCUE, of statutory traitor, offence of, 136.
‘“ RESEMBLE OR PASS FOR,’’ what, in counterfeiting, 225.
*“* RESIDENCE,”’
of voter, what is —compared with domicil, 817.
presumption of, continuing, 842.
726
INDEX OF SUBJECTS. RIG
RESISTANCE TO OFFICERS, (See OFFICER.)
statute against, construed, 216.
RESTAURANT, is not an “ inn,’ 297.
RESTRAINT OF TRADE, (See TRADE.)
statutes in, strictly construed, 119.
“ RETAIL,” (See Liquor SELLING.)
meaning of the word, 1016, 1045, note.
statutes forbidding sales of liquor by, 1013, 1016, 1039.
RETROSPECTIVE, (See Ex Post Facto Laws.)
by-law cannot be, 22.
how far statutes may be construed as, 82-85 a.
how far constitutions interpreted as, 92 a.
statute of limitations, how interpreted as to, 263, 265.
RETROSPECTIVE LAW, (See Ex Post Facto.)
distinguished from ex post facto — whether valid, 85.
RETROSPECTIVE LEGISLATION, defined, 83; interpretation of, 82-85 a.
REVENUE LAWS, (See Tax.)
construed by usages of trade, 99.
explanations of construction of — strict or liberal, 195.
when, directory, 255.
unlicensed business in breach of, 1098.
REVISED STATUTES, (See REvisrIons.)
interpreted as one act, 82, note.
omitting parts in, effect as to repeal, 160 and note, 161, note.
REVISIONS,
of statutes, how interpreted, 98.
follow old interpretations, 144.
of whole subject, effect of, as to repeal, 158-174.
REVIVED, expired statute made to be, by proclamation, 36.
REVOKING, license to sell liquor, 1008 a.
REVOLVERS, not ‘‘arms,’’ 793; allegations for wearing, concealed, 797.
REWARD, order to pay a, is an ‘‘ order,’’ 206.
RIGHT, RIGHTS, (See Existinc Riguts—Larsep Ricat — Natu-
RAL Riguts — Remepy — Statutory RicutT— VeEstep RigutTs.)
permissive words conferring, construed imperative, 112.
taking away, not favored by law, 119.
carries by implication a remedy, 137, 249.
‘double, triple, &c., rights and remedies, 163 d-164.
what statute governs the, 175.
distinguished from remedy — rule for each, 175.
statute depriving of public or private, strictly construed, 189 c, 192.
RIGHT AND REMEDY,
rules distinguishing, 175 et seq.; how, blend, 249 b-253.
RIGHTFULNESS, belief of, no defence in liquor selling, 1023.
RIGHTS OF PROPERTY,
special effect of contemporaneous interpretation as to, 104.
727
SCR INDEX OF SUBJECTS.
RIGHTS OF PROPERTY, — continued.
judicial interpretation as to, 104 a.
construed to mean legal rights, 223.
“ RIVER,” (See NavicaBLe River.)
what — meaning of the word, 302, 303.
ROAD, when, a ‘ public place,’’ 298.
ROADSTEAD, an open, is of the ‘ high seas,’’ 304.
‘‘ROB,” meaning of word, in statute, 242, note.
ROBBING MAIL, statute against, construed, 320.
ROLLS OF PARLIAMENT. (See PartramentT Rous.)
RONDO, whether, game of chance, 863.
ROOMS OF LODGERS,
how of, as “ dwelling-houses,” 280, 287.
ROULETTE, game of, 866.
“RUMOR,” (See Fatse Rumor.)
not, admissible in evidence of open lewdness, 725.
SABBATH-BREAKING. (See Lorp’s Day.)
SADDLER’S SHOP, a “public house,’’ 299, note.
‘*SAID,”’ effect of omitting word, in indictment, 401.
SAILORS. (See DeserTInG SEAMEN.)
SALARY, (See OFFICE.)
construction of successive statutes as to, 130.
when statute fixing, abrogates former law, 156 a.
what, to officer after repeal of statute, 178 a.
SALE, (See Jupicrat SALE — SELL.)
when, of services, equivalent to sale of person serving, 211.
what a, and ‘‘ barter’’ and ‘‘ exchange ’’ distinguished, 1013-1015.
mortgage as a, 1015; how, proved, 1046.
alleging, of lottery tickets, 962.
as to alleging, in indictment for peddling, 1084, 1085.
SALE OF LIQUORS. (See Liquor SELLING.)
‘¢ SALOON,”’ meaning of, 1011; gaming in, 852, 878.
“SAME OR LIKE KIND,” (See Lixe Kinp.)
meaning of words, 864-866.
SAVING CLAUSE, (See Crausx — Secrions.)
in statute, what, and concerning, 59.
how, construed with proviso and purview, 65.'
in repealing statute, concerning, 180.
SCHOOL-HOUSE,
whether, a ‘‘ house,’’ 289, note.
privy belonging to, whether “public place,” 298, note.
SCIENCE OF LAW, statutory interpretation involves entire, 4.
SCRIP RECEIPT, when, not a ‘‘receipt,’’ 341.
728
INDEX OF SUBJECTS. a SED
“SEA,” what the word, comprehends, 304.
SEAMEN. (See Dusertinc SEAMEN.)
SEAS. (See Hiau Seas.)
SEA-SHORE, meaning of the term, 805.
SECESSION WAR, (See War.)
legislation after, as to statute of limitations, 267.
SECOND DEGREE, (See AIDER.)
Concerning the principal of the, in felony, §c. ; namely, —
common-law doctrine of the, 88.
extends to statutes — illustrated in poaching, 88.
how of, in other statutory offences, 135, 186, 139, 145.
in polygamy, 594; in adultery, 659; in abortion, 749; in concealment
of birth, 770, 775; in gaming, 881; in liquor selling; 1029.
SECOND JEOPARDY, ' (See Seconp ProsEcurion.)
under statute and by-law, 24.
some questions of, in liquor selling, 1027.
SECOND OFFENCE, (See OFFENCE.)
statutes punishing, more heavily, how construed, 240.
of drunkenness, how and how allege, 981.
of liquor selling, how allege, 1044 a.
SECOND PROSECUTION, . (See Seconp JEOPARDY.)
“ for one act, under different statutes, 143.
whether, for different. penalty, 171, 172. .
‘‘ SECRET,” word, in carrying weapons,.786, 788.
“SECRET BURYING,” words, in concealment of birth, 771.
“SECRET DISPOSITION,”
words, in concealment of birth, 7738.
how the allegation, 778.
SECTIONS, (See CLausE —Savine CLAUSE.)
origin and history of, in statute, 66.
effect of the division into, 67, 251.
‘ SECURITIES,” meaning of the word, 340.
“SECURITIES AND EFFECTS,’ meaning of the words, 340.
“SECURITY FOR MONEY,”
statutory words, not construed to include money, 217.
meaning of the term, 340.
“SEDUCE AND DEBAUCH,” ;
words, in statute against seduction, 612.
meaning of, for court, 652.
SEDUCTION OF WOMEN, (See ABDUCTION OF WomEN — DE-
FILEMENT OF WoMEN.)
conspiracy to seduce, distinguished, 625.
Law of the offence of, 627-643.
old statutes and common law, 627-629.
modern statutes and their expositions, 680-643.
729
SER INDEX OF SUBJECTS.
SEDUCTION OF WOMEN ) — continued.
Lhe procedure, 644-652.
indictment, 644-647; evidence, 648-652.
SEIZURE,
of lottery tickets, constitutional, 957.
of liquor, whether constitutional, 993, 994.
SELF, (See Witness.)
statutes permitting one to testify for, construed strictly, 193.
whether woman can commit crime of abortion on, 748, 749.
SELF-DEFENCE, carrying weapons in, 788 b.
“SELL,” (See Sate.)
meaning of, in criminal statute, 225, 1013.
liquor, what it is to, 1013-1015.
SELL “ FROM,” how the inaccurate words, interpreted, 215.
SELLING ADULTERATED MILK, The offence of, discussed, 1124-1197.
SELLING LIQUOR. (See Kerrine Liquor — Liquor Norsance —
Liquor SELLING.)
SELLING LOTTERY TICKETS,
statutes to punish, 958; how the indictment, 961, 965.
SELLING BY SAMPLE, whether, is peddling, 1076.
‘* SELLING FOR SLAVE,” construction of statute against, 232.
SELLING UNLICENSED, (See Busrness — Deatinc as MeRcHant
— Hawkers anp Prppiers — Liquor SELLING.)
less liquor than so much, how allege, 1034.
SENSIBLE MEANING, statute should receive a, 93.
SENTENCE, (See Conviction — Finr — JupGMENT.)
how time computed in the, 110 a, note, 218.
under what law the, 165, 166, 176, 183, 184.
cannot be, after statute is repealed, 177.
statute as to time in, directory, 255.
SEPARALITER, how, in indictments for gaming, 912.
SEPARATE, (See JomnpER.)
indictments, for adultery, 670.
SEPARATE CRIMES, how far legislation make, of one transaction, 172.
SEPARATE FAMILIES, (See Part or Hovss.)
effect of, occupying dwelling-house, 287.
‘SERIOUS BODILY HARM,’’ (See Grievous Bopiry Harm.)
meaning of the term, 318, note.
“SERVANT,”
meaning of the word, 271.
as innocent agent in selling forged stamps, 306.
SERVICE OF PROCESS, (See Notice — Process.)
statutes authorizing constructive, interpreted strictly, 119.
SERVICES, when sale of, is sale of person, 211.
730
INDEX OF SUBJECTS. SIG
“SET FIRE TO,” (See Burn.)
meaning of the words, 811.
“SET UP OR KEEP,”’ words, in statute against gaming, 881.
SETTING ON FOOT, lottery, how the indictment for, 964.
SETTING UP GAMING,. (See GAMING.)
statutory offence of, 876, 877.
indictment and evidence, 889-892.
SEVERAL, (See JoINDER — SEPARALITER.)
indictment for living in adultery or fornication, may be, 708.
convictions may be, in open and notorious lewdness, 721.
how the, indictment for adultery, 672.
SEX, (See Femiyine — May.)
averring, of animal in larceny, 426 and note.
in taking up and using estray, 464.
whether allege, in living in adultery, 705.
“ SEXUAL INTERCOURSE,”’ by what acts constituted, 661.
‘‘ SHALL,” meaning of, and when read as ‘* may,”’ 112.
‘‘ SHED,” meaning of the word, 291, note.
SHEEP, (See ANIMALS.)
killing, with intent to steal part of carcass, 211, note.
word, in statute, whether includes ‘‘ ewe,” or ‘‘ lamb,’’ 212, 247, 248.
is ‘‘ cattle’? and ‘‘ beast,’’ 442.
“SHEEP OR EWE,”
effect of combining words, on meaning of each, 247, 248.
form of indictment for stealing, 247.
SHEEP STEALING, statute against, construed, 247.
SHELL-FISH, by-laws regulating the taking of, 20.
“SHIP OR VESSEL,”’ (See VESSEL.)
an open boat is not a, 216.
SHOE-SHOP, whether, a ‘‘ public-house,’’ 299, note.
SHOOTING AT, person present encouraging, 135.
SHOOTING-MATCH. (See Bettinc on SHootTinc-Matcu.)
SHOP, (See Store.)
statutes against larceny from, how construed, 233.
when, a part of dwelling-house, 285.
meaning of the word, 295, 1011.
whether and when, a ‘ public place,” 298.
SHOP-BOOKS, construction of statute admitting, “ after,” &c., 249 a.
SHORTENING, (See Cuttine SHort.) :
meanings, in construction, 190 d, 190 e.
“SHOW FORTH IN EVIDENCE,” meaning of the phrase, 309.
SHUFFLEBOARD, whether, game of chance, 863.
SHUTTER, removing any part of a, is a breaking in burglary, 312.
SHUTTER-BOX, not part of dwelling-house, 281. ,
SIGN, not essential to inn, 297.
, 731
SPE INDEX OF SUBJECTS.
SIGNATURE. (See GovEerNor’s SIGNATURE.)
SIGN-BOARD, is ‘‘ advertisement,” 207.
SIGNIFICATION. (See Meanine or Stature, &c.)
SILVER, when, not included in words ‘‘ other metals,’’ 246 a, note.
‘‘ SIMILAR PIECES,” of coin, meaning of, 214.
SIMILITUDE, of bank-bills in statutory forgery, 217.
‘“¢SINGLE WOMAN,” when words, include married woman, 190 a.
SINGULAR NUMBER, statute in plural form construed to include the, 213. .
“ SISTER,” word, in statute against rape — allegation, 481.
“SIT OR STAND,” meaning of direction to, 95.
“SIX MONTHS,” meaning of words, in statute, 105 and note.
‘‘ SKILL,” concerning game of, 862.
“‘ SKIN-CAP,” gaming-table, statute punishing, 864.
SLAUGHTER-HOUSE,
statute making, penal, not repeal common-law nuisance of, 156, note.
SLAVE TRADE, statute forbidding, construed, 232.
SLAVERY, various statutes concerning, construed, 232.
SLAVES, (See Necro— Waits Person.)
carrying arms, 785, note; selling liquor to, 1021.
‘SLIT THE NOSE,’ meaning of the words, 317.
SMOKING IN STREET. (See STREET.)
SNEAD, a ‘‘ weapon drawn,”’ 323.
“SO,” in statute against forcible abduction of women, 617.
‘“* SOCIAL CLUB,” evasion of the liquor law, 1013.
SODOMY, (See PENETRATION.)
solicitation to, not ‘‘ infamous crime,”’ 242.
with whom, may be committed, 660.
SOLDIER, where, vote, 817; voting out of State, 811-813.
SOLICITATION, to incest, whether punishable, 730.
SOLICITATIONS OF CHASTITY, in proof of adultery, 684.
SOUL. (See Bopy anp SovL.)
SOVEREIGN, whether statutes in general terms bind the, 142.
‘SOVEREIGNTY, in people — effect of doctrine on legislation, 33, 36.
SPECIAL EXEMPTIONS, statutes conferring, strictly construed, 195, note.
SPECIAL LANGUAGE,
interpretation expanding, under general reasons, 102.
SPECIAL LAWS, constitutional provision concerning, 36 5, note.
SPECIAL MATTER,
Of statute, how influences interpretation, 111 a-118 a.
doctrine defined — distinctions, 111 a.
“may ”’ and ‘shall ”” — permissive and imperative, 112.
effect of statutory permissive on common-law jurisdiction, 112.
particular and general, 112 a.
732
INDEX OF SUBJECTS. STA
SPECIAL MATTER, — continued.
general statute, and local or special, 112 6.
private statute — concluding views, 113, 113 a.
SPECIAL PRIVILEGES, acts granting, strictly construed, 119.
SPECIAL STATUTE, (See Private STATUTE.)
what is a, 42 a; how construed with general, 112 0.
SPECIFIC, (See GENERAL AND PARTICULAR.)
allegations in indictment should be, 440, 835, 903-906, 1036-1038.
SPECIFIC EXPRESSIONS, interpreted by general, 102.
SPECIFIC PROVISION, (See GunrraL Provisron — PARTICULAR )
of constitution, required to make statute unconstitutional, 91a. —
controls, and how as to repeal by, general, 126 and note.
and general, may stand in statute together, 152, 156.
followed by general, how construed, 245-246 6, 298, 441.
SPECIFIED PLACES,
statute prohibiting liquor selling in, construed, 228, 1008, 1011..
same of gaming, 852, 878, 902-907.
SPEECHES, in legislature, effect of, in construction of statute, 76, 77.
SPIRIT AND LETTER,
case, in strict construction, must be within both, 194.
SPIRIT OF STATUTE, (See Liserat INTERPRETATION.)
doctrine as to following the, 230-232.
SPIRITUOUS LIQUORS, (See Liquor SELLING.)
power of Congress to forbid introducing, into Indian country, 990 a.
meaning of the term, 1007, 1009.
“SPREAD AWNING,”’
continuing an awning is not to ‘‘ spread’? it, 208, note.
“ STAB,” meaning of the word, 315.
“STAB, CUT, OR WOUND,” meaning of the phrase, 314, 315.
“STABLE,” meaning of word, 291, note; part of dwelling-house, 278.
“STACK OF STRAW,” what is not a, 216.
“STACK OF WHEAT,” thrashed wheat is not a, 217.
“STAGE OF MANUFACTURE,” meaning of the expression, 211.
STANDING A JACK, statute against unlicensed, construed, 214.
STARE DECISIS, — (See JupiciaL Decision.)
doctrine of, in statutory interpretation, 104 a.
STATE, (See Surne State.)
when statute binds.the, and when not, 103, 142.
as to suits against the, 103.
effect of laches of agent of, 103, note.
how statutes authorizing suits against, construed, 142, note.
whether, included in word ‘ person,’’ 212.
determining who shall vote — power of Congress as to, 807-810.
voting out of, how far permissible, 811-818.
733
STA INDEX OF SUBJECTS.
STATE CONSTITUTION, (See ConstTITUTION.)
precedence of, among laws, 11, 16.
STATE COURTS, (See Courts.)
highest interpreters of State constitution, 35 b.
how as to constitution of United States, 35 b.
whether, derive jurisdiction from United States statute, 142.
STATE STATUTES, (See Written Laws.)
place and precedence of, among laws, 11, 17.
how United States courts interpret, 115.
United States courts follow State interpretations of, 261 6, note.
STATE AND UNITED STATES,
constitutions of, compared as to interpretation, 92.
STATES, (See OtHER STarTEs.)
jurisdiction of Supreme Court in suits between, 92 b.
taking cognizance of laws of other, 97.
how doctrine of repeal] is held in the different, 163.
STATUTE, (See the several more specific terms; also WritTEN Laws.)
is a writing, 4; is law, 11 a.
how related to the rest of the law, 4, 5, 10, 11.
in conflict with treaty, how, 13 a, 14.
by-law operating in connection with, 22 and note, 23, 24.
by-law antagonistic to, 24.
authorizing by-law, how construed, 25.
cannot bind future legislation, 31, 147.
prescribing by, time of statute’s taking effect, 31.
null, between passage and taking effect, 31.
rules as to when, takes effect, 27-31 a.
Enactment and validity of, 32 a-A1.
Constitutional validity after, enacted in due form, 33, 34.
effect of unconstitutional, 33.
unconstitutional in part, 34.
so of by-laws, 34.
repealing clause constitutional; rest, not, 34.
The interpreters of constitution, 35-35 6.
courts — other governmental departments, 35.
further of courts interpreting, 35 a.
as between States and United States, 35 b.
Constitutional formalities at enactment, 36-37 a.
conditional, submitting to people, &c., 36.
one subject, expressed in title, 36 a.
other like provisions of constitution, 36 b.
courts taking judicial knowledge of, or not, 37.
looking into records as to contents and validity of, 37.
estoppels and admissions as to, 37 a.
Defects other than constitutional, 35-41.
motives of legislature, fraud, mistake, 38, 39.
not within legislative function, 39 a.
against fundamental justice, 40.
734
INDEX OF SUBJECTS. STA
STATUTE, — continued.
granting private property, 41.
impossible — repugnant — ambiguous, 41.
The several parts of, considered, 43-67.
Fu. ther concerning; namely, —
to be construed with constitution, 89.
indictment drawn on, may be good at common law, 164.
how, between enactment and going into operation, 177.
abridging and enlarging effect of, on common law, 138, 188 a.
limiting the consequences of repeal, and how construed, 179.
civil and criminal procedure for what is created by, 249 0-253.
how word in, interpreted when cannot have its true meaning, 590.
effect of repeal of, on, suit for unlawful sale of liquor, 1030.
presumption created by, of liquor’selling, 1050, 1058.
STATUTE OF LIMITATIONS. (See Lrurrations STATUTE.)
STATUTE ROLLS, concerning the, of England, 23, 44.
' STATUTES, ENGLISH, — cited, —
3 Edw. 1, c. 46, — 190 3, note. :
4 Edw. 1, c. 5, — 579, note.
6 Edw. 1, — 195 a.
6 Edw. 1, c. 8, — 190 b, note.
Westm. 2 (13 Edw. 1) c. 41, — 246 a, note.
13 Edw. 1, stat. 1, c. 46, — 190 5, note.
12 Edw. 2, c. 6, — 985, note, 993, note.
2 Edw. 3, c. 3, — 783.
25 Edw. 3, stat. 5, c. 2, — 594, note.
1 Rich. 2, c. 12, — 190 5, note.
17 Edw. 4, c. 8, — 849.
83 Hen. 7, c. 2, — 616.
11 Hen. 7, c. 2, — $85, note.
25 Hen. 8, c. 9, — 1072, note.
33 Hen. 8, c. 4, — 1072, note.
83 Hen. 8, c. 9, § 17, — 849, 850, 860, note.
83 Hen. 8, c. 23, — 159, note. :
87 Hen. 8, c. 1, — 159, note.
387 Hen. 8, c. 7, — 434.
387 Hen. 8, c. 12, — 246 a, note.
1 Edw. 6, c. 12, § 10, — 240.
2&3 Edw. 6, c. 33, — 247, note.
5 & 6 Edw. 6, c. 25, — 985, note.
5 & 6 Edw. 6, c. 25, § 4, — 1018.
4&5 Phil. & M. c. 8, — 618, note, 629, note, 631.
4&5 Phil. & M.c. 8, §1, 2, -— 627.
1 & 2 Phil. & M. c. 10, — 159, note.
5 Eliz. c. 4, § 81, — 196, note.
18 Eliz. c. 8, § 2, — 159, note.
18 Eliz. c. 7, § 4, — 484, note.
31 Eliz. c. 5, § 5, — 257, note.
735
STA INDEX OF SUBJECTS.
STATUTES, ENGLISH, — continued.
389 Eliz. c. 9, — 616, 618, note.
1 Jac. 1, ¢. 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. 16, §7, — 261 d and note.
21 Jac. 1, c. 27, — 764, 767 and note, 768, 769.
1 Car. 1, c. 4, — 985, note.
8 Car. 1, c. 8, — 985, note.
3 Car. 1, c. 4, § 22, — 767, note.
16 Car. 1, c. 4, —767, note.
16 Car. 2, c. 7, — 851 and note.
22 & 23 Car. 2, c. 1, § 7, — 434, note.
29 Car. 2, c. 7, § 1, — 245.
29 Car. 2, c. 7, § 6, — 198.
1 Will. & M. ec. 21, — 159, note.
7 Will. 3, c. 8, § 1, —227.
7 & 8 Will. 3, c. 3. § 5, —257.
8 & 9 Will. 3, c. 25, — 1072, note.
8 & 9 Will. 8, c. 26, § 9, — 261, note.
8 & 9 Will. 3, c. 30, § 6, —159, note.
10 & 11 Will. 8, c. 17, — 851, 952.
10 & 11 Will. 3, ¢ 28, — 238.
9 Anne, c. 6, — 851.
9 Anne, c. 10, § 40, — 828.
9 Anne, c. 14, — 884.
9 Anne, c. 14, § 1, 2, —851 and note.
10 Anne, c. 26, — 851.
12 Anne, stat. 1, c. 7, —283, 234.
12 Anne, stat. 1, c. 7, § 1, — 846.
9 Geo. 1, c. 22, — 207, note, 431, 484 and note, 435, 439, 440.
9 Geo. 1, c. 22, § 1, —185, 228, 314.
6 Geo. 2, c. 81, — 190 a, note.
7 Geo. 2, c. 21, — 321, note.
7 Geo. 2, c. 22, — 206.
9 Geo. 2, c. 85, § 10, — 821, note.
14 Geo. 2, c. 6, — 211, note.
27 Geo. 2, c. 15, — 228.
6 Geo. 8, c. 538, § 1, — 190 8, note. .
19 Geo. 3, c. 21, — 952.
83 Geo. 3, c. 18, — 28.
43 Geo. 3, c. 58, § 1, — 747, note.
43 Geo. 3, c. 58, § 8, —765. —
3, ¢
49 Geo. 3, c. 14, — 765.
49 Geo. 3, c. 68, — 159, note.
736
INDEX OF SUBJECTS. STA
STATUTES, ENGLISH, — continued.
50 Geo. 8, c. 41, § 6, — 1078.
8 Geo. 4, c. 71, — 1101, 1104.
4 Geo. 4, c. 54, § 3, — 242, note.
6 Geo. 4, c. 108, § 56, — 321, note.
7 & 8 Geo. 4, c. 29, § 12, — 284.
7 & 8 Geo. 4, c. 29, § 18, — 285.
7 & 8 Geo. 4, c. 29, § 17, — 209, note.
7 & 8 Geo. 4, c. 29, § 25, — 247.
7 & 8 Geo. 4, ¢. 29, § 38, — 223, note.
7 & 8 Geo. 4, c. 30, — 481.
7 & 8 Geo. 4, c. 80, § 8, —228.
7 & 8 Geo. 4, c. 30, § 16, — 316.
7 & 8 Geo. 4, c. 30, § 19, — 445, note.
7 & 8 Geo. 4, c. 80, § 25, — 434, note.
9 Geo. 4, c. 31, § 11, 12, — 322.
9 Geo. 4, c. 31, § 12, — 314.
9 Geo. 4, c. 81, § 14, — 765, 766, note, 771, 775.
9 Geo. 4, c. 31, § 20, — 681.
9 Geo. 4, ¢. 81, § 22, —581, 594, 598.
9 Geo. 4, c. 55, — 285, note.
9 Geo. 4, c. 69, § 4, — 261.
9 Geo. 4, c. 69, § 9, — 88.
9 Geo. 4, c. 69, § 12, — 276, note.
10 Geo. 4, c. 34, § 17, —766, note.
38 & 4 Will. 4, c. 19, § 28, 29, — 1101.
3 & 4 Will. 4, c. 27, § 19, — 261 B.
3 & 4 Will. 4, c. 53, § 60, — 321, note.
4&5 Will. 4, c. 36, § 22, — 304.
4&5 Will. 4, c. 76, § 57, —159, note.
5 & 6 Will. 4, c. 59, — 76, 1101.
5 & 6 Will. 4, c. 76, § 34, —-840, note.
5 & 6 Will. 4, c. 76, § 105, — 159, note.
6 &7. Will. 4, c. 87, — 1125, note.
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. 86, § 4, — 276, note.
2 & 8 Vict. c. 47, § 64, — 198, note.
2&3 Vict. c. 94, § 8, — 198, note. 7
7 & 8 Vict. c. 101, § 2, —190 a.
12 & 13 Vict. c. 92, — 1101.
12 & 18 Vict. ¢. 92, § 2, 29, — 1104.
c
18 & 14 Vict. c. 21, § 1, — 147, note.
18 & 14 Vict. c. 21, § 2, — 66.
18 & 14 Vict. c. 21, § 5, 6, — 186, note.
14 & 15 Vict. c. 105, § 3, — 818 a, note.
c
17 & 18 Vict. c. 60, — 1101.
a7 737
STE INDEX OF SUBJECTS.
STATUTES, ENGLISH, — continued.
20 & 21 Vict. c. 54, § 4, —420.
22 Vict. c. 35, § 9, — 818 a, note.
22 & 23 Vict. c. 36, — 1072, note.
24 & 25 Vict. c. 95, — 620, note.
24 & 25 Vict. c. 96, § 1, — 276, note.
24 & 25 Vict. c. 96, § 3, — 420.
24 & 25 Vict. c. 96, § 10, — 425.
24 & 25 Vict. c. 96, § 32, — 445, note.
24 & 25 Vict. c. 96, § 53, — 285.
24 & 25 Vict. c. 97, — 431.
24 & 25 Vict. c. 97, § 40, —314.
24 & 25 Vict. c. 97, § 51, —445, note.
24 & 25 Vict. c. 97, § 58, —434, note.-
24 & 25 Vict. ¢. 100, § 11, — 314.
24 & 25 Vict. c. 100, § 50, — 487.
24 & 25 Vict. c. 100, § 53-55, — 616, 620, note.
24 & 25 Vict. c. 100, § 55, — 631.
24 & 25 Vict. c. 100, § 57, —581, 590, note, 596, note.
24 & 25 Vict. c. 100, § 58, 59, — 747, note, 749.
24 & 25 Vict. c. 100, § 60, —765, 766, 773, 775, 777.
31 & 32 Vict. c. 121, —212, note.
33 & 84 Vict. c. 72, — 1072, note.
34 & 35 Vict. c. 96, — 1072.
84 & 85 Vict. c. 96 § 3, — 1074, note.
39 & 40 Vict. e. 77, — 1101.
40 & 41 Vict. c. 69, — 18, note.
43 & 44 Vict. c. 45, § 2, — 497, note.
44 & 45 Vict. c. 45, — 1072.
44 & 45 Vict. c. 67, — 1072.
STATUTORY AUTHORITY, must strictly follow terms of statute, 119.
STATUTORY COMMAND, consequences of disobeying, 138.
STATUTORY CRIME, one, including acts comprehended in another, 143.
STATUTORY DUTY, common-law indictment for breach of public, 138.
STATUTORY LAWS, prima-facie proof of, 37.
STATUTORY OFFENCE, may be punishable also at common law, 164.
STATUTORY PRESUMPTIONS, in liquor selling, 1050, 1058.
STATUTORY RIGHT, (See REMEDY.)
what the remedy for, 137, 144, 249-253.
STATUTORY RULES, some, for interpreting statutes, 199 a.
STATUTORY USE, words acquire meanings by, 242.
STEAL, (See Larcexy.)
attempt to, by killing sheep, 211, note.
STEALING IN DWELLING-HOUSE,
statute against, construed, 233, 234. 240.
STEALING AN HEIRESS, (See ABpvucTIon oF WoMEN.)
name of offence of abduction of women, 618, note.
738
INDEX OF SUBJECTS. STR
STEAMBOAT, (See Crart.)
a ‘* public place,’’ 298.
taxing liquor selling on, in transit between States, 990 b.
STEAMSHIP, carrying passengers, not an inn, 297.
STEAM-TUG, whether, a ‘‘ craft,’? 245, 246 a, note.
STEER, included in the word “ cattle,’’ 442.
STICKS, whether, ‘ offensive weapons,’’ 321.
STOCK-RAISERS, statutes for protection of, 452 et seq.
STORE, (See Suop.)
may be part of dwelling-house, 285.
meaning of the word, 295, 1011.
whether and when, a “ public place,’’ 298.
STOREHOUSE,
whether, an ‘‘ out-house where people resort,’’ 291.
meaning of the word, 294; whether, a ‘ public place,”’ one:
“STOREHOUSE WHERE LIQUOR,” &c.,
how the allegation for playing cards at, 905. As to like words, see 902-
904.
‘‘STOREROOM,”’ not equivalent in meaning to ‘“ storehouse,’’ 294.
STRANGERS, in corporate limits, amenable to by-laws, 22.
“STRAW.” (See Strack oF Straw.)
STRAY ANIMALS. (See ANIMALS.)
“ STREET,” (See Pustic Way — Smoxine In Street — Way.)
‘lane, passage-way,’’ what, in statute against smoking in, 206.
statute against being drunk in, not include highway in country, 973.
STRICT INTERPRETATION,
applied to statutes in restraint of repeal, 154.
of statutes in derogation of prior law, 155.
doctrine explained, 155, 189 a-189 c, 190 d, 190 e, 194, 196, 200, 201.
followed in what classes of statutes, 119, 155-162, 192, 193.
and liberal, in same statute, 196.
conflicting demands for, and liberal, 197; different degrees of, 199.
specially, in concealment of birth, 769.
Expositions of the, 199 b-225.
scope and purpose of this chapter, 199 0.
how where legislative intent clear, 201.
other rules blending with rule of, 200.
Extending and contracting in effect, 203.
Words may be given full or larger meaning, 204-211.
illustrations, 204-211.
Reasonable meaning, discarding captious objections, 212-215.
illustrations, 212-215. ;
Words not extended beyond reason of statute, 216, 217.
illustrations, 216, 217.
Benefit of reasonable doubt given the accused, 218, 219.
illustrations, 218, 219.
739
SUN INDEX OF SUBJECTS.
STRICT INTERPRETATION, — continued.
Case must be completely within statutory words, 220-225.
illustrations, 220-225.
STRICT AND LIBERAL, (See Liserat INTERPRETATION.)
interpretations, blend, 196-199, 226-240.
doctrine of, applied to limitations statutes, 259, 260.
“STRONG CORROBORATING CIRCUMSTANCES,”’’
facts which are not, 843.
“STRONG LIQUOR,” (See Liquor SELLING.)
meaning of the words, 1008.
STUDENT, (See YALE COLLEGE.)
residence of, for voting, 817.
STYLE OF ENACTING CLAUSE,
constitutional provision concerning, 36 b, note.
SUBJECT, (See One SusBsect — Revisions.)
meahings vary with the, 95 a, 98 a, 111.
as in ‘‘ English subject,’’? meaning of word, 205.
“SUBJECT MATTER,” (See Revisions.)
repeal of statutes on same, 152, note.
‘“* SUBSCRIBED.”’ (See NAME SUBSCRIBED.)
SUBSEQUENT LEGISLATION, licensee bound by, 957, 992 a, 1001.
SUBSEQUENT STATUTE,
may sometimes be looked into for true intent of earlier one, 86.
SUBSTANCE, provisions of statute not of the, directory, 255.
‘* SUCH,” when word, rejected in construction, 243.
‘* SUFFER,”’ what to, animals to go at large, 223, 1137.
SUING STATE,
not permissible, without statutory consent, 103.
how statute consenting to, interpreted, 103.
effect of repeal of consenting statute, 178 a.
SUIT. (See Crviz Action.)
SUITS, brought, then law repealed, finished under new law, 181.
SUM, (See GAMING.)
bet on election, alleging the, 944. See 949.
needless mention of, in indictment for gaming, 899.
SUMMARY PROCEDURE,
not favored by construction, 114.
against officer, statute authorizing, construed strictly, 119.
to enforce municipal by-laws, 404.
SUMMARY PROCESS,
when, not taken away by subsequent statute, 126, note.
and indictment, may be concurrent, 170.
statutes subjecting to, construed strictly, 193.
SUNDAY, (See Lorp’s Day.)
how regarded in computing time, 110 c.
740
INDEX OF SUBJECTS. TEC
SUPERIOR, general words after enumeration of inferior not include, 246 a.
SUPERVISOR OF ROADS, whether, an ‘ officer,’’ 271 a.
“SUPPLY OR PROVIDE,” meaning of the expression, 747, note.
SUPPLYING ORDERS, whether, is peddling, 1076.
SUPPRESSING FRAUD, statutes for, construed liberally, 192, 199.
SURGICAL OPERATION, on an animal, not ‘‘ cruelty,”? 1112.
SURPLUSAGE, (See INDICTMENT.)
“against form of statute,” as, 164.
when public statute in indictment may be rejected as, 401.
so alleged as to require proof, £43.
proof of value where averment is, 949.
SURROUNDINGS, effect of the, in interpretation, 50, 74-77.
SURVEYOR OF ROADS, whether, an “ officer,” 271 a.
SUSPENSE, effect of validity of statute being in, 151.
“ SWINDLING,”’ offence of, in Texas, 413.
SWINE, (See Hoe.)
keeping of, proceedings to have, sold, 169.
suffering, to go at large, statute construed, 223.
SWORD, ‘a * dangerous weapon,’’ 320.
“SWORD IN CANE,’’ statute against carrying, 786.
SYSTEM OF LAWS, | (See One System — ToGETHER.)
whole, interpreted together into one, 82, 86-90.
TAKING, (See Larceny — SepuctTion.or Women.)
what the, in seduction, 634.
form of indictment for the, 644.
TAKING UP ESTRAY, wrongful, offence of, 462-464.
“ TAVERN,’ meaning of the word, 297.
TAX, (See Revenue Laws.)
time, not essential element in assessment of, 255.
how tax laws construed, 195.
on gaming, when competent to legislation, 856.
on lottery, without conviction for crime, how, 957.
on a business, is not a license of it, 991.
TAX SALE, statutes permitting redemption after, construed liberally, 120.
TAXATION, (See MunicrpaL Taxation.)
acts providing for, qualifying one another, 156.
of gaming, not unconstitutional, 856.
by Congress, of liquor selling in States, 991.
may be, by license to do business, 1098.
TECHNICAL MEANING, (See LegaL MEANING.)
when technical word to have, in statute, 99, 100, 242-242 b.
TECHNICAL WORDS, (See Worps.)
how, interpreted, 96, 97, 99, 100, 204, 242-2423.
741
THR INDEX OF SUBJECTS.
TEETH, whether injury by, is a wound, 314, 315.
TEMPERANCE LEGISLATION. (See Liquor SELLING.)
TEMPORARY STATUTE, effect of continuing a, 187.
“TEN CLEAR DAYS,” meaning of the phrase, 110.
“TEN DAYS’ NOTICE,” how, computed, 107, 108.
“TEN SIMILAR PIECES,’’smeaning of the words, 214.
“ TENEMENT,” what a, in liquor-nuisance statute, 1068 a,
“ TENPINS,” (See Gamine.)
meaning of term, 99, note; not a game of chance, 863.
TENT, not dwelling-house, 279.
TERM OF OFFICE, determining new, by old law, 87.
“TERM OF YEARS,” meaning of the words, 349.
TERMINI OF WAY,
indictment for horse-racing need not allege the, 927.
TERMS OF STATUTE, (See Worps.)
to be followed in interpretation, 72, 80, 81, 90, 93, 145, 146.
TERRITORIAL LIMITS,
statutes in general terms not extend to acts beyond the, 141.
TERRITORY, treaty ceding, when takes effect, 32.
TESTIMONY, (See EviDENcE.)
conflicting, how viewed, 801.
‘“ THEFT,” (See Larceny.)
offence of, in Texas, &c., 412-416.
“THEN AND THERE,” in indictment for adultery, 676.
‘“ THEREAFTER,” (See HEREAFTER.)
effect of word, applied to punishment, 184, note. See 183.
““THIMBLE,” ‘“‘THIMBLES AND BALLS,” game of, 865.
THING BET, alleging the, in indictment for gaming, 920, 921.
THINGS FAVORED, (See Favorep.)
statutory interpretations as to, 192.
THINGS ODIOUS, (See Opious.)
statutory interpretations as to, 192.
THIRD PERSONS, (See Name — OwneERsHIP.)
aiding in polygamy, how regarded, 594.
whether aver name of, in adultery, 673.
alleging names of, in indictment for gaming, 894, 895.
THRASHING MACHINE, to *‘destroy,’’ what is, 214.
“ THREATENED,” word, in statutes against carrying weapons, 788 b.
THREATENING LETTERS,
“name subscribed,” in statute against, construed, 228.
letter threatening to accuse of solicitation to sodomy, 242.
what an uttering of, 306. ,
THREATENING OFFICER,
of election, construction of statute against, 223.
742
INDEX OF SUBJECTS. TOG
THREATS, procuring entrance by, a constructive breaking in burglary, 312.
THREE SALES, whether, constitute one a common seller, 1018 and note.
“THRUST,” meaning of the word, 315.
“ TICKET,” (See PassencER TICKET.)
word includes a, of foreign lottery, 958.
selling, for lottery, how the indictment, 962.
TIGRIS RIVER, in China, whether ‘‘ high seas,’’ 304.
“TIMBER,”’ meaning of word, 449.
TIME, (See CompuTaTIon oF Time — ConTINUANDO — THEN AND
THERE.)
at what, statutes take effect, 27-31 a.
same of treaty, 32.
of enactment, considered in its interpretation, 75.
how computed in construing statutes, 105-111.
how, computed in the sentence, 218. I g
not essential in directory statutes, 255.
of official act, statutes as to, generally directory, 255.
how computed in statutes of limitations, 259.
TIPPLING-HOUSE, (See Liquor Nuisance.)
lawful at common law, unless disorderly, 984, 1064.
by-laws prohibiting, 997.
defined, 1065.
TIPPLING-HOUSES, term, includes one tippling-house, 213.
TIPPLING-SHOP, (See Liquor Nuisance.)
Statutory offence of keeping, 1064-1067.
TITLE, (See Written Laws.)
constitutional requirement of one subject expressed in the, 36 a.
consulted in construing statute, 82. 5
same in strict interpretation as in liberal, 200.
reciting, in pleading on private statute, 399.
pleading private statute by the, 402.
The, of statute, considered, 44-47.
effect of different ways of making the, 44.
deemed no part of statute, 45.
weight of, in interpretation, 46.
chapter headings, 46.
constitutional effect, 47.
“TO THE COMMON NUISANCE,”
how of the conclusion, in indictment for drunkenness, 977.
TOGETHER, (See Construinc Laws TOGETHER — ONE SYSTEM.)
laws to be interpreted, 82, 86-90, 98, 101, 113 a, 113} et seq., 115, 116.
doctrine of construing all laws, as to effect, defined, 128.
reason of doctrine of, 124, 188.
construing statutes, to prevent repeal, 156.
word, in statutes against open lewdness, 697, 699, 702-708, 721.
statutory word, must be covered by allegation, 702, 706, 721.
how as to, in indictments for horse-racing by two, 927.
748
TRE INDEX OF SUBJECTS.
TOLL-GATE, offence of forcibly passing, without paying toll, 313, note.
‘TOOL,’ meaning of the word, 319.
“ TORTURE,”’
how lay a “torturing” in malicious mischief, 447.
meaning of, in cruelty to animals, 1108; how the allegation, 1116.
TOWN, (See By-Laws — CHARTER.)
meaning of word, in a statute, 299 a, 1011.
TOWN AGENT, (See AGENT.)
whether, an “officer,” 271 a.
for liquor selling, when not protected, 1002.
TOWN-LOTS, scheme for disposing of, what, a lottery, 956.
TRADE, (See Exercising Trape— Restraint or TRADE.)
whether by-law may restrain, 20, 22.
how statutes in restraint of, construed, 119.
interpretation of old statutes as to exercise of, 196.
statutes against the exercise of, by unqualified persons, 239. _
TRANSACTION,
one, may be covered by many inhibitions, 143.
effect of separate crimes being made of one, 172,
contrary to statute, void, 254.
TRANSPORTING LIQUOR, for unlawful sale, 1055.
TRAP-DOOR, lifting up a, whether a breaking, 312, note.
“TRAVELLING,” what, in statutes against carrying weapons, 788 a. *
TRAVELLING TRADER. (See Hawkers AND PEDDLERS.)
TREASON, (See PERSUADING TO ENLIST.)
rescuing, harboring, &c., in statutory, 136.
statutory, has common-law incidents, 139.
place of trial of, old provisions as to, 159, note.
‘ 164
Cookson v. Lee (23 Eng. L. & Eq. 400) 137
Cool v. State (16 Ind. 355) 1039
Cooley, Com’th v. (10 Pick. 37) 159, 163
—— v. State (55 Ala. 162) 584, 589
Coolidge v. Choate (11 Met. 79) 216, 319
——, United States v. (1-Gallis. 488) 138
—'». Williams (4 Mass. 140) 118, 1128
Coombs, State v. (32 Maine, 529) 1018,
1027
—,, State v. (55 Maine, 477) 419
—, United States v. (12 Pet. 72) 90
Cooper v. Brewster (1 Minn. 94) 933
v. Curtis (830 Maine, 488) 31
v. People (41 Mich. 403) 24, 407
——, People v. (83 Ill. 585) 34, 42d
—, Reg. v. (2 Car. & K. 586) 342
——, State ». (5 Blackf. 258) 91
—, State v. (56 Day, 250) = 41, 246, 330
——, State v. (45 Misso. 64) 255
——,, State v. (16 Vt. 551) 220, 668
——, State v. (2 Zab. 52) 744, 745
v. Whittingham (15 Ch. D. 501) 2504
Cooster, State v. (10 lowa, 453) 852, 861,
oi Be, 890
eae Ex parte (2 De G.,
G. 914
——, State v. (3 R. I. 33) 34, 36
Copely, Territory v. (1 New Mex.
71) 852, 884, 890
Copeman v. Gallant (1 P. Wms. 314) 49
Corbett v. Bradley (7 Nev. 103) 254
——,, Territory v. (3 Montana, 50) 662, 728
Cordell v. State (22 Ind. 1) 163, 181, 476
772
INDEX TO THE CASES CITED.
)
2| Cota v. Ross (66 Maine, 161)
COW
Core v. James (Law Rep. 7 Q..B. 135) 1 1125
Corfield v. Coryell (4 Wash. C. C.
871) 11381
Corley, State v. (13 S. C. 1) 425, 427
Corliss v. Corliss (8 Vt. 373) 25
Corll, State v. (78 Ind. 535) 1018
Cornelius ». Grant (7 Scotch a
Cas. 4th ser. Just. 13) 112
Cornforth, Rex v. (2 Stra. 1162) 627, 633
Corning v. Greene (23 Barb. 33) ° 36
Cornwall v. Hoyt (7 Conn. 420) 131
—, Rex v. (Russ. & Ry. 326) 204, 770,
, 771, 774
v. Todd (38 Conn. 443) 195
Corrigan v. Gage. (68 Misso. 541) 22
Corry, Rex v. (5 East, 372) 49, 232
Corson, Commonwealth v. (4 Pa.
Law Jour. Rep. 271) - 73
Corwin v. Comptroller-General (6
S. C. 390) 107
——, State v. (4 Misso. 609) 249
Cosan’s Case (1 Russ. Crimes, 3d
Eng. ed. 119; 1 Leach, 342, n.) 321
Cosser, Reg. v. (13 Cox C. C 187) 271, 423
Costello, Commonwealth v. (118 Mass.
152, 163, 1032, 1069
75, 97
Cotten v. Leon (6 Fla. 610) 91, 92
6 | Cotter, Com’th v. (97 Mass. 336) 1048
Cotteral, People v. (18 Johns. 115) — 207,
289, 310
Cotterell v. Dutton (4 Taunt. 826) 261la
Cottle v. Cleaves (70 Maine, 256) 1031
—, Reg. v. (16 Q. B. 412) 299
——,, State v. (15 Maine, 473) 1033 a,
1035, 1037
——,, State ». (70 Maine, 198) 1132
Cotton v. State (62 Ala. 12) 688
—— v. State (7 Texas, 547) 917
——, State v. (6 Texas, 425) 917
Couch v. Jeffries (4 Bur. 2460) 85a
v. Steel (3 Ellis & B. 402) 2506
Coulbert v. Troke (1Q.B.D.1) 10704
Coulson v. Cass (12 Ind. 558) 992
v. Harris (43 Missis. 728) 9924
Coulterville v. Gillen (72 Ill. 599) 999
Council, State v. (1 Tenn. 305) 437
Counts v. State (87 Texas, 593) 418
County Seat of Linn (15 Kan. 500) = 97
Courtauld v. Legh (Law Rep. 4 Ex.
126) 5a
Courteen’s Case (Hob. 270) 193
Courtney v. State (3 Texas Ap. 257) 426
Cousins +. Com’th (19 Grat. 807) 1098
—— v. State (50 Ala. 118) 1098
Coventry v. Atherton (9 Ohio, 34) 261a@
6) Covington v. East St. Louis (78 Ill.
548) 36, 156
v. McNickle (18 B. Monr. 262) 64
—— »v. State (6 Texas Ap. 512) 453
——, State ». (29 Ohio State, 102) 864
Covy v. State (4 Port. 186) 912
Cowan, State v. (29 Misso. 830) 24
Cowell, State v. (4 Ire. 231) 690
CRI INDEX TO THE CASES CITED. cuL
SEcTION SECTION
Cowie v. Stirling (6 Ellis & B..333) 336) Crichton v. People {6 Parker C. C.
Cox, Ex parte (19 Ark. 683) 1001 363; 1 Keyes, 341) 757, 761
— vv. Berry (13 Ga. 306) 264 a | Crilley, People v. (20 Barb. 246) 1008
——, Com’th v. (7 Allen, 577) 444, 447 | Crist, State v. (82 Texas, 99) 464
v. People (82 Ill. 191) 730 | Crittenden v. Wilson (5 Cow. 165) 163, 169,
——, People v. (45 Cal. 342) 1015 ‘ 250
——, People v. (76 N. Y. 47) 407 | Crocker v. Crane (21 Wend. 211) 70, 81
—, Rex v. (1 Moody, 337; 5 Car. Crofoot v. People (19 Mich. 254) 255
& P. 297) 204 | Crofton’s Case (1.Mod. 34; 1 Vent.
, Rex v. (Russ. & Ry. 362) 318) 63 250, 251, 252
—— »v. State (8 Texas Ap. 254) 11a, 86a, | Crofts, Rex v. (7 Mod. 397 ; 2 Stra.
42a,426; 1120) : 181, 1025
——,, State v. (6 Ire. 440) 261] Croghan v. State (22 Wis. 444) 643
——, State v. (29 Misso. 475) 1034, 1037
—, State v. (32 Misso. 566) 1090, 1091
—, State v. (N.C. Term R. 165) 691, 692
——, State v. (52 Vt. 471) 1069
Coxe v. Robbins (4 Halst. 384) 249, 250 a
Coxhead, Reg. v. (1 Car. & K. 623) 771,
778
Coyne v. Weaver (84 N. Y. 386) 91
Crabtree v. State (30 Ohio State, 382) 1021,
/ 1
Commonwealth v. (1
154, 159,163
40, 400
Cromley,
Ashm. 179)
Cromwell’s Case (4 Co. 12 a)
Cromwell v. Stephéns (2 Daly, 15) 297
Cron, State v. (23 Minn. 140) 1006
Crone, Rex v. (Jebb, 47) 345
v, State (49 Ind. 538)- 86
Cronin, Com’th v. (117 Mass. 140) 1069
Cronise v. Cronise (4 Smith, Pa. 255) 92
022 | Crooke’s Case (1 Show. 208) 103
—, State v. (27 Misso. 232) 1083 a,| Crosby v. Snow (16 Maine, 121) 1026
1070 a | ——, United States v. (1 Hughes, 448) 803,
Craig v. Andrews (7 Iowa, 17) 848, 933, 804, 828
937 | Cross, Reg. v. (1 Fost. & F. 510) 607
—, Com’th v. (15 B. Monr. 534) 163 | ——, Rex v. (1 Ld. Raym. 711) 174
—— v. Missouri (4 Pet. 410) 12 | ——, State v. (2 Humph. 301) 852, 937
——, State v: (23 Ind. 185) 41, 147 | Crosset, State v. (81 N. C. 579) 432 a
Crain v. State (14 Texas, 634) 909, 917, | Crossinger v. State (9 Ind. 557) 992
1048 | Croswell v. Crane (7 Barb. 191) 98
Crake v. Powell (2 Ellis & B. 210)
Cramp, Reg. v. (14 Cox C. C. 390)
, ——, Reg. v. (5Q. B. D. 307; 14 Cox
C. C. 401) TAT
650 a
112
749
Crandall v. People (2 Lans. 309)
State (28 Ohio State, 479) 1094
Crane v. Reeder (22 Mich. 322) 1126
Cranwell v. Fosdick (15 La. An. 436) 150
Crawford v. Childress (1 Aln. 482) 112
—, Com’th v. (9:-Gray, 129) 1037
v. Planters, &c. Bank (6 Ala.
——— ws
289) 895
—, Reg. v. (2 Car. & K. 129; 1
Den. C. C. 100) 824
691
v. State (7 Baxter, 41)
v. State (Minor, 143) 198, 254
—, State v. (2 Dev. 425) 204
—, State v. (34 Iowa, 40) 634
——, State v. (11 Kan. 32) 179
Craycroft, People v. (2 Cal. 243) 250,
250 a, 854.4, 855
Creamer, Reg. v. (10 L. Canada, 404) 610
Creighton v. Pragg (21 Cal. 115) 1774
Crenshaw, State v. (22 Misso. 457) 442
Crespigny v. Wittenoom (4 T. R. --
790
48, 8
Cress, State v. (4 Jones, N. C. 421) 177
Cresswell, Reg. v. (1 Q. B. D. 446;
13 Cox C. C. 126) 589, 609
Creswick v. Rooksby (2 Bulst. 47) 243
Crews v. State (10 Texas Ap. 292) 1098
Crichton v. People (1 Abb. Ap. 467) 749
Crouse v. State (16 Ark. 566) 699, 711
Crouther’s Case (Cro. Eliz. 654)
Crow v. State (6 Texas, 334) 246, 848,
852, 865
Crowder, State v. (39 Texas, 47) 891
Crowell, State v. (25 Maine, 171) 1052
——.,, State v. (30 Maine, 115) 1044
Crowley, State v. (18 Ala. 172) 678, 682,
‘ 683
Crown Point v. Warren (3 Hill, N.Y. -
150) 297, 984
Crowner, State v. (56 Misso. 147) 698
Crowther, Rex v. (6 Car. & P. 316) 332
Crozier v. People (1 Parker C. C.
453) 639
— vr. State (2 Sneed, 410) 1380
Cruchley v. Clarance (2M. & S. 90) 336
Cruikshank, United States v. (1
‘ Woods. 308; 92 U. S. 542) 792, 804, 828
Crummey, State v. (17 Minn. 72) 17a,
238, 24
Crump, Rex v. (1 Car. & P. 658) 429
Crupper, Commonwealth v. (3 Dana,
466) 884, 895, 896
Crutz v. State (4 Ind. 385) 1001
Cudden v. Estwick (6 Mod. 123) 22
Cuddon v. Eastwick (1 Salk. 143) 22
—— v. Eastwick (1 Salk. 192) 22
Cullen, Rex v. (5 Car. & P. 116; 1
Moody, 300) 328, 335
v. State (42 Conn. 55) 159
Cullerton v. Mead (22 Cal. 95) 120
773
CZA INDEX TO THE CASES CITED. DAV
SECTION SECTION
Cullinan v. New Orleans (28 La. An. Daggett v. State (4 Conn. 60) 216, 232
102) 19, 20 | Dahmer v. State (56 Missis. 787) 1012
Cullum, State v. (2 Speers, 581) 204 | Daily v. May (5 Mass. 313 319
Culp v. State (1 Port. 33) 216, 836 v. Swope (47 Missis. 367) 11 a, 92, 97
Cumberland v. Magruder (34 Md. Daines v. Heath (3 C. B. 938) 195
381) 163 | Dakin v. Graves (48 N. H. 45) 327
Cumming’s Case (Shaw Crim. Cas. Dakins v. Seaman (9 M. & W.777) 160
17 160 | —— v. Searman (6 Jur. 783) 160
Cumming v. Fryer (Dudley, Ga. 182) 192] Dale v. Gunter (46 Ala. 118) 2424
Cummings v. Akron Cement, &ce. —, Reg. v. (Dears. 87; 6 Cox
Co. (6 Blatch. 509) 78] C.C. 93) 1026
v. Com’th (2 Va. Cas. 128) 205, 226 | —— v. State (27 Ala. 81) 280, 287
— v. Hodgdon (13 Met. 246) 691] Daley, State v. (29 Conn. 272) 188, 184
Cundell v. Dawson (4 C. B. 376) 188. a
Cunningham, State v. (25 Conn.
195) 992, 1048
—, State v. (72 N. C. 469) 152
Curd v. Com’th (14 B. Monr. 886) 1008
Curgenwen, Reg. v. (10 Cox C. C.
152) ; 607
Curgerwen, Reg. v. (Law Rep. 1
C.C. 1 ; 60
Curkendall v. People (86 Mich. 309) ge
9
Curlewis v. Mornington (7 Ellis &
B. 283
Curley, State v. (33 Iowa, 359)
Curran, Commonwealth v. (119 Mass.
259
1045 a
7 | Dane, Reg. v. (1 Fost. & F. 323)
Dallinger, Com’th v. (118 Mass. 489) 336
Dalton v. State (4 Texas Ap. 333) 248
Daly v. Com’th (25 Smith, Pa. 331) 1094
—— v. State (83 Ala. 431) 291
Dameron r. State (8 Misso. 494) 724
Dana, Com’th v. (2 Met. 829) 205, 209
, People v. (22 Cal. 11) 70
Dancy, State v. (83 N.C.608) 485, ae
7
Danforth, State v. (3 Conn. 112) 1638, 171
—, State v. (48 Iowa, 43) 651
—— v. Woodward (10 Pick. 423) 319
Daniel v. Coulsting (7 Man. &
122
G.
277, 289
— v. Guy (19 Ark. 121) 274
206) 1052 v. Janes (2C. P. 1). 851) 482 a, 487
—, State v. (7 Eng. 321) 1038, 142 | ——, State v. (28 La. An. 38) 86 a
——, State v. (51 Iowa, 112) 645, 650 a, | ——, State v. (31 La. An. 91) 163
651 | Daniel Ball, The (10 Wal. 557) 303
Currier, State v. (23 Maine,~43) 852 | Danielly v. Cabaniss (52 Ga. 211) 37
Curry, Reg. v. (2 Moody, 218) 328, 329, | Daniels v. Clegg (28 Mich. 32) 97
838 | ——, State v. (32 Misso. 558) 427
v. State (35 Texas, 364) 1045 a
Curtis v_ Gill (84 Conn. 49) 126
v. Hubbard (1 Hill, N. Y. 336;
4 Hill, N. Y. 437) 290, 312
—— v. Martin (3 How. U. 8. 106) 99
—— v. State (5 Ohio, 324) 297
——., State v. (4 Dev. & Bat. 222) 287
——,, State v. (6 Humph. 601) 220
——, State v. (30 La. An. 1166) 262
——, State v. (9 Nev. 325) 17a
——, United States v. (4 Mason,
232 Ta
Cushing v. Worrick (9 Gray, 382) 57, 78
Cushman, U. S. v. (1 Lowell, 414 163
Cusick, Commonwealth v. (120 Mass.
183 1074, 1077
Custom’s Case (12 Co. 33) 1093
Cutbush, Reg. v. (Law Rep. 2Q. B.
379) 104
—, Rex v. (4 Bur. 2204) 22
Cuthbert v. Conley (82 Ga. 211) 997
Cutler, Com’th v. (9 Allen, 486) 1069
—— v. Howard (9 Wis. 809) 112
v. State (59 Ind. 300) 612
Cutsinger v. State (7 Bush, 392) 789
Cutting, State v. (3 Oregon, 260) 1052
Cutts v. Hardee (38 Ga. 350) 91
v. Hussey (15 Maine, 237) 305
Czarnikow, State v. (20 Ark. 160 852
TT4
——,, State v. (44 N. H. 383) 806, 835, 889
Dano v. M. O. & R. R. Railroad (27
Ark. 564) 102
Danvers v. Wellington (Hardres,
173 7
Darby's Case (12 Co. 114) 403
Darby v. Wilmington (76 N. C. 183) 84
Dargan v. Davies (2 Q. B. 1). 118) 1105
Darley, Rex v. (1 Stark. 359) 886, 887
Darlington School, Reg. v. (6 Q. B.
682 22
Darnell v. State (43 Texas, 147) 453
v. State (6 Texas Ap. 482) 448, 1119,
1120
Dartmouth College v. Woodward
(4 Wheat. 518) 12
Dash v. Van Kleeck (7 Johns. 477) 82, 884
Davenport v. Bird (54 Iowa, 624) 24, 407
v. Com’th (1 Leigh, 588) 282, 244
, Com’th v. (2 Allen, 299) 1069
Davidson, Rex v. (1 Leach, 242, note) 344
— v. Wheeler (Morris, 238) 175, 177
Davie v. Briggs (97 U. S. 628) 261b
Davies v. McKeeby (5 Nev. 869) 809
, Reg. v. (14 W. R. 679; 14 Law
Times, n. 3. 491 423, 424
——., Rex v. (2 Leach, 876) 279
Daviess v. Fairbairn (8 How. U. S.
636) 159, 160
DAY
SECTION
Davis v. American Society, &c., (75
N. Y. 362; 16 Abb. Pr. nx. s. 73) 1122
— v. Commonwealth (13 Bush,
318) 596 6, 599, 602, 608
— v. Com’th (6 Casey, Pa. 421) 443
v. Com’th (3 Watts, 297) 1094
——, Commonwealth v. (12 Bush,
240) 1994, 1011, 1012, 1021
—, Com’th v. (121 Mass. 352) 1034, 1057
— v. Concordia (9 How. U. 8. 280) 32
v. Cotten (2 Jones Eq. 430) 261¢
—— v. Dashiel (Phillips, N. C. 114) 9908,
1080
—— v. Duffie (18 Abb. Pr. 360) 261
— v. Dunklee (9 N. H. 548) 164
—— v. Minor (1 How. Missis. 183) 177 a,
178
42 b, 405
743, 759,
j6la
135
——,, People v. (61 Barb. 456)
—,, People v. (56 N. Y. 95)
—, Reg. v. (8 Car. & P. 759)
—, Rex v. (2 East P. C. 593; 1
INDEX TO THE CASES CITED.
DEN
SEcTION
Day v. Savadge (Hob. 85) 40
Dayton, State v. (3 Zab. 49) 167, 255
Deal v. Patterson (12 La. An. 728) 263
Dean, Ex parte (2 Cow. 605) 107
v. Commonwealth (4 Grat. 541) 274
—, Commonwealth v. (14 Gray, 99) 1038
—, Com’th v. (110 Mass. 357) 36
—., Commonwealth r. (1 Pick. 387) 145
——,, Com’th r. (21 Pick. 334) 1017
v. King (4 B. & Ald. 517) 1078
—, People v. (14 Mich. 406) 274
——, Rex v. (2 Leach, 693; 2 East
P. C. 646) 345, 346
—, Rex v. (2 East P. C. 749) 344
v. State (Mart. & Yerg. 127) 896, 914
——,, State rv. (44 Iowa, 648) 1069
Deane v. Clayton (7 Taunt. 489) 1133
Dearborn, Com’th r. (109 Mass. 368) 1057
v. Hoit (41 Maine, 120) 1031
De Armas Case (10 Mart. La. 158) 160,
163, 165
De Beauvoir, Rex v. (7 Car.& P.17) 138
Leach, 496, note) 216 | De Bernie v. State (19 Ala. 23) 163
——, Rex v. (1 Russ. Crimes, 3d Deberry, State v. (5 Ire. 371) 968
Eng. ed. 574) 779 | De Bode v. Reg. (13 Q. B. 364) 103
——,, Rex v. (Russ. & Ry. 322) 280, 281 | DeBois v. State (34 Ark. 381) 997
—, Rex v. (Russ. & Ry. 499) 312 | De Bow »v. People (1 Denio, 9) 37
— v. Robertson (11 La. An. 752) 115} Decatur Bank v. St. Louis Bank (21
—— v. State (39 Ala. 521) 1042) Wal. 294) 212
—— v. State (22 Ga. 101) 894 | Decker v. McGowan (59 Ga. 805) 997
v. State (58 Ga. 170) 691 a | ——, State v. (46 Conn. 241) 24, 407, 1132
—— v. State (52 Ind. 488) 1069 | De Cordova v. Galveston (4 Texas,
—— v. State (32 Ohio State, 24) 884: 470) 178
— »., State (3 Lea, 376) 91a | Deeley, Rex v. (1 Moody, 303 ; 4 Car.
— v. State (2 Texas Ap. 162) 464; & P. 579) “ 604
rv. State (2 Texas Ap. 425) 40, 154 | Deggs v. State (7 Texas Ap. 369) 428
v. State (4 Texas Ap. 456) 754|De Graffenreid v. Mitchell (3
—, State v. (2 Bailey, 558) 274| McCord, 506) 290
—, State v. (53 Iowa, 252) 338, 342. De Groat v. People (39 Mich. 124) 660, 733
——, State v. (2 Ire. 153) 456 | Deitrick, State v. (51 Iowa, 467) 639
——, State v. (22 La. An. 77) 416 | Deitz, State v. (80 Texas, 511) 36a
——., State v. (23 Maine, 403) 1004, 1032 | Delancey v. McKeen (1 Wash. C. C.
——,, United States v. (3 McLean, 483) 103} 354) 261a
—, U.S. o. (5 Mason, 356) 209, 416 | Delaney, Ex parte (45 Cal. 478) 40
, U.S. v. (2 Sumner, 482) 304 | Delano v. State (65 Ind. 348) 692
Davison v. Gill (1 East, 64) 256
Daw v. Metropolitan Board (12 C. B.
n. s. 161) 1126
Dawkins v. State (58 Ala. 376) 487, 489
Dawson’s Case (3 Chit. Crim. Law,
1088) «487
Dawson v. James (64-Ind. 162) 302
v. People (25 N. Y. 399) 255
— , Reg. v. (5 Cox C. C. 220; 2
Den. C. C. 75) 327
Delany v. People (10 Mich. 241) 665, 711,
721, 729
Delaplane v. Crenshaw (15 Grat.457) 104,
150
De la Vega v. Vianna (1 B. & Ad.
284)
Dells v. Kennedy (49 Wis. 555) 805
Demarest, State v. (8 Vroom, 528) 1098
De Mill v. Lockwood (3 Blatch. 56) ane
i7a
——, Reg. v. (1 Eng. L. & Eq. 589; Deming, People v. (1 Hilton, 271) 98
2 Den. C. C. 75; Temp. & M. Dempsey, State rv. (9 Ire. 384) 274
428) 326, 329, 332 | Denbyshire, Rex v. (4 East, 142) 255
— ». State (29 Ark. 116) 484 Deneny, Reg. v. (Jebb, 255) 216
v. State (52 Ind. 478) 432a | Denham v. Holeman (26 Ga. 182) 2616
v. State (6 Texas, 347) 180, 185 ! Denmour, Reg. v. (8 Cox C. C. 440) 423
Day v. dcnes (81 Cal. 261) 809 | Dennin, State v. (82 Vt. 158) 311
— v. Munson (14 Ohio State, 488) 1044 , Dennis, Com’th v. (105 Mass. 162) 159, 161
—, Reg. v. (9 Car. & P. 722) 491 v. People (27 Mich. 151) 312
TTS
DIE
SECTION
Dennis v. State (17 Fla. 389). 826, 828.
Dennison’s Case (4 Greenl. 541) 126
Dent v. State (42 Ala. 614) . 1954
—, State v..(1 Rich. 469) 916
Denton v. Manners (4 Jur. nv. 8. 151) 1124
—, Reg. v. (18 Q. B. 761; Dears. 3;
14 Eng. L. & Eq. 124) 177
De Orinas Case (10 Mart. La. 158) - 82
Depardo, Rex v. (1 Taunt. 26) 304
soy v. New Albany (22 Ind.
2 :
Depew v. Wabash and Erie Canal (5
Ind. 8 ; 303
Deposit v. Pitts (18 Hun, 475) 1098, 1094
Deptford v. Sketchley (8 Q. B. 394) 189¢
Dequindre v. Williams (31 Ind. 444) au
856
Derbyshire, Reg. v.' (2 Q. B. 745; 2
Gale & D. 97; 6 Jur. 438) 301
Derichs, State v. (42 Iowa, 196) 852
Derixson v. State (65 Ind. 385) 4324
De Rutzen, Reg. v..(1 Q. B. D. 55) 999,
999.4
Desban v. Pickett (16 La. An. 350) 154
Desmond, Com’th v. (103 Mass. 445) 1057
——, Commonwealth v. (122 Mass.
12) 828, 833, 834
Deveny v. State (47.Ind. 208) 1021
Devine v. Cook (84 Ill. 590) 36 b
v. State (4 Iowa, 443) 10334
Devlin v. Anderson (88 Cal. 92) 817
—, People v. (83 N. Y. 269) 37,1784
avi Rex v. (Ryan & Moody, N. P.
144
301
Devoy v. New York (35 Barb. 264) 152
Dew v. Cunningham (28 Ala. 466) 37
Dewar v. People (40 Mich. 401) 997
Dewart v. Purdy (5 Casey, Pa. 118) 84
Dewees v. Miller (5 Harring. Del. 347) 848
Dewey v. Goodenough (56 Barb. 54) 1894
De Winton v. Brecon (26 Beav. 583) 1122
Dewitt, Reg. v. (2 Car. & K. 905) 210
—— v. San Francisco (2 Cal. 289) 102,
137
——, United States v. (9 Wal. 41) 990
De Wolf v. Rabaud (1 Pet. 476) 115
Deyo v. Bleakley (24 Barb. 9) 8la
Dick, Rex v. (1 Leach, 68; 2 East
P. C. 925) 326
— »v. State (30 Missis. 631) 274
——, State v. (2 Murph. 888) 174
Dicken, Reg. v. (14 Cox C. C. 8) 160, 482
Dickenson, Rex v. (1 Saund. Wms.
ed. 135, note) 164, 166
Dickerson v. Rogers (4 Humph. 179) 297
Dickey, United States v. (Morris,412) 249
Dickins v. State (80 Ga. 383) 1022
Dickinson’s Appeal (42 Conn. 491) .633
Dickinson, Com’th v. (9 Philad. 661). 36a
—,, State v. (41 Wis. 299) 742, 742
Dickson v. Chicago, &c. Railroad (77
Ill. 381) 268
Diedrich v. Northwestern Union Rail-.
way (42 Wis. 248) 808
176
INDEX TO THE CASES CITED.
‘DON
SECTION
Dieffenbach, State v. (47 Towa, 638) 1064
Dill, State v. (2 Sneed, 414) 193
Dillard v. Philson (5 Strob. 218) 261a
— v. Webb (55 Ala. 468) 1188
Dilley v. People (4 Bradw. 52) 1127
Dillon ». Dougherty (2 Grant, Pa. 99) .. 85
v. Linder (86 Wis. 344) 179
Dilworth v. Mayfield (86 Missis. 40) 261
Dineen, State v.. (10 Minn. 407) 320
Dingee, State v. (17 Iowa, 232) 670,.688
54| Direct U. S. Cable Co. v. Anglo-
American Tel. Co. (2 Ap. Cas. 394) . 93
Directors of the Poor v. Railroad (7
Watts & S. 236) 177, 186
Disbrow v. Saunders (1 Denio, 149) 1003
District Township, &c. v. Dubuque . ..
(7 Iowa, 262) 254
Dive v. Maningham (1 Plow. 60) 42¢
Division of Howard (15 Kan. 194) 36a, 37
Dixon ». Niccolls (39 Ill. 372) 1006 a
—, Rex v. (10 Mod. 335; Say. 226) Bet
—, Rex v. (Russ. & Ry. 53) 244
——,, United States v.. (4 Cranch C.
_ ©.107 851
Dobkins v. State (2 Humph. 424) 852, 860,
914, 929
Dobson, Rex v. (1 Lewin, 43) 174
—— v. State (57 Ind. 69) 190 e, 1013
——, State v. (65 N. C. 346) 1003
Dodd, Rex v. (9 East, 516) 149
- v. State (18 Ind. 56) 163
Doddridge v. Stout (9 W. Va. 703) 92a,
926
Dodge, Ex parte (7 Cow. 147) 110¢
v. Essex (3 Met..380) 137, 250, 2504
v. Gridley (10 Ohio, 173) 163
v. Woolsey (18 How. U.S. 331). 12
Dodsworth, Reg. v. (8 Car. & P.218) 824
Doe, Commonwealth v. (108 Mass.
418) ‘ 1032, 1069
Doebler v. State (1 Swan, Tenn. 473) 129
Doherty, Com’th v. (103 Mass. 443) .796
—, Com’th v. (116 Mass. 13) 1055, 1057
——,, State v. (25 La. An. 119) 154
——, State v. (60 Maine, 504) 83a
Dolan v. Buzzell (41 Maine, 473} 1030
—, Com’th v. (121 Mass. 374) 1057
—— v. Green (110 Mass. 322) 1080, 1031
— v. People (64 N. Y. 485) 473
——,, People v. (9 Cal. 576) 476
—— v. Thomas (12 Allen, 421) 152
Dole, Commonwealth v. (2 Allen, 165) 336
Dominick v. Michael (4 Sandf. 374) 98
Don v. Lippmann (5 Cl. & F.1) . 175
Donahoe v. Coleman {46-Conn. 319) 1031
Dae aon v. State (10 Texas Ap.
515
Donegall v. Layard (8 H. L. Cas. 460) 77
Donehey, State v. (8 Iowa, 396) 31, 1638
Donlin v. Hettinger (57 Il. 348) 255
Donnavan, Rex v. (1 Leach, 69; 2
W. BI. 682) | 207
Donnell v. State (2 Ind. 658) . 228
DOW INDEX TO THE CASES CITED. DUN
SECTION SECTION
Donnelly, Com’th v. (14 Gray, 86, Downs v. State (19 Md. 571) 1032
note) 1033 a, 1035 | Dowsell, Rex v. (6 Car. & P. 398) 145
Donnevan, Rex v. (2 East P. C. 1020) 207
Doyle v. Baltimore (12 Gill & J.484) 852,
Donniger v. State (52 Ind. 826) 852, 884, 874
889, 894 | ——, State v. (11 R. I. 574) 1037
Donovan, Com’th v. (16 Gray, 18) 1069 | Dozier v. Williams (47 Missis. 605) 250d
—— v. Vicksburg (2Y Missis. 247) 22 | Drage v. Brand (2 Wils. 377) 112
Doolubdass v. Ramloll (7 Moore P. C. Drake, Com’th v. (124 Mass. 21) 760
239; 15 Jur. 257; 3 Eng. L. & Eq. ——,, State v. (1 Vroom, 422) 758
39) 84! Draper v. Emerson (22 Wis. 147) 97
-Doon, State v. (R. M. Charl. 1) 141, 855 | Drapert v. State (14 Ind. 123) 999
Dore v. Gray (2 T. R. 358) 160 | Drennan v. People (10 Mich. 169) 97
Dorin v. Dorin (Law Rep. 7 H. L.
568) 638
Dorman v. State (84 Ala. 216) — 40, 992,
997, 1037
Dorrity v. Rapp (72 N. Y. 307) 13+
Dotson v. State (62 Ala. 141) 5964, 596)
Doty, People v. (80 N. Y. 225) 1097
Dougherty, In re (27 Vt. 325) 992
— v. Com’th (14 B. Monr. 239) 999
—, Com’th v. (6 Gray, 349) 432, 447)
—— v. People (1 Colo. 514)
Doughty v. Converse (13 Vroom,
193)
Douglas v. Douglas (5 Hun, 140)
— v. Forrest (4 Bing. 686)
—, Rex v. (7 Car. & P. 644)
—, Rex v. (1 Moody, 462) 231
Rex v. (1 Moody, 480) 769, 770
Douglass v. Chosen Freeholders (9
Vroom, 214)
v. Com’th (2 Rawle, 262) 208
v. Com’th (8 Watts, 585) 779, 780
—— v. Pacific Mail Steamship Co.
754
113
98
260a
775
(4 Cal. 304) 212
— v. Pike (101 U. S. 677) 83a
— v. State (72 Ind. 385) 163, 1032
—, State v. t Towa, 413) 833, 835
—, State v. (5 Sneed, 608) 41
——, State v. (4 Vroom, 363) 1126
Douglasville v. Johns (62 Ga. 423) 997
Douse, Rex v. (1 Ld. Raym. 672) 249
Dousman, State v. (28 Wis. 541) 34
Dove, Commonwealth v. (2 Va. Cas.
26) 1037, 1045
v. State (37 Ark. 261) 429
Dover v. Maestaer (5 Esp. 92) 257
Dow, Commonwealth v. (10 Met.
382) 22, 34, 1137, 1139
v. Norris (4 N. H. 16) 178
—, State v. (21 Vt. 484) 136, 1024
Dowdell v. State (58 Ind. 333) 159, 10345
Dowdican, Com’th v. (114 Mass. 257) 1069
Dowling, Com’th v. (114 Mass. 259) 1069
Downer, State v. (21 Wis. 274) 1006, 1040
Downes, Com’th v. (24 Pick. 227) 137
Downey v. State (20 Ind. 82) 1038
Downham v. Alexandria (10 Wal.
1738) 1093
Downing v. Porter (8 Gray, 539) 1057
Downman v. State (14 Ala. 242) 204, 291,
1011
59
Downs v. Huntington (35 Conn. 588)
0 |} —— v. McLean (4 McLean, 486)
‘ Duchess of Kingston’s Case (1 Leach,
Drew v. Com’th (1 Whart. 279) 142, 163
—. Commonwealth v. (3 Cush.
279) 852, 855, 881
——, Com’ th »v. (19 Pick. 179) 133
v. State (5 Eng. 82) 919, 923
—— v. Wakefield (54 Maine, 291) 115
Drewry, Com'th v. (15 Grat. 1) 39a
Droit d’Aubaine (8 Opin. Att-Gen.
411) 14
Drydon, Ex parte (5 T. R. 417) 82
Duane, Com’th v. (1 Binn. 601) 177
Dubois v. Augusta (Dudley, Ga. 30) 20
88a
—-v. Miller (5 Hun, 352) 103la
Dubuclet, State v. (28 La. An. 698) lla
Ducey, Commonwealth x. (126 Mass.
269) i 992, 1002
Ducher v. State (18 Ohio, 308) 312, 318
146) 239
Duck v. Addington (4 T. R. 447) 82
Duclos, State v, (85 Misso. 237) 262
Ducros, U. S. v. (15 How. U.S. 38) 32
Dudley,. Commonwealth v. (3 Met.
Ky. 221) 1088
v. Mayhew (3 Comst.9) 249, 2504
v. Sautbin (49 Iowa, 650) 1021
Duffus’s, Lord, Case (2 Comyns, 440) 216
Duffy, In re (4 Brews. 531) 809
—— v. Ogden (14 Smith, Pa. 240) 29
Dufour, Succession of (10 La. An.
391) 13, 14
Dugan ». Gittings (3 Gill, 138) 154, 159.
163
Duke, State v. (42 Texas, 455) 798
Dukes v. State (11 Ind. 557) 476
Dull v. People (4 Denio, 91) 226
Dunbar ». Mulry (8 Gray, 163) 1031
— v. Roxburghe (3 Cl. & F. 335) 104
Duncan v. Commonwealth (2 B.
Monr. 281) 1004
v. Cox, (6 Blackf. 270) 933
—— r. Duboys (3 Johns. Cas. 125) 402
v. State (7 Humph. 148) 152
v. State (49 Missis. 331) 432 a
—, State v. (9 Port. 260) 242
Duncombe »v. Prindle (12 Iowa, 1) 90
Dunham v. Chatham (21 Texas,
231) 1013
v. Dey (13 Johns. 40) 150
— v. Gould (16 Johns. 367) 150
—— v. Lamphere (3 Gray, 268) 1181
TTT
EBB INDEX TO THE CASES CITED. ELL
SECTION ' d SECTION
Dunham v. Rochester (5 Cow. 462) 20 Ebert, State v. (40 Misso. 186) 852, 861,
——,, State v. (34 Texas, 675) 464 876
Dunkley, State v. (3 Ire. 116) 1s0 Ebner, United States v. (4 Bis. 117) 250¢
Dunlap v. Gleason (16 Mich. 158) 423 Eccles v. Stephenson (3 Bibb, 517) 163
Dunman »v. Strother (1 Texas, 89) 848, | Eckhardt v. People (83 N. Y. 462) 154
851, 852, 873 Eckhart rv. State (6 W. Va. 515) 84
Dunn, Ex parte (14 Ind. 122) 999 ' Eddington v. Borman (4 T. R. 4) 113
—, Com’th v. (111 Mass. 425) 1069 | Eddins v. Graddy (28 Ark. 50) 261a
—— v. People (40 Ill. 465) 952, 954, 956, | Edds, Commonwealth v. (14 Gray, —
962, 966| 406) 852, 884, 1069
—— v. People (29 N. ¥. 523) 749, 760, | Edelmuth v. McGarren (4 Daly, 467) 958
. 761 | Eden’s Case (Cro. Eliz. 697) 400
——, State v. (26 Ark. 84) 692, 699, 705 | Edgar v. Greer (8 Iowa, 394) 160
—, State v. (53 Iowa, 526) 639, 649 | —— v. State (37 Ark. 219) 1021, 1022
Dunnavant, State v. (3 Brev. 9) 248 : Edgell, Reg. v. (11 Cox C.C. 182) 289
Dunnaway v. State (9 Yerg. 350) 1065/ Edinburgh, &c. Railway v. Linlith-
Duramus v. Harrison (26 Ala. 326) 98! gow (3 Macq. H. L. Cas. 691) 50
Durfee, Com’th v. (100 Mass. 146) 680; Edinburgh Street Tramways v.
Durham ». State (1 Blackf. 33) 917| Black (Law Rep. 2 Sc. Ap. 336) 77
Durick, People v. (20 Cal. 94) 152 | Edmonds v. Banbury (28 Iowa, 267) 793,
Duroy v. Blinn (11 Ohio State, 831) 1081. | 809
Dustin, State v. (5 Oregon, 375) 828 '-—— v. Lawley (6 M. & W. 285) 84
Duval v. State (8 Texas Ap. 370) 425, 426 | ——, Reg. v. (4 Ellis & B. 993; 1 Jur.
Duvall, State v. (26 Wis. 415) 474,476] ww. s. 727; 80 Eng. L. & Eq. 879) 22
Duzan, State v. (6 Blackf. 31) 786, 791, | Edmund, State v. (4 Dev. 340) 246
795 ' Edrich’s Case (5 Co. 118) 145
Dwelly v. Dwelly (46 Maine, 877) 119, | Edward, State v. (6 Mart. La.474) 177
155 , Edwards, Commonwealth v. (12
Dyches v. State (24 Texas, 266) 255| Cush. 187) 990, 1044, 1057
Dycus v. State (6 Lea, 584) 786, 789 —~, Com’th v. (9 Dana, 447) 90, 261 d,
Dye, Reg. v. (11 Mod. 174) 250 | ——, Com’th v. (4 Gray, 1) 180, 255
Dyer v. Best (Law Rep. 1 Ex. 152) 257 |-——, Com’th x. (10 Philad. 215) 426
v. People (84 Ill. 624) 1047 | —— v. Derrickson (4 Dutcher, 89) 286
——, Rex v. (6 Mod. 41) 33 v. Kearzey (96 U. S. 595) 85a
—— v. State (Meigs, 237) 28, 1032 | —— v. McCaddon (20 Iowa. 520) 2644
——.,, State v. (59 Maine, 303) 758, 760 | —, Reg. v. (9 Exch. 32; 23 Law J.
n. 8. Exch. 42) 29
v. Reg. (9 Exch. 628) 29, 108
Fagan v. State (53 Ind. 162) 1006 a |; ——, Rex v. (Russ. & Ry. 288) 691, 601
Eakin v. Raub (12 S. & R. 330) 84 v. State (22 Ark. 253) 1001
Eason v. State (6 Eng. 481) 90, 242 v. State (10 Texas Ap. 25) 696,699
East v. Wilson (Cro. Eliz. 106) 898 | ——, State v. (60 Misso. 490) 1082, 1045,
East Boston Ferry Co., Common- 1052
wealth v. (13 Allen, 589) 261 d | Eggington, Rex v. (2 East P. C. 494) 280
East Hampton v. Kirk (6 Hun, 257) 305) Egginton, Rex v. (2 B. & P. 508; 2
East India Co. v. Sandys (Skin. 182) 1093| Leach, 9138) 280
East India Interest (3 Bing. 193) 95a | Eggleston, Com’th v. (128 Mass. 408) 1024
East Oakland v. Skinner (94 U. S. Egypt Street (2 Grant, Pa. 455) 156
255) 246 a | Kighty-four Boxes of Sugar, United
East St. Louis v. Maxwell (99 IIl. States v. (7 Pet. 453) 198, 195
439) 189 a | Hisenman v. State (49 Ind. 520) 1007,
Easterling v. State (30 Ala. 46) 1011, 1034 6
: 1060 | Elam v. State (25 Ala. 53) 1021, 1022,
—— v. State (35 Missis. 210) 1052 1045 a
Eastman v. Chicago (79 Ill. 178) 1097 | Elder v. Bemis (2 Met. 599) 187, 250
—— v. McAlpin (1 Kelly, 157) 46 v. Bradley (2 Sneed, 247) 259
Eastwood v. Miller (Law Rep. 9 Q. ——, State v. (54 Maine, 381) 1032
B. 440) 855, 878 | Elkins v. State (18 Ga. 485) 1052
——, People v. (4 Kernan, 562) 981 | Ellas v. Lockwood (Clarke, 311) 271
Eaton, Com’th v. (9 Pick. 165) 1034 | Elliott, Com’th v. (121 Mass. 867) 1078
v. Graham (11 Ill. 619) 177 | —— v. Locknane Kt Kan. 126) 154
Eau Claire, State v. (40 Wis. 533) 388 | ——, Rex ». (2 East P. C. 951) 336
Ebbs v. Boulnois (Law Rep. 10 Ch. —— v. State (26 Ala. 78) 855, 881, 912
Ap. 479) 64 | —— v. State (73 Ind. 10) 1032
778
ENG
SECTION
Elliott v. Swartwout (10 Pet. 137) 99
Ellis, Ex parte (11 Cal. 222) 93,
— v. Batts (26 Texas, 703) 126, 156
— v. Beale (18 Maine, 337) 848, 852,
855, 872, 873
—v. Murray (28 Missis.129) .2464
— v. Paige (1 Pick. 43) 159, 161, 163
——, Reg. v. (Car. & M. 564) 242, 832
——,, Reg. v. (1 Fost. & F. 309) 607
—, Rex v. (6 B. & C. 895; 8D. &
R. 173) 141, 220
—— v. State (42 Ala. 525) 666 «
— v. State (20 Ga. 438) 689
—, State v. (74 Misso. 385) 736
— v. Whitlock (10 Misso. 781) 192
—— v. Whittier (37 Maine, 548) 178
Ellison v. Mobile and Ohio Railroad
(36 Missis. 572) : 87
——, Rex v. (1 Moody, 336) 291
— v. State (6 Texas Ap. 248) 163, 1095
Ellor, Rex v. (1 Leach, 823; 2 East
P. C. 938) 3829
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
— vt. State (72 Ind. 292) 1020
—, State v. (12 Rich. 662) 163, 261d
Elsberry v. State (52 Ala. 8) 1097
—— v. State (41 Texas, 158) 852, 884, 903
Elsmore v. St. Briavells (8 B. &
C. 461; 2 Man. & R. 514) 289, 291
Elwell, Commonwealth v. (2 Met.
190) 656, 658, 665, 670, 671, 675, 733
Elwood v. Bullock (6 Q. B. 383) 22
——, State v. (12 Wis. 551) 816
Ely v. Bliss (2 De G., M. & G. 459) 153
—— v. Cash (15 M. & W. 617) 153
— v. Holton (15 N. Y. 595) 1524
—v. Thompson (3 A. K. Mar. 70) 34,
152, 163, 793
—— v. Webster (102 Mass. 304) 1030, 1031
Emerick, State v. (85 Ark. 3824) 1034 a,
1042
Emerson v. Noble (32 Maine, 380) nae
1031
1022
Emery v. Kempton (2 Gray, 257)
992 a
—— v. Lowell (127 Mass. 138)
Emily, The, and The Caroline (9
Wheat. 381) 200
Emmons, Commonwealth v. (98
Mass. 6) 852, 877, 889
Emporia v. Norton (16 Kan. 256) 70
oe v. Von Wamel (26 Texas,
Encking v. Simmons (28 Wis. 272) 82
Enfield Toll Bridge v. Hartford, &.
Railroad (17 Conn. 40) 301
England, Reg. v. (1 Car. & K. 538) 289
Engle v. Shurts (1 Mich. 150) 177
Engleman v. State (2 Ind. 91) 106
English v. Beard (51 Ind. 489) 1031 a
— »v. Oliver (28 Ark. 317) 37
——v. State (85 Texas, 473) 793
INDEX TO THE CASES CITED.
EVE
SEcTION
English v. State (7 Texas Ap. 171 36,
803, 10705
v. Young (10 B. Monr. 141) 855, 881
Ennis v. Crump (6 Texas, 34) 144
Enoch, People v. (13 Wend. 159) 470, 474
Enos, State v. (Kirby, 21) 261 d
Enslow, State v. (10 Iowa, 115) 4385, 440,
442
Enterprise, The (1 Paine, 32) 193,194, 200
Entick v. Carrington (19 Howell St.
Tr. 1029) 190 5
Enwright v. State (58 Ind. 567) 890, 891
Eppstein v. State (11 Texas Ap. 480) 1035
Erickson, State v. (45 Wis. 86) 480, 486
Erie, People v. (1 Buf. 517) 255
Erie and North East Railroad v.
Casey (2 Casey, Pa. 287) 37
Erlinger v. Boneau (51 Ill. 94) 36, 119
Erskine, Com’th v. (8 Grat. 624) 217
v. Davis (25 Ill. 251) 1051
Ervine v. Commonwealth (5 Dana,
216) 163, 852, 855, 859
Erwin v. Moore (15 Ga. 361) 81, 154, 159
—— v. Stafford (45 Vt. 390) 1030
Eskridge v. State (25 Ala. 80) 89
——, State v. (1 Swan, Tenn. 413) 249,
1032
Eslava v. State (44 Ala. 406) 855, 863
v. State (49 Ala. 355) 788 a
Espy v. State (47 Ala. 533) 1016
Essex, People v. (70 N. Y. 228) 76, 176
Estabrook, Commonwealth v. (10
Pick. 298) 284, 291, 1011
——, State v. (6 Ala. 653) 1002
Estep v. Hutchman (14 S. & R. 485) 42d
Esterley’s Appeal (4 Smith, Pa. 192) 119
Estes v. State (2 Humph. 496) 854, ae
1026
v. State (10 Texas, 300) 921
Estrella, The (4 Wheat. 298) 163
Etheridge v. Cromwell (8 Wend. 629) 132
Eubanks v. State (17 Ala. 181) 854.4, 855,
884
v. State (3 Heisk. 488)
858
— v. State (5 Misso. 450) 246, 852, 855
Euper v. State (35 Ark. 629) 852, 855, 867
Eustis v. Kidder (26 Maine, 97) 255
Evans v. Browne (80 Ind. 514) 37
— v. Commonwealth (3 Met. 453) 41
——, Com’th v. (16 Pick. 448) 349
—, Commonwealth v. (13 S. &
R. 426) 159, 163, 168
v. Cook (11 Nev. 69) 858
v. Galloway (20 Ind. 479) 261
v. Rees (9 C. B. w. s. 391) 153
—, Reg. v. (Car. & M. 298) 204
v. Sharp (29 Wis. 564) 86a
—— v. State (1 Humph. 394) 216
v. State (8 Ohio State, 196) 329
—, State v. (7 Gill & J. 290) 167
——, State v. (3 Hill, S. C. 190) 163, 1032
, State v. (5 Jones, N. C. 250) 1052
Evansville v. Bayard (39 Ind. 450) 1564
Evergreens, In re (47 N. Y. 216) 154
779
FAR, INDEX TO. THE ‘CASES CITED. FIE
SEcTION|: SEcrion
Evins v. State (46 Ala. 88) 786, 791 | Farrington, People v: (14: Johns...
Ewart v. Williams (3 Drewry, 21) 77} 348) 828, 330
Ewell v. State (6 Yerg. 864) 725 | ——, Rex v. (Russ. & Ry..207) 168
Ewer v. Jones (2 Ld. Raym. 934) . 250 a] Farrow, Reg. v. (40.Eng. L. & Eq. -
—, Reg. v.-(Holt, 612) 164| 550; Dears. & B. 164) 747, 757
Ewing’s Case (5.Grat. 701) 84 | Faucett, State v. (4 Dev. & Bat. 107) 1087.
Excelsior Petroleum Co. v. Embury ~ ‘| Faulkner, Rex v. (1 Saund. 249) ——. 984
(67 Barb. 261) 160 | Faulks v. People (89 Mich. 200) 1021, ane
Exchange Bank v. Hines (8 Ohio
State, 1) é
103
Exeter, Ex parte (10 C. B. 102)
Kye, Rex v. (1 B. & C. 85) 112
Eyston v. Studd (2 Plow. 459) 93
Ezekiel v. Dixon (8 Kelly, 146) 72, 81
Fackler v. Fackler (14 Misso. 481) 2615
Faderman, Reg. v. (4 New Sess. Cas..
161; Temp. & M. 286; 1 Den.
C. C. 565) 348
Fagan, State v. (22 La. An. 645) 387, 38
Fahey, Com’th v. (6 Cush. 408) 22, 407
Fairbanks v. Antrim (2.N. H. 105) = 199
Fairbury, State v. (51 Ill. 149) 256
Fairfax v. Hunter (7 Cranch, 608) 13
Fairfield, State v. (37 Maine, 517) ae
102
Falmouth v. Watson (5 Bush, 660) oe
‘ 9
Fall v. Hazelrigg (45 Ind. 576) —-97, 104
Falvey, Com’th v. (108 Mass. 804) 449
Fancher, People v. (50 N. Y. 288) 92, 92 4
Fanning, Reg. v. (17 Irish Com.
Law, 289; 10 Cox C. C. 411) 590
Fanshaw v. Morrison (2 Ld. Raym.
1138) 16
Fant.v. People (45 Ill. 259) 28, 1070 a
Far v. Payne (40 Vt. 615) 1051
Farbach v. State (24 Ind. 77) 1022
Farley v. Bonham (2 Johns. & H. 177) 77
Farmer v. Com’th (8 Leigh, 741) 298
— v. Fletcher (11 La An. 142) 104a
v. People (77 Ill. 822) 179, 1021, 1022
——, State v. (49 Wis. 459) 1097
Farmers’ Bank v. Gunnell (26 Grat.
131) a
— 0. Hale (59N. ¥.53) 57, 65, 82
Farmers’ Ins. Co. v. Highsmith (44
Towa, 380). 36 a
Farmer’s Turnpike v. Coventry (10
Johns. 389) 164, 249, 250.4
Farnham, Reg. v. (1 Cox C. C. 849) 771
Farnum, Commonwealth v. (114
Mass. 267) 1074, 1075, 1076
Farr v. Brackett (30 Vt. 344) 159
‘uv. East (Cro. Eliz. 186) 895
Farrall v. State (32 Ala. 557) 1052
Farrand, Com’th v. (12 Gray, 177). 1069
Farrel Foundry v. Dart (26 Conn. 876) 72
Farrell v. Campbell (3 Ben. 8) 271
— v. State tf Ind. 573) 1045
v. State (45 Ind. 371) 1040
Farren, Commonwealth v. (9 Allen,
489) ; 1125, 1127.
780 ,
Faunce v. People (51 Ill. 311).
4) Fauntleroy v. Hannibal (1 Dil. 118) 426. :
—, 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). :, 34
Fawkner, Rex v..(2 Keb. 606, pl...
79 . 984, 1059
Fazakerly. v. Wiltshire (1 Stra. 462), 84
Feagin v. Comptroller (42 Ala. 516) 95a
Fearing v. Irwin (55 N. Y. 486) 85a
Fears v. Sykes (35 Missis. 633) 265
Fearson, State v. (2 Md. 310) 204, 852, 858,
860, 878
Feasel, State v. (74 Misso. 524) 641
Feaster, State v. (25 Misso. 324) 476
Feazle, Com’th v. (8 Grat. 585) 298
Fehrenback,. United States v.
Woods, 175) 46, 261 d
Fein v. Territory (1 Wy. Ter. 376) 248
7 | Feldman v. Morrison (1 Bradw. 460) 249,
1006 a, 1010
Fell v. State (42 Md. 71)_ 990, 992, 992 a
Fellowes v. Clay (4 Q. B. 313) 48, 51, 75
Fellows .v.. Blacksmith (19 How.
U.S. 366) 18, 14
— , State v. (50 Wis. 65) 656
4 | Felt v. Felt (19 Wis. 193) 126
Feltmakers v. Davis (1B. & P. 98) 405, 406
Felton v. U. S. (96 U. S. 699) 1022
Fenelon, Petition of (7 Barr, 178) 177, 1774
Fenner v. State (3 BR: 1.107) . 1057
Fenton v. Emblers (1 W. BL. 358) 260a
Ferguson v. Miller (1 Cow. 248) . 1133
—— tv. People (73 Ill. 559) 1082
——, Reg. v. (1 Cox C. C. 241) 332
——,, State v. (62 Misso. 77) . 84
——-, State v. (72 Misso. 297) 1000
Fergusson v. Fyffe (8 Cl. & F.121). 175
v. Norman (5 Bing. N.C. 76) 1884
Ferrall, Reg. v. (2 Den. C. C. 51; 4
Cox C. C. 481; 1 Eng. L. & Eq. 575) 691
Fetter v. Wilt (10 Wright, Pa. 457)... 228
Fetterer v. State (18 Ind. 888) 1038
Fezas, Rex v. (4 Mod. 8). 623
Fickle v. St. Louis, &c. Railway. (54 .
Misso. 219) 2
Fiddler v. State (7 Humph. 508) 852, 855,
861
Fidler, Rex v. (4 Car. & P. 449) 214
——,, State v. (7 Humph..602) 244, 852,
855, 861
Field v. Des Moines (89 Iowa, 575) 17,174
—— v. Gooding (106 Mass. 310) 46, 255
v. People (2 Scam. 79) —.- 187, 809
——, State v. (17 Misso. 529) ... . 36
FLA
SECTION
Fielding v. Rhyl Imp. Com. (8C.P.
D. 272) 20, 22
Fields, State v. (2 Bailey, 554) 46, 82, 200,
260
Fierline, State v. (19 Misso. 880)
Fife v. State (31 Ark. 455)
Files v. Robinson (80 Ark. 487) 31
Filkins v. People (69 N. Y. 101) 820
Finan, State v. (10 Jowa, 19). 1024, eh
04
1045a
792, 793
Finch v. Commonwealth (14 Grat. 643) 312:
— v. Mansfield (97 Mass: 89) 1030
—, People v. (5 Johns. 287) 336
Findlay v. Bear (8 S. & R. 571) 344
—, State v. (2 Bay, 418) 149, 204, 628
Findley, State v. (1 Brev. 107) 48, 237
Fine, Case of (7 Co. 82 a) 103
Fink v. Maples (15 Ind. 297) 336
‘—— v. Milwaukee (17 Wis. 26) 407.
Finlay, U.S. v: (1 Abb. U. 8. 864) 177
Finn v. Haynes (37 Mich. 63) 88a
‘——v. State (5 Ind. ae : 476
Finnegan, Com’th v. (109 Mass. 363) 1069
—, Com’th v. (124 Mass. 824) 1069
Finney v. Ackerman (21 Wis. 268) 84
— v. State (38 Head, 544) 260, 588, 613
First District Judge, State v. (32 La.
An. 719) . 960
First National Bank v. Prescott (27
Wis. 616) 255
Fisher v. Cockerill (5 T. B. Monr.
129) : 8a
—, Com’th », (17 Mass. 46) 199, 330
-— v. Deering (60 Til. 114) - 97
—— v. Harnden (1 Paine, 55) 18, 14
—— v. Harrisburg (2 Grant, Pa. 291) 22
— vt. Horicon Iron and Man. Co.
(10 Wis. 351) 212
—v. McGirr (1 Gray, 1) 33, 34, 992,
998, 994, 1031, 1056, 1057
-—— v. Patterson (1 Harris, Pa. 336) 1077
——,, People v. (2 Parker C. C. 402) 992
—, Reg. v. (Law Rep. 1 C. C. 7;
10 Cox C. C. 146) 813, 482 a
—— v. State (4 Texas Ap. 181) 428
——,, State v. (35 Vt. 584) 1003
——, State v. (33 Wis. 154) 9994, 1000
—, U.S. «. (2 Cranch, 358) 46, 82
Fiske, State v. (9 R. I. 94) . 86
Fitch, Reg. v. (Letgh & C. 159; 9
INDEX TO THE CASES CITED.
FOR
; SrcTIoN
Flaherty, Reg. v. (2 Car. & K. 782) 610
v. Thomas (12 Allen, 428) 185
Flake v. State (19 Ala. 551) 298, 908
Flanagan v. Philadelphia (6 Wright,
Pa. 219) 303
Flanders, People v. (18 Johns. 164) 205,
‘B82
é
168, 167,
171
Flanigin, State v. (5 Ala. 477)
0 | Flannagan, Rex v. (Russ. & Ry. 187) 279
Flannelly, Commonwealth v. (15
Gray, 195) 163, 1124, 1125, 1127
Fleckenstein, State v. (26 Minn. 177) 997
Fleming v. Bills (3 Oregon, 286) 954
—— v. People (27 N. Y. 329) 606
——,, State v. (7 Humph. 152) 33
—, State v. (19 Misso. 607) 103
——,, State v. (2 Strob. 464) 242
Fletcher’s Case (1 Leach, 342, note;
2 Stra. 1166) 145
—— v. Calthrop (6 Q. B. 880) 432 a
v. Oliver (25 Ark. 289) 36a
v. Peck (6 Cranch, 87) . 91
—, Reg. v. (2 Car. & K.215) 285, 289
—, Rex v. (1 Leach, 23; 2 Stra.
1166) 821
v. Rhode Island (5 How. U. 8.
504) [Same as License Cases. ] 990
—, State v. (18 Misso. 425) 890
——, State v. (5 N. H. 257) 138, 1032
——,, State v. (1 R. I. 195) . 175, 176, 177
——, State v. (85 Texas, 740) 464
Flight v. Maclean (16M. & W.51) 336
Flinn v. State (24 Ind. 286) 299
Flint, &c. Plank-road v. Woodhull
(25 Mich. 99) 40
Flint River Steamboat Co. v. Foster
(5 Ga. 194)
Flockwold Inclosure, Rex v. (2 Chit.
251) 112
Flora v. Lee (5 Bradw. 629) —_ 10382, 1052
Flowers v. Foreman (23 How. U. S.
132) : 264.0
Floyd v. Commissioners (14 Ga. 354) 1002
Flynn v. State (34 Ark. 441) 852, 855, 868,
874
7
Foley, Com’th v. (99 Mass. 499) 978, 979
Foliamb’s Case (5 Co. 115d) 137
Follet, State v. (6 N. H. 53) 965
Fontain, Com’th v. (127 Mass. 452) 1026
Cox C. C. 160) 841 | Fontaine v. State (6 Baxter, 514) 958, 961,
Fitzacherly v. Wiltshire (11 Mod.352) 34 962
Fitzenrider v. State (30 Ind. 238) 1021 | Foote v. People (56 N. Y. 321) 1032
Fitzgerald v. Champneys (2 Johns. Foran, Com’th v. (110 Mass. 179) 1069
& H. 31 1126 | Forbe v. Foot (2 McCord, 331) 2616
—— ». State (12 Ga. 213) 801 | Ford’s Case (12 Co. 1) 344
——, State v. (49 Iowa, 260) 746 | Ford v. Hunter (Cro. Jac. 111) 397
—,, State v. (44 Misso. 425) | 805 v. State (53 Ala. 150) 666 a
Fitzgerrold v. People (37 N. Y. 413) 473 | Fordham, Reg. v. (11 A. & E. 73) 255, 255.
Fitzpatrick, State v. (4 R. I. 269) 837 | Fordyce v. Bridges (1 H. L. Cas. 1) 158
—— v. Turner (14 Fla. 382) 254 | Fore, State v. (1 Ire. 378) 662, 707
Fitzwalter’s Cuse (1 Mod. 105) 1128 | Forman v. Dawes (Car. & M. 127} 37
Flack, State v. (24 Misso. 378) 926 | Forqueran v. Donnally (7 W. Va.
Flagg, People v. (46 N.Y. 401) 39a, 40,92] 114) . 86, 154
781
FRA INDEX TO THE CASES CITED. FRI
SECTION SECTION
Forrester v. State (63 Ga. 849) 1024 | Frankfort, Com’th v. (18 Bush, 185) 966
Forster v. Cumberland Valley Rail- Franklin, Com’th v. (6 Gray, 846) 678
road (11 Harris, Pa. 371) 259 v. Holden (7 R. I. 215) = 1108, 110¢
Forsyth v. Marbury (R. M. Charl. —— v. State (12 Md. 236) 1042 °
824 2 | Franklin Falls Co., State v. (49 N. H.
Fort Plain Bridge v. Smith (80 N. Y. 240) .
44 151] Franklin Glass Co.'v. White (14
Forty-three Gallons of Whiskey, Mass. 286) 137
United States v. (93 U.S. 188) 990a|Franklin Wharf v. Portland (67
Forwood v. State (49 Md. 631) 1013
Fosdick v. Perrysburg (14 Ohio State,
472
Foss, Racemedes v. (14 Gray, 60) 1069
Foster’s Case (11 Co. 664) 57, 159, 160, 164
Foster v. Blount (18 Ala. 687) 246
—v. Commonwealth (12 Bush,
373) 768, 771, 778
—— v. Com’th (8 Watts & 8. 77) 163, 243
—, Commonwealth v. (1 Mass. 488) 159
— v. Dow (29 Maine, 442) 1000, 1001,
1079
v. Haines (13 Maine, 307) 1082
v. Medfield (3 Met. 1) 177
— v. Neilson (2 Pet. 253) 14
423
—— v. Pettiboné (3 Seld. 433)
204
—, Rex ». (7 Car. & P. 495)
—— v. State (38 Ala. 425) 261, 262
v. State (36 Ark. 258) 1007
—, State v. (3 Fost. N. H. 348) 1049, 1052
——,, State v. (8 McCord, 442) 844, 346
, State v. (2 Misso. 210) 890
——, State v. (61 Misso. 549) 256
— v. Thurston (11 Cush. 322) 1030
Fouke v. Fleming (13 Md. 392) 86
Foulkes, Reg. v. (Law Rep. 2 C. C.
150; 13 Cox C. C. 68) 271
Fourteen Hogs, Commonwealth v.
(10 8. & R. 393) 132, 228
Fouts v. State (8 Ohio State, 98) 475
Fowle v. State (47 Wis. 545) 428
Fowler v. Brown (5 Texas, 407) 163
v, Padget (7 T. R. 509) 243
v. Pirkins (77 Ill. 271) 67, 112, 154
v. Seully (22 Smith, Pa. 456) 1030
v. State (5 Day, 81) 49, 713
Fox, In re (52 N. Y. 530)
—, Com’th v, (10 Philad. 204)
v. Southack (12 Mass. 143)
v. State (3 Texas Ap. 329) 675
——,, State v. (1 Harrison, 152) 1038
——, United States v. (94 U. S. 815) 212
Foxcroft v. Crooker (40 Maine, 808) 1031
Fraher, Commonwealth ». (126
Mass. 66) 1057, 1068 a, 1069
——, Com’th v. (126 Mass. 265) 1069
Fraize, Com’th v. (5 Bush, 325) 891, 895
Frampton, Reg. v. (2 Car. & K.47) 341
France v. State (6 Baxter, 478) 163, 952,
961, 962, 965
212
1096
14
——,, State v. (72 Misso. 41) 957
——, State v. (1 Tenn. 434) 428
Francois, Ex parte (8 Woods, 367) 787
—— v. State (9 Texas Ap. 144) 137
Frank, Ex parte (52 Cal. 606}
782
22
8 | Franks, Rex v. (2 Leach, 644)
Maine, 46 ; 21
Franklyn, Rex v. (1 Leach, 255) 135, 145
244
Frantz v. Harrow (13 Ind. 507) 88a
Frappart, State v. (31 La. An. 340) 9904@
Fraser, Rex v. (1 Moody, 407) 599
Frasher v. State (8 Texas Ap. 263) 274,
737
Frasier v. State (6 Misso. 195) 1027
Frazee v. State (68 Ind. 8) 915, 936, 947
Frazer v. People (54 Barb. 306) 749, 760
——,, Reg. v. (8 Cox C. C. 446) 634
Freary v. Cooke (14 Mass. 488) 1128
Frederick v. Groshon (30 Md. 486) 160, 163
Fredericks, Com’th z. (119 Mass. 199) 997
——, State v. (16 Misso. 382) 1003
Frederickson v. State (23 How. U. S.
445) 13
Fredericton v. Reg. (8 Canada, S.C.
505) 36
Free v. State (13 Ind. 324) 261¢
——, State v. (2 Hill, S. C. 628) 260
Free Press Assoc. v. Nichols (45 Vt.7) 255
Freeborn v. Smith (2 Wal. 160) 180
Freels, State v. (8 Humph. 228) 216
Freeman v. People (4 Denio, 9) 144
— +. Read (4B.&8.174) 110,110a
—, Rex v. (5 Car. & P. 584) 271
—— v. State (6 Port. 372) 160
—— v. State (11 Texas Ap. 92) 736
——, State v. (6 Blackf. 248) 1061
——,, State v. (27 Iowa, 833) 10383 a, 1066,
1069, 1070
——, State v. (27 Vt. 520) 1011
—, U.S. v. (8 How. U.S. 556) 82, 104
Freeport v. Marks (9 Smith, Pa. 253) 38
Freese v. Tripp (70 Ill. 496) 97
Freleigh v. State (8 Misso. 606) 147, 211,
856, 958
French v. Edwards (13 Wal. 506) 255
——, v. Noel (22 Grat. 454) 999
v. People (8 Parker C. C. 114) 1024
—— v. Teschemaker (24 Cal. 518) 90
Fretwell, Reg. v. (Leigh & C. 161; 9
Cox C. C. 152 742, 747, 749
—— v. Troy Ge Kan. 271)
Friar v. State (8 How. Missis. 422) 255
Friend v. Hamill (34 Md. 298) 805
Frierson v. Hewitt (2 Hill, S.C. 499) 222
20, 72, 1094
Fries v. Pooch (49 Iowa, 351) 1057
Frisbie, People v. (26 Cal. 135) 85a
—— v. State (1 Oregon, 264) 895
Fritz v. First Division, &c. Railroad
(22 Minn. 404) 1138
—— v. State (1 Baxter, 15) 1009
GAL
SECTION
Frost v. Com’th (9 B. Monr. 362) 670, 686
Froud, Rex v. (7 Price, 609; 1 Brod.
& B. 300; Russ. & Ry. 889) - 328
Froude, Rex v. (3 Moore, 645) 328
Fry, Rex v. (2 Moody & R. 42) 321
Fry’s Election Case (21 Smith, Pa.
802) ° 817
Frye v. Chicago, &c. Railroad (78 IIl.
399) 82
—— v. Partridge (82 Ill. 267) 16, 33
Fryeburg Canal v. Frye (5 Greenl.
38 249, 250a
852
2504
Fugate v. State (2 Humph. 397)
Fuller v. Edings (11 Rich. 289)
—— v. People (92 Ill. 182) 36a
— , Rex v. (1 Leach, 186, n.) 279
— v. State (1 Blackr. 63) 163, 164, 167
—, State v. (14 La. An. 667) 160
—, State v. (14 La. An. 720) 163
—, State v. (1 McCord, 178) 348
—, State v. (33 N. H. 259) 1044
—, State v. (31 Texas, 559) 903
Fullerton v. McArthur (1 Grant, Pa.
282) 85a
— v. Spring (3 Wis. 667) 181
Fulton, State v. (19 Misso. 680) 855, 861,
876, 890
-Fulwood’s Case (Cro. Car. 484) 622
— (1 Hale P. C..660; Cro. Car. 488) 617,
622, 628
Fuqua v. Mullen (13 Bush, 467) 86a
Furlong, United States v. (2 Bis. 97) 1048
Furman v. Applegate (3 Zab. 23) 643
—— v. Knapp (19 Johns. 248) 1002
— v. Nichol (3 Coldw. 4382) 154
Furney v. State (3 Head, 544) 613
Gabbert v. Jeffersonville Railroad
(11 Ind. 865)
Gable, Com’th v. (7 S. & R. 423)
Gabriel v. State (40 Ala. 857)
Gaddy v. State (8 Texas Ap. 127)
Gaertner v. Fond du Lac (34 Wis.
386.a
112
248
422
497) 1003 a
Gafley, Com’th v. (122 Mass. 334) 1069
Gage, Com’th v. (114 Mass. 328) 20
v. Shelton (3 Rich. 242): 289
v. Smith (79 Ill. 219) 97
Gahagan v. People (1 Parker C. C.
378) 610
Gahan v. Neville (2 Cal. 81) 848
Gainer, State v. (3 Humph. 39) 163
Gaines v. Hennen (24 How. U.S, 553) 609
Gaiocchio v. State (9 Texas Ap. 387) 1024
Galbreath v. State (86 Texas, 200) 855,
878, 884, 912
Gale, Com’th v. (10 Bush, 488) 816
—— »v. Laurie (5 B. & C. 156) 82
Galena v. Amy (5 Wal. 705) 112
Gales, State v. (77 N. C. 283) 178a
Gallagher, Com’th v. (1 Allen, 592) 1069
—, Com’th v. (124 Mass. 29) 1057, 1058
——, Commonwealth v. (6 Met. 565) 314
INDEX TO THE CASES CITED.
GAT
SEcTION
Gallagher v. Neal (3 Pa. 188) 217
, People v. (4 Mich. 244) 40, 992
—— v. State (10 Texas Ap. 469) 828, 882,
834, 835
v. State (26 Wis. 423) 884
Gallaway v. Maries (8 Q. B. D. 275) 855,
878
Galpin v. Critchlow (112 Mass. 339) 3474
Galsworthy v. Durrant (8 Weekly
Reporter, 594) 164
Galusha v. Cobleigh (18 N. H.79) 2616
Gamble v. McCrady (75 N. C. 509) 34
v. State (35 Missis. 222) 946
Gamblin v. State (45 Missis. 658) 795
Gandy v. State (10 Neb. 243) 809, 810
Gannon, Com’th v. (97 Mass. 547) 1025
Ganssly v. Perkins (80 Mich. 492) 103la
Garber, State v. (7 Neb. 14) 256
Gardner v. Collector (6 Wal. 499) 29
v. Collins (2 Pet. 58) 115
—. Com’th v. (11 Gray, 438) 185
v. Lucas (3 Ap. Cas. 582) 84
—— v. Nolen (3 Harring. Del. 420)> 933
v. People (20 Ill. 430) 24, 997
—, People v. (45 N. Y. $12) 92
—— v. State (25 Md. 146) 79
——,, State v. (1 Root, 485) 688
—— v. Webber (17 Pick. 407) 261
Garfield v. Paris (96 U. S. 557) 1030
Garland v. Chattle (12 Johns. 430) 261
—,, Com’th v. (8 Met. Ky. 478) 899
——,, Commonwealth ce. (5 Rand. 652) 855,
; 861, 952
—,, Rex »v. (2 East P. C. 493; 1
Leach, 144) 284
v. Scott (15 La. An. 143) 259
—, State v. (7 Ire. 48) 103, 142
Garner v. Johnson (22 Ala. 494) 107, 111
v. State (8 Blackf. 568) 1006
—— v. State (5 Yerg. 160) 346
Garney, State v. (37 Maine, 149) 1044
Garonne, The, U. S. v. (11 Pet. 73) 231
Garratt, Rex v. (6 Car. & P. 369) 245
Garrett v. Messenger (Law Rep. 2 C.
P. 583; 10 Cox C. C. 498) 1096
——,, State v. (29 La. An. 637) &6a
— v. Wiggins (1 Scam. 335) 82
Garrigus v. Parke (39 Ind. 66) 46, 81, 119
Garrison v. McGregor (51 Ill. 4738) 862
Garrott v. Jaffray (10 Bush, 413) 141
Garst v. State (68 Ind. 57) — 1045, 1046
Garthwaite, State v. (3 Zab. 148) 82
Gartrell, State v. (14 Ind. 280) 698, 707
Gas Co. v. Wheeling (8 W. Va. 820) 76
Gasconade, State v. (83 Misso. 102) 110
Gaskill v. State (56 Ind. 550) 435, 437
Gaskin v. Anderson (55 Barb. 259) oe
—— v. Gaskin (Cowp. 657) 2618
—— v. Meek (8 Abb Pr. ny. 8.312) 36a
—— v. Meek (42 N. Y. 186) 36a, 426, 405
Gassaway v. Hopkins (1 Head, 583) 264a@
Gassett v. Godfrey (6 Fost. N. H.415) 1031
Gates, People v. (46 Cal. 52) 698
783
GIB
SECTION
Gates v. Salmon (85 Cal. 576) 8
——,, State v. (27 Minn. 52)
Gathings v. State (44 Missis. 343)
Gaul v. Brown (53 Maine, 496)
Gault v. State (34 Ga. 533)
Gautier v. Franklin (1 Texas, 782) 259
Gay, Commonwealth v. (5 Pick. 44) 406
— v. State (2 Texas Ap. 127) 728, ee
788 ¢
104
680
1080
139
638, 639
1024
1i7
1019, 1020
Gayle v. State (4 Lea, 466)
Gaylor’s Appeal (43 Conn. 82)
Gaylor v. McHenry (33 Ind. 383)
Gaylord v. Soragen (32 Vt. 110)
Gaze, Rex v. (Russ. & Ry. 384)
INDEX TO THE CASES CITED.
SECTION
2 | Gibson v. Com’th (6 Norris, Pa. 253) 119
GLA
— v. Jenney (15 Mass. 205) 155
—— v. Kauffield (13 Smith, Pa. 168) 1078
—— v. Pulaski (2 Pike, 309) 856
—, Reg. v. (8 Cox C. C. 486) © 271
—, Rex v. (1 East P. C. 418) 1385
——, Rex v. (1 Leach, 857; 2 East:
P. C. 508) : 285
— v. State (38 Ga. 571) 190 e, 193
——, State v. (86 Ind 389) 737
Giddings v. Cox (81 Vt. 607) 159
——- v. San Antonio (47 Texas, 548) 364
Gies, People v. (25 Mich. 83) 92a, 102
Gifford v. New Jersey Railroad (2
Gearhart v. Dixon (1 Barr, 224) 188] Stockton, 171) 86a
Gedicke, State v. (14 Vroom, 86) 747 | Gilbert v. Hendricks (2 Brev. 161) 1023
Gedney, People v. (10 Hun, 151) 286 | ——, People v. (18 Johns. 227) 108, 142
Gee, Commonwealth v. (6 Cush. 174) 220 }|——, Reg. v. (1 Car. & K. 84) 286
Geebrick ». State (5 Iowa, 491) 86 | —— v. United States (8 Wal. 358) 925
Genkinger v. Com’th (8 Casey, Pa. 99) 177 | Gilchrist, Reg. v. (Car. & M. 224; 2
Gentry v. McMinnis (8 Dana, 882) 274] Moody, 233) 326, 328, 329, 333
v. State (8 Yerg. 451) 808 | Giles, Com’th »v. (1 Gray, 466) 1007
Genung, People v. (11 Wend. 18) 225 v. Groves (12 Q. B. 721) 3014
George, Ex parte (T. U. P. Charl. 80) 41, | -——, Rex v. (1 Moody, 166) 307
222 | Gilham v. Wells (64 (ia. 192) 997
—— v. Board of Education (83 Ga. Gilkinson, People v. (4 Parker C. C.
344) 70, 82| 26) 1048, 1061
——, Reg. v. (11 Cox C. C. 41) 773 | Gill v. Parker (81 Vt. 610 992, 1057
: v. Skeates (19 Ala. 738) 159, 160 | ——, People v. (7 Cal. 356) 59
Georgetown v. Baker (2 Cranch C. C. v. State (80 Texas, 514) 154
291) : 1094
Georgia Railroad v. Kirkpatrick (85
Ga. 144) 1638
Gerhardt, State v. (3 Jones, N. C.
178) 1002, 1004
Gerke, People v. (5 Cal. 881) 13, 14
Germania v. State (7 Md.1) 212, 855, ‘992
Gertrude, The (3 Story, 68) 1382
Getchell, Com’th ». (16 Pick. 452) 90, 180
Geuing v. State (1 McCord, 578) 1025, 1052
Gholson v. State (53 Ala. 519) 788 a
Gholston v. State (33 Texas, 342) 248
Gibbon’s Case (Foster, 107) 312
Gibboney v. Com’th (14 Grat. 582) 896
Gibbons v. Brittenum (56 Missis. 282) 65,
67
— v. Gouverneur (1 Denio, 170) 848,
852, 873
— v. People (33 Ill. 442) 852, 875, 884
—, Reg. v. (12 Cox C. C. 237) 596 a
—, Rex v. (Russ. & Ry. 442) 279
Gibbs, Com’th v. (4 Dall. 243) 223
—, Reg. v. (Dears. 445; 24 Law
J.w.s. M. C. 62; 1 Jur. w. 8. 118;
29 Eng. L. & Eq. 638) 271
—, Rex v. (8) Mou. 58; 1 Stra. 497) wee
——,, State v. (1 Root, 177)
—— v. Usher (1 Holmes, 348) sid
Gibert, U. 8. v. (2 Sumner, 19) 167, 348
Giboney v. Cape Girardeau (658
Misso. 141) 18
or v. Barton (Law Rep. 10 Q. B.
—— »v. Belcher (1 Bush, 146)
784
106
86a
Gillbrass, Rex v. (7 Car. & P. 444) 245, 247
Gillespie, Commonwealth v. (78. &
R. 469) 961, 965
— v. State (9 Ind. 380) 41, 91
Gillet v. Mason (7 Jolins. 16) 1133
Gillick, State v. (7 Iowa, 287) 255
Gillman v. Sheboygan (2 Black, 510) 103
— vt. State (55 Ala. 248) 1096
Gilmanton, State v. (14 N. H. 467) 302
Gilmer v. Lime Point (19 Cal. 47) 119
Gilmore v. Dawson (64 Misso. 810) 250d
v. Shuter (‘T. Jones, 108) 85a
—,, State v. (9 W. Va. 641) 1021, 1022
U. S. v. (8 Wal. 380) 85d, 97, 104
v. Woodcock (70 Maine, 494) 933
Ginns, State v. (1 Nott & McC. 583) 285,
286
Girkin, State v. (1 Ire. 121) ° 204
Girr, People v. (53 Cal. 629) 493
Gise v. Commonwealth (31 Smith,
Pa. 428) 260 a, 577, 612
Gitma, U. S. v. (3 Hughes, 549) 804
Gitt Lee, State v. (6 Oregon, 425) 896
Givens v. Com’th (29 Grat. 880) 485, 495
— v. Rogers (11 Ala. 543) 205, 933, 924,
987
Glah, U. S. v. (1 McCrary, 166) 1004
Glace, State v. (9 Ala. 283) 204, 697, 703
Gladney v. Deavors (11 Ga. 79) 103
Glaholm v. Barker (Law Rep. 1 Ch.
Ap. 228) 186
Glesuack v. State (10 Misso. ee 863
Glasgow, State v. (Dudley, S.C. 40) 1016
Glass 7. Com’th (33 Grat. 827) 1038 a
~
GOO
ECTION
98
748, 749
Temp.
195a
734
1128
105
Glass v. State (30 Ala. 529)
—, State v. (8 Oregon, 73)
Glastonby, Rex v. (Cas.
Hardw. 355)
Glaze, State v. (9 Ala. 283)
Glen, State v. (7 Jones, N. C. 321)
Glenn v. Hebb (17 Md. 260)
—v. Humphreys (4 Wash. C. C.
103
42
Glentz v. State (38 Wis. 549) 997
Gloucester, State v. (11 Vroom, 302) 301 |
Glover, Rex v. (2 Russ. Crimes, 3d
Eng. ed. 146) 204
Gloversville v. Howell (7 Hun, 345) 36 |
— v. Howell (70 N. Y. 287) 36 a, ed a,
126
Gluff, Rex v. (12 Mod. 104) 250
Goddard v. Boston (20 Pick. 407) 82, 154
v, Jacksonville (15 Ill. 588) 997
Godet, State v. (7 Ire. 210) 247
Godfreidson v. People (88 Ill. 284) 1006 a
Godfrey, Rex v. (2 Hast P. C. 642;
1 Leach, 287) 293
—— v. State (5 Blackf. 151) 1004
—, State v. (3 Fairf. 361) 111
Goding, Commonwealth v. (3 Met.
130) 82, 852, 855, 859
Godley, Commonwealth v. (11
Gray, 454) 1068 a, 1069
Godman v. Morley (7 Mod. 488) 862
Godsoe, Commonwealth v. (105 Mass.
INDEX TO THE CASES CITED,
GRA
SEcrion
, Goodenow v. Buttrick (7 Mass. 140) 169,
163
, State v. (65 Maine, 30) 662
| Goodhue v. Com’th (5 Met. 553) 1034
‘ Gooding, Reg. v. (Car. & M. 297) 601
| —, United States ». (12 Wheat. 460) 100
v. Varn (Chase, 286) 26la
| Goodman, Com’th v. (97 Mass. 117) 1022
Goodno v. Oshkosh (31 Wis. 127) 152 a, 186
Goodrich v. Milwaukee (24 Wis. 422) 154
v. Russell (42 N. Y. 177) 82
——,, State v. (14 W. Va. 834) 589, 610
,Goods v. State (3 Greene, Iowa,
566)
Goodsell v. Boynton (1 Scam. 555) 28
‘Goodwin v. Smith (72 Ind. 113) 999, 999 4
— v. Thompson (2 Greene, Iowa,
829 155, 163
—— v. West (Cro. Car. 522) 400
' Gordon, Com’th v. (2 Brews. 569) — 688
|___y, Farquhar (Peck, 155) 232
v. Inghram (1 Grant, Pa. 152) 85
—— v. Kerr (1 Wash. C. C. 822) 13
—, Rex v. (1 B. & Ald. 524) 150
——’». State (52 Ala, 308) 596 a, 819, 835
179
—— v. State (4 Kan. 489) 7
v. State (2 Texas Ap. 154) ila
—,, State v. (60 Misso. 883) 407
Gore v. State (58 Ala. 391) 264, 678
Gorham v. Bishop of Exeter (5
Exch. 630)
464) 599 | ——, Com’th v. (99 Mass. 420) 348
Goetchens v. Matthewson (5 Lans. v. Luckett (6 B. Monr. 146) 189
214) . 5 | ——, State v. (37 Maine, 451) 301
Goetz v. State (41 Ind. 162) 1021, 1022 | —, State v. (65 Maine, 270) 10383 a,
——,, State v. (22 Wis. 363) 1124 1044 a
Goff v. Fowler (3 Pick. 300) 1001 | ——, State v. (67 Maine, 247) 1065
— »v. Kilts (15 Wend. 550) 1133 | Gorman v. Hammond (28 Ga. 85) 163
Gohen v. Texas Pacific Railway (2
Woods, 346) 154
Goldman, State v. (44 Texas, 104) 1095
——, United States v. (3 Woods, 187) 803
Goldsmith v. Augusta, &c. Railroad
(62 Ga. 468) 387
—— v. State (1 Head, 154) 852, 855, oe
73
Goldstein, People v. (382 Cal. 482) 348
—, Rex v. (7 Moore, 1; 3 Brod.
& B. 201; 10 Price, 88; Russ. &
Ry. 473)
Goldstucker, State v. (40 Wis. 124) 299
Goldthorpe, Reg. v. (2 Moody, 244;
Car. & M. 335) 771
Goldthwaite v. Montgomery (50:Ala.
486) 406, 408, 1098
Gonder v. Estabrook (9 Casey, Pa.
374) 261 b
Gooch, Reg. v. (8 Car. & P. 293) 416
—, State v. (7 Blackf. 468) 693, 700
— v. Stephenson (13 Maine, 371) 153,
. 163, 164, 250
Goodburn v. Marley (2 Stra.1159) 862
Goode, In re (8 Misso. Ap. 226) 16, 36a
—, Reg. v. (6 Cox C. C. 318) 771
50
326
— v. Pacific Railroad (26 Misso.
- 441 84
) a
— v. State (28 Texas, 646) 611
Gorsuth ». Butterfield (2 Wis. 237) 1016
Gosha v. State (56 Ga. 36) 484
Goshen v. Kern (63 Ind. 468) 1098, 1094
Goshen, &c. Turnpike, People v. (11
Wend. 597) 141
v. Sears (7 Conn. 86) 396
Gosselink v. Campbell (4 Iowa, 296) 22
Gossler v. Goodrich (8 Clif. 71) 1524
Gould, Rex v. (2 East P. C. 644; 1
| Leach, 339, note) 233
Goulding, State v. (44 N. H. 284) 408
Gourdier, Commonwealth v. (14
| Gray, 390) 848, 858, 861, 874
Governor v. Howard (1 Murph. 465) 177
| v. Porter (5 Humph. 165) 85 b
Goyette, State v. (11 R. 1.592) — 1006a@
Grace v. Donovan (12 Minn. 580) 178
| ——,, State v. (21 Ark. 227) 896
' Gracia v. Lee (12 Pet. 511) 14
_ Grady, Com’th v. (108 Mass. 412) 1057
' , State v. (34 Conn. 118) 127
Greme v. Wroughton (11 Exch.
| 146) 1
785
8a
GRE
SECTION
Graeter, State v. (6 Blackf. 105) 1083 a
Graffmuller, State v. (26 Minn. 6) 1033 a
‘Graham, Ex parte (18 Rich. 277) 84,1774,
178
—— v. Charlotte, &c. Railroad (64
N. C. 631) 79
v. Monsergh (22 Vt. 543) 691
, Rex v. (2 East P. C. 945; 2
Russ. Crimes, 8d Eng. ed. 514) 206, 828
— v. State (1 Pike, 79) 407
v. State (1 Pike, 171) 919
——, State v. (4S. C. 380) 1098
Grames, State v. (68 Maine, 418) 1016,
1055, 1057
Grammar ‘School v. Burt (11 Vt. 682) 83a
Grand Junction Canal v. Dimes (12
Beav. 62) 403
Grand Trunk Railroad, State v. (60
Maine, 145) 467
Granger’s Case (1 East P. C. 413) 185
Granger v. Knipper (2 Cin. 480) 10314
Grant v. Courter (24 Barb. 282) 36
v. Pagham (38 C. P. D. 80) 804
— v. Sels (5 Oregon, 243) 154
v. State (8 Texas Ap.1) 426, 428
Grasseley, Reg. v (2 Dy. 210, pl. 26) 182
Gratrex, Reg. v. (12 Cox C. C. 157;
2 Eng. Rep. 210) 84
‘Graves, Com’th v. (97 Mass. 114) 1018
, Com’th v. (18 B. Monr. 38) 1001
v. State (6 Texas Ap. 228) 31
v. Ticknor (6 N. H. 537) 261
Gravesend, Rex v. (38 B. & Ad. 240) 138 a
Gray’s Case (Skin. 81) 623, 625
Gray v. Coffman (3 Dil. 393) 14
— v. Com’th (9 Dana, 300) 1004
—, Com’th v. (2 Duv. 373) 825, 838
—, Com’th v. (129 Mass. 474) 678, 679
— v. Davis (25 Conn. 278) 1057
—— v. Kimball (42 Maine, 299) 993, 994,
1031, 1056, 1057
v. Mount (45 Iowa, 591) 98, 160
v. Obear (54 Ga. 231) 186
—, Reg. c. (Leigh & C. 365) 439
—, Rex v. (7 Car. & P. 164) 139
— , Rex v. (1 Stra. 481) 312
— v. Soanes (2 Jur. 1040) 48, 49
—v. State (4 Ohio, 358)
—, State v. (8 Jones, N. C. 170)
Great Central Gas Consumers’ Co. v.
Clarke (13 C. B. n. s. 838) 112d
‘Great Charte v. Kennington (2 Stra.
1173) 403
Greeley v. Jacksonville (17 Fla. 174) 154
274
488
‘Green v. Aker (11 Ind. 223) 14, 92 b
v. Biddle (8 Wheat. 1) 12
—— v. Brown (2 Stra 1199) 1051
—— v. Cheek (5 Ind. 105) 80, 82
—— v. Com’th (5 Bush, 327) 852, 889
——,, Com’th v. (17 Mass. 515) 141
—— v. Green (14 La. An. 39) 87 a
v. Indianapolis (25 Ind. 490) 406
—— v. New York (2 Hilton, 203) 137
—— v. People (21 Ill. 125) 894, 1037
786
INDEX TO THE CASES CITED.
GRI
SEcTIOoN
Green, Reg. v. (8 Fost. & F. 274) ° 632 aj
: 636
——, Rex r. (1 Vent. 171) 400
—— v. State (58 Ala. 190) 666 a, 737
—— v. State (59 Ala. 68) 737
——,, State v. (3 Heisk. 181). 794
—, State v. (Kirby, 87) 678
-——, State v. (66 Misso. 631) 110 ¢
—— v. United States (9 Wal. 655) 108
v. Weller (82 Missis. 650) 87, 101
v. Wood (7 Q. B. 178) 243
Greencastle Southern Turnp. v.
State (28 Ind. 382) 36 b, 104.4
Greencastle Township v. Black (5
Ind. 557) 92
Greene v. James (2 Curt. C. C. 187) 992,
1056
v. Tyler (3 Wright, Pa. 361) 150
Greenen, Com’th v. (11 Allen, 241) 1069
Greenfield, Com’th v, (121 Mass. 40) 1018
Greenhalgh, Reg. v. (Dears. 267 ; 25
Eng. L. & Iq. 570) 340
Greenhuff’s Case (2 Swinton, 236) 848
Greensburgh v. Corwin (58 Ind. 518) 24
Greenwood v. State (6 Baxter, 567) 23, 24
Greer, People v. (43 Ill. 213) 82
—v. State (50 Ind. 267) 480, 485, 486,
492
— ». State (54 Missis. 378) 17
—— v. State (22 Texas, 588) 152 a, 163,
177
Gregory’s Case (6 Co. 195) 57, 126, 156
Gregory r. Com’th (2 Dana, 417) 163,171
v. King (58 Ill. 169) f
—, Rex v. (2 Nev. & M. 478; 5
B. & Ad. 555) 211, 252
——,, State v. (47 Conn. 276) 190d, 10704
Greig v. University of Edinburgh
(Law Rep. 1 H. L. Se. 348) 103
Greiner v. Klein (28 Mich. 12) 97
Grey’s Case (9 Howell St. Tr. 127) 625,
629
Grey v. Mobile Trade Co. (55 Ala.
387) 1774
Grice, Rex v. (7 Car. & P. 803) 320, 321
Grider, State v. (18 Ark. 297) 855, 868,
868, 922
Gridley v. Bloomington (88 Ill. 554) 22
Grier v. Stout (2 Bradw. 602) 423
Griffin’s Case (Chase Dec. 364) 86
Griffin, Com’th v. (105 Mass. 185) 248
——, People v. (2 Barb. 427) 223
——, Reg. v. (14 Cox C. C. 308) 610
—— v. State (39 Ala. 541) 177
——,, State v. (3 Harring. Del. 560) 238
——, Siate v. (18 Vt. 198 211
Griffith v. Carter (8 Kan. 565) 46
, State v. (67 Misso. 287) 491, 739
v. Wells (3 Denio, 226) 254, 1032
Griffiths v. Reed (1 Hag. Ec. 195) 727
Griggs’s Case (T. Raym. 1) 613
Grimes, Rex v. (1 Leach, 53 ; 2 East
P. C. 647; Foster, 79) 3
Grinad v. State (34 Ga. 270) 177
HAE
OTION
Grinder v. Nelson (9 Gill, 299)
Grise, Com’th v. (11 Philad. 655)
— v. State (37 Ark. 456)
Griswold v. Atlantic Dock (21 Barb.
225)
Grizewood v. Blane (20 Eng. L. &
Eq. 290; 11 C. B. 526) 855, 860
Groesch v. State (42 Ind. 547) 992
Grogan v. State (58 Ga. 196) 691
Groner v. State (6 Fla. 39) 894, 86
Groombridge, Rex v. (7 Car. & P.
682) 131
Groome, State v. (10 Iowa, 308) 261, 640
Gropp v. People (67 Ill. 154) 154
Gross v. Fowler (21 Cal. 392) 101, 105
Grover v. Huckins (26 Mich. 476) 20, 1138
Grummon v. Holmes (76 Ind. 585) 939,
999 a
Grummond ». State (10 Ohio, 510) 346
Grunkemeyer v. State (25 Ohio
State, 548) 1034 a
Grush, U.S. v. (6 Mason, 290) 804
Guard v, Rowan (2 Scam. 499) 82
Guerreiro v. Peile (3 B. & Ald. 616) 1014
Guild v. Chicago (82 Ill. 472) 36, 36a
— v. Hale (15 Mass. 455) 241
Gumber, State v. (37 Wis. 298) 177,181
Gummer, State v. (22 Wis. 441) 1037
Gunn v. Barry (15 Wal. 610) 832
Gunnarssohn v. Sterling (92 Ill. 569) 2),
105, 997, 1032
Gunter v. Leckey (30 Ala. 591) 193, 1014
Guptill v. Richardson (62 Maine,
257 1007, 1032
Gupton, State v. (8 Ire. 271) 99, 855, 862,
863
Gurney, State v. (33 Maine, 527) 204, 1032.
1057
—, State v. (387 Maine, 156) 992
—, State v. (2°S. C. 559) 163
Gutekunst; State v. (24 Kan. 252) 1021
Guthrie, Reg. v. (Law Rep. 1 C. C.
241) 491
Gutman v. Virginia Iron Co. (5 W.
INDEX TO THE CASES CITED.
HAL
SrcrIon
Hafter v. State (51 Ala. 37) 1033 a, 1085
Hagan v. State (52 Ala. 373) 293
— v. State (10 Ohio State, 459) 475
Hayar v. State (35 Ohio State, 268) 294
Hayenbuck v. Reed (3 Neb. 17) 82
Hagerstown v. Dechert (382 Md. 369) 34
—— v. Seliner (37 Md. 180) 85
Haggerty v. Wilber (16 Johns. 287) 240
Hague, Reg. v.
Cox C. C. 412)
(4 B. & S. 715; 9
814, 816, 818 «
Haher, Com’th v. (118 Mass. 207) — 1057
Hahn vw. U.S. (14 Ct. of Cl. 305) 104
Haigh, Reg. vr. (7 Cox C. C. 403) 421.
v. Sheffield {Law Rep. 10 Q. B.
102) 86, 878
Hail v. Spencer (1 R. I. 17) 261
Hailes v. State (9 Texas Ap. 170) 396
Hailey, State v. (6 Jones, N.C. 42) 262
Haines v. Hanrahan (105 Mass.
480) 1006 a, 1007
—. Rex v. (Russ. & Ry. 451) 312
v. State (7 Texas Ap. 30) 108 a, 803,
1011, 1070 6
, State v. (35 N. H. 207) 1025
Uainline v. Com’th (13 Bush, 350) 1033 4
Halberstadt, U. S. v. (Gilpin, 262) 163, 169
Halbrook v. State (34 Ark. 511) 589, 610
Hale r. Burton (Dudley, Ga. 105) 193, 254
—— v. Lawrence (3 Zab. 590) 115
——. Reg. v. (2 Car. & K. 826) 204, 216
— «. State (36 Ark. 150) 1021
—— v. State (15 Conn. 242) 152, 168, 175,
176
v. State (8 Texas, 171) 346, 901
, State v. (15 Misso. 606) 1095
Haley v. Clark (26 Ala. 439) 33
v. Philadelphia (18 Smith, Pa.45) 16,
856
1069
Haifa ». State (5 Texas Ap. 212) 177, ae
Hall’s Case (Cro. Eliz. 307) 243
Hall, Ex parte (1 Pick. 261) 101
, Com’th ». (8 Grat. 588) 1003, 1004
—. Commonwealth v. (128 Mass.
Va. 22) 91) 410) 1134, 1155
Gutzweller v. People (14 Ill. 142) 992 v. De Cuir (95 U. S. 485) 1080
Gny »v. Baltimore (100 U. S. 434) — 1080 v. Denckla (28 Ark. 506) 2610
—, Rex v (1 Leach, 241; 2 East —— v. Gaven (Cro. Eliz. 307) 400
P. C. 748) 344 | —— v. Jacobs (4 Har. & J. 245) 146
Guyman »v. Burlingame (36 Ill. 201) 933 v. Little (14 Mass. 203) 2615
Gwenop, Rex rv. (38 T..R. 133) 46 v. McKechnie (22 Barb. 244) 1026,
Gwinner v. Lehigh, &c. Railroad (5 1049
Smith, Pa. 126) 163 | ——, Reg. v. (13 Cox C. C. 49) 271
Gye o.. Felton (4 Taunt. 876) 64} ——. Rex pv. (1 B. & C. 123) 98a
——,, People ». (4 Cal. 399) 274
——, People v. (19 Cal. 425) 457
Haas, Com’th v. (7 Smith, Pa. 443) 261] ——, Rex v. (Russ. & Ry. 355) 312
Hackett v. Smelsley (77 Til. 109) 10514 v. State (58 Ala. 463) 696, 697, 703
Haderaft, Com’th r. (6 Bush, 91) _ 1043 v. State (3 Coldw. 125) 418
Hadden v. The peri (5 Wal. 107) 46 v, State (4 Harring. Del. 132) 238,
Haden, State v. (15 Misso. 447) 1042 297
Hadley, Com’th x. {i Met. 66) 151, 1024 v. State (3 Kelly, 18) 140, 213
Haehbnlen v. Commonwealth (1 Har- v. State (20 Ohio, 7) 193, 220
tis, Pa. 617) 103 | —— v. State (3 Ohio State, 575) 344, 345
787
HAN INDEX TO THE CASES CITED. HAR
SECTION SEcTION
Hall v. State (41 Texas, 287) 414, 420 | Hanning v. State (6 Ind. 432) 1032
v. State (59 Wis. 79) 1784 | Hanrahan v. State (57 Ind. 527) 852, 890
——, State v. (39 Maine, 107) 1020 | Hanson v. State (43 Ind. 550) 1024, 1032
—, State v. (73 N. C. 252) 279, 1097 | Hanway v. Boultbee (4 Car. & P.
—,, State v. (3 Vroom, 158) 852, 858,} 350; 1 Moody & R. 15) 141
861, 874, 1068 | Hany v. State (4 Eng. 193) 910
—— v. Wybank (3 Mod. 311) 2615 | Happel v. Brethauer (70 Ill. 186) i7a
v. Wyborn (1 Show. 98) 2616 | Harbaugh v. Monmouth (74 Ill. 867) 26,
v. Wybourn (2 Salk. 420) 261a, 2616
Hallet v. Novion (14 Jolins. 273) 254
Hallett, Com’th v. (103 Mass.) 1022
——, Reg. v. (2 Den. C. C. 237; 4
Eng. L. & Eq. 570) 137
Halliswell v. Bridgewater (2 Ander-
son, 190)
Hallock, State v. (14 Nev. 202)
Halsey v. Beach (1 Penning. 122) 261a
Halton v. Cove (1 B. & Ad. 538) 49
, Reg. v. (2 Moody & R.295, note) 772
34
997
—— v. People (40 Ill. 294) 852, 861, 874
— v. People (83 Mich. 241) 8064, 817,
$25
Harbert’s Case (3 Co. 11)) 6, 124, 139
Harcourt v. Fox (1 Show. 506) 159
9 | Harcrow v. State (2 ‘'exas Ap. 511) 852,
855, 878
Hard’s Case (2 Salk. 427) 633
Hardacre v Stewart (5 Esp. 103) 271
Hardee v. Gibbs (50 Missis. 802) 87
Ham v. McClaws (1 Bay, 93) 40, 82, 90 | Hardeman v. Downer (39 Ga. 425) 85a
——v. State (7 Blackf. 314) 154 | Hardenbergh v. Van Keuren (4 Abb.
— v. Steamboat Hamburg (2 Iowa, N. Cas. 43) 36a
460) 9| Hardin v. Major (4 Bibb, 104) 105
Hambleton, State v. (22 Misso. 452) 435, v. State (63 Ala. 38) 788 b
440, 442, 443, 446 | Harding, Commonwealth v. (6 Norris,
Hamer, Com’th ». (128 Mass. 76) 1003a| Pa. 343) 14, 92)
Hamilton v. Buxton (1 Eng. 24) 163 | —— v. State (54 Ind. 359) 336
v. Goding (55 Maine, 419) 1031 | Hardy v. Atherton (7 Q. B. D. 264) 691
— v. People (57 Barb. 625) 809 | —— v. Bern (5 T. R. 636) 112
——. Reg. v. (1 Car. & K. 212) 94, 141 | ——, State v. (7 Neb. 377) 992, 999
— , Reg. v. (8 Car. & P. 49) 233 | ——, State v. (47 N. H. 538) 833
v. State (25 Ind. 426) 853, 879, 895 | Harker, State v. (4 Harring. Del. 559) 160,
— v. State (75 Ind. 586) 855, 875 "168, 818
— v. State (3 Texas Ap. 643) 23, 24 | Harkness, State v. (1 Brev. 276) 82
Hamlet v. Taylor (5 Jones, N. C. 36) 28, 31a
Hamlyn v. Nesbit (37 Ind. 284) 159, 163
Hammond, Rex »v. (2 East P. C.1119;
1 Leach, 444) 194, 220
v. State (14 Md. 135) 212
v. Webb (10 Mod. 281) 190
Hammons v. State (8 Texas, 272) 254
Hamor, Com’th v. (8 Grat. 698) 1025
Hampden, Com’th v. (6 Pick. 501) 177, 178
Hampton, State v. (77 N. C. 526) 997
Hamrick v. Rouse (17 Ga. 56) 147
Hamuel v. State (5 Misso. 260) 220
Hancock, Rex v. (Russ. & Ry. 170) 285
v. Sturges (13 Johns. 331) 2382
Hancock Free Bridge, Common-
wealth v. (2 Gray, 58) 225
Hand v. Ballou (2 Kernan, 541) 163
Handley, Reg. v. (1 Fost. & F. 648) 634
Haney v. Compton (7 Vroom, 507) 1131
v. State (34 Ark. 263) 19
—, State r. (2 Dev. & Bat. 390) 262
Hanger v. Abbott (6 Wal. 632) 26la
——, State v. (5 Pike, 412) 856
Hanley, Com’th v. (121 Mass. 377) 1057
v. Powers (11 R. I. 82) 1032
, State v. (25 Minn. 429) 1032
Hannahan ». State (7 Texas. Ap. 664) 185
Hannibal v. Guyott (18 Misso. 515) 1001,
1002
——, State v. (6 Jones, N. C. 57) 785
788
Harless v. United States (Morris, 169) 862
Harley, Com’th v. (7 Met. 462) 134
——, Rex v. (4 Car. & P. 869) 210, 757
Harnden, Com’th v. (19 Pick. 482) 1094
Harness v. State (27 Ind. 425) 444, 445
Harney v. State (8 Lea, 118) 997, 1029
Harold v. Smith (5H. & N. 381) = -195a
Harpending v. Dutch Church (16 Pet.
455) 115
—— v. Haight (39 Cal. 189) 37
Harper v. Carr (7 T. R. 270) 141
v. Crain (36 Ohio State, 338) 933
——,, People v. (91 Ill. 357) 42b
—, Reg. v. (7 Q. B. D. 78) 338
— v. State (3 Lea, 211) 1008, 1019
, State v. (35 Ohio State, 78) 748, 7614
Harrell v. Harrell (8 Fla. 46) 86
Harriden, People v. (1 Parker C. C.
344) 728, 785
Harriet, The (1 Story, 251) 82, 194, 200
Harrington, Com’th rv. (180 Mass. 35) 981
, State v. (12 Rich. 293) 1021
Harris v. Carson (7 Leigh, 632) 150
—— v. Com’th (23 Pick. 280) 1026, 1032
——, Commonwealth v. (13 Allen,
534) 141, 959, 960, 961, 962, 966
——, Com’th »v. (8 B. Monr. 873) 214
——, Com’th »v. (7 Grat. 600) 1026
—— v. Glenn (56 Ga. 94) 85 ut
—— v. Livingston (28 Ala. 577) 997, 1016
HAR INDEX TO THE CASES CITED. HAW
SECTION SEcTION
Harris v. Morse (49 Maine, 432) 110c | Hart v. State (29 Ohio State, 666) 1154
—— v. Osbourn (2 Cromp. & M. 629) 260a | —, State v. (4 Ire. 246) 237, 271
— v. People (59 N. Y. 59) 36a | —, State v. (6 Jones, N. C. 389) 820
— , People v. (25 Cal. 678) 825 | ——, U.S. v. (Pet. C. C. 390) 13L
——, Reg. v. (Car. & M. 661) 214 | —— v. Willetts (12 Smith, Pa. 15) 1080
—, Reg. v. (10 Cox C. C. 352) 952, a
955
——,, Reg. v. (2 Ld. Raym. 1803) 999
—, Reg. v. (2 Moody, 267; 1 Car.
& K. 179) 333
—, Rex v. (5 Car. & P. 159) 322
—, Rex v. (6 Car. & P. 129 329
—, Rex v. (7 Car. & P. 446) 212, 245,
314, 315
—, Rex vr. (2 Leach, 701; 2 East
P. C. 498) 279
—, Rex v. (4 T. R. 202) 250, 251
—— v. Robinson (2 C. B. 908) 154
— v. Schryock (82 Ill. 119) 299
—— v. State (31 Ala. 362) 917
868
1018, 1016
re
v. State (33 Ala. 373)
State (50 Ala. 127)
v. State (62 Ga. 337)
State (5 Texas, 11)- 852, 890
v. State (4 Texas Ap. 131) 992
State (9 Texas Ap. 308) 854 a, 855
——, State v. (11 Iowa, 414)
—, State v. (27 Iowa, 429)
——., State v. (36 Iowa, 136)
—, State v. (5 Ire. 287)
——, State v. (6 Jones, N. C. 448)
——,, State v. (71 N. C. 174)
—S 05,
Ses
—v
448
1069
1057, 1058
100
785
2610
——, State v. (17 Ohio State, 608) 255
Harrison v. Bryant (5 Ind. 240) 1040
— v. Chiles (3 Litt. 194) 163, 168
—, Commonwealth ». (11 Gray, 310) 143
— v. Godman (1 Bur. 12) 20
—— v. Henderson (7 Heisk. 815) 2614
—— ». Leach (4 W. Va. 383) 119
-— v. Nichols (31 Vt. 709) 1030
— , Rex v. (1 Leach, 180; 2 East
Harttiel, State v. (24 Wis. 60) 1021, 1022
—, United States v. (Pet. C. C. 390) 181
Hartley v. Hindmarsh (Law Rep. 1
C. P. 553)
v. Hooker (Cowp. 523) 198, 250
, Rex v. (Russ. & Ry. 139) 21
Hartman, State v. (41 ‘lexas, 562) 515
Hartnett, Commonwealth v. (3 Gray,
450) 97, 283, 234
, Reg. v. (Jebb, 302) 255
Hartung v. People (22 N. Y. 95) 185
v. People (26 N. Y. 167; 28
N. Y. 400) 185
Harvey, Commonwealth v. (16 B.
Monr. 1) 1064, 1066, 1067
Commonwealth v. (1 Gray, 487) 1018
9
— , Rex »v. (Russ. & Ry. 227) 341
28 | ——, Rex r. (1.Wils. 164) 1898
v. State (65 Ga. 568) 1070@
Harward v. St. Clair, &c. Drainage
Co. (51 Ill. 130) 1
Harwich, Reg. v. (8 A. & E. 919) 112
Harwood’s Case (1 Mod. 79) 664
Hashaw, State v. (2 Car. Law Repos.
251 262
Haskell, People v. (5 Cal. 357) 178a@
Haskew v. State (7 Texas Ap. 107) i
; 01
Haskill v. Commonwealth (3 B.
Monr. 242) 1039, 1052
Hass, State v. (22 Iowa, 193 1069
Hassall, Reg. v. (Leigh & C. 58; 8
Cox C. C. 491) 421, 423
Hassel, Rex v. (1 Leach, 1; 2 East
P. C. 598) 213
Hastings v. Aiken (1 Gray, 163) 186, 208
P. C. 926) 212, 341 v. Cunningham (39 Cal. 137) 119
-—— v. Sager (27 Mich. 476) 97 v. Lane (15 Maine, 134) 82
v. Smith (4 W. Va. 97) 119 | Hatch, People v. (19 Ill. 283) 39
—— v. State (4 Coldw. 195) 858, 862 | Hatcher, Com’th v. (6 Grat. 667) 1042
— v. State (15 Texas, 239) 921 | Hatfield v. Gano (15 Iowa, 177) 594, 749
uv. Walker (1 Kelly, 32) 86, 186 | Hathaway v. Johnson (55 N. Y. 93) 184,
Harrod v. Worship (1 B. & S. 381) 189¢ 197
Harscot’s Case (Comb. 202) 403 ». Moran (44 Maine, 67) 254, 1030
Hart’s Appeal (32 Conn. 520) 259 | Hatton, Commonwealth v. (15 B.
Hart v. Bostwick (14 Fla. 162) 267 Monr. 537) 1021
v. Cleis (8 Johns. 41) 190 d | Hatwood v. State (18 Ind. 492) 36a
—-, Commonwealth v. (11 Cush. Hauenstein v. Lynham (100 U.S.
30) 1034, 1037 | 483) 1la, 13
—, Commonwealth v. (123 Mass. Haug v. Gillett (14 Kan. 140) 1003
416 69 | Haugliton, Reg. v. (1 Ellis & B. 501) 50
—— v. Middleton (2 Car. & K. 9) 105 | ——, Rex v. (5 Car. & P. 555) 291
— v. People (89 Ill. 407) 36 6 | Haun, People v. (44 Cal. 96) 261d
——, People v. (1 Mich. 467) 82, 1032 | Haven, State v. (43 Iowa, 181) 651
v. Plum (14 Cal. 148) 255 | Haver v. Yaker (9 Wal. 32) 382
—, Rex v. (6 Car. & P. 106) 328, 338, | Hawes, Reg. v. (1 Den. C. C. 270) 610
840 | Hawkins, Rex v. (2 East P. C. 485) 312
—— v. State (40 Ala. 32) 83a |——, Rex v. (2 East P. C. 501) 287
— »v. State (55 Ind. 599) “1006 a v. State (83 Ala. 433) 874
789
HEA
SEcTION
Hawkins v. State (3 Stew. & P. 63) 1
——, State v. (15 Ark. 259) 855
_ ——, State ». (77 N. C. 194) 271a
Hawley, People v. (3 Mich. 330) 992,
1006 a, 1007
Haws, State v. (41 Texas, 161) 457
Hawthorn, State v. (9 Misso. 389) 137, 957
Hawthorne v. State (58 Missis. 778) 1894
Hay v. Parker (55 Maine, 355) 1015
, State v. (29 Mdine, 457) 22, 852, 856
Hayden v. Carroll (3 Ridgw. P. C. 645) 154
v. Noyes (5 Conn. 891) 20
——, People v. (50 N. Y. 525) 40
—, State v. (31 Misso. 35) 855, 861, 862
U.S. v. (52 How. Pr. 471) 804, 806
9
INDEX TO THE CASES CITED.
HER
Section
Heath, Ex parte (3 Hill, N. ¥. 42) 255
——, Reg. v. (2 Moody, 33) 340
v. State (34 Ala. 250) 274
——, State v. (41 Texas, 426 445
Heaton v. Butler (41 Ind. 143) 141
, Reg. v. (3 Fost. & F. 819) 607
Heck, State v. (23 Minn. 549) 1021, 1022
Hedges v. Titus (47 Ind. 145) 112 a, 9924
Heffron, Com’th v. (102 Mass. 148) 1069
Heise, State v. (7 Rich. 518) 1003
Heisembrittle v. City Council (2
MeMul. 233) 992, 997
Helen, The, United States o. (6
Cranch, 203) 177, 180
Helfrich v. Commonwealth (9
Casey, Pa. 68) 654 a, 658, 674
Haydon, Rex v. (7 Car. & P. 445) 271 , Helgen, State v. (1 Speers, 310) 250
Hayes, Commonwealth v. (114 Mass. Helmore v. Shuter (2 Show. 16) 85a
282) 1087, 1058 | Helps v. Winterbottom (2 8. & Ad.
v. Hanson (12 N. H. 284) 82] 431) 26:
—— v. People (25 N. Y. 390) 589, 592 | Heming, Rex v. (2 East P. C. 1116;
——, v. Peuple (5 Parker C. C. 325; 1 Leach, 445, note) 228
25 N. Y. 390) 592 | Hemmings, Rex v. (3 Salk. 187) 250
v. Phelan (4 Hun, 733) 1031 0 | —— v. Smith {4 Doug. 33) °_ . 609
v. Porter (22 Maine, 371) 2505 | Henback v. State (53 Ala. 523) 1088
——, Reg. v. (2 Cox C. C. 226) 491 | Henderson’s Tobacco (11 Wal. 652) 158
v. State (55 Ind. 99) 174, 852, 855, 880 | Henderson, Reg. v. (Car. & M. 328) 231
—, State v. (1 Bailey, 275) 274 | ——, Reg. vr. (11 Cox C. C. 593) 420, 421
Hayman v. Keally (8 Cranch C. C. —— tv. Sherborne (2M. & W. 286) 168,
325) : 261 a : 169
Hayne, State v. (4S. C. 408) 1098 | —— »v. State (59 Ala. 89) 298
Haynes, Com’th v. (107 Mass. 194) 112 ; —— »v. State (50 Ind. 234) 36a
v. Jenks (2 Pick. 172) 154 | —— »v. State (60 Ind. 296) 1042
—— v. State (8 Humph. 480) 178.a | ——, State v. (2 Dev. & Bat. 543) 163
v. State (6 Humph. 120) 41, 282, 786 | ——, State v. (47 Ind. 127) 855, 872, 915,
—, State v. (35 Vt. 565) 1033.4 936
Haynie v. State (82 Missis. 400) 1019 | Hendric, U. S. v. (2 Saw. 476) 828
Haynorth, State v. (3 Sneed, 64) 840 | ——, United States v. (2 Saw. 479) 828
Hays v. People (1 Hill, N. ¥. 851) 492, 498
v. State (40 Md. 633) 761
—— v. State (13 Misso 246) 1024
——, State v. (21 Ind. 176) 337
——,, State v. (52 Misso. 578) 84
Hayward, Com’th v. (10 Mass. 84) 217
——, Rex v. (1 Russ. Crimes, 3d Eng.
ed. 729; Russ. & Ry. 78) 315
Hay wood’s Case (2 East P. C. 1076;
Russ. & Ry. 16) 314
Hay wood v. Collins (60 Tl. 328) 141
— v. Savannah (12 Ga. 404) 126
Hayworth v. State (14 Ind. 590) 446, 447 b
Hazard, State v. (8 R. I 273) 262
Hazeltine, Commonwealth v. (108
Mass. 479) 1057
Hazen v. Essex (12 Cush. 475) 250 a
Head, Com’th v. (11 Grat. 819) 1061
——,, State v. (3 R. I. 135) 1027
», Ward (1 J. J. Mar. 280) 84
Heald v. State (36 Maine, 62) 177
Healey v. Dudley (5 Lans. 115) 42 b
Hean, Rex v. (1 Leach, 527, n.) 433
Heard v. Heard (8 Ga. 380) 28
— ». Pierce (8 Cush. 338) 137
Hearn v. Ewin (3 Coldw. 399) 119
790
Hendricks r. Comstock (12 Ind. 238) 264a@
Henline v. People (81 Ill. 269) 260 a
Hennah, Reg. v. (138 Cox C. C. 547) 747
Hennessey, People v. (15 Wend. 147) 204
Henniker v. Contoocook Valley Rail-
road (9 Fost. N. H. 146) 250, 250 a
Henning, Com’th v. (10 Philad. 209) 610
, State v. (33 Ind. 189) 2ila
Henry v. Com’th (9 B. Monr. 361) — 1027
v. Patterson (7 Smith, Pa. 346) 423
—— v. Tilson (17 Vt. 479) 77, 82
Henschall «. Schmidtz (50 Misso. 454) 84
Henshall’s Case (2 Lewin, 135) 314
Hensley, Com’th v. (2 Va. Cas, 149) 326
v. State (1 Eng. 252) 1067
Hensly ». State (52 Ala. 10) 1025
Henwood v. State (41 Missis. 579) 1019
Hepburn’s Case (3 Bland, 95) 2614
Herber v. State (7 Texas, 69) 185
Herd, State v. (11 Vroom, 264) 407
Herefordshire, Rex v. (3 B. & Ald.
581) 110
Herine v. Com’th (13 Bush, 295) 1033 4
Herman v. Phalen (14 How. U 8.79) 924
v. Spriggs (3 Mart. Nn. 8. 190) 160, 163
Hermance, In re (71 N. Y. 481) 245
HIL INDEX TO THE CASES CITED. HIX
SECTIO: SECTION
Herod, State v. (29 Iowa, 123) 20 | Hill, Com’th v. (6 Leigh, 636) 739
Herold, State v. (9 Kan. 194) 212 | —— v. Decatur (22 Ga. 203) 36 a, 997
Herrick, Commonwealth v. (6 Cush. v. Eldridge (126 Mass. 234) 491
465) 163, 173, 1007, 1032 v. Hall (1 Ex. D. 411) 126, 156
Herron v. State (86 Texas, 285) 855, 884, v. Kricke (11 Wis. 442) 265
912 | —— v. People (20 N. Y. 863) 973, 1028
—, United States v. (20 Wal. 251) 103 |——, People ». (7 Cal. 97) 384
Herryford, State v. (19 Misso. 877) 855, | ——, Reg. v. (2 Cox C. C. 246) 341, 343
867 | ——, Reg. v. (2 Moody & R. 458) 293
——, Rex »v. (Cro. Car. 232) 395, 401
Hersey, Com’th v. (2 Allen, 173) 742, 761
Hertford College, Reg. v. (8 Q. B.
D. 693) 77
Herzog, State v. (25 Minn. 490) 163
Hesketh v. Braddock (8 Bur. 1847) 20
Hess v. Johnson (8 W. Va. 645) 85
— v. Pegg (7 Nev. 28) 92, 98
Hetzer v. People (4 Colo. 45) 997
Hevice, Respublica v. (2 Yeates, 114) 625
Heward v. State (138 Sm. & M. 261) 227,
261 d
Hewes, United States v. (Crabbe, 807) 142
Hewey v. Nourse (54 Maine, 256) 144
Hewitt, Ex parte (40 Ala. 300) 350
—, Reg. v. (4 Fost. & E. 1101) 772
Heydon’s Case (3 Co. 7) 82
Hey wood, Reg. v. (2 Car. & K. 352) 306
Hibbard v. People (4 Mich. 125) 992, 1056
Hibbert, Reg. v. (Law Rep. 1 C. C.
184) 632 a, 636
Hickerson v. Benson (8 Misso. 8) 216, 855,
‘ 935
——, State v. (3 Heisk. 375) 1037
—, State v. (72 N. C. 421) 691
Hickey, Com’th v. (126 Mass. 259) 1033 a
Hickman ». Littlepage (2 Dana, 344) ao
—, Rex v. (1 Leach, 318; 2 East
P. C. 593) 194, 204, 292
—,, Rex v. (1 Moody, 34) 242
Hickok v. Hine (23 Ohio State, 528) 3038
Hickory Tree Road (7 Wright, Pa.
139) 176, 177, 177 4
Hicks v. Butrick (3 Dil. 413) 14
v. Commonwealth (7 Grat. 597) 787
—— v. People (10 Mich. 395) 7382
—, People v. (15 Barb. 153) 137
Higby v. People (4 Scam. 165) 1088
Higdon v. Heard (14 Ga. 255) — 855, 915
—, State v. (82 Iowa, 262) 640, 648
Higgins, Com’th v. (16 Gray, 19) 1069
— v. People (69 Ill. 11) 992, 1034, 10548
v. Rinker (47 Texas, 393) 1074
Higgs, Rex v. (2 Car. & K. 322) 285
Hightower v. Fitzpatrick (42 Ala.
597) 144, 250.4
Higley v. Bunce (10 Conn. 436) 1138
—, Rex v. (4 Car. & P. 366) 772
Hildreth v. Heath (1 Bradw. 82) 141
Hiler, U. S. v. (Morris, 330) 220, 232, 728
Hiles v. Shrewsbury. (3 East, 457) 289, 291
Hill, Ex parte (3 Car. & P. 225) 1104
——, Com’th »v. (4 Allen, 589) 1069
—, Com’th v. (5 Grat. 682) 1044
>—, Com’th v. (14 Gray, 24) 1069
—, Rex v. (Russ. & R¥.190) 844, 345,
346
— , Rex »v. (Russ. & Ry. 483) 146
v. Smith (Morris, 70) 149
—— v. Spear (5 N. H. 253) 1029, 1030
—— v. State (49 Ala. 395) 960
v. State (62 Ala. 168) 1021
—— ». State (53 Ga. 472) 793, 794
—, State v. (79 N. C. 656) 248
——, State v. (2 Speers, 150) 255
Hilliard 9. State (37 Texas, 358) 789
v. State (7 Texas Ap. 69) 1095
Hillman, Reg. v. (Leigh & C. 848) 747
Hills v. Chicago (60 Ill. 86) . 92a
——, People v. (55 N. Y. 449) 42.8, 405
Hind, Reg. v. (Bell C. C. 253; 8 Cox
C. C. 300) 761a
— v. Rice (10 Bush, 528 36.4
Hine v. Belden (27 Conn. 384) 1032, 1057
Hiner v. Pavy (40 Ind. 341) 141
Hinkle v. Com’th (4 Dana, 518) 855, 881
Hinman v. Taylor (2 Conn. 357) 691
Hinnemann v. Rosenback (389 N. Y.
98) 327
Hinson v. Lott (40 Ala. 123) 990
—— v. State (7 Misso. 244) 722
Hintermiester v. State (1 Iowa, 101) 1039
Hinton v. Com’th (7 Dana, 216) 1065
v. Locke (5 Hill, N. Y. 437) 159
——,, State v. (6 Ala. 864) 655, 656, 673,
674, 690, 706
34
852, 889
138 4
105
Hinze v. People (92 Ill. 406)
Hipes v. State (73 Ind. 39)
Hipswell, Rex v. (8 B. & C. 466)
a v. Knight (1 Y¥. & Col. Ex.
401
Hirsch, State v. (45 Misso. 429) 1088
—, U.S. v. (100 U. S. 33) 260, 261d
Hirschfelder v. State (18 Ala. 112) 163,
1079, 1088
Hirschfield, United States v. (13
Blatch. 330) 828, 835
Hirst v. Molesbury (Law Rep. 6
Q. B. 180) 862
Hislop, People v. (77 N. Y. 331) 1021, 1032
Hitechings, Commonwealth v. (5
Gray, 482) 34, 792, 992
Hitchins v. Kilkenny, &. Railway
(9 C. B. 536) 2504
—— v. People (39 N. Y. 454) 852, oe
Hix, State v. (8 Dev. 116) 297, 852, 1032
v. Whittimore (4 Met. 545) 1051
Hixon v. George (18 Kan. 253) 402
791
HOL
SECTION
Hizer v. State (12 Ind. 330) 936, 937, Ave
947
Hoag, People v. (2 Parker, C. C. 36) ie
Hoagland v. Sacramento (52 Cal. 142) 83a
Hoar, Com’th v. (121 Mass. 375) 1087
—, United States v. (2 Mason, 311) 103
Hoare, Reg. v. (1 Fost. & F. 647) 423
Hobart v. Connecticut Turnpike (15
Conn. 145) 0a
Hobbs v. Memphis, &c. Railroad (9
Heisk. 873) 97
336
22
v. State (9 Misso. 855)
Hoblyn v. Rex (2 Bro. P. C. 829)
Hoboken, State v. (4 Vroom, 28U) 19
Hobson v. State (44 Ala, 380) 435
Hockaday v. Wilson (1 Head, 113) 154
Hockenberry, State v. (11 Iowa, 269) 446
Hodgdon, People v. (55 Cal. 72) 82
——,, State v. (41 Vt. 139) 1078
Hodge v. Hodge (72 N. C. 616) 152
Hodges, Rex v. (Moody & M. 841) 223
v. State (8 Ala. 55) 163, 169
Hodgman v. People (4 Denio, 235) 204,
1006
Hodgskins, State v. (19 Maine, 155) 609
Hodnett, Rex v. (1 T. R. 96) 77, 82, 638
Hodson, United States v. (10 Wal.395) 195
Hoffman, People v. (87 N. Y. 9) 93
, State v. (46 Vt. 176) 1057
Hogan, Com’th v. (97 Mass. 120) 1018
—, Com’th v. (97 Mass. 122) 1027, 1069
v. Guigon (29 Grat. 705) 159, 1003 a
v. People (2 Thomp. & C. 585) 824
Hogg, Reg. v. (2 Moody & R. 880) 255
——,, Rex v. (1 T. R. 721) 101
— v. Zanesville Canal and Manu-
facturing Co. (5 Ohio, 410) 90
Hoggatt v. Bigley (6 Humph. 236) 22
Hoke, Com’th v. (14 Bush, 668) 36
—— v. Henderson (4 Dev. 1) 40
Holbrook, Com’th v. (10 Allen, 200) 991
—— v. Holbrook (1 Pick. 248) 48, 82, 86,
93, 190, 190 d
v. Nichol (86 Ill. 161) 152 a
Holcomb v. Davis (56 Ill. 413) 36
—— v. People (79 IN. 409) 691
Holden v. Joy (17 Wal. 211) 14
Holland’s Case (4 Co. 75 a) 42¢
Holland v. Dickerson (41 Iowa, 867) 85a
v. Makepeace (8 Mass. 418) 82
——, Reg. v. (16 Law T. n. 5. 536;
16 W. R. 879; 10 Cox C.C. 478) 489
—, Rex ». (1 T. R. 692) 999
v. State (83 Ark. 560) 791
—— »v. State (3 Port. 292) 908
—, State v. (22 Ark. 242) 919
Hollenbeck, State v. (86 Iowa, 112) 755
Holley, State v. (1 Brev. 35) 330, 332
Holliday v. People (4 Gilman, 111) 750
—, State v. (61 Misso. 229) 108 a
Hollis, Reg. v. (12 Cox C. C. 468) 747, 749
Hollister _v. Commonwealth (10
Smith, Pa. 103) 285
792
INDEX TO THE CASES CITED.
HOR
SEcTION
Holman, State v. (29 Ark. 58) 163
——,, State v. (8 McCord, 306) 246
Holmes, Commonwealth v. (103
Mass. 440) 749, 759, 761
v. Jaques (Law Rep. 1 Q. B. 876) 386
— v. Jolinson (9 Wright, Pa. 159). 150
——,, State v. (28 La. An. 765) 1003
——, State v. (88 N. H. 225) 1001
—— v. Tutton (5 Ellis & B. 65) 128
——,, United States v. (5 Wheat. 412) 141
v. Welch (12 Ind. 555) 99
Holoman v. State (2 Texas Ap. 610) oe
5
Holt v. Commonwealth (2 Bush, 33) 893
——, Com’th v (121 Mass 61) 687
v. Green (23 Smith, Pa. 128) 1080
v. School Commissioners (29
Ala. 451) 1032
v. State (2 Texas, 363) 185
Holt County Court, State vo. (39
Misso. 521) 112, 999
Homan », Liswell (6 Cow. 659) 107
—, State v. (41 Texas, 155) 855, 884,
912
Homer, Com’th v. (5 Met. 555) 204
Hood v. Dighton Bridge (3 Mass. 263) 118
— v. State (56 Ind. 263) 655, 662
Hoofman, State v. (9 Md. 28) 1132
Hooker v. Com’th (13 Grat. 763) 279
v. Cummings (20 Johns.90) 1128
v. Hooker (10 Sm. & M. 599) 82
v. Young (5 Cow. 269) 255
Hooper, Commonwealth v. (5 Pick.
42) 207, 958, 966
v. State (56 Ind. 153) 182, 1020, 1038
Hoover, Commonwealth v. (1
Browne, Pa. App. 25) 149
— v. State (59 Ala. 57) 737
v. Wood (9 Ind. 286) 35 a
Hope v. Jobnson (2 Yerg. 125) 176, 185
—,, Rex v. (1 Moody, 414) 841
855, 876
88
—,, State v. (15 Ind. 474)
Hope Mansell, Rex v. (Cald. 252)
Hopkins v. Chambers (7 T. B. Monr.
257) 106
v. Com’th (3 Bush, 480) 788 b, £01
— v. Commonwealth (3 Met. 460) 204
—,, Com’th v. (2 Dana, 418) 854, 879
v. Jones (22 Ind. 310) 84
v. Prescott (4 C. B. 578) 188 a
——., Reg. v. (Car. & M. 254) 627, 635, 637,
644
——, State v. (4 Jones, N. C. 305) 1018
— State v. (5 R. I. 58) 1069
— v. Swansea (4 M. & W. 621) 18
Hopper v. State (19 Ark. 148) 670, 693,
696, 700
—— v. State (54 Ga. 389) 643
Horan, State v. (11 Texas, 144) 168, 855
——, State v. (25 Texas, Supp. 271) 1044
Hord v. Com’th (4 Leigh, 674) 902
Horn v. Smith (77 Ill. 381) 1031 a4
v. State (6 Lea, 335) 788 ¢
Hornaday v. State (48 Ind. 306) 999 a
HOW
SECTION
-Hornbeak, State v. (15 Misso. 478) 1042
Horne Tooke’s Case (25 Howell St.
Tr. 1)
Homney v. Sloan (1 Ind. 266)
Hornibrook, United States v. (2 Dil.
229) 855, 863, 952
Horr, People v. (7 Barb. 9) 443
Horrigan, Com’th v. (2 Allen, 159) 292
Horsey, State v. (14 Ind. 185) = 163, 739
Horton, Com’th v. (2 Gray, 69) 964
——, Commonwealth v. (2 Gray, 354) 681
—— v. Mobile (48 Ala. 598) 70, 77, 154
——, Reg. r. (11 Cox C. C. 670) 596 a
— v. State (53 Ala. 488) 829, 330
—— »v. State (8 Eng. 62) 852, 874
71
22
Hoskey v. State (9 Texas Ap. 202) 803,
828, 1070 b
Tloskins v. State (11 Ga. 92) 330
Hotaling v. Cronise (2 Cal. 60) 193
Houck v. Yates (82 Ill. 179) 303
Houghton, Com’th v. (8 Mass. 107) 204
~—, People v. (24 Hun, 501) 613
— v. State (41 Texas, 136) 854 a, 855
Houk v. Barthold (78 Ind. 21) 190¢
Hounsell, Reg. v. (2 Moody & R. 292) 778
Houpt v. Shields (3 Port. 247) 261 a
House v. State (41 Missis. 737) 156, 1001
Houseman, Reg. v. (8 Car. & P. 180) 341
INDEX TO THE CASES CITED.
HUG
v. Stewart (54 Misso. 400) 249
Howery, State v. (41 Texas, 506) 852, 884,
890
Howes, In re (6 Law Reporter, 297) 28
v. Board of Inland Revenue (1
Ex. D. 385)
——, Com’th v. (15 Pick. 231)
Howie, Reg. v. (11 Cox C. C. 20)
Howland Coal, &. Works v. Brown
(13 Bush, 681) 36 a
Howlett, Rex v. (7 Car. & P. 274) 320
—— »v. State (5 Yerg. 144) 55, 82, 855, 861
1011
119, 187
336
Hoye v. Swan (5 Md. 237) 40
Hoyer, Com’th v, (125 Mass. 209) 1042
v. Mascoutah (59 Ill. 137) 24, 407
Hoyt v. State (50 Ga. 3138) 422
v. Thompson (3 Sandf. 416) 115
—— v. Thompson (1 Seld. 320) 232
Hubbard v. Mack (17 Johns. 127) 290
——. People v. (24 Wend. 369) 290
v. State (11 Ind. 554) 1089, 1040
v. State (2 Texas Ap. 506) 177
Hubbs, State v. (58 Ind. 415) 512, 518
Huber v. Reily (8 Smith, Pa. 112) — 806,
807, 809, 810
—— v. Steiner (2 Scott, 304 ; 2 Bing.
Houser v. State (18 Ind. 106) 1000] _N. C. 202) 115
Houston v. Bogle (10 Ire. 496) 83 a| Hubotter v. State (82 Texas, 479) 426
—— v. Moore (5 Wheat. 1) 142 | Hudd v. Ravenor (2 Brod. & B. 662) 112
—, State v. (30 La. An. 1174) 966 | Hudgins v. State (46 Ala. 208) 997
Houtsch v. Jersey City (5 Dutcher, v. State (2 Kelly, 173) 204
316) 6 | Hudler v. Golden (86 N. Y. 446) 120
Hover v. Pennsylvania Co. (25 Ohio Hudson v. St. Louis, &c. Railway
State, 667) (53 Misso. 525) 250d
Howard v. Bodington (2 P. D. 203) 255, | —— v. State (6 ‘Texas Ap. 565) 615
255 a | ——, State v. (1 Vroom, 137) 301
—, Com’th v. (13 Mass. 221) 250 d v. Thorne (7 Paige, 261) 20
——, Com’th v. (3 Met. Ky. 407) 800 | —— »v. Tooth (8 Q. B. D. 46) 198
— v. Harris (8 Allén, 297) 1014 | Huey v. State (31 Ala. 349) 1048
—, Reg. v. (45 U. C. Q. B. 346) 1024 | ——, State v. (16 Ind. 338) 717
—— v. Savannah (T. U. P. Charl. 173) 22 | Huff v. Alsup (64 Misso. 51) 46
—— v. State (5 Ind. 183) 177, 1082 v. Com’th (14 Grat. 648) 909
—— v. State (5 Ind. 516) 1052 | —— »v. State (29 Ga. 424) 691a
—— v. State (6 Ind. 444) 1065, 1069 v, State (2 Swan, Tenn. 279) 852,
855, 873
—— »v. State (64 Ind. 516) 8538, 855, 879,
884
— v. State (67 Ind. 401) 512, 613
—— v. State (11 Ohio State, 328) 485,
728, 732
——,, State v. (82 N. C. 623) 110¢
—, State v. (15 Rich. 274) 180, 261
——, State v. (82 Vt. 380) 746, 761
Howe, Com’th v. (13 Gray, 26) 1069
—, State v. (1 Rich. 260) 917
Howe Machine Co. v. Gage (9 Bax-
ter, 518) 1080
Howel v. Commonwealth (5 Grat.
664) 311
Howell v. Cassopolis (85 Mich. 471) 1125
—— v. Howell (15 Wis. 55) 264 a
——, People v. (4 Johns. 296) _ 194, 204,
826, 328, 338
Huffman v. Alderson (9 W. Va. 616) 267
—— v. State (29 Ala. 40) 82, 190 e, 299
Huffschmidt, State v. (47 Misso. 73) 1032
Huffstater v. People (5 Hun, 23) 1003
Huggins v. Ball (19 Ala. 587) 163
Hughes, In re (Phillips, 57) 808
v. Chester, &c. Railway (1
Drew. & S. 524) 49
—— v. Edwards (9 Wheat. 489) 13,14
v. Farrar (45 Maine, 72) 98
— »v. Griffiths (13 C. B. nv. s. 324) 110c
— v. Hughes (Carter, 125) 82
—, Rex v. (2 Car. & P. 420) 814, 442
—, Rex v. (1 Leach, 406; 2 East
P. C. 491) 312
—, Rex v. (1 Moody, 370) 271
— v. State (12 Ala. 458) 189
793
IND
HUR INDEX TO THE CASES CITED.
SECTION ' » SECTION
Hughes »v. State (1 Eng. 131) 193, 217 | Hurst v. Hawn (5 Oregon, 275) 164
—, State v. (24 Misso. 147) 1001 } ——, Rex v. (11 Mod. 140) 250
Hulbut, People v. (4 Denio, 133) 1048 | Hurt v. State (19 Ala. 19) 237
Hull v. Hull (2 Strob. Eq. 174) 655, 656 | —— v. State (55 Ala. 214) 264
v. Miller (4 Neb. 503) 37 | Hussey, State v. (60 Maine, 410) 4824,
v. Minor (2 Root, 223) 263 : 447 5
—, Reg. v. (2 Fost. & F.16) 257, 261 | Huston v. Roosa (42 Ind. 386) 141
— v. Ruggles (56 N. Y. 424) 952 , State v. (12 Texas, 245) . 908
v. State (3 Kelly, 18) 140} Hutchen v. Niblo (4 Biackf. 148) 82
v. State (7 Texas Ap. 693) 589, 607, | Hutchins v. Com’th (2 Va. Cas. 331) 782
608, 611 | —— v. State (28 Ind. 34) 600, 602
, State v. (21 Maine, 84) 244| Hutchinson, Rex v. (2 B. & C.
Hulse, People v. (3 Hill, N. ¥. 809) 198; 608, note) 61a
Hulseman v. Rems (5 Wright, Pa. , v. State (62 Ala. 3) 791
396) 811 | ——, State v. (86 Maine, 261) 656, 673
Hulstead ». Com’th (5 Leigh, 724) 1087) Hutchison v. Commonwealth (1
Hume v. Gossett (438 Ill. 297) 154 Norris, Pa. 472) 423,
Humpeler v. People (92 Ill. 400) 1021, | ——v. State (6 Humph. 142) 968
1022 Huthmacher v. Harris (2 Wright,
Humphrey v. Burnside (4 Bush, Pa. 491) 1013
215) 1006 a | Hutto v. State (7 Texas Ap. 44) 428
— v. Kingman (5 Met. 162) 805 | Hutzell, State v. (53 Ind. 160) 1044
—, People v. (7 Johns. 314) 610 | Huxford, State v. (47 Iowa, 16) 981
——, Rex v. (1 Root, 63) 295 | Hyatt v. Taylor (42 N. Y. 258) 72
Humphreys ». State (17 Fla. 381) 828 | Hyde v. Chapin (2 Cush. 77) 691
, State v. (10 Humph. 442) 339 | —— v. Cogan (2 Doug. 699) 189d, 196
Humphries, Com’th v. (7 Mass. 242) 144 v. Hyde (Law Rep.1P. & M.
— v. State (5 Misso. 203) 216} 180) 603
Hunkins, State v. (43 N. H. 557) 261 d |; —— »v. Partridge (3 Salk: 227) 257
Hunt, Com’th v. (4 Cush. 49) 718 | ——, Reg. v. (7 Ellis & B. 860) 348
v. Dawson (38 Ala. 199) 164 | —— v. White (24 Texas, 127) 109
v. Holden (2 Mass. 168) 105 | Hyer, State v. (10 Vroom, 598) 749
—— v. Hunt (87 Maine, 333) 177 a v. Van Valkenburgh (8 Cow.
— v. Jennings (5 Blackf. 195) 177,177a} 260) 107
v. Murray (17 Iowa, 813) 81] Hylton v. Brown (1 Wash. C. C. 343) 32
—, People v. (41 Cal. 435) 186 | Hymen, Rex v. (7 T. R. 536) — 195, 250d
v. Philadelphia (11 Casey, Pa. Hynes, State v. (66 Maine, 114) 1018,
277) 1094 1046, 1048
—, Reg. v. (8 Car. & P. 642) 271 | Hyslop v. Hoppock (6 Bankr. Reg.
——, Reg. v. (8 Cox C. C. 495) 423| 657) 141
— , Rex »v. (1 Moody, 93) 318
v. Richards (4 Kan. 549) 817
—— v. State (55 Ala. 138) 425 | Iberia Parish v. Chiapella (30 La.
v. State (6 Texas Ap. 663) 320} An. 1148) 1098
—— v. State (7 Texas Ap. 212) 163 | Igoe v. State (14 Ind. 239) 36a
—— v. Wyman (100 Mass. 198) 423 | Ihinger v. State (53 Ind. 251) 1021, 10484
Hunter v. Com’th (7 Grat. 641) 812) Ihrig v. State (40 Ind. 422) 1018, 1021
—, Rex v. (2 Leach, 624; 2 East Illidge, Reg. v. (2 Car. & K. 871) 328
P. C. 928) 342 | ——, Reg. v. (Temp. & M. 127; 18
——, Rex v. (8 Lev. 255) 823; Jur. 5483; 18 Law J. wn. s. M. C.
—— v. State (55 Ala. 76) 842a| 179; 1 Den. C.C. 404; 2 Car. &
—, State v. (5 Misso. 360) 1092 | K. 871) 835
— v. United States (1 Pinney, 91) 656 | Illinois, &c. Canal, People v. (3
Huntington v. Cheesbro (57 Ind. 74) 20,| Scam. 153) 82
1073 | Illinois Land and Loan Co. v. Bonner
— ». Pease (56 Ind. 305) 406, 408! (75 Ill. 315) 254
——,, State v. (3 Brev. 111) 163 | Illinois and Michigan Canal v. Chi-
Huntly, State v. (3 Ire. 418) 784| cago (14 Ill. 384 159, 165, 177, 177 4
Huntsville v. Phelps (27 Ala. 55) 41 | Ilsley v. Nicholas le Pick. 270) 290
Hurber v. Baugh (43 Iowa, 514) 997 | Ince, Rex v. (1 Leach, 342, n.) 321
Hurford v. Omaha (4 Neb. 886) 255, 255a | Independence v. Noland (21 Misso.
Hurl, Ex parte (49 Cal. 557) 20,997} 394) 1003
Hurlbut, People v. (24 Mich. 44) 36a, 37 | Inder, Reg. v. (2 Car. & K. 635; 1
Hurley, State v. (54 Maine, 662) 1050! Den. C. C. 325)
794
ION
SECTION
India, The (Browning & L. 221) 149
Indiana v. Agricultural Society (4
Norris, Pa. 357 16, 92.4
Indiana North and South Railway v.
Attica (56 Ind. 476) 119
Indianapolis v. Fairchild (1 Ind.
315; Smith, Ind. 122) 22, 997, 1006
+— v. Imberry (17 Ind. 175) 84
Indianapolis and Cincinnati Rail-
INDEX TO THE CASES CITED.
SE
Iowa Homestead Co. v. Webster (21
JAK
CTION
Iowa, 221)
Ipswich Union, Reg. v. (2 Q. B. D.
269) 84
Iron Mountain Co. v. Haight (39
Cal. 540) 107
Irresistible, The (7 Wheat. 551) 177,180
Irvin x. State (7 Texas Ap. 78) 435
——, State v. (5 Blackf. 343) 804
road v. Kinney (8 Ind. 402) 119] Irvine, State v. (3 Heisk. 155) 803, 1083 4
Industrial School District v. White- ——, United States v. (98 U. S. 450) 261d
head (2 Beasley, 290) 159 | Irwin, United States v. (6 McLean,
Ingall, Reg. v. (2 Q. B. D. 199) 255} 178) 154, 163
Ingersoll v. Skinner (1 Denio, 540) 990, | Isaacs, Reg. ». (Leigh & C. 220; 9
1026| Cox C. C. 228) 747
— v. State (11 Ind. 464) 151 | —— v. Royal Ins. Co. (Law Rep. 5
—, State v. (17 Wis. 631) 177| Ex. 296) 8la
Ingraham v. Regan (28 Missis. 213) 97 , State v. (1 Speers, 223) 238
—— v. Speed (30 Missis. 410) 70, 81 | Iseley v. State (8 Blackf. 403) 881, 910
Ingram v. Foot (1 Ld. Raym. 708; Isliam v. Bennington Iron Co. (19
12 Mod. 611) 42,402] Vt. 230) 86, 126, 159
——, Rex v. (1 Ld. Raym. 215) 255 , United States v. (17 Wal. 496) 78
—— v. State (39 Ala. 247) 996 | Ivens, Rex v. (7 Car. & P. 2138) 297
—— v. Threadgill (8 Dev. 59) 303, 1128 | Iverson v. State (52 Ala. 170) 154
Inkster v. Carver (16 Mich. 484) - 91 | Ivey v. Hardy (2 Port. 548) 274
Inman v. State (54 Ga. 219) 98 v. State (61 Ala. 58) 286
Innerarity v. Mims (1 Ala. 660) 82| Ivyes, Rex v. (2 Show. 468) 250, 984
Innes v. Wylie (1 Car. & K. 257) 141
Inness, State v. (53 Maine, 536) 1027, 1065
Intoxicating Liquor Cases (25 Kan. J. P., State v. (1 Tyler, 283) 261d
992, 1007, 1020 | Jackett v. Judd (18 How. Pr. 385) 178
Intoxicating Liquors, Common- Jacks, State v..(54 Ind. 412) 1039, 1040,
wealth v. (18. Alen, 52) 1057 106
—, Com’th v. (13 Allen, 561) 1057 | Jackson v. Boyd (58 Towa, 586) 997, 1045
——, Conr’th v. (14 Gray, 375)
——,, Com’th v. (97 Mass. 332) » 1057
—., Commonwealth v. (97 Mass.
601) 110 8, 110 ce, 1057
—, Com’th v. (103 Mass. 448) 1057
—, Com’th v. (103 Mass. 454) 1057
—, Com’th ». (105 Mass. 181) 1057
—-, Com’tir v. (105 Mass. 595) 1048
——, Com’th v. (107 Mass. 216) 1057
—, Com’th v. (107 Mass. 886) 1057, 1058
—, Com’th v. (107 Mass. 396) 1057
——, Com’th v. (108 Mass. 19) 1057
——, Com’th v. (109 Mass. 371) 1057
—, Com’th ». (109 Mass: 373, note) 1057
——, Com’th v. (110 Mass. 172) 1057
——., Com’th v. (110 Mass. 182) 1057
——;, Com’th z. (113 Mass. 23) 1057
—, Commonwealth v. (116 Mass.
21; 24, 26, 27) 1057
—, Com’th v. (116 Mass. 342) 1057
——, Com’th v. (117 Mass. 427) 1057
——, Conr’th v. (122 Mass. 8, 14) 1057
-——, Com’th v. (128 Mass. 72) 1057
——, State v. (61 Maine, 520 1057
——, State v. (68 Maine, 121 1057
1057
1057
1057
306
——, State v. (68 Maine, 187)
——, State v. (69 Maine, 524)
——, State v. (44 Vt. 208)
Ion,.Reg. v. (2 Den. C. C. 475; 14
. “Eng. L. & Eq. 556) sin 198
— v. Brookins (5 Hun, 530) 1031 a
— v. Collins (16 B. Monr. 214) 925
——, Com’th v. (5 Bush, 680) 37
—,, Com’th v. (11 Bush, 679) 609, 610
——, Com’th v. (15 Gray, 187) 748, 759
—— v. People (2 Scam. 231) 610
——,, People v. (30 Cal. 427) 86
—, Reg. v. (9 Cox C. C. 505) 424
——,, Rex v. (Cowp. 297) 163, 169
—, Rex v. (1 Moody, 119) 271
v. State (12 Ga. 1) 152
—— v. State (4 Ind. 560) 910
v. State (19 Ind. 312) 1007
—— v. State (7 Texas Ap. 363) 414, 428
— v. State (8 Texas Ap. 60) 609
— , State v. (4 Blackf. 49) 1037
——, State v. (2 Harring. Del. 542) 4324
——,, State v. (7 Ind. 270) 443, 447
——, State v. (1 Lea, 680) 793
——, State v. (86 Ohio State, 281) 82
—. U.S. v. (1 Hughes, 531) 1016
—— v. Warren (32 Ill. 381) 120
Jacobi v. State (59 Ala. 71) 852, 855
Jacobs, State v. (2 Harring. Del. 548) 105
——,, State v. (88 Misso. 879) 1090, 1091
Jacobson v. State (55 Ala. 151) 82, 921
Jacquins x. Com’th (9 Cush. 279) 84
Jaeger, State v. (63 Misso. 403) 190 e, 1032
Jailer, Com’th v. (1 Grant, Pa. 218) 688
Jake, State v. (Winst. II. 80) ~ 279
‘195
JER
SECTION
Jakes v. State (42 Ind. 4738) 1020
James v. Atlantic Delaine Co. (11
Bankr. Reg. 390) 137
v. Com’th (12 S. & R. 220) 149, 792
— v. Dubois (1 Harrison, 285) 82, 95a,
177 a, 178, 186
v. Elder (23 Missis. 134) 204
—, People v. (16 Hun, 426) 404, 407
v. Phelps (11 A. & E. 483) 4324
—, Reg. v. (8 Car. & P. 131) 432 a
— , Reg. v. (8 Car. & P. 292) 334
— , Reg. v. (Temp. & M. 300; 14
Jur. 940; 19 Law J. n. 5. M. C.
179; 1 Eng. L. & Eq. 652; 2
Den. C. C. 1) 739
—, Rex v. (Russ. & Ry. 17) 610
Jamison v. Burton (48 Iowa, 282) 1021,
1022
—, State v. (23 Misso. 330) 1006
Janes v. Buzzard (Hemp. 259) 186
—, Reg. v. (1 Car. & K. 303) 291
Jaques, State v. (68 Misso. 260) 1037, 1044
INDEX TO THE CASES CITED.
JOH
SECTION
Jersey City, State v. (11 Vroom, 257) 159
Jersey City, &c. Railroad v. Jersey
City, &c. Railroad (5 C. E. Green,
61) 88, 154
Jesson v. Wright (2 Bligh, 1) 100
Jessup, Com’th v. (18 Smith, Pa. 34) 156,
1021, 1032
Jester v. State (14 Ark. 552) 894, 910
Jewell v. Weed (18 Minn. 272) 40
Jewett v. Greene (8 Greenl. 447) 261
Jilz, In re (3 Misso. Ap. 243) 84
Jim, State v. (8 Murph. 8) 216, 844, 346
Jobson v. Fennell (385 Cal. 711) &8
Jocelyn v. Hawkins (1 Stra. 446) 105
John, Reg. v. (18 Cox C. C. 100) 336, 340
—, Rex v. (7 Car. & P. 324) 141
Johnes v. Johines (3 Dow, 1) 189d
Johns, U.S. 7. (1 Wash. C. C. 368) 214, 224
Johnson’s Case (1 Greenl. 230) 89
Johnson v. Boon (1 Speers, 268) 274
— v. Com’th (12 Grat. 714) 1021
—, Commonwealth v. (10 Allen,
Jaquith v. Royce (42 Iowa, 406) 407| 196) 585, 595, 609
Jarger, State v. (66 Misso. 173) 486 | —— v. Farwell (7 Greenl. 370) 261
Jarnagin v. State (10 Yerg. 529) 446 | —— v. Hudson River Railroad (49
Jarnigan v. State (6 Texas Ap. 465) 515] N. Y. 455) 70
Jarrett, State v. (85 Misso. 357) 1048 | —— v. Johnson (26 Ind. 441) 83 a
darrott, State v. {5 Tre. “ 3820 | —— v. Lansley (12 C. B. 468; 22
Jarvis v. Jarvis (3 Edw. Ch. 462) 84] Eng. L. & Eq. 468) 855, 873
Jay v. State (69 Ind. 158) 447 v. Laserre (2 Ld. Raym. 1459) 164
Jeans, Reg. v. (1 Car. & K. 539) 316 | —— v. Merchandise (2 Paine, 601) 28, 304
Jefferson v. Reitz (6 Smith, Pa. 44) 163 v. Norwich (29 Conn. 407) 274
——, State v. (17 Fla. 707) 806 a | —— v. Pennington (3 Green, N. J. 188) 29
Jefferson City v. Courtmire (9 — v. People (Breese, 276) 1026
Misso. 692) 23 | —— v. People (83 Ill. 431) 1021, 1024,
Jeffersonville v. Weems (5 Ind. 547) 82 1029, 1048 a
Jefferys v. Boosey (4 H. L. Cas. 815) 141 | ——»v. People (94 Ill. 505) 828
Jeffrey, State v. (83 Ark. 186) 884, 896 v. Philadelphia (10 Smith,
Jettries v. Ankeny (11 Ohio, 872) 274| Pa, 445)
— v. State (49 Ala. 655) 163 . Reg. v. (Leigh & C. 682; 10
Cox C. C. 114) 491
Jenkins v. Cheyenne (1 Wy. Ter. 287) 24,
40
——, People v. (1 Hill, N. Y. 469) 992
——, Rex v. (Russ. & Ry. 244) 280
v. State (7 Texas Ap. 146) 432 a
——,, State v. (5 Jones, N. C. 430) 283, 284
v. Waldron (11 Johns. 114) 805
Jenks v. State (39 Ind. 1) 347 4
Jennegen, United States v. (4
Cranch C. C. 118) 580
Jenness, People v. (5 Mich. 805) 680, 735
Jenning’s Case (2 Lewin, 180) 246, 314
Jennings v. Commonwealth (17
Pick. 80) 159, 163, 169
—, Com’th v. (8 Grat. 624) 211
——,, Com’th v. (121 Mass. 47) 606
—— v. State (16 Ind. 335) 717
—— v. State (6 Texas Ap. 298) 793
——, State v. (27 Ark. 419) 18
Jernegan, United States v. (4
Cranch C. C. 1) 586
Jersey, People v. (18 Cal. 337) 422
Jersey City, State v. (8 Vroom, 348) 18,
22, 25, 26
796
7|——, Rex v. (Russ. & Ry. 492; 1
Russ. Crimes, 3d Eng. ed. 120) 319, 821
v. Rich (9 Barb. 680) 36
v. State (19 Ala. 527) 294
— v. State (37 Ala. 457) 435
—— v. State (61 Ala. 9) 436
— v. State (8 Ga. 453) 854, 855
—— v. State (61 Ga. 305) 590, 613
—— v. State (62 Ga. 299) 330
v. State (74 Ind. 197) 1021
v. State (3 Lea, 469) 31, 992 a, 1008
— v. State (11 Ohio State, 324) 346
—— v. State (4 Sneed, 614) 855, 881
—— v. State (36 Texas, 198) 855, 878,
884, 894
—— v. State (839 Texas, 393) 414
v. State (43 Texas, 576) 515
——, State v. (1 Brev. 155) 137
—, State v. (1 Dev. 360) 232
—, State v. (69 Ind. 85) 692, 698, 699
—, State v. (5 Jones, N.C. 221) 262
—, State v. (12 Minn. 476) 599, 603, 606
——, State v. (3 R. I. 94) 1027
JON INDEX TO THE CASES CITED. JUD
SECTION SECTION
Johnson, State z. (41 Texas, 504) 854a,| Jones, Reg. v. (Dears. & B. 555) 416
855 | ——, Reg. v. (2 Moody, 308) 291
— v. U.S. (8 McLean, 89 87, 126 | ——, Reg. v. (2 Moody & R. 2965,
—,U.S. »v. is Cranch C. C. 21) 283 note) 772
—, U.S. v. (2 Saw. 482) 828, 838, 834 | ——, Rex v. (2 East P. C. 641) 222
—— v. Wren (3 Stew. 172) 260 a, 261 a | —, Rex v. (1 Leach, 53; 2 East P.
Johnston’s Estate (9 Casey, Pa. 511) 154| C. 941 829
Johnston v. Bower (4 Hen. & M. 487) 164 | ——, Rex v. (1 Leach, 174) 167
v. Com’th (4 Norris, Pa. 54) 312 | —, Rex v. (1 Leach, 866; 2 East
— v. Louisville (11 Bush, 527) 137 P. C. 991) 212
—, Reg. v. (2 Moody, 254) 133 , Rex v. (1 Leach, 537; 2 East
—— v. Russell (37 Cal. 670) 938) P. C. 504) 287
—v. South Western Railroad Bank v. Root (6 Gray, 435) 1055, 1056, 1057
(8 Strob. Eq. 263) 115 | —— »v. Sanford (66 Maine, 585) 18, 19
— v. State (Mart. & Yerg. 129) 346, 874 | —— v. Smart (1 T. R. 44) 146
— v,. State (23 Ohio State, 556) 1007 v. State (26 Ala. 155) 855
— v. State (7 Sm. & M. 58) 896 | —— v. State (50 Ala. 161) 330
—, State v. (76 N.C. 209) 485, 495, 498 v. State (51 Ala. 16) 787
— v. Wilson (29 Grat. 379) 261 a | —— v. State (14 Ind. 120) 261¢
Johnstone v. Sutton (1 T. R. 511) 137 | —— v. State (1 Iowa, 395) 163
Joiner v. State (62 Ga. 560) 484 | —— v. State (1 Kan. 273) 70, 76
——,, State v. (4 Hawks, 350) 774 | —— v. State (8 Texas Ap. 228) 437
Jolliffe v. Rice (6 C. B. 1) 95a |—— v. State (3 Texas Ap. 498) 428
Jolly v. State (8 Sm. & M. 145) 1021 | —— v. State (9 Texas Ap. 178) 432a, 1110
——, State v. (3 Dev. & Bat. 110) 707 | ——, State v. (5 Ala. 666) 168, 167, 171.
——,, State v. (7 Iowa, 15) 255 | ——, State v. (3 Halst. 307) 144
Jones v. Alcorn Registrars (56 Missis. ——,, State v. (16 Kan. 608) 642, 647
766) 809, 810 | ——, State v. (1 McMul. 286) 163
—— v. Allen (1 Head, 626) 198 | ——, State v. (7 Nev. 408) 414
— v. Axen (1 Ld. Raym. 119) 42a | ——, State v. (33 Vt. 443) 444, 446
—— v. Berry (33 N. H. 209) 1079 | ——. State v. (39 Vt. 370) 1011
— v. Black (48 Ala. 540) 35a |—— v. Thompson (12 Bush, 394) , 364
—— v. Brown (2 Exch. 329) 75 | —— v. Underwood (18 How. Pr. 532) 178
—— v. Collins (16 Wis. 594). . 120 | ——, United States v. (3 Wash. C. C.
——, Commonwealth v. (7 Bush, 502) 1076
——., Com’th v. (10 Philad. 211) 803
——,, Commonwealth v. (2 Grat. 555) 691
—, Com’th v. (2 Jones, Pa. 365) 1il
—— v. Davis (6 Neb. 33) 36 b, 176
—— v. Dexter (8 Fla. 276) 95
— vv. Fireman’s Fund Ins. Co. (2
Daly, 807) lla
—— v. Green (Law Rep. 5 Eq. 555) = 181
— v. Hard (32 Vt. 481) 990
— v. Harrison (6 Exch. 828; 3 Eng.
L. & Eq. 579) 112
v. Hungerford (4 Gill & J. 402) 291
—— v. Hutchinson (43 Ala. 721) 387
— ». Jincey (9 Grat. 708) 261
— v. Jones (18 Maine, 308) 102
v. Jones (45 Md. 144) 610
— v. McLeod (103 Mass. 58) 1050, 1069
— v. Osborn (2 Chit. 484) 297
— v. Overstreet (4 T. B. Monr.
547) 1006 a
— v. People (14 Ill. 196) 992, 995
——, People v. (54 Barb. 311) 297
—— v. Perry (10 Yerg. 59) lla, 37a
— v. Planters’ Bank (5 Humph. 619) 108
——, Reg. v. (Car. & M. 611) 271
—, Reg. v. es & M. 614) 607
—,, Reg. v. (3 Cox C. C. 441) 814
——, Reg. v. (5 Cox C. C. 226) 306
—, Reg. v. (11 Cox C. C. 358) = 596a
209) 97, 163, 168, 204, 416
——. Walker (2 Paine, 688) 14
Jordan, Ex parte (94 U. S. 248) 255
—, Com’th v. (18 Pick. 228) 1003
—— v. Jordan (Dudley, Ga. 182) 261la
—— v. Kent (44 How. Pr. 206) 871
v. State (15 Ala. 746) 163, 177
—— v. State (22 Ga. 545) 476
v. State (88 Ga. 585) 179
v. Wimer (45 Iowa, 65) 88a
Jordt v. State (81 Texas, 571) 248
Jortin v. Southeastern Railway (3
Eq. Rep. 281; 1 Jur. n.s. 438; 31
Eng. L. & Eq. 820) 82, 192
Josefa Segunda, The (5 Wheat. 338) 132
Joseph v. State (42 Ind. 370) 1069
Josephdaffer v. State (32 Ind. 402) 1007
Josephine v. State (89 Missis. 613) 85a
Josselyn, People v. (89 Cal. 393) 749, 760
Journey v. State (1 Misso. 428) 137
Joyce, Reg. v. (Leigh & C. 576) 339
Joyner, State v. (81 N. C. 534) 977, 992,
1083 a
Judd v. Fulton (10 Barb. 117) 107
Judge, State ». (14 La. An. 486) 163
Judge of Ninth Judicial District,
State v. (12 La. An. 777)
Judges, Report of (3 Binn. App. 595) 159,
161, 163, 580, 618, 628, 767, 851
——, Report of (3 Binn. 599) 783
797
‘KEI
SxcTIoNn
Judson v. Reardon (16 Minn. 431) 20
Judy, State v. (60 Ind, 138) 794
, State v. (7 Misso. Ap. 524) 1185
Julius v. Oxford (5 Ap. Cas. 214) 112
Jumel, State v. (15 La. An. 359) 792, 793
Jurgins, State v. (31 Texas, 638) 852, 856,
884, 903
792
999
‘Justices v. Murray (9 Wal. 274)
——, State v. (15 Ga. 408)
Kadgihn v. Bloomington (58 Ill. 229) 1006
Kahlmeyer, Commonwealth v. (124
Mass. 822) 1057
Kain v. State (8 Ohio State, 806) 476
Kaine, In re (10 N. Y. Leg. Obs. 257) 14
Kalb, State v. (14 Ind. 403) 1022
Kaler, State v. (56 Maine, 88) 1055, 1057
‘Kamp, Commonwealth v. (14 B.
Monr. 385) 1002
‘Kane v. Com’th (8 Norris, Pa. 522) 108a
— v. Footh (70 Ill. 687) 112
v. People (8 Wend. 203) 167
Kansas v. Flanagan (69 Misso. 22) 407
v. Flanders (71 Misso. 281) 997
Kansas City v Clark (68 Misso. 588) 177
Kansas Pacific Railway v. Wyandotte
(16 Kan. 587)
Kaufiman v. People (11 Hun, 82) 639
Kavanaugh v. State (41 Ala. 399) 216, 271a
Kean, Rex v. (2 East P. C. 1078; 1
Leach, 527) 438, 487
v. Rice (12 8. & R. 208) 856
, State v. (10 N. H. 347) 610
Kearney, State v. (1 Hawks, 58) 243, 244
Kearns v. Cordwainers (6 C. B. n. 8.
888) 49
Keat’s Case (Skin. 666) 823
Keefe, Com’th v. (7 Gray, 332) 1042
v. People (40 NY. 348) 473
Keeller v. State (4 Texas Ap. 627) 422
Keen, State v. (34 Maine, 500) 1003
Keenan, Commonwealth e. (11 Allen,
262) 991, 1052
: v. Cook (12 R. I. 52) 805, 806
Keene v. State (8 Chand. 109) 185
Keeran v. Griffith (34 Cal, 580) 82
—, State ». (5 R. 1. 497) 792, 1069, 1070
Keesee v. State (1 Texas Ap. 298) 248
Keesler, State rv. (78 N. C. 469) 728
Keeter, State v. (80 N. C. 472) 328
Keeton vr. Keeton (20 Misso. 530)
‘Keffer, Pennsylvania v. (Addison,
290)
2616
Kegg v. State (10 Ohio, 75) 341
Keggon, State‘e. (55 N. H. 19) 1057
Keiler v. Tutt (31 Misso. 301) 1014
Keiser ». Lines (57 Ind. 431) 999
— v. State (58 Ind. 379)
v. Yandes (42 Ind. 399)
1004
141
Keisler, State v. (6 Jones, N. C. 73) 299,
855
Keith v. Johnson (1 Dana, 604) 290
‘Keithler v. State (10 Sm. & M..192) 348
798
INDEX TO THE CASES CITED.
4 | Kennedy v. Briere (45 Texas, 305)
KES
SECTION
Keller v. Boatman (41 Ind. 277) 141
—— v. State (11 Md. 526) 864, 992, 1032
—— v, State (12 Md. 822) 177
Kelley, Com’th v. (116 Mass. 341) 1069
—— v. Riley (106 Mass. 339) 628
———, State v. (5 Vroom, 75). 1124, 1126
——, State v. (47 Vt. 21/4) 1007
Kellock’s Case (Law Rep. 8 Ch. Ap. 4
769
Kellogg v. Decatur (38 Towa, 624) 1084
v Oshkosh (14 Wis. 623) 147
Kellum v. State (66 Ind. 688) 957
Kelly, Com’th v. (10 Cush. 69) 1052
—-, Com’th wv. (12 Gray, 175) 1069
v. Drew (12 Allen, 107) 613
—— v. Morse (3 Neb. 224) 112, 141
—— v. New York (54 How. Pr. 827) 999
——, State v. (12 R. I. 635) 970, 978, 979
, State v. (24 Texas, 182) 856, 868, 897
Kelsey v. Kendall (48 Vt. 24) $56
Kemp, Rex v. (1 Leach, 222) 276
Kendall, Commonwealth v. (12 Cush.
414) 992, 1035
Keniston, Commonwealth v. (5 Pick.
420) 198, 212, 218
Kennebec and Portland Railroad v.
Kendall (31 Maine, 470) 22
846
—, Commonwealth v. (15 B. Monr.
631) 852, 855, 935
——, Com’th v. (97 Mass. 224) 1069
, Com’th v. (108 Mass. 292) 1069
——, Com’th v. (119 Mass. 211) 1025
—— v. Favor (14 Gray, 200) 1055
—— v. Kennedy (2 Ala. 571) 97
—— v. Palmer (6 Gray, 316) 29
—— v. People (39 N. Y. 245) 473
—— v. Sowden (1 McMul. 823) 22
——, State v. (1 Ala. 31) 891, 1002
Kennett’s Petition (4 Fost. N. H.139) 86
Kenney, Commonwealth v. (115
Mass. 149) 1055, 1057
, Com’th v (120 Mass. 887) 585, 610
Kenniston State v. (67 Maine, 658) 1057
Kennon, State ev. (21 Misso. 262) 963
Kent, Commonwealth v. (6 Met. 221) 211
—, People v. (1 Doug. Mich. 42) 345
—, Reg. v. (2 Q. B. 686) 95a
—— v. State (8 Blackf. 163) 194, 222
—, State v. (65 N. C. 811) 184, 186
Kentucky v. Ohio (24 How. U.S. 66) 922,
a
‘ Kenyon v. People (26 N. Y. 208) 68, 639,
648, 660a
Keokuk v. Dressel (47 Iowa, 597) 26
Kepper, Com’th v. (114 Mass. 278) 330
Kerbey v. Siggers (2 Dowl. P.C. 659) 164
Kerlinger v. Barnes (14 Minn. 626) 154
Kern v. State (7 Ohio State, 411) 1034
Kernion v. Hills (1 La. An. 419) 104
Kerrigan v. Force (9 Hun, 185) 42b
v. Force (68 N. Y. 381) 36a, 420, 91
Kesslering, State v. (12 Misso. 665) 884,
890
“KIN
SECTION
Ketchingham v. State (6 Wis. 426) 688
Kettering v. Jacksonville (50 Ill. 39) 997
Kevill, Com’th v. (108 Mass. 422) 1032
Key v. Jones (52 Ala. 238) 364
Keyport, &c. Steamboat Co. v. Farm-
ers’ Trans. Co. (3 C. E. Green, 13) 72,
75, 76
Kidd, State v. (74 Ind. 554) 803
Kidwell v. State (63 Ind, 384) 736
Kief v. State (10 Texas Ap. 286) 615
Kilbourn v. State (9 Conn. 560) 1061
Kilburn ». Coe (48 How. Pr. 144) 10314
— v. Demming (2 Vt. 404) 319
‘Kilby Bank, Petitioner (23 Pick. 93) 70
Kilderby, Rex v. (1 Saund. 311) 1093
Kilgore v. Magee (4 Norris, Pa. 401) 87,
42
—, State v. (6 Humph. 44) - 920
Kilkelly v. Stare (43 Wis. 604) 97
Killet v. State (82 Ga. 292) 788
Killminster, Rex v. (7 Car. & P. 228) 262
Kilpatrick v. Brashear (10 Heisk.
372) . : 2614
— v. Byrne (25 Missis. 571) 146
—— v. People (5 Denio, 277) 1100
Killman v. State (2 Texas Ap. 222) 279
Kimball, Commonwealth v. (7 Gray,
1057, 1069
1057
823)
——, Com’th v. (105 Mass. 465)
—, Com’th v. (7 Met. 304) 1042, 1052
— ,, Commonwealth v. (21 Pick. 373) 163,
168, 177, 180
—, Com’th v. (24 Pick. 359) 990, 992
—, Commonwealth v. (24 Pick.
366) 238, 1020, 1048, 1019
—— v. Lamson (2 Vt. 138) 105
—— v. People (20 Ill. 348) 1013
Kimbray v. Draper (Law Rep. 8 Q.
B. 160) 84
Kimm v. Osgood (19 Misso. 60) 29, 111
Kinard v State (57 Missis. 132) 697
King v. Burrell (12 A. & E. 460) 80
—, Com’th v. (13 Met. 115) 168
—, Com’th v. (1 Whart. 448) 205
—. People v. (28 Cal. 265) 82
—— v. State (40 Ga. 244) 589, 6024
v. State (2 Ind. 523) 41, 163, 167, 1032
—— ». State (58 Missis. 737) 1007, 1020
——— v. State (3 Texas Ap. 7) 852, 884
——, State v. (37 Iowa, 462) 407, 997
——, State v. (12 La. An, 598) 38. 76, 152
——, State v. (29 La. An 704) 261d
——, State v. (44 Misso. 283) 70, 82
——, State v. (69 N. C. 419) 166
——, State v. (84 N. C. 737) 456, 460
——v. Walker (1 W. BI. 286) 2616
Kingman, Commonwealth v. (14
Gray, 85) 1033 a, 1035
Kingsley, State v. (39 Iowa, 489) 643, 650a
Kingston, Rex v. (20 Howell St. Tr.
355) 601
——, State v. (5 R. 1.297) 1045a, 1069
Kinmundy v. Mahan (72 Ill. 462) 997
Kinne, State v. (41 N. H. 238) 108, 1954
INDEX -TO THE CASES CITED.
KOU
: SEcTION-
Kinney, Ex parte (3 Hughes, 9) TST
v. Lee (10 Texas, 155) 261
— v. Mallory (3 Ala. 626) 160
Kinser v. State (Y Ind. 543) 1u44
Kinsey v. Sherman (46 Iowa, 468) 130
Kinsley, Com’th v. (106 Mass. 24) 1069
Kinsman, People v. (51 Cal. 92) 84
Kipps, Reg. v. (4 Cox C. C. 167) 634
Kirby v. Siggers (2 Dowl. P. C.813) 164
——,, State v. (57 Maine, 30) 768
—, United States v. (7 Wal. 482) 93
Kirk, Com’th v. (7 Gray, 496) . 1018
——, Com’th v. (4B. Monr.1) 984, 937
—— v. Nowill (1 T. R. 118) 22
Kirkham, State v. (1 Ire. 384) 1013
Kirkland v. Randon (8 Texas, 10) 873
Kirkpatrick v. McCullough (3 Humph.
171) 336
Kirkwood, Rex v. (1 Moody, 311) 826
Kisten v. Hildebrand (9 B. Monr. 72) 297
Kitchen v. Greenabaum (61 Misso.
110) 957
— v. Tyson (3 Murph. 314) 242
Kitson v. Ann Arbor (26 Mich. 325) 878,
997, 1011
Kittredge v. Milwaukee (26 Wis. 46) 209
Kitty, State v. (12 La. An. 805) 160
Kizer v. Randleman (5 Jones, N. C.
428) 1010
Klare v. State (48 Ind. 483) 1007
Kliffield v. State (4 How. Missis.
304) 1034
Knapp, Com’th v. (9 Pick. 496) 142, 155
——., People v. (42 Mich. 267) 187, 688
——,, Reg. v. (2 Kilis & B. 447; 22
Eng. L. & Eq. 157) 1003
Knee, Ex parte (1 New Rep. 148) 633
Kneeland, Com’th v. (20 Pick. 206) 204
— v. State (62 Ga. 395) 855, 915
Knight’s Case (3 Mod. 117; Comb.
38 168, 166, 168, 784
997
Kniper v. Louisville (7 Bush, 599)
1069
Knott, State v. (5 R. L. 293)
Knoup v. Piqua Bank (1 Ohio State,
603) 175,177 a
Knowles v. State (3 Day, 108) 163, 171
Knowlton, State v. (70 Maine, 200) 1057
Knox v. Chadbourne (28 Maine, 160) 319
—— »v. Cleveland (13 Wis. 245) 265
, Commonwealth v. (6 Mass. 76) 131
Kobe, State v. (26 Minn. 148) 1032, 1083 4
Kober v. State (10 Ohio State, 444) 1018
Koch v. Bridges (45 Missis. 247) 254
— r. State (32 Ohio State, 3853) 10334
Kehler, State v. (6 Iowa, 398) 1082
Koerner v. Oberly (56 Ind. 284) 992
Kolbe ». People (85 Ill. 836) 691
Koltenbrock v. Cracraft (36 Ohio
State, 584) 3la
Koopman ». State (61 Ala. 70) 1016
Kopke v. People (43 Mich. 41) 592, 602 a,
603, 606
Kouns v. State (3 Texas Ap. 13) 320
Kountze v. Omaha (5 Dil. 443) 38
799
LAM
INDEX TO THE CASES CITED.
LAU
SECTION SECTION
Kramer v. Marks (14 Smith, Pa. 151) 992 | Lamond ». Eiffe (3 Q. B. 910) 80
v. Rebman (9 Iowa, 114) 350 | Lampton, Com’th v. (4 Bibb, 261) 891
Krant v. State (47 Ind. 519) 1004 |———_ v. Haggard (3 T. B. Monr.
Krause v. Commonwealth (12 Nor- 149 1006 a
ris, Pa. 418) 423, 424 | Lanahan »v. Pattison (1 Flip. 410) 958
Krebs, State v. (64 N. C. 604) 960 | Lancashire, Reg. v. (7 Ellis & B.
Kreig, State v. (13 Iowa, 462) 1069 | %39 1008
Kreiter v. Nichols (28 Mich. 496) 1031a | Lancaster v. State (9 Texas Ap. 893) 346
Kreps, State v. (8 Ala. 951) 262 , State v. (6 Neb. 474) 16, 364
Krider v. Western College (31 Iowa, Landin v. State (10 Texas Ap. 63) 415
547) 1015 | Lane v. Baker (12 Ohio, 237) 274
Kroer v. People (78 Ill. 294) 1070 a | —— v. Bennett & M. & W. 70) 261 5
Krohn v. Sweeney (2 Daly, 200) 297 | ——, Com’th v. (113 Mass. 468) 604 4
Krummer, People v. (1 Buf. 549) 380 | —— v. Cotton (12 Mod. 472) 133
Krutz v. Craig (53 Ind. 561) 341 | —— v. Harris (16 Ga. 217) 37
Kuhn, State v. (24 La. An. 474) 1037 | —— v. Kennedy (13 Ohio State, 42) 103 a
Kunkle o. Franklin (13 Minn. 127) 85 | —— v. Nelson (29 Smith, Pa. 407) 85
Kunzmann, Commonwealth v. (5 —— v. Schomp (5 C. E. Green, 82) 93
Wright, Pa. 429) 813 | —— »v. State (87 Ark. 272) 1004
Kurtz v. People (33 Mich. 279) 1070 a | ——, State v. (8 Ire. 256) 98, 232
Kyle v.-Malin (8 Ind. 34) 19 , State v. (33 Maine, 536) 1034
v. State (10 Ala. 236) 220 | ——, State v. (80 N. C. 407) 328, 331
——,, State v. (10 Misso. 389) 923, 924 | Laney, State v. (4 Rich. 198) 244, 854, 855
Lang v. Gale (1 M. & 8. 111) 105
— v. Phillips (27 Ala. 311) 29
Labadie, Reg. v. (32 U. C. Q. B. 429) 292
La Bore, State v. (26 Vt. 765) 602
Laboyteaux, Ex parte (65 Ind. 545) 999,
999
Lacey v. Waples (28 La. An. 158)
Lackawana Iron, &¢. Co. v. Little
Woit (38 Wis. 152)
Lackey, State v. (2 Ind. 285)
Lacon v. Hooper (6 T. R. 224)
La Crosse, State v. (11 Wis. 50) 34
Lacy v. Moore (6 Coldw. 348) 82
Ladd v. Dillingham (34 Maine, 316) 1030
——,, State v. (15 Misso. 430) 1037, 1040
Lafayette v. Cummins (3 La. An.
673) 1098
v. Jenners (10 Ind. 70) 91
Lafayette, &¢. Railroad v. Geiger (34
Ind. 185)
Laffer, State v. (88 Iowa, 422) 1097
Lafferty, Com’th v. (6 Grat. 672) 656
Lafontaine, Com’th v. (3 Gray, 479) 1042
a
lla
255
177
105
Lahey, Com’th v. (14 Gray, 91) 680
Lahy, Com’th v. (8 Gray, 459) 1052
Laidler v. Young (2 Har. & J. 69) 43
Lair v. Killmer (1 Dutcher, 522) 193
Lake v. Aberdeen (57 Missis. 260) 21
— v. Decatur (91 Ill. 596) 22
v. People (1 Parker C. C. 495) 473
——, People v. (83 Cal. 487) 255
Lamb, State v. (65 N.C.419) 828, 830
Lambert, Com’th v. (12 Allen, 177) 716
——, People v. (5 Mich. 349) 610
—— v. State (8 Misso. 492) 1003
Lambertson v. Hogan (2 Barr, 22) 83a
Lamkin v. People (94 Ill. 601) 261d
Lammer, In re (7 Bis. 269; 14
Bankr. Reg. 460) 242 a, 288
Lammert v. Lidwell (62 Misso. 188) 18, 36 ,
Lammond v. Volans (14 Hun, 263) 1127,
800
v. Scott (1 Blackf. 405) 119, 187, 249,
250 a
—— v. Spicer (1 M. & W. 129) 159
—, State v. (63 Maine, 215) 1069
Langabier v. Fairbury, &c. Railroad
(64 Ill. 243) 110¢
v. Scott (1 Blackf. 405) 249
Langdon v. Fire Department (17
Wend. 234) 287, 292
Langford v. King (1 Mon. Ter. 33) 1774
——, Reg. v. (Car. & M. 602) 182
— v. U.S. (12 Ct. of Cl. 838) 14
Langtry v. State (80 Ala. 556) 609, 610
Languille v. State (4 Texas Ap. 312) 85a
Lanthrop v. Com’th (6 Grat. 671) 163
Lapeyre v. U. S. (17 Wal. 191) 28, 29
Larrimore, State v. (19 Misso. 891) 1020
Til. 11) 37
La Salle v. Blanchard (1 Bradw. 635) 84
2 | Larrison v. Peoria, &c. Railroad (77
La Selle v. Whitfield (12 La. An. 81) 97
Lasere v. Rochereau (17 Wal. 437) 141
Lash, State v. (1 Harrison, 380) 655
Lashley, State v. (84 N. C. 754) 692, 698,
699, 704, 705
Lastro v. State (3 Texas Ap. 363) 57
Lathrop v. Brown (1 Woods, 474) 83a
—— »v. Mills (19 Cal. 5138) 34
Lathrope v. State (50 Ind. 555) 1007
v. State (51 Ind. 192) 1024
Latless v. Holmes (4 T. R. 660) 28, 29
Lattinville, Commonwealth v. (120
Mass. 3885) 1921
Laude v. Chicago, &c. Railroad (33
Wis. 640) 152 a, 181
Lauer v. State (14 Ind. 131) 1024
v. State (22 Ind. 461) 992
Laurent v. Bernier (1 Kan. 428) 261d
Lauve, Succession of (6 La. An. 529) 1044
LEE
SECTION
Lavake, State v. (26 Minn. 626) 1033 a,
1084
Lavalle v. People (6 Bradw. 157) 402
Lavender, Rex v. (2 East P. C. 566) 220
—— v. State (60 Ala. 60) 247, 425
Laviosa v. Chicago, &c. Railroad (1
McGloin, 299) 406
Law v. Hodson (11 East, 300) 138 a
Lawlor v. People (74 Ill. 228) 318
Lawrence v. Allen (7 How. U. S. 785) 99
— v. Commonwealth (30 Grat. j
815) 485, 490, 495
— v..Gracy (11 Johns. 179)
1000
—, People v. (41 N. Y. 137) 36a
——, Rex v. (4 Car. & P. 231) 312
—— v. State (7 Texas Ap. 192) 108 a
Lawson v. Commonwealth (14 B.
Monr. 225) 1032
—— v. State (20 Ala. 65) 674, 678, 686,
704, 706
—— v. State (55 Ala. 118) 1016
Lawton, People v. (80 Mich 386) 992
Lay v. King (5 Day, 72) 1128
Layman, State v. (8 Blackf. 330) 94, 244
Layton v. New Orleans (12 La. An.
515) 18
— v. State (49 Ind. 229) 1032
Lea v. Bumm (2 Norris, Pa. 237) 34
Leach v. Elwood (3 Bradw. 453) — 20, 21
——, State v. (38 Maine, 482) 1057
Leader v. Moxon (2 W. BI. 924) 271, 999,
99 a
9!
League v. De Young (11 How. U.S.
185) 92a
Leak, State v. (80 N. C. 403) 328, 330
Lean, State v. (9 Wis. 279) 255, 809
Lear v. McMillen (17 Ohio State, 464) 848
Leard v. Leard (30 Ind. 171) 151
Leary v. State (39 Ind. 360) 1038
Leath v. Com’th (32 Grat. 878) 884
Leatherwood v. State (6 Texas Ap.
INDEX TO THE CASES CITED.
LEW
SrEcTIon
Leech, Com’th v. (12 Harris, Pa. 55) 180
—-, Rex v. (3 Stark. 70) 271
Lees v. Summersgill (17 Ves. 508) 48
Leese v. Clark (20 Cal. 387) 76
Le Feuvre v. Miller (8 Ellis & B. 321) 255
Le Forest v. Tolman (117 Mass 109) 193
Leftwich, Com’th v. (6 Rand. 657) 177
Legg v. Annapolis (42 Md. 203) 37
Leggett v. Hunter (19 N. Y. 445) 85a
Lehigh Valley Railroad v. McFarlan
(4 Stew. Ch. 706) lla
Lehman v. McBride (15 Ohio State,
578) 1
v. Robinson (59 Ala. 219) 95a, 98
Lehritter v. State (42 Ind. 482) 992 a
Leib v. Wilson (51 Ind. 550) 85a
Leiber v. Goodrich (5 Cow. 186) 336
Leicester, Rex v. (7 B. & C. 6) 256
Leigh v. Kent (3 T. R. 362) 104, 149
—, Reg. v. (10 A. & E. 398) 469
——, Rex v. (1 Leach, 52) 844
—— v. Westervelt (2 Duer, 618) 112,999 .
Leighton, State v. (3 Fost. N. H. 167) 874
—— v. Walker (9 N. H. 59) 159, 163, 185
Lemon, State v. (46 Misso. 375) 855, 862
Lemons v. State (50 Ala. 130) 1013, 1016
Lemp, State v. (16 Misso. 389) 1007
Lennard, Rex v. (2 W. Bl. 807; 1
Leach, 90; 1 East P. C. 170) 319
Lennox, Reg. v. (84 U. C. Q. B. 28) 261
Leo, Com’th v. (110 Mass. 414) 1052
Leonard v. Bosworth (4 Conn. 421) 194,
216, 220, 225
—, Com’th v. (9 Gray, 285) 1045 a
——, Com’th v. (8 Met. 529) 1085, 1042
—— v. Pitney (5 Wend. 30) » 261 ¢
——, State v. (22 Misso. 449) 314
—— v. Wiseman (81 Md. 201) 40
— v. Wolfram (41 Conn. 481) 163
Leoni v. Taylor (20 Mich. 148) 82
Le Roy v. Chabolla (2 Abb. U. §. 448) 82
244) 793, 798, 800 a | Lester v. Garland (15 Ves. 248) 29, 31 a,
Leavenworth v. Miller (7 Kan. 479) 92, 98 ’ 108
Leavenworth, &c. Railroad v. United Lesterjelle v. Columbus (30 Ga. 9386) 25
States (92 U. S. 733) 14| Letton v. Goodden (Law Rep. 2 Eq.
Leavitt, Com’th v. (12 Allen, 179) 1188) 123) 301 a
Leconfield v. Lonsdale (Law Rep. Levert v. Read (54 Ala. 529) 111
5 C. P. 657) 1129 | Levi v. Sanderson (Law Rep. 4 Q.
Ledbitter, Rex v. (1 Moody, 76) 237| 3B. 330) 186
Leddy, Com’th v. (105 Mass. 881) 1057) —— v. State (4 Baxter, 289) 1032
Lediard, Rex v. (Say. 242) 664 | Levy, Com’th v. (126 Mass. 240) 1048
Lee v. Bude, &c. Railway (Law Rep. —— v. State (6 Ind. 281) 24, 42 b, 997
6 C. P. 576) 0 | —— »v. Stewart (11 Wal. 244) 261a
— v. Clarke (2 East, 333) . 167 | Lewallen v. State (6 Texas Ap. 475) 515
— v. Cook (1 Wy. Ter. 413) 84| Lewellen v. State (18 Texas, 538) 927,
——— v. Forman (3 Met. Ky. 114) 98 944, 946
— v. Gansel (Cowp. 1) 287, 290 | Lewis v. Com’th (2 S. & R. 551) 326
v. Lincoln (1 Story, 610) 99 | —— v. Foster (1 N. H. 61) 177
— v. Shankle (6 Jones, N.C.318) 118
— v. Keeling (1 Jones, N. C. 299) 1131
— v. State (49 Ala. 43) 255, 805 | —— v. Littlefield (15 Maine, 283) 848, 873
—, State v. (37 Iowa, 402) 37 v. People (82 Ill. 104) 691
—, Territory v. (2 Mon. Ter. 124) 91 v. People (87 Mich. 518) 634, 651
—— v. Wallis (1 Keny. 292) 34} ——, Rex v. (2 Car. & P. 628) 312
Lee & Co.’s Bank, In re (21 N. Y.9) 92a!—— e. State (21 Ark. 209) 24
61
801
LIT
SECTION
Lewis v. State (2 Texas Ap. 26) 793
—, State v. (48 Iowa, 578) 643
—, State v. (10 Rich. 20) 435
—— State v. (12 Wis. 434) 855, 867, 895,
997
v. Stout (22 Wis. 234) 152
— v. United States (Morris, 199) 1004
—— v. Welch (14 N. H. 294) — 254, 1080
Lewiston v. Fairfield (47 Maine,
481)
Lexington v. Headley (5 Bush, 508) 406
Leyner v. State (8 Ind. 490) 1032
Libby, State v. (44 Maine, 469) 677, 686
License Cases (5 How. U. 8S. 504) i
License Tax Cases (5 Wal. 462) 991
Lichfield v. Simpson (8 Q. B. 65) 251
Lichtenstein v. State (5 Ind. 162) 154
Licks v. State (42 Missis. 316) 997
Liedtke, State v. (9 Neb. 462) 37
——, State v. (9 Neb. 468) 41
—} State v. (9 Neb. 490) 365
Lightner _v. Commonwealth (7
Casey, Pa. 341) 1000, 1003 a
Ligonier v. Ackerman (46 Ind. 552) 992 a
Lillard v. McGee (4 Bibb, 165) 163
Lillensteine v. State (46 Ala. 498) 1013,
1016, 1032
Limestone v. Rather (48 Ala. 433) 255
Linam v. Johnson (2 Bailey, 137) 163
—— v. Hapgood (11 Mass. 360) 805
—., Reg. v. (8 A. & E. 65) 301
— v. Smith (27 Vt. 328) 992, 1056,
1057, 1058
——, State v. (6 Neb. 12) 1000
——, State v. (7 Neb. 377) 26
——, State v. (50 Vt. 644) 1027
Lincolnton v. McCarter (Busbee,
429) 1026, 1032
Linde, State v. (54 Iowa, 139) 435, 437
Lindsay v. Lindsay (47 Ind. 283) 186
— v. State (19 Ala. 560) 1021
, State v. (84 Ark. 372) 174, 21, 856
Lindsey, Com’th v. (10 Mass. 153) 295
v. Miller (6 Pet. 666) 108, 142
v. State (48 Ala. 169) 852, 884,912
v. Stone (123 Mass. 382) 1031
Lindsley v. Williams (5 C. E.
Green, 93) 79
Lines, Reg. v. (1 Car. & K. 398) 494
Liness v. Hesing (44 Ill. 113) 826
Link v. Beuner (3 Caines, 325) 211
Linkous v. Com’th (9 Leigh, 608) 902
Linn, United States v. (Crabbe, 807) 255
Linney v. State (6 Texas, 1) 204
Lion, The (Law Rep. 2 P. C. 625) 98.4
Lipscomb, State v. (52 Misso. 32) 1052
Lisbon v. Clark (18 N. H. 234) l7a
— vr. Lyman (49 N. H. 558) 1052
——, People v. (60 N. Y. 559) 76
Lisles, State v. (58 Misso. 359) 86, 1033.4
Liston, State v. (9 Humph. 603) 818
Lithgo, Rex v. (Russ. & Ry. 857) 285
Little v. Poole (9 B. & C. 192) 138 4
802
INDEX TO THE CASES CITED.
LON
SEcTIon
Little, Rex v. (1 Bur. 609) 1075
——,, State v. (6 Blackf. 267) 944
——,, State v. (42 Iowa, 51) 1026
Little Rock v. Barton (33 Ark. 436) 1097
Little Rock, &c. Railway, State v.
(31 Ark. 701) 31
Liverpool Borough Bank v. Turner
(2 De G., F. & J. 502) (2554
Liverpool Ins. Co. v. Massachusetts
(10 Wal. 566) 1080
Liverpool Library v. Liverpool (5 H.
& N. 626) 1126
Livingston v. Indianapolis Insurance
Co. (6 Blackf. 133) 82
v. Moore (7 Pet. 469) 12
v. New York (8 Wend. 85) 792
——,, People v. (68 N. Y. 114 255
—, People v. (79 N. Y. 279 805
—, People v. (6 Wend. 526) 181
—— v. State (3 Texas Ap. 74) 789
Lloyd v. Leisenring (7 Watts, 294) 933
Lock v. Miller (3 Stew. & P. 13) 155
Lockbaum, State v. (88 Conn.400) 8184,
828, 832, 884
Locke’s Appeal (12 Smith, Pa. 491) 36
Locke, Commonwealth v. (114 Mass.
288) 997, 1032
v. State (3 Kelly, 534) 691, 691a
Lockett v. Hill (1 Woods, 552) 29
, Rex v. (7 Car. & P. 300) 88
——, Rex v. (1 Leach, 94; 2 East
P. C. 940) 328
v. State (47 Ala. 42) 786, 7884
v. State (63 Ala. 5) 311
— v. State (61 Ga. 44) 271la
Lockhart v. State (10 Texas, 275) 878
v. State (8 Texas Ap. 567) 428
Lockwood, Commonwealth v. (109
Mass. 323) 348
v. State (1 Ind. 161) 137
Lodano v. State (25 Ala. 64) 992, 1082
Loeffner v. State (10 Ohio State, 598) 475
Lewenthal, People ». (93 Ill. 191) 37
Loftin, State v. (2 Dev. & Bat. 31) 249,
739
—— v. Watson (32 Ark. 414) 16
Logan, Commonwealth »v. (12 Gray,
136) 84a, 1069
—— v. Courtown (13 Beav. 22) 76
v. Pyne (43 Iowa, 524) 20
— v. State (5 Texas Ap. 306) 1095
—— v. Walton (12 Ind. 639) 83a
Logwood v. Huntsville (Minor, 23) 254
——v. Planters’ and Merchants’ ;
Bank (Minor, 28) 193
Lohman, People v. (2 Barb. 216) 257, 752
Loker v. Brookline (18 Pick. 3438) 154
Lolley, Rex v. (Russ. & Ry. 237) 579, 608
Lonas ». State (3 Heisk. 287) 737
London v. Bernardiston (1 Lev. 14) 408
—— v. Wood (12 Mod. 669) 40
London Dock, Rex v. (5 A. & E. 168) 77
London, &c. Railway v. Blackmore
(Law Rep. 4 H. L. 610)
LOV INDEX TO THE CASES CITED. MAB
SECTION SECTION
London, &c. Railway v. Limehouse Lovell, State v. (23 Towa, 804) 119
(8 Kay & J. 123) 112 b | ——, State v. (10 Vroom, 458) 952, 955
London, &c. Railway v. Skerton (5 ——. State v. (10 Vroom, 463) 872
B. &.S. 559) 301 , State v. (47 Vt. 493) 990, 996
—— v. Wandsworth Board of Works Lovett, State v. (3 Vt. 110) 220
(Law Rep. 8 C. P. 185) 126 | Lovingston v. Wider (53 Ill. 302) 18
Long v. Culp (14 Kan. 412) 64, 67 | Low ce. Dunham (61 Maine, 566) 112
—— v. State (27 Ala. 32) 1004 | —— v. People (2 Parker C. C. 37) 387
— »v. State (13 Ind. 566) 898 v. Routledge (Law Rep. 1 Ch.
v. State (46 Ind. 582) 613] Ap. 42; Law Rep. 3 H. L. 100) 141
—— ov. State (56 Ind. 117) 1046 | Lowder v. State (63 Ala. 143) 312
—— v. State (56 Ind. 206) 10454, 1046 | Lower Chatham, In re (6 Vroom,
— v. State (43 Texas, 467) 452,453] 497) 40
—— v. State (4 Texas Ap. 81) ’ 266 | Lowndes v. Hunter (49 Ala. 507) 3864
—— v. State (6 Texas Ap. 642) 453 | Lowrie v. State (43 Texas, 602) 852, 878
——, State v. (7 Jones, N. C. 24) 1048 | Lowry v. Rainwater (70 Misso. 152) 855
—, State v. (78 N. C. 671) 177, 181 v. State (1 Misso. 722) 855
Longlois v. Longlois (48 Ind. 60) 152 a, 159 | ——, State v. (74 N. C. 121) 1007
Longworth v. State (41 Texas, 508) 852,
884
Lonsdale, Reg. v. (2 Cox C. C. 222) 328
Look, Com’th v. (108 Mass. 452) 1180, 1182
loom, Rex v. (1 Moody, 160) 247
Loomis, People v. (4 Denio, 380) 341
—, State v. (27 Minn. 521) 402
— »v. Wainwright (21 Vt. 520) 1014
Loon v. Lyon (4 Daly, 149) 1044
Looney v. State (10 Texas Ap. 520) 415
Loose, Reg. v. (Bell C. C. 259; 8 Cox
C. C. 302) 421, 423
Lopez v. State (42 Texas, 298) 85a
——, State v. (18 Texas, 38) 904
Lord v. Chadbourne (42 Maine, 429) 1031
—v Jones (24 Maine, 439) 1006
——, People v. (12 Hun, 282) 259
Lore v. State (4 Ala. 178) 175, 176
Loring, Commonwealth v. (8 Pick.
370) 82, 193, 200, 212, 244
—— v. Halling (15 Jolins. 119) 105
Lot v. State (I Iowa, 507) 1069
Lothrop v. Stedman (42 Conn. 583) 36
Lott v. State (9 Texas Ap. 206) 432 a, 437
Lottery Tickets, Commonwealth v.
(5 Cush. 369) 958, 961, 966
Lougliran, Reg. v. (3 Crawf. & Dix
C. C. 388 806
Loughridge v. State (6 Misso. 594) 144
Louisburg v. Harris (7 Jones, N. C.
281) 21
Louisiana State Lottery Co. v. Rich-
oux (3 La. An. 743) 37
Louisville v. Baird (15 B. Monr. 246) 86
—— v. Commonwealth (9 Dana, 70) 128
v. Kean (18 B. Monr. 9) 997, 999
—— v. Roupe (6 B. Monr. 691) —-22, 254
Louisville and Nashville Railroad v.
Davidson (1 Sneed, 637) 36
Louisville, &c. Railroad 7. Common-
wealth (1 Bush, 250) 212
Loukes v. Holbeach (4 Bing. 419) 242a
Love v. Hinckley (1 Abb. Adm. 436) 104
——-, State v. (1 Bay, 167) 768
271
681, 736
Lovell, Reg. v. (2 Moody & R. 236)
—— v. State (12 Ind. 18)
Loxdale, Rex v. (1 Bur. 445) 82, 255, 256
Loyd, State v. (2 Ind. 659) 177
Lucas v. Harper (24 Ohio State, 828) 871
—— v. Tippecanoe (44 Ind. 524) 90
Luck, Com’th v. (2 B. Monr. 296) 1002
Lucker v. Com’th (4 Bush, 440) 1063, 1065
Ludington, State v. (83 Wis. 107) ' 992,
999 a, 1000
Ludwick v. Commonwealth (6 Har- ‘
ris, Pa. 172 970
Luffe, Rex v. (8 East, 193) 190a, 1006a@
Lufkin, Com’th v. (7 Allen, 579)
Luke v. Calhoun (56 Ala. 415)
v. State (5 Fla. 185) 126, 156, 163
Luling v. Labranche (30 La. An. 972) 1018
Lumley, Reg. v. (Law Rep. 1 C. C.
196; 11 Cox C. C. 274) 607, 611
Lumpkin v.'Murrell (46 Texas, 51) 1006a@
— v. Wilson (5 Heisk. 655) 1018, 1014
Lunning v. State (9 Ind. 809) 177
Lunsford v. State (1 Texas Ap. 448) 248
Lunt’s Case (6 Greenl. 412) 992
Lunt v. Hunter (16 Maine, 9) 1130
Luscomb, Com’th v. (180 Mass. 42) 1127
Lyde v. Barnard {1 M. & W. 101) 82
Lydick, State v. (11 Neb. 366) 1004
Lyerly, State v. (7 Jones, N. C. 158) ee
Lyme Regis, Rex v. (1 Doug. 149) 405
Lymus, State v. (26 Ohio State, 400) 344
Lyn v. Wyn (0. Bridg. 122) 1124
Lynde, United States v. (11 Wal. 682) 14
Lynn v. Turner (Cowp. 86) 303
Lyon, Rex v. (Russ. & Ry. 255) 255
Lyons, Rex v. (1 Leach, 185; 2 East
P. C. 497) 279
—— v. State (52 Ind. 426) 639
Lytle, People v. (1 Idaho, 161) 152
——,, United States v. (5 McLean, 9) 35,
104
‘
Mabry v. Baxter (11 Heisk. 682) 84
— v. Bullock (7 Dana, 337) 1008, ner
803
MCC
SEcTION
Mabry v. Tarver (1 Humph. 94) 992
McAfee v. Southern Railroad (36
Missis. 669) 86
McAlister v. Clark (33 Conn. 91) 21
McAllister, State v. (24 Maine, 139) 405
McAlpin v. State (5 Ind. 567) 895
McAneany v. Jewett (10 Allen, 151) Bee
McArdle, People v. (5 Parker C. C.
180
—, United States v. (2 Saw. 367)
McArthur v. Franklin (16 Ohio State,
193) 31
649
46
McArty, Com’th v. (11 Gray, 456) 1069
McAtee, Com’th v. (8 Dana, 28) 949
McAuly v. State (7 Yerg. 526) 346
McBee wv. Hoke (2 Speers, 138) 255
McBride, State v. (8 Humph. 66) 918, 914
—, State v. (4 McCord, 332) 1005
—, State v. (4 Misso. 303) 37
——, State v. (64 Misso. 364) 1042
McCafferty, State v. (63 Maine, 223) 1045a
McCain, People v. (51 Cal. 860) 84
McCann, People v. (16 N. Y. 58) 168
— , Reg. v. (Law Rep. 3 Q.B.141) 103
—— r. State (13 Sm. & M. 471) 166
——, State v. (61 Maine, 116)
‘McCarn, State v.(12 Humph. 494)
McCartee v. Orphan Asylum Society
(9 Cow. 487) 97, 154, 163
McCarthy, Ex parte (53 Cal. 412) 163
Chicago, &c. Railroad (18
Kan. 46) 141
—, People v. (45 How. Pr. 97) 992
McCaskell v. State (538 Ala. 510) 1098
McCaughey, Commonwealth v. (9
Gray, 296)
1057
144
=U;
McCauley v. State (26 Ala. 135) 298
— v. State (43 Texas, 374) 449
McClanahan, Commonwealth v. (2
Met. Ky. 8) 798
McCleary, State v. (17 Towa, 44) 991
McClellan, Com’th v. (101 Mass. 84) 1115
McCloskey, Com’th v. (2 Rawle, 369) 164
McCluny ». Silliman (3 Pet. 270) 259
McClurken v. Detrich (33 Ill. 849) 985
McCluskey, Commonwealth v. (116
Maas. 64) 1055, 1057
——, Com’th v. (128 Mass. 401) 1069
McColl’s Case (1 Scotch Sess. ‘Cas.
4th ser. Just. 22 ; 2 Couper, 538) 728, 730
‘McCollum, State v. (44 Misso. 348) 828
‘McComas v. State (11 Misso. 116) 489
INDEX TO THE CASES CITED.
MCG
SEcTION
McCoy, State v. (2 Speers, 711) 243
v. Zane (65 Misso. 1) 994, 1057
v. Zane (65 Misso. 11) 852, 855, 867
McCracken, State v. (42 ‘Texas, 383) 30a
McCready v. Commonwealth (27
Grat. 985) : 1181, 1132
—— v. Sexton (29 Iowa, 356) 34
v. Virginia (94 U.S. 3891) 1131
McCreary v. State (27 Ark. 425) 177a
Maccuaig, State v. (8 Neb. 215) 154
Macuboy, Commonwealth v. (3 Dana,
70) 42b, 1034
McCue, Com’th v. (121 Mass. 358) 1057
McCuen v. State (19 Ark. 680) 997, 1084,
1037
v. State (19 Ark. 634) 179
McCulley, Reg. v. (2 Moody, 34; 2
Lewin, 272) 247, 298, 326
—— v. State (62 Ind. 428) 513
McCulloch v. State (11 Ind. 424) 29, 34, 37
McCully’s Case (2 Lewin, 272) 247
McCurdy, Com’th v. (109 Mass. 364) 1069
McCutcheon v. People (69 Ili. 601) 1021,
1022, 1024
McDade v. People (29 Mich. 50) 245
McDaniel v. Commonwealth (6 Bush,
326) 855, 858, 861, 874
— , Rex v. (2 East P. C. 644) 233
— v. State (35 Ala. 390) 298
v. State (6 Texas Ap. 475) 437
——, State v. (1 Houst. Crim. 506) 1025
McDavid, State v. (15 La. An. 403) 613
McDermut v. Lorillard (1 Edw. Ch.
278) 82
—, Rex v. (Russ. & Ry. 356) 315
McDonald’s Case (1 Broun, 238) 596 a, 664
McDonald, People v. (9 Mich. 150) a
49
— , Reg. v. (12 U. C., Q. B. 548) = 836
—,, State v. (4 Harring. Del. 555) 806
McDonough v. Campbell (42 Ill. 490) 154
—, Commonwealth v. (13 Allen,
581 177, 984, 1069
v. State (19 Texas, 293) 917
McDougald v. Dougherty (14 Ga. 674) 82
Macdougall v. Paterson (11 C. B. 755) 112
McDowell v. State (61 Ala. 172) 427
McDuell, United States v. (5 Cranch
C. C. 891) 1098
Mace v. Cammel (Lofft, 782) 48, 51
——, State v. (5 Md. 337) 92, 96, 242, 958
McElhaney »v. State (24 Ala. 71) 244
McElhiney v. Commonwealth (10
McConnell, Com’th v. (11 Gray, 204) 143| Harris, Pa. 365) 250
——, Reg. v. (1 Car. & K. 871; 2 McElroy v. Carmichael (6 Texas,
Moody, 298) 829, 383) 454) 873
McConvill v. Jersey City (10 Vroom, ; v. Chancellor (8 Texas, 270) 878
38) : 41} McEvoy v. Humphrey (77 Ill. 888) 1081a
McCool v. Smith (1 Black, 459) 97, 154 | McFadden, State v. (28 Minn. 40) 18
McCormack, State v. (22 Texas, 297) 464) McFarland v. Bank of The State (4
— v. Terre Haute, &c. Railroad Pike, 410) 126, 156
(9 Ind. 283) 249 | McGaffey v. State (4 Texas, 156) 884, 891,
McCormick v. Trotter (10 8S. & R. 94) 336 904
McCourt v. People (64 N. Y. 583) 812 | McGarry v. People (2 Lans. 227) 202
804
MCK INDEX TO THE CASES CITED. MCN
SECTION SEcTION
McGarry, State v. (21 Wis. 496) 246 | McKiernan, Commonwealth v. (128
McGary v. People (45 N. Y. 153) 208, 291,
292
McGavaran, Reg. v. (6 Cox C. C. 64) 491
McGavisk v. State (5 Vroom, 509) 1124,
1126
McGee z. State (5 Texas Ap. 492) 6515
McGeorge, Commonwealth v. (9 B.
Monr. 3) 200, 1011
McGinnis, State o. (87 Ark. 362) 1080
McGlynn, State v. (34 N. H. 422) 10454,
1052, 1057, 1058
McGowan ». State (9 Yerg. 184) 55, 135,
855, 868
, State v. (20 Conn. cg! 289
McGowen v. Deyo (8 Barb. 340) 178, 1002
McGrath v. State (46 Md. 631) 36a
McGraw v. Walker (2 Hilton, 404) 259
McGregor v. State (4 Texas Ap. 599) 101,
; 515
McGrew, State v. (11 Iowa, 112) 1026,
1069
McGufiie v. State (17 Ga. 497) 255
McGuire v. Com’th (3 Wal. 387) 991
—, Com’th v. (1 Va. Cas. 119) 912
v. Parker (32 La. An. 832) 1080
—— v. State (7 Humph. 54) 821
v. State (37 Missis. 369): 1020
— v. State (13 Sm. & M. 257) 1052
—, State v. (50 Iowa, 153) 678
McGuirk, Commonwealth vz. (28
Smith, Pa. 298) 163
McGunn v. Hanlin (29 Mich. 476) 1031
McHale, Com’th v. (1 Out. Pa. 397) 803
——, Com’th v. (1 Out. Pa. 407) 803
McHole v. Davies (1 Q. B. D. 59) 277,279
McInnis v. State (51 Ala. 23) 855, 858, 874
McIntosh, Rex v. (2 Kast P. C. 942;
2 Russ. Crimes, 3d Eng. ed. 515) ne
3
McIntyre v. Ingraham (35 Missis.
25 70, 9:
—, State r. (19 Minn. 93) 154
Mclvor, Com’th v. (117 Mass. 118) 1069
McKay, Rex v. (Russ. & Ry. 71) 205
v. State (44 Texas, 43) 515
McKearney, Rex v. (Jebb, 99) 312
McKeay, Rex v. (Car. Crim. Law,
190; 1 Moody, 130) 205, 326
McKee v. McKee (17 Md. 352) 97
—, Pennsylvania v. (Addison, 1) aa
—— v. People (82 N. Y. 239) 185
McKeehan v. Commonwealth (3
Barr, 151) 103
McKeen v. Delancy (5 Cranch, 22) 104
McKenney, Commonwealth v. (14
Gray, 1) 178, 185
McKenzie, Rex v. (Russ. & Ry. 429) a
——v. State (6 Eng. 594) 97
Mackerel, Rex v. (4 Car. & P. 448) 214
McKibben v. Lester (9 Ohio State,
' 627) 1524
. Mass. 414) 1033 a, 1084
McKinney v. Monongahela Nav. Co.:
(2 Haprris, Pa. 65) 250 a, 298, 326
v. People, (32 Mich. 284) 444
—, People v. (10 Mich. 54) . 2ila
~—— v. Salem (77 Ind. 213) 992, 992 a
ov. Springer (8 Blackf 506) 265
McKinsey v. Anderson (4 Dana, 62) 164
Mackintosh, Rex v. (2 Leach, 883) 329,
3 838
MeRissick v. State (2 Texas, 356) 921
Macklin’s Case (2 Lewin, 225) 320
McKnight, Rex v. (10 B. & C. 734) 1076
v. State (6 Texas Ap. 158) 678
MeLain v, New York (3 Daly, 82) 426
—,, State v. (2 Brev. 443) 247, 248
McLaughlin, Commonwealth v. (105
Mass. 460) 447 b
—, Commonwealth v. (108 Mass.
477) ° 1055, 1057
v. Hoover (1 Oregon, 31) 86
v. State (45 Ind. 338) 1036, 1037,
1068, 1069
— vy. State (66 Ind. 193) » 1032
McLeland v. State (25 Ga. 477)
697
McLelland, State v. (4 Sneed, 437) ye
111
McLendon, State v. (1 Stew. 195)
680, 705
McLeod »v. State (35 Ala. 395)
McLeran, State v. (1 Aikens, 311) 163
McLoughlin, Reg. v. (8 Car. & P.
635) 314
McManning v. Farrar (46 Misso. 876) 85
McManus v. Carmichael (3 Iowa, 1) 3038
—-, People v. (34 Barb. 620) 838
McMaster v. Lomax (2 Myl. & K. 82) 77
MeMath »v. State (55 Ga. 303) 484
McMerty v. Morrison (62 Misso.
140) 261 a
McMillen v. Lee (6 Iowa, 391) 92
3 | McMinn, State v. (84 Ark. 160) 426
— , State v. (83 N. C. 668) 1013
McMonagle, Com’th v. (1 Mass. 517) 295
McMullen v. Guest (6 Texas, 275) 180, 181
—— v. Hodge (5 Texas, 34) 90
McNab v. Heald (41 Ill. 826) 164
McNair, State v. (1 Jones, N. C.
180)
McNamara, Commonwealth v. (116
Mass. 340) 978
v. McNamara (2 Hilton, 547) 160
v. Minnesota Cent. Railway (12
Minn. 388) 84
—. State v. (69 Maine, 133) 1007, 1065
McNamee, Commonwealth v. (112
Mass.' 285) é 970
, Com’th v. (1138 Mass. 12) 1049
Macnawhoc Plantation v. Thompson |
(36 Maine, 365) li7 a
MeNeeley, State v. (Winston, No. IL
234) 1004
McNeill, Reg. v. (1 Crawf. & Dix
C. C. 80) 199, 318
805
MAG
SECTION
McNerny, Commonwealth v. (10
Philad. 206) 260 a
MeNight v. Biesecker (1 Harris, Pa.
828) 958
Macomber, Commonwealth v. (3
Mass. 254) 139, 142, 194, 218
——, State v. (7 R, I. 349) 828, 835
——, State v. (6 Vt. 215) 194, 216
Macon v. State (4 Humph. 421) 238
Macon County Court, State v. (41
Misso. 453) 97, 126, 152
McPhail v. State (9 Texas Ap. 164) wei
McPherson ». State (54 Ala. 221) 1045
INDEX TO THE CASES CITED.
MAN
SECTION
Mahan, State v. (2 Ala. 340) 232, 935
Mahaney, People v. (18 Mich. 481) — 84,
35 a, 40
Maher, Com’th v. (11 Philad. 425) 420
— v. State (53 Ga. 448) 28, 24
——, State v. (85 Maine, 225) 1018, 1027
Mahoney v. Crowley (36 Maine, 486) 691
——,, State r. (28 Minn. 181) 1021, 1049
Mahony, Com’th »v, (14 Gray, 46) 1018
Main, State v. (16 Wis. 398) 811, 813
Maine v. People (9 Hun, 113) 76la
Maine Central Railroad, State v. (60
Maine, 490) 467
Mainwaring, Reg. v. (7 Cox C. C.
McQuilkin v. Stoddard (8 Blackf. 192) 610
581) 4| Mairs, State v. (Coxe, 453) 212, 315
Macrae v. Hyndman (6 Cl. & F. Maize v. State (4 Ind. 342) 34, 36
212 242 a| Major, Commonwealth v. (6 Dana,
)
—— v. Wessell (6 Ire. 153)
126, 997| 293) 1024, 1045, 1049
McRea v. Americus (59 Ga. 168) 24 | ——, Rex v. (2 East P. C. 1118) 346
McRerdy v. Com’th (27 Grat. 982) | 163] Malcomson v. O’Dea (10 H. L. Cas.
McReynolds v. Smallhouse (8 Bush, 593) 1128
447) 50| Malone v. State (51 Ala. 55) 301
v. State (4 Texas Ap. 327) 320 v. State (14 Ind. 219) 513
McRoberts v. Winant (15 Abb. Pr. Maloney, Com’th v. (16 Gray, 20) 1018
n. 8. 210) 255 | ——, Com’th v. (112 Mass. 283) 185
McShane, Commonwealth v. (110 —, Com’th v. (113 Mass. 211) 1057
Mass. 502) 1027 | ——, State v. (R. M. Charl. 84) 163, 171
McSherry, Commonwealth »v. (3 Mallory v. State (62 Ga. 164) 855, 874
Gray, 481, note) 5 1042 v. Willis, (4 Comst. 76) 423
McVeigle v. U.S. (11 Wal. 259) 141] Manchester v. Doddridge (3 Ind.
MeVey v. McVey (51 Misso. 406) 126
Mc Whinney, State v, (5 Blackf. 364) 739
McWilliam v. Adams (1 Macq. Ap.
Cas. 120) 75, 86
McWilliams z. Phillips (51 Missis.
196) 999 a
——,, State v. (7 Misso. Ap. 99) 961, 962
Macy v. Raymond (9 Pick. 285) 101, 242
Madden, Com’th v. (1 Gray, 486) 1018
——, Reg. v. (14 U. C. Q. B. 588) 613
806
360) 264 a
v. Herrington (6 Seld. 164) 163
Mandere v. Bonsignore (28 La. An.
415)
Manderfield, Commonwealth v. (1
Pa. Leg. Gaz. Rep. 37; 8 Philad.
457) 952, 961, 962, 965
Maner, State v. (2 Hill, S. C. 453) 138
Maney ». State (6 Lea, 218) 1180, 1182
Manheim »v. State (66 Ind. 65) 882, vee
04
— v. State (1 Kan. 340) 754
Maildox, State v. (74 Ind. 105) 798 | Manis v. State (3 Heisk. 315) 82, 803, 997
——, State v. (1 Lea, 671) 255 | Manistee, People v. (26 Mich. 422) 24,
Madison’s Case (1 Hale P. C. 693) 589 407
Madison Avenue Baptist Church v. Mankletow, Reg. v. (Dears. 159; 6
Baptist Church (46 N. Y. 131) 1013} Cox C. C. 143) 627, 634, 636
Madison, &c. Plankroad v. Reynolds Manlove v. White (8 Cal. 376) 186
(3 Wis. 287) 161 | Manly v. Raleigh (4 Jones Eq. 370) 18
Madison, &c. Railroad v. Whiteneck v. State (7 Md. 185) 92
(8 Ind. 217) 86 a | Mann, Com’th v. (1 Va. Cas. 308) 969
Madrazo v. Willes (3 B. & Ald. 353) 141 v. People (85 Ill. 467) 691
Magdalen College Case (11 Co.66b) 82, | —— v. State (34 Ga. 1) 649
103 | ——, State v. (2 Oregon, 288) 855, 867
Magellan Pirates, The (18 Jur. 13; —, State v. (18 Texas, 61) 921
25 Eng. L. & Eq. 595) 8 | Manning, Reg. v. (Law Rep. 1 C.C.
Mager, Succession of (12 Rob. La. 338) 292
584) . , 14| —, Rex v. (Comyns, 616) 135
Magill, United States v. (1 Wash. v. State (25 Texas, 723) 916
__C. C. 4638) 96, 242 | —— v. State (36 Texas, 670) 1032
Magner v. People (97 Ill. 820) 1134, 1185] Mansell v. Reg. (8 Ellis & B. 54) 97
Magruder », Carroll (4 Md. 385) 82 | Mansfield v. Fleck (23 Minn. 61) 38474
»v. State (40 Ala. 347) 163 , State v. (33 Texas, 129) 428
Maguire v. State (47 Md. 485) 1044 a v. Stoneham (15 Gray, 149) 1030
‘MAR
fi : SECTION
Mansker, State v. (86 Texas, 364) 852,
878, 890, 1011
Manuel v. Manuel (13 Ohio State, 458) 70
Manvelle v. State (58 Ind. 63) 1039
Manwaring, Reg. v. (Dears. & B.
182; 37 Eng. L. & Eq. 609) 610
Mapes v. People (69 Ill. 523) 1021, 1022
Maple Lake v. Wright (12 Minn. 403) 163
Marbury v. Madison (1 Cranch, 187) 33
March v. Com’th (12 B. Monr. 25) 22
_Marchant v. Langworthy (6 Hill,
N. Y. 646) 255
—, Reg. v. (1 Cox C. C. 203) 691
Marcus, State v. (20 Ark. 201) 1034
Mardis v. Shackleford (4 Ala. 498) 260u
Mardre v. Felton (Phillips, N. C.279) 82
INDEX TO THE CASES CITED.
MAT
SECTION
Marston v. Seabury (2 Penning. 435) 263
Martel v. East St. Louis (94 Ill. 67) 9994
Martin v. Com’th (1 Mass. 347) 131
, Com’th v. (17 Mass. 859) 198, 212
——, Com’th v. (108 Mass. 29, note) 1069
—— v. Dix (52 Missis. 53) 18
v. Hemming (24 Law J. Exch. 8) 77
v, Hunter (1 Wheat. 304) 14
—— v. Martin (35 Ala. 560) 264 a
—, People v. (52 Cal. 201) 464
, Reg. v. (9 Car. & P. 215) 487
——, Reg. v. (8 Cox C. C. 447) 347 a
—, Reg. v. (2 Moody, 123; 9 Car.
& P. 218) 491, 493
——, Reg. v. (8 Q. B. D. 54) 261
—., Rex v. (1 Moody, 483; 7 Car.
Marianna Flora, The (11 Wheat. 1) 182] & P. 549) 306, 341, 348
Marienthal v. Shafer (6 Iowa, 228) 1030 |——, Rex v. (Russ. & Ry. 108) 279
Marietta, &c, Railroad v. Stephenson — »v. State (59 Ala. 34) 10138, 1016
(24 Ohio State, 48) 190 d, 231, 1136 v. State (6 Humph. 204) 1042
Markham, People v. (7 Cal. 208) 855 | —— v. State (24 Texas, 61) 185, 212, 263
— v. State (25 Ga. 52) 287 | —— v. State (1 Texas Ap. 586) 8184
——, State v. (15 La. An. 498) 261d, 852, | —— »v. State (9 Texas Ap. 293) 413
855, 879 | ——, State v. (22 Ark. 420) 855
Markle v. Akron (14 Ohio, 586) 22, 997,
1006 a, 1007, 1016
Markoe, Com’th wv. (17 Pick. 465) 1003
Marks v. Borum (1 Baxter, 87) 261 a
——, People v. (4 Parker C. C. 153) 295
—, Rex v. (3 East, 157) 48, 51
— v. State (45 Ala. 36) 954, 955
Marlborough, People v. (54 N. ¥.276) 37
Marmont v. State (48 Ind. 21) 1013
Marner, Reg. v. (Car. & M. 628) 231, 232
Maroney, Commonwealth v. (105
Mass. 467, note) 1057
Marqueze-». Caldwell (48 Missis. 23) 97
Marriot, Rex v. (4 Mod. 144) 250, 250 c,
629, 984
Marriott, Rex v. (11 Mod. 140, note) 250,
629, 984
Marryat v. Wilson (1 B. & P. 480) 14
Marsack, Rex v. (6 T. R. 771) 395
Marsh v. Colby (39 Mich. 626) 1128
—, Reg. v. (8 Fost. & F. 523) 271
——, Rex v. (4 D. & R. 260) 1382
—, State v. (37 Ark. 356) 9906
v. Titus (6 Thomp. & C. 29; 3
Hun, 550) 423
Marshall, Ex parte (64 Ala. 266) 990
—, Commonwealth v. (11 Pick.
350) 177, 180, 184, 186
— v. Martin (Law Rep. 5 Q. B. 239) 153
— v. Nicholls (18 Q. B. 882) 250 a
—— v. State (49 Ala. 21) 1021, 1022
—— v. State (31 Texas, 471) 426
— v. State (4 Texas Ap. 549) 413
——, State v. (45 N. H. 281) 817, 833, 842
—, State v. (13 Texas, 55) 246
—— v. Vultee (1 EF. D. Smith, 294) 120
.Marshalsea, The Case of (10 Co. 63 b) 138
Marson v. London and Dover Rail-
way (Law Rep. 6 Eq. 101) 277
—— v. Lund (18 Q. B. 664) 112
——, State v. (84 Ark. 840) 1088 a, 1035
——,, State v. (3 Heisk. 487) 163
——, State v. (9 Humph. 55) 841, 343
——,, State v. (31 La. An. 849) 789
——, State v. (5 Misso. 361) 1092
—, United States v. (94 U. S. 400) 255
—— v. West (7 Ind. 657) 1081 4
Martindale v. Martindale (10 Ind. 566) 181
——, State v. (1 Bailey, 163) 131
Marvin v. Bates (13 Misso. 217) 2616
—, State v. (12 Iowa, 499) 712
| State v. (35 N. H. 22)
Marxhausen v. Commonwealth (29
Grat. 853) 1026
Mary v. State (24 Ark. 44) 811
Maryland, Com’th v. (82 Md. 501) 195
Mash, Com’th v. (7 Met. 472) 596 a, 664
Maskill v. State (8 Blackf. 299) 4476
Mason v. Armitage (13 Ves. 25) 48, 49
— v. Cheney (47 N. H. 24) 261
—,, Com’th v. (116 Mass. 66) 1057, 1069
v. Johnson (24 Ill. 159) 2616
v. Fearson (9 How. U.S. 248) 97, 112
v. Finch (2 Scam. 223) 82
v. Johnson (24 Ill. 159) 804
— v. Lancaster (4 Bush, 406) 992, 997
v. Lothrop (7 Gray, 354) 10138, 1055,
1056, 1057
v. People (26 N. Y. 200) 287
— v. Piggott (11 Ill. 85) 164
——,, State v. (13 Ire. 341) 443
—, State v. (66 N. C. 636) 259
Massie v. Com’th (30 Grat. 841) 1046
v. Waite (1 Pick. 452) 159, 161, 163
Masters, Reg. v. (1 Den. C. C. 332;
2 Car. & K. 980; Temp. & M. 1;
18 Law J. n. s. M. C. 2) 271
Mather, People v. (4 Wend. 229) 141, 204
Mathes, State v. (3 Lea, 36) 443
Mathews v. Shores (24 Ill. 27) 35
807
MED
SECTION
Mathews v. State (10 Texas Ap. 279) 413
——, State v. (2 Brev. 82) 852, 855
—,, State v. (2 Dev. & Bat. 424) =. 207
, State v. (14 Misso. 133) 179
Mathis, State v. (3 Pike, 84) 852, 855, 878
Matthews, Ex parte (52 Ala. 51) 97
— v. Alexandria (68 Misso. 115) 36
—— v. Caldweld (2 Disney, 279) 93
——., Com’th v. (122 Mass. 60) 20
—, Com’th v. (129 Mass. 485) 1000, 1002
——, Com’th v. (129 Mass. 487) 1057, 1058
—., Reg. v. (14 Cox C.C.5) 231, 4324
——, Rex v. (2 East P. C. 642) 222
v. Skinker (62 Misso. 329) jlg
v. Zane (7 Wheat. 164) 28
Matthis, State v. (1 Hill, S.C. 37) 1024
Mattock, U. S. v. (2 Saw. 148) 212
Maugham v. Walker (Peake, 163) 257
Maughan, Ex parte (1 Q. B. D.49) 999
Maull v. State (37 Ala. 160) 671, 674, as
Maurer, State v. (7 Iowa, 406) 855, oe
Maxwell v. Chapman (8 Barb. 579) 610
—— v. Collins (8 Ind. 38) 120
v. Jonesboro’ (11 Heisk. 257) 20
—— v. Rives (11 Nev. 213) 193
v. State (27 Ala. 660) 1021
— v. State (40 Md. 273) 70
—— »v. State (38 Texas, 170) 788 a
——, State v. (5 Blackf. 230) 894, 896
, State v. (86 Conn. 157) 1057
May v. Breed (7 Cush. 15) 175
——., People v. (27 Barb. 238) 212
—, Reg. v.‘(10 Cox C. C. 448; 15
W.R. 751; 16 Law Times, n. 8.
362) 773
—— v. State (9 Ala. 167) 1086
— v. State (35 Texas, 650) 163
600
261
—— v. State (4 Texas Ap. 424)
—, State v. (1 Brev. 160)
Mayers v. State (2 Eng. 68) M7
— v. State (3 Eng. 222) 225, 852, 858
Mayes v. State (33 Texas, 340) 457
Maynard, Rex v. (2 East P.C. 501) 287
——, Rex v. (Russ. & Ry. 240) 774
Mayo». State (7 Texas Ap. 342) 485
Mayor v. Davis (6 Watts & S. 269) 195,
INDEX TO THE CASES CITED.
MET
SEcTion
Medford v. Learned (16 Mass. 215) <‘ 84
Medical College v. Muldon (46 Ala.
603) Na
Medlock v. State (18 Ark. 363) 899
Medlor, Rex v. (2 Show. 36): 859
Medway v. Natick (7 Mass. 88) 274
Medwin, Ex parte (1 Ellis & B. 609) 403
Meek v. Meek (45 Iowa, 294) 2644
——, State v. (70 Misso. 355) 755, 7614
Meerchouse, State v. (84 Misso. 344) 279
Megargell v. Hazelton Coal Co. (
Watts & S. 342) 250d
Megowan v. Com’th (2 Met. Ky.3) 997
Mehan, Com’th v. (11 Gray, 821) 1047
—— v. State (7 Wis. 670) 1052
Meier ». State (57 Ind. 386) 1042
Meigh, Reg. v. (7 Cox C. C. 401) 34]
Meirelles v. Banning (2 B. & Ad. 909) 823
Melchior v. McCarty (31 Wis. 252) 1030
Mellish, Rex #. (Russ. & Ry. 80) 220, 271
Melody v. Reab (4 Mass.471) 155, 220
Melton, State v. (Busbee, 49) 274
Memphis v. Laski (9 Heisk. 511) 212
v. United States (97 U. S: 298) 1774
Mence, Reg. v. (Car. & M. 234) 204
Mendon v.: Worcester (10 Pick. 235) 82
Meng v. Winkleman (43 Wis. 41) 1102,
110 ¢
Menges ». Frick (23 Smith, Pa. 187) 110
Mercer v. Com’th (2 Va. Cas. 144) 282
v. State (17 Ga. 146) 84
, State v. (82 Iowa, 405) 1033, 1024
Merchant Adventurer’s Co. v. Re-
bow (3 Mod. 126) 1093
Merchant Tailors of London, Rex v.
(2 Ley. 200)
Merchants’ Bank v. Cook (4 Pick.
405) 96, 242
Meredith, Reg. v. (8 Car. & P. 589) 138
Merriam, Com’th v. (14 Pick. 518) 650
—— v. Langdon (10 Conn. 460) 210, 1075,
1088
—— v. New Orleans (14 La. An. 318) 856
Merrifield, Com’th ». (4 Met. 468) 422
Merrill v. Gorham (6 Cal. 41) 86
, State v. (3 Blackf. 346) 446
Merritt v. State (59 Ala. 46) 1097
v, State (10 Texas Ap. 402) 688
204, State v. (83 N. C.677) 405, 407
Mayor and Alderman v. Maberry Merry, State v. (3 Misso. 278) 168
(6 Humph. 368) 22} Mersey Docks v. Cameron (11 H. L.
Mays v. Williams (27 Ala. 267) 77a} Cas. 448) 103
Maze, State v. (6 Humph. 17) 250 | Mertz’s Case (8 Watts & S. 374 1026
Mead, Rex ». (4 Car. & P. 535) 214, 344,] Merwin v. Ballard (66 N. C. 308) 84
345 | —— v. Wheeler (41 Conn. 14) 305
—— State v. (46 Conn. 22) — 1057, 1058} Meschac, State v. (30 Texas, 518) 464
Meade v. Deputy Marshal (1'Brock.
824) 82, 141
Meadows, Reg. v. (1 Car. & K. 399) 633,
644
Mears, Reg. ». (1 Eng. L. & Eq.
581; 2 Den. C. C. 79; Temp. &
M. 414) |
Medbury, State v: (8 R. 1. 548)
808
625
687
Meshmeier v. State (11 Ind. 482) 34, 36,
992
Messenger, Commonwealth v. (4 :
Mass. 462 87, 144
Messinger, Com’th v. (1 Binn. 273) 213
Metcalf v. Grover (55 Missis. 145) 2604
' Metropolitan Asylum Dist. v. Hill (6
Ap. Cas. 193)
MIL
SEcTION
Metropolitan Board of Excise v. —
Barrie (34 N. Y. 657) 957
Metropolitan Board of Health v.
' Schmades (3 Daly, 282; 10 Abb.
Pr. n. s. 205) 29
Metts v. Bright (4 Dev. & Bat. 173) 29
Metz v. Com’th (2 Met. Ky. 14) 891
Metzger, Ex parte (6 N. Y. Leg.
Obs. 83) 14
——,, In re (1 Barb. 248) 14
——, In re (5 How. U. 8. 176) 14
Meux v. Jacobs (Law Rep. 7 H. L.
481) 55
Meyer v. State (50 Ind. 18) 1034 a, 1044
—— v. State (12 Vroom, 6) 1068
— v. State (13 Vroom, 145) 997, 1068
——, State v. (1 Speers, 305) 250
Miami v. Blake (21 Ind. 32) 178 «
Michell v. Brown (1 Ellis & E.267) 168
Michie v. Michie (17 Grat. 109) 110¢
Middleton’s Case (J. Kel. 27) 229
Middleton v. Crofts (2 Atk. 650) 160
—— v. New Jersey West Line Rail-
road (11 C. B. Green, 269) 98, 160, 181
—, State v. (11 Iowa, 246) 891
Midhurst v. Waite (3 Bur. 1259) 88
Midland Railway (Law Rep. 1 Ch.
Ap. 275 277
Mifflin v. Com’th (5 Watts & 8.461) 625
INDEX TO THE CASES CITED.
MIT
SECTION
Miller v. State (48 Ala. 122) 855, 863
v. State (6 Baxter, 449) 788 ¢
—— v. State (5 How. Missis. 250) 244
—— v. State (88 Missis. 356) 935, 939, 948
— v. State (3 Ohio State, 475) 37, 255,
992, 993, 1021, 1026, 1027, 1032, 1033,
1084
v. State (5 Ohio State, 275) 1022
—, State v. (24 Conn. 522) 10384, 1044
— , State v. (11 Humph. 505) 261
——} State v. (58 Ind. 899) 163, 181, 185
——, State v. (53 Iowa, 84) 1007, 1052
—, State’v. (63 Iowa, 154) 855, 858
—, State v. (7 Ire. 275) 1044
——,, State v. (24 Misso. 532) 1040
—, State v. (45 Misso. 495) 36a
——,, State v. (50 Misso. 129) 957
—— v. Wade (58 Ind. 91) 999, 999 a
Millican v. State (25 Texas, 664) 852, 903
Mills v. Charleton (29 Wis. 400) 36a, 85a
—— v. Commonwealth (1 Harris, Pa.
631) 744, 752, 756
——, People v. (17 Cal. 276) 489
v. Perkins (120 Mass. 41) 1019
— v. State (20 Ala. 86) 298, 878
——, State v. (6 Vroom, 177) 112.6, 195
v. United States (1 Pin. 73) 688
——v. Wilkins (Holt, 662 ; 6 Mod. 62;
2 Salk. 609; 3 Salk. 331) 45, 48, 399
Migotti ¥. Colvill (4 C. P: D. 233) 110a} Millspaugh, People v. (11 Mich. 278) 642
Milburn, State v. (9 Gill, 105) 142 | Millward v. Littlewood (5 Exch. 775;
-——, United States v. (4 Cranch 1 Eng. L. & Eq. 408) 638
C. C. 719) 846 | Milne v. Huber (3 McLean, 212) 186
Miles v. McDermott (31 Cal. 271) 110c]| Milner v. Pensacola (2 Woods, 632) 18,
— v. Rose (5 Taunt. 705) 303 li7a
— v. State (40 Ala. 39) 86 a, 184 | Milnes v. Bale (Law Rep. 10 C. P. 591) 804
-—— v. State (5 Ind. 239) 1040 | Milverton, Rex v. (5 A. & E. 841) 61
— v. State (5 W. Va. 524) 1020 | Mims v. Huggins (1 Ala. 676) 82
—, State v. (2 Nott & McC. 1) 248, 244 | Miner v. People (58 Ill. 59) 656, 673
— v. United States (103 U. S. ——, People v. (47 Ill. 33) 1126
804 596 6, 610, 613 | Minet v. Leman (20 Beav. 269) 114
— , U.S. ». (2 Utah, 19) 596 5, 604, 610
Milford v. Orono (50 Maine, 529) 256
Millard, State v. (18 Vt. 574) 714
Miller’s Case (1 Brown, Adm. 156) 304]
— (3 Wils. 420; 1 W. BI. 451) 177
Miller v. Anheuser (2 Misso. Ap.
168) 406
— v. Commonwealth (13 Bush,
731) 960, 961, 966
— v. Com’th (27 Grat. 110) 212
— v. Com’th (6 Watts & 8. 488) 265
—, Com’th v. (5 Dana, 320) 104 a
——, Commonwealth v. (8 Gray,
484) 971, 978, 981
— v. Finkle (1 Parker C. C. 374) 255
—— v. Graham (17 Ohio State,1) 844
—— vu. Knox (4 Bing. N. C. 574) 137
—v. Marigny (10 La. An. 388) 104a@
— v. Miller (16 Mass. 59) 83 a
—— v. Moore (1 E. D. Smith, 739) 834
—— v. Post (1 Allen, 434) 254
—, Reg. v. (2 Moody, 249) 271
—— v. Rucker (1 Bush, ‘185)- 806
34)
| Minnick, State v. (15 Iowa, 123) 815, 817,
Minge v. Gilmour (1 Car. Law Repos.
4 266
832, 836
Minor v. Happersett (53 Misso. 58) 804
v. Happersett (21 Wal. 162) 804
v. Mechanics Bank (1 Pet. 46) 98, 112
Miskimmons, State v. (2 Ind. 440) 154, 163
Mississippi Society of Arts, &. v.
Musgrove (44 Missis. 820) 957
Mister, State v. (6 Md. 11) 82
Mitchell v. Duncan (7 Fla. 13) 86, 112, 160
—— v. Foster (12 A. & E. 472) 110
—— v. Gile (12 N. H. 390) 1014
——, Reg. »v. (2 Fost. & F. 44) 333
——, Rex v. (2 East P. C. 936) 194, 199,
326, 328, 329, 380, 332
——»v. Smith (1 Binn. 110) 254
—— v. State (55 Ala. 160) 852, 921
—— v. State (63 Ga. 222) 611
— v. State (19 Ind. 381) 157
—-, State v. (3 Blackf. 229) 193
——, State v. (6 Ire. 850) © 243, 310
809
MOO
SECTION
Mitchell, State v. (28 Misso. 562) 1019, 1020
v. Tibbets (17 Pick. 298) 141
v. United States (9 Pet. 711) 14
—, United States v. (Bald. 366) 306, 308
——, United States v. (1 Hughes, 439) 803
Mixer v. Sibley (53 Ill. 61) 261la
Mobile v. Kimball (102 U. S. 691) 1080
——,, State v. (5 Port. 279) 19
v. Stein (54 Ala. 23) 82
v. Yuille (3 Ala. 137) 19, 22, 25
Mobile and Ohio Railroad v. State
(29 Ala. 573) 22, 34, 126, 156
Mobile, &c. Railroad v. Malone (46
Ala, 391) 86, 98, 156
Moders, Rex v. (6 Howell St. Tr.
273) 601, 610
Moffatt v. State (6 Eng. 169) 894, 898
Moffett, State v. (1 Greene, Iowa,
47 163, 169
Moffit v. State (43 Texas, 346) 298
Mogg, Rex v. (4 Car. & P. 364) 4476, 1121
Mohr, State v. (53 Iowa, 261) 1057
Molett v. State (33 Ala. 408) 300
Molihan v. State (30 Ind. 266) 999, 1049
Molyneux, People v. (40 N. Y.113) 46
Monarch, Com’th v. (6 Bush, 298) 897
—, Commonwealth v. (6 Bush, 801) 897
Monck v. Hilton (2 Ex. D. 268) 148, ae
Mongeon v. People (55 N. Y. 613)
Monopolies, Case of (11 Co. 840) 846
Monoughan »v. People (24 Ill. 340) 486
Monroe v. Collins (17 Ohio State, 665) 809
157
v. State (38 Texas Ap. 341) 163
— v. State (8 Texas Ap. 343) 11a, 36
Montague, Rex v. (4 B. & C. 598) 303
Montault v. U.S. (12 How. U.8.47) 32
Montee v. Commonwealth (3 J. J.
Mar. 1382) 890, 891
Montello, The (20 Wal. 430) 303
Montgomery v. Breed (34 Wis. 649) 1137
— v. Hernandez (12 Wheat. 129) 260a
——, People v. (67 N. Y. 109) 1i2a
v. State (2 Texas Ap. 618) 177
me Peerage (1 Macq. Ap. Cas.
Moody »v. Nelson (60 Ill. 229) 119
— v. State (48 Ala. 115) 37
v. State (17 Ohio State, 110) 762
—— v. Stephenson (1 Minn. 401) 79
Mooers v. Bunker (9 Fost. N. H. 420) 98
Moon v. Durden (2 Exch. 2) 82, 84
Mooney v. State (8 Ala. 328) 244
Moor, Rex v. (2 Mod. 128) 163, 169, 629
Moore, Ex parte (62 Ala. 471) 36a
v. Commonwealth (9 Leigh, 639) 610
INDEX TO THE CASES CITED.
46 | Moorefield v. State (5 Lea, 348)
MOR
SEcTION
Moore, Reg. v. (138 Cox C. C. 544) 5964
—, Rex v, (2 Car. & P. 235; 1
Moody, 122) 204, 319
—_, Rex v. (Jefferson, 9) 31a, 107
—, Rex »v. (2 Lev. 179) 644
v. Smith (5 Jur. wn. 8. 892) 108
— v. State (16 Ala. 411) 168, 1016
—— v. State (80 Ala. 550) 299
— v. State (40 Ala. 49) 184
v. State (65 Ind. 218) 852, 884, 889
v. State (65 Ind. 382) 1021
v. State (48 Missis. 147) 957
v. State (12 Ohio State, 387) 1060
v. State (18 Sm. & M. 259) 216
v. State (7 Texas Ap. 608) 737
v. State (8 Texas Ap. 496) 428
v. State (14 Vroom, 203) 266
—— ». State (9 Yerg. 353) 1065
—, State v. (19 Ala. 514) 160, 163
——,, State v. (5 Blackf. 118) 1009
——,, State v. (3 Dutcher, 105) 835, 886
——,, State v. (25 Iowa, 128) 742
——,, State v. (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. (18 Vroom, 208) Illa, 266
——, State v. (8 Wegt. Law Jour. 184) 589
v. Vance (1 Ohio, 1) 154, 163
789
Moorhouse, Com’th v. (1 Gray, 470) 1045
Mooty, State v. (3 Hill, S. C. 187) 1016,
1032
Moran v. Miami (2 Black, 722) 119
v. Rennard (3 Brews. 601) 805
—, State v. (40 Maine, 129) 1057
Mordecai, State v. (68 N. C. 207) 242 a, 283
Moreland, State v. (27 Texas, 726) 464,
1042
Morford v. Unger (8 Iowa, 82) 36
Morgan v. Com’th (26 Grat. 992) 1182
v. Monmouth Plank Road (2
Dutcher, 99) 36
v. Perry (51 N H. 559) 82
— »v. Pettit (3 Seam. 529) 852, 933, 935
v. State (11 Ala. 289) 727, 729, ee
». State (13 Fla. 671) 455, 458
—, State v. (40 Conn. 44) 992, 1069
v. Thorne (7 M. & W. 400) 178
Moriarty v. Brooks (6 Car. & P. 684) 314
, State v. (74 Ind. 103) 298, 975
Morin, United States v. (4 Bis. 93) 148
Moring, People v. (47 Barb. 642) — 1080
Morisse v. Royal British Bank (1
C. B. n. 8. 67) 112
Mork v. Commonwealth (6 Bush,
—— v. Durden (12 Jur. 138) 82| 397) 1076, 1080, 1097
—— v. Hussey (Hob. 93) 82 | Morley v. Greenhalgh (3 B. & S. 374) 859
v. Jones (23 Vt. 739) 250d | Morlot v. Lawrence (1 Blatch. 608) 155,
v. McLendon (5 Eng. 512) 263 160, 163
v. Mausert (49 N. Y. 382; 5 Morres v. Miller (1 W. Bl. 682) 609
Lans. 178) 152a| Morrill v. State (5 Texas Ap. 447) 688, 697
v. Moss (14 Ill. 106) 154 | —— v. State (88 Wis. 428) 78, 1074, 1076
—— v. Phillips (7 M. & W. 536) 85a
810
—— v. Thurston (46 Vt. 782) 1032
MOT
SECTION
Morris v. Blackman (2 H. & C.912) 956
——,, Com’th »v. (1 Cush. 391) 680
—— v. Delaware and Schuylkill Ca-
nal (4 Watts & S. 461)
—— v. Mellen (6 B. & C. 446)
v. Miller (4 Bur. 2057 ; 1 W. BI.
622) 609
v. People (2 Thomp. & C. 219) 1026
—, Reg. v. (2 Cox C. C. 489) 771
— , Rex v. (1 B. & Ad. 441) 82
v. Rome (10 Ga. 532) 22, 997
—,, State v. (77 N. C. 512) 957
Morris Aqueduct v. Jones (7 Vroom,
206) 119, 137
Morris Canal and Banking Co., State
v. (1 Green, N. J. 192)
, State v. (2 Zab, 537
Morris Common Pleas,
Vroom, 72)
Morrisey, Commonwealth v. (5 Nor-
ris, Pa. 416) 21a
Morrison v. Barksdale (Harper, 101) 40,
1
04, 154
—, Com’th ». (2 A. K. Mar. 75) 95a
— v. Com’th (7 Dana, 218) 1065, 1066
—, Com’th v. (16 Gray, 224) 756
——, Reg. v. (Bell C.C. 158; 8 Cox
C. C. 194
828, 332
—, State v. (3 Dev. 299)
1052
—, State v. (81 La. An. 211) 262
189 ¢
190
188
tate v. (7
v. Witham (1 Fairf. 421) 167
Morristown, State v. (4 Vroom, 57) 19
——,, State v. (5 Vroom, 445) 25
Morrow, State v. (26 Misso. 131) 154
—, U.S. v. (4 Wash. C. C. 733) 136
Morse, Com’th v. (2 Mass. 128) 223, 309
—— v. State (6 Conn. 9) 100, 222, 271
Morton, In re (10 Mich. 208) 1045 a
—— v. Comptroller-General (4 S. C.
430) 86a
—— v. Fletcher (2 A. K. Mar. 187) 958
— v. State (46 Ga. 292) 789
—,, State v. (27 Vt. 310) 164, 338
— v. Valentine (15 La. An. 150) 85a
Mosby v. St. Louis Mutual Ins. Co.
(31 Grat. 629) 152 a
Moseley, State v. (14 Ala. 390) 163, 222,
, 246, 852, 855, 872
Mosely v. State (28 Ga. 190) 435
—— v. State (9 Texas Ap. 137) 485, 486
Moses v. Mobile (52 Ala. 198) 36 a
—, State v. (7 Blackf. 244) 167
—, State v. (Minor, 393) 472
Mosher v. Independent School Dis-
trict (44 Iowa, 122) 18
—,, People v. (2 Parker C. C. 195) a
Mosier, State v. (25 Conn. 40) 1057
Moss, Reg. v. (Dears. & B. 104; 7
Cox C. C. 200) 885
Mott, Commonwealth v. (21 Pick.
492) 180, 185, 186
—, Rex v. (2 East P. C. 1075; 1
Leach, 73 n.) 212, 442
INDEX TO THE CASES CITED.
0 | Moultrieville, State v. (Rice, 158)
MUR
SECTION
Moulton, Com’th v. (10 Cush. 404)
v. Libbey (37 Maine, 472)
—, U.S. v. (5 Mason, 537)
Mount v. State (7 Sm. & M. 277)
ae Pleasant v. Vansice (48 Mich.
997
Mountford, Rex v. (7 Car. & P. 242;
1 Moody, 441) 216, 822
Mowery ». Salisbury (82 N. C. 175) 20, 21
Moylan, Com’th v. (119 Mass. 109) 1003 a
Moyle, Rex o. (2 East P. C.1076) 212,
247, 442
Mueller, Commonwealth v. (82
Smith, Pa. 127) 1000
Mulford v. Clewell (21 Ohio State,
191) 1031 a
Mulhisen, State v. (69 Ind. 145) 1082
6 | Mulholland, People v. (82 N. Y. 324) 1073,
1124
Mullen v. People (81 IIl. 444)
—, State v. (14 La. An. 570) 471
Mullikin, State v. (8 Blackf. 260) 168
Mullinix v. People (76 Ill. 211) 1024, 1032
154, 185
v. State (48 Ind. 511) 177
Mullins v. Collins (Law Rep. 9 Q. B.
292) ° 1024
Mulvey v. State (43 Ala. 316) 1025, 1032,
1033 a
Mundy, In re (59 How. Pr. 359) 999
Munger, State v. (15 Vt. 290) 1037, 1041,
1
045 a
aie v. Collins (17 Ohio State,
65
809
v. Holmes (18 Allen, 109) 261a
—— v. Thomas (5 Cal. 470) 301 a
Munsey, Commonwealth v. (112
Mass. 287) 1025, 1045 a
Munshower v. Patton (10 S. & R. 334) 142
Munson, Commonwealth v. (127
Mass. 459) 662, 712
v. Hungerford (6 Barb. 265) 302
v. State (4 Greene, Iowa, 483) 337,
346
—, State v. (25 Ohio State, 881) 1021,
1029
Munzenmaier, State v. (24 Iowa,
87) 1057, 1058, 1069
Murdock v. Kilbourn (6 Wis. 468)
848,
933
——, State v. (9 Misso. 730) 139
v, Woodson (2 Dil. 188) 36 a
Murfree v. Leeper (1 Tenn. 1) 164
Murphy, In re (3 Zab. 180) 82
, Com’th v. (2 Allen, 163) 690, 698
—, Commonwealth v. (2 Gray,
510) 1025, 1042
v. Manning (2 Ex. D. 807) 859, 1108,
~ 1112
—— v. Monroe (78 Ind. 483) 999, 1008
—— v. Montclair (10 Vroom, 673) 1038
— v. Nolan (126 Mass. 542) 1000
v. People (90 Ill 59 eee
——, Reg. v. (Jebb, 315)
* 811.
NAV
SECTION
Murphy v. Ryan (Ir. Law Rep. 2 -
C. P. 143
INDEX TO THE CASES CITED.
NEW
S SEcTI
Nazro v. Merchants’ Mutual Ins.Co. °
; 803 | (14 Wis. 295) 46, 79
—— v. State (50 Ga. 150) 609, 610 | Neagle, State v. (65 Maine, 468) 1068
—— v. State (1 Ind. 366; Smith, Neal v. Commonwealth (22 Grat.
Ind. 261) 141, 1013] 917) : 298, 855, 872
v. State (28 Missis. 637) 1046 v. Moultrie (12 Ga. 104) 192
—, State v. (6 Ala. 845) 244 | —, State v. (7 Fost. N.H.131) 1024
—-, State v. (3 Dutcher, 112) 747 | Neale, Reg. v. (1 Car. & K. 591) 487
——, State v. (21 Ind. 441) 476 | Neales v. State (10 Misso. 498) 1037, 1040,
—,, State v. (84 N. C. 742) 429 1042
——, State v. Bo Texas, 46) 426 | Neath, &c. Railway, In re (Law Rep.
Murrah v. State (51 Missis. 652) 455| 9 Ch. Ap. 268) 112
v. State (51 Missis. 675) 456 | Needham v. State (1 Texas, 139) 852
Murray v. Baker (3 Wheat. 541) 261 b | ——»v. State (19 Texas, 332) 1084, 1048
v. East India Co. (5 B. & Ald. —— v. Thresher (49 Cal. 393) 37
04.) 260 a| Neely v. Luster (7 Heisk. 354) 261 a
v. Gibson (15 How. U.S. 421) 82, v. State (4 Baxter, 174) 34
90) Neeper, State v. (8 Greene, Iowa,
v. Menefee (20 Ark. 561) 299) 387 997
v. New York Central Railroad Negley v. Devlin (12 Abb. Pr. n. 8.
(8 Abb. Ap. 339) 93; 210 952, 955
—, People v. (10 Cal. 309) 472 | Neifing v. Pontiac (56 Ill. 172) 36 a
uv. Reg. (7 Q. B. 700) 606 | Nelson v. State (17 Fla. 195) 261d
Murrow, Rex v. (1 Moody, 456) 314 , State v. (19 Misso. 393) 808
Muse, State v. (4 Dev. & Bat. 819) 992, | ——, United States v. (1 Abb. U. S.
1087] 185) 172, 306, 308
Musgrove v. Vicksburg, &c. Railroad Ness, State v. (1 Ind. 64) 852, 855
(50 Missis. 677) 85 a, 147, 177, 177 a | Nettles v. State (49 Ala. 35) 825
Musquez v. State (41 Texas, 226) 414 | Nettleton, Rex v. (1 Moody, 259) 271
Musselman v. Oakes (19 Iil. 81) 836 | Neuendorff v. Duryea (6 Daly, 276) 364
Mycocek, Reg. v. (12 Cox C. C. 28) 68la
Myerdock v. Com’th (26 Grat. 988) 1078
Myers v. People (67 Ill. 503) 34, 992, 1032
v. State (1 Conn. 502) 132, 196
— v. State (8 Texas Ap. 821) 163, 179
—, State v. (10 Iowa, 448) 81
——, State v. (63 Misso. 824) 1006
Mynderse, U. S. v. (7 Blatch. 483) 195
Myrick v. Hasey (27 Maine, 9) 97
Nally, People v. (49 Cal. 478) 36
Bay) The v. Fitzpatrick (3 Caines,
88) : ;
— v. State (6 Ala. 483) 204
Napier v. Hodges (31 Texas, 287) 992
—— v. State (50 Ala. 168) 852, 855, 878,
920
Nash v. Allen (4Q B. 784) 49
——, Rex v. (Russ. & Ry. 886) 145
v. State (2 Greene, Iowa, 286) 198
——, State v. (10 Iowa, 81) 613
——, United States v. (Bee, 266) 14
Nashville, &c. Railroad v. State (1
Baxter, 55) 260 a
Nat, State v. (13 Tre. 154) 163
Nates, State v. (3 Hill, S. C. 200) 242, 854,
‘ 855, 857
Nathan v. Bloomington (46 Ill. 847) 1001
National Bank v. Southern Porcelain
Manuf. Co. (55 Ga. 36) 33
v. Williams (46 Misso. 17) 110¢
Naught v. Oneal (Breese, App. 29) 177 4
Nave v. Nave (7 Ind. 122) 112
812
Nevin v. Ladue (3 Denio, 48; 8
Denio, 437) 1008
Nevins, State v. (23 Vt 519) 828, 330
New v. State (34 Texas, 100) 1000
New Bedford Bridge, United States
v. (1 Woodb. & M. 401) 137, 196
New Gloucester v. Bridgham (28
Maine, 60) 10138, 1030, 1032, 1048
New Haven v. New Haven Water
Co. (44 Conn. 105) 156
New Haven, &c. Co., State v. (43
Conn. 351) 36
New Iberia v. Megius (82 La. An.
923) 1098
New London Northern Railroad o.
Boston, &c. Railroad (102 Mass.
386) 163
New Orleans v. Cazelar (27 La. An. -
156 18
v. Clark (95 U_S. 644) 85
v. Dunbar (28 La. An. 722) 36 a
v. Elliott (10 La. An. 59) 1098
—— v. Hoyle (23 La. An. 740) 157
— v. Mechanics’ and Traders’
Bank (15 La. An. 107) 163
v. Poutz (14 La. An. 853) 1044
—— v. Salamander Co. (25 La. An.
650) 90
v. Turpin (13 La. An. 56) 1098
——, United States v. (98 U. S. 881) 36
New Orleans, &c. Railroad x. Hemp-
hill (85 Missis. 17) 93
New York v. American Art Union
(82 How. Pr. 341)
NIC
SECTION
New York v. Broadway, &c. Rail-
road (12 Hun, 571) 146, 160
— v. Furze (3 Hill, N. Y. 612). 112
— v. MceGurrin (6 Daly, 349) 299
—- v. Mason (4 E. D. Smith, 142) 1006
—— v. Miln (11 Pet. 102) 990
——, People »v. (11 Abb. Pr. 114) 255
——, People v. (16 N. Y. 424) 85 6
— »v. Walker (4 E. D. Smith, 258) 163,
407, 1048
New York Central Railroad, People
v. (28 Barb. 284) 259
New York, &c. Railroad v. Van Horn
(57 N. Y. 473) 90
New York, &c. Railway, People v.
(84 N. Y. 565) 102, 245
New York Rectifying Co. v. United
States (14 Blatch. 549)
1098
Newark, State v. (1 Dutcher, 399) 25
——, State v. (8 Dutcher, 185) 85
—, State v. (11 Vroom, 71, 550) 92a
——,, State v. (11 Vroom, 92) 84
—— , State v. (11 Vroom, 297) 42b
Newark-upon-Trent, Rex v. (3 B. &
7, 67
C. 59) 57,
Newbegin, State v. (25 Maine, 500) 232,
31
Newberry, People v. (20 Cal. 439)
Newbold v. Wright (4 Rawle, 195) 150
Newburgh, &c. Turnpike v. Miller
(5 Johns. Ch. 101) 112
Newcastle Corporation (12 Cl. & F.
402) 212
Newcomb, Rex v. (4 T. R. 368) 255 a
Newcombe v. Leavitt (22 Ala. 631) 265
Newell v. Com’th (2 Wash. Va. 88) 832
—, Commonwealth v. (5 Gray, 76) 1032
272
—, Com’th v. (7 Mass. 245) =: 142, 316
— v. State (2 Conn. 38) 261
Newhall v. Paige (10 Gray, 366) 423
Newkirk v. Chapron (17 Ill. 844) 178
Newlan v. Aurora (14 Ill. 364) 997
—». Aurora (17 Ill. 379) 997
Newland v. Marsh (19 Ill. 376) 90
Newman ». State-(6 Baxter, 164) ‘255
v. State (63 Ga. 533) 1021, 1084 a,
1042
INDEX TO THE CASES CITED.
2| Niles v. Fries (35 Iowa, 41)
NOR
. SECTION
Nicholls, Reg. v. (10 Cox C. C. 476) 486,
401
—, State v. (30 La. An. 980) 72, 76
Nichols v. Bertram (8 Pick. 342) 126
——,, Com’th ». (10 Allen, 199) 1125, 1127
——, Com'th v. (114 Mass. 285) 680
—, Commonwealth v. (10 Met.
259) 136, 1024, 1049
—— v. Halliday (27 Wis. 406) 81, 82
—— v. Mudgett (32 Vt. 546) 826
—— v. Squire (5 Pick. 168) 159, 163, 168
—— v. State (30 Texas, 515) 464
——, State v. (12 Rich. 672) 41, 455, 456
Nicholson _v. Commonwealth (10
Norris, Pa. 390) 643
v. Mobile, &. Railroad (49
Ala, 205) 46
v. State (3 Texas Ap. 31) 445
——, United States v. (3 Woods, 215) 804
Nickless, Reg. v. (8 Car. & P. 757) 134, 145
Nicrosi v. State (52 Ala. 336) 1003, 1032,
1033 a
Nightingale, Petitioner (11 Pick. 168) 20
v. Adams (Holt, 426) 261d
Nigotti v. Colville (14 Cox C. C. 305) 1104
Nihols, U. S. v. (4 McLean, 23) 129
1030
— v. Rhodes (7 Mich. 374) 1030
Nimmo v. Com’th (4 Hen. & Munf. 57) 142
Nix, Com’th v. (11 Leigh, 636) - 225
Nixon v. Piffet (16 La. An. 379) 154
—, Reg. v. (4 Fost. & F. 1040, note) 773
—, Rex v. (7 Car. & P. 442) 216
— v. State (76 Ind. 524) 1020
Noakes v. People (25 N. Y. 380) 328
——, Rex v. (5 Car. & P. 326) 321
Noble v. Durell (3 T. R. 271) 150
v. State (1 Greene, Iowa, 325) 75, 87
v. State (22 Ohio State, 541) 661,
730, 732
Noecker v. People (91 Ill. 468) 1013, 1052,
1060
v. People (91 Ill. 494) 1024
Noel v. Ewing (9 Ind. 37) 85 a
Noelke, U. S. v. (17 Blatch. 554) 961, 966
Noffzigger v. McAllister (12 Kan.
315) 1101
—— v. State (7 Lea, 617) 1019 | Nolan, People v. (22 Mich. 229) 312
Newport Bridge, In re (2 Ellis & E. Noland, State v. (29 Ind. 212) 891, 917
377) 112} Non Obstante, Case of (12 Co. 18) 103
Newsom v. Greenwood (4 Oregon, Nogonan v. State (1 Sm. & M. 562) 1088
119)
—, State v. (5 Ire. 250) 793
Newsome v. State (61 Ga. 481) 799
Newton, Com’th v. (123 Mass. 420) 1057
— v. Cubitt (12 C. B. wn. s. 32) 301 a
——, Reg. v. (2 Moody, 59) 828, 334
——,, Reg. v. (2 Moody & R. 503) 610
——,, State v. (59 Ind. 173) 34
——, State v. (44 Iowa, 45) 490
—, State v. (28 La. An. 65) Q7la
——, State v. (26 Ohio State, 265) 271 a
Nicholas, State v. (2 Strob. 278) 132, 163
Nicholls v. Gee (30 Ark. 135) liza
9 | Norcross v. Norcross (53 Maine, 163) 297
Norfolk v. Chamberlaine (29 Grat.
534) 85 a, 1097
——,, Rex v. (4 B. & Ad. 238) 112
Norman, State v. (2 Dev. 222) 606
Norris ». Crocker (13 How. U. S. 429) 158
—,, Reg. v. (9 Car. & P. 241) 313
—, Rex v. (Russ. & Ry. 69) — 246, 292
—— v. Staps (Hob. 210 b) 18, 19, 20
v. State (25 Ohio State, 217) 212
, State v. (78 N. C. 448) 1080
North, Rex v. (2 East, P. C. 1021) 291
, State v. (27 Misso. 464) 1080
813
oco
SECTION
North British Railway v. Todd (12
Cl. & F. 722)
North Canal Street Road (10 Watts,
351) 177, 1774
North Missouri Railroad v. Maguire
(49 Misso. 490)
Northampton, Rex v. (2 M. & S. 262) 301
Northrop v. Cooper (23 Kan. 432) 111
Northwestern Fertilizing Co. v. Hyde
Park (3 Bis. 480) 212
Norton, Com’th v. (13 Allen, 550) 163
, Com’th v. (16 Gray, 30) 1018
—-, People v. (7 Barb. 477) 999
— v. State (15 Ark. 71) 855
v. State (4 Misso. 461) 145
—, State v. (41 Iowa, 480) 1069
— , State v. (19 Texas, 102) 291, 878,
902
—, State v. (3 Zab. 33) 155, 164
—, United States v. (91 U. S. 566) 261d
——, United States v. (97 U.S. 164) 29
‘Norwegian Street (31 Smith, Pa. 349) 255
Norwich, Rex v. (1 B. & Ad. 310) 255
Norwood v. State (45 Md. 68) 691, 691 a
Nott, U. S. v. (1 McLean, 499) 220
Now!an, State v. (64 Maine, 531) 1032
Noxon, Com’th r. (121 Mass. 42) 449
Noyes v. State (46 Wis. 250) 1080
— , State v. (10 Fost. N. H. 279) 18, oe
Nuckolls v. Commonwealth (82
Grat. 884) 855, 863, 875, 917
Nudd v. Burnett (14 Ind. 25) 848, 983, 937
Nunn v. State (1 Kelly, 248) 7865, 792
Nusser v. Com’th (1 Casey, Pa. 126) 126
Nutbrown’s Case (2 East P. C. 496) 279
Nutt v. State (19 Texas, 340) 435
Nutting, State v. (16 Vt. 261) 428
Nutwell, State v. (1 Gill, 54) 1037
Oath before Justices (12 Co. 130) 137
Ober, Commonwealth v. (12 Cush.
498) 1074, 1076, 1080
O’Blennis v. State (12 Misso. 311) — 145,
855, 881
O’Brian, Rex v. (7 Mod. 378) 163, 166, 167
v. State (12 Ind. 369) 119, 198
, United States ». (3 Dil. 881) 261c¢
O’Brien, Com’th ». (107 Mass. 208) 1121
, Com’th v. (119 Mass. 342) 320
—, People v. (88 N. ¥.193) 364, 420,
405
v. State (63 Ind. 242) 1042
—— v. State (10 Texas Ap. 544) 852, 855,
878, 891, 1011
—, State v. (2 Root, 516) 291
O’Byrnes v. State (51 Ala. 25) 75, 97
Ochsner, State v. (9 Misso. Ap. 216) 966
O’Conner v. State (40 Texas, 27) 788c
——,, State v. (4 Ind. 299) 1032
——,, State v. (13 La. An. 486) 177
——, State v. (49 Maine, 594) 1018
O’Connor, In re (48 Barb. 258) 137
814
INDEX TO THE CASES CITED,
OPI
SEcTION
O'Connor, Com’th »v. (7 Allen, 688) 796
7|——, Com’th v. (107 Mass. 219) 678
—— v. State (45 Ind. 847) 1018, 1040
—— v. Towns (1 Texas, 107) 110
O’Daily v. State (9 Ind. 494) 992
2 | Odam, State v. (2 Lea, 220) 1033 a
Odlin, Commonwealth v. (23 Pick.
. 275) 1018, 1032, 1034, 1037, 1039
O’Donnell, Com’th v. (1 Allen, 593) 1127
—-, Commonwealth v. (8 Allen,
548) 991, 1027, 1069
Ogden, Rex v. (6 Car. & P. 681) 458
—— »v. Strong (2 Paine, 584) 45, 46, 70, 82
O’Hanlon v. Myers (10 Rich. 128) 87, 149
O’Harra v. Cox (42 Missis. 496) 1000
Ohio, The v. Stunt (10 Olio State, 582) 82
Ohio and Mississippi Railroad,
State v. (23 Ind. 362) 212
Oil v. Rowley (69 Ill. 469) 1158
O'Kane v. State (69 Ind. 185) 992
Olcott v. Tioga Railroad (20 N. Y.
210) 212
Oldakar v. Hunt (19 Beav. 485) 189 ¢
Oldham, Reg. v. (14 Eng. L. & Eq.
668 ; 2 Den. C. C. | 204, 246, 319
O’Leary v. State (44 Ind. 91) 1024
Oleson v. Green Bay, &. Railway
(36 Wis. 383) 147, 157
Olifier, Reg. v. (10 Cox C. C. 402) 681 a,
634
Oliver v. Collins (Yelv. 126) 297
v. Forbes (17 Kan. 118) 14
— v. Perry (Phillips, N. C. 581) 267
Olmstead, People v. (30 Mich. 481) Cs
61
Olney, United States v. (1 Abb. U.S.
275) 195, 952, 953, 956
Olson v. Merrill (42 Wis 203) 803
O’Meara tv. State (17 Ohio State, 515) 487
One Hundred Barrels Spirits, U. 8. v.
(1 Dil. 49; 2 Abb. U. S. 805) 195
One Hundred and Twelve Casks of
Sugar, United States rv. (8 Pet. 277) 99
One Sorrel Horse, United States v.
(22 Vt. 655)
O’Neal v. Boone (63 Ill. 35) 261 a4
—— v. Robinson (45 Ala. 526) - 98
——,, State v. (7 Ire. 251) 459
Oneale v. Com’th (17 Grat. 582) 589, 610
O'Neil, People v. (51 Cal. 91) 84
O'Neill, State v. (24 Wis. 149) 86
—, U.S. v. (2 Saw. 481) 828, 835
OnGee How, State v. (15 Nev. 184) 103834
Onondaga v. Briggs (3 Denio, 178) 178
Ontario Bank v. Rathbun (19 Wend.
291) 261
Opie, Reg. v. (8 Cox C. C. 332) 773
Opinion of Judges (80 Conn. 591) 811
—— (7 Mass. 523) 101
—— (44 .N. H. 633) 811
—— (52 N. H. 622) 37
— (8 Pick. 517) 104
—— (22 Pick. 571) 70, 82
Opinion of Justices (68 Maine, 589) 14
OWE
SECTION
Oppenheim v. Leo Wolf (3 Sandf.
Ch, 571) 105
Orange v. Dougherty (55 Barb. 332) 1025
Orcutt v. Nelson (1 Gray, ao 1081
—, People v. (1 Parker C. C. 252) 289
Ordway v. Central National Bank
- (47 Md. 217) 250 d
INDEX TO THE CASES CITED.
1 | Oxford, Reg. v. (4 Q. B. D. 245)
PAN
SECTION
Oxenham, Reg. v. (13 Cox C. C. 849) 423
112
Oxfordshire, Rex v. (1 B. & Ad. 289) 301
Oystead v. Shed (13 Mass. 520) 290
Pacific Railroad v. Cass (53 Misso. 17) 154
Oregon Bulletin Printing, &c. Co., —— v. Maguire (20 Wal. 36) lla
In re (14 Bankr. Reg. 405 ; 3 Saw. Package of Lace, United States v.
614) 98} (Gilpin, 338) 163
Oregon Bulletin Publishing, &c. Co., Package of Wood, United States v. .
In re (18 Bankr. Reg. 199) 212} (Gilpin, 349) 132
O’Reilly, Commonwealth v. (116 Packard, Com’th v. (5 Gray, 101) 1046
Mass. 15) 1055, 1069 | —— v. Richardson (17 Mass. 122) 104
Orleans v. Holmes (18 La. An. 602) 81 Packer, State v. (80 N. C. 439) 10064,
O’Rourke v. People (5 Thomp. & C. 1007, 1088
496; 3 Hun, 225) 999 a | —— v. Sunbury & Erie Railroad (7
— v. State (8 Texas Ap. 70) 486) Harris, Pa. 211) 65
Orr v. Hodgson (4 Wheat. 453) 18, 14 | Paddle, Rex v. (Russ. & Ry. 484) 220
— v. Rhine (45 Texas, 345) 426 | Paddleford v. Dunn (14 Misso. 517) 268
—— v. State (18 Ark. 540) 915, 923 | Paddock, State v. (24 Vt. 312) 210, 1016,
Orrell v. People (94 Ill. 456) 291, 292 1039
Orvis v. Thompson (1 Johns. 500) 1002 | Paddon’v. Bartlett (3 A. & E. 884) 31
Osawkee, State v. (14 Kan. 418) 83 | Padelford v. Savannah (14 Ga. 488) 35a
Osborn v. State (52 Ind. 526) 641, 646 | Page v. Allen (8 Smith, Pa. 338) 39 a, 92,
Osborne v. Mobile (44 Ala. 493) 997 245, 809
——,, State v. (69 Misso. 148) 714, 719, 721 v. Com’th (26 Grat. 943) 283, 288
Osburn v. Staley (5 W. Va. 85) 91 | ——, Com’th v. (6 Gray, 361) 1045 a
Osgood v. Nichols (5 Gray, 420) 271 | —— v. Luther (6 Jones, N. C. 413) 1021
— v. People (39 N. Y. 449) 1045 | ——, People v. (3 Parker C. C. 600) 1032
Oskins, State v. (28 Ind. 364) 31 | —, Reg. v. (8 Car. & P. 122) 132
Ossulston, Rex v. (2 Stra. 1107) 625, 627 | ——, Rex v. (12 Mod. 123) 255
Otsego, People v. (51 N. Y.401) ~ 112)——». State (11 Ala. 849) : 1003
Ottawa v. La Salle (12 Ill. 339) 126, 163 | —— »v. State (3 Heisk. 198, note) 787
Ottillie v. Waechter (83 Wis. 252) 255 | —— v. State (6 Misso. 205) 210, 1075,
Ottumwa v. Schaub (52 Iowa, 515) 22, 997 1079
Our v. Commonwealth (9 Dana, 80) 1067 | ——, State v. (66 Maine, 418) 1069
Our House v. State (4 Greene, Iowa, ——., State v. (19 Misso. 215) 100
172) 992, 1069, 1070 | Paige, State v. (50 Vt. 445) 1069
Outlaw, State v. (72 N. C. 598) 242, 279, | Paine v. Lake Erie, &c. Railroad (31
283 | Ind. 283)
Overall v. Bezeau (37 Mich. 506) 210, 1016 | ——, Rex v. (7 Car. & P. 185) 281, 312
Overtield v. Sutton (1 Met. Ky. 621)
Overseers v. Smith (2S. & R. 363)
Overshiner v. Commonwealth (2 B.
98
164
——, Rex v. (1 East P. C. 5) 155, 160, 168
Painter v. Liverpool Gas Light Co.
(3 A. & E. 483)
Monr. 344) 1061 | ——, State v. (50 Iowa, 317) 650 a
Overstreet v. State (3 How. Missis. ——, State v. (70 N. C. 70) 446
328 8 | Palfrey v. Boston (101 Mass. 829) 102
Overton, Reg. v. (4 Q. B. 83) 168 | Palgrave v. Windham (1 Stra. 212) 395,
—, State v. (77 N.C. 485) 347 a, 348 400, 401
Oviatt v. State (19 Ohio State, 573) 449] Palmer v. Conly (4 Denio, 374) 178
Owen’s Case (1 Lewin, 35) 312 v, Cuyahoga (3 McLean, 226) 141
Owen v. Boyle (22 Maine, 47) 293 | ——, Rex v. (1 Leach, 352) 82, 86
— v. Evans (2 Keb. 34) 397 | ——, Rex v. (2 Leach, 680; 2 East,
—, Rex v.(2 East P. C. 645; 2 P. C. 586)
Leach, 572) 233 | ——, Rex v. (IMoody & R. 70) 319, 821
—— v. Slatter (26 Ala. 547) 111, 259 , Rex v. (Russ. & Ry. 72; 1 New
—— v. State (31 Ala. 887) 786, 787, 793| Rep. 96; 2 Leach, 978) 307
——, State v. (15 Misso. 506) 1042 | —— v. Richards (6 Exch. 335) 112,
Owens, Com’th v. (114 Mass. 252) 1069 v. State (7 Coldw. 82) 289
v. Rain (5 Hayw. 106) 40 | ——, State v. (18 Vt. 570) 588, 603
—, Rex v. (1 Moody, 205) 316 , United States v. (3 Wheat. 610) 46
— v. State (3 Texas Ap. 404) 794 pene v. Addison (1 Har. & J.
——,, State v. (22 Minn. 238) 754
50) 2615
815
PAR INDEX TO THE CASES CITED. PEA
SEcTION | SEcTIon
Pangborn v. Westlake (36 Iowa, 546) ek Parsons, State v. (11 Vroom, 1) 426, Me a
188 a
Pankey v. People (1 Scam. 80) 159, 171 | ——,, State v. (11 Vroom, 128) 86 b
Pannell v. State (29 Ga. 681) 1048 | Part of Lot v. State (1 Iowa, 507). 1069
Panter v. Attorney-General (6 Bro. Partington, Ex parte (6 Q. B. 649) 57
P. C. 553) 8 | Parton v. Hervey (1 Gray, 119) 254
Parchman v. State (2 Texas Ap.228) 255 | Pash, Com’th v. (9 Dana, 31) 204, 937
Pardee v. Smith (27 Mich. 83) 852, 855 | Passaic, State v. (13 Vroom, 87) 1032
Paris v. Hiram (12 Mass. 262) 106 | Passey, Rex v. (7 Car. & P. 282) 88
Parish v. Eager (15 Wis. 532) 265 | Passmore, U. S$. v. (4 Dall. 372) 177
Park, Com’th v. (1 Gray, 553) 1024, 1045 | Patch, Com’th v. (97 Mass. 221) 406
Parke v. Evans (Hob. 62 a) 290, 312| Pate, State v. (67 Misso. 488) 1001
Parker v. Baker (Clark, 223) 19 | Pateman, Rex v. (Russ. & Ry. 455) 216
v. Colcord (2 N. H. 36) 164 | Paterson v. Society (4 Zab. 385) —18, 86
v. Com’th (6 Barr, 507) 36, 992, 997 , State v. (6 Vroom, 196) 16
—-v. Commonwealth (4 Pa. Law Patrick, Rex v. (2 East P. C. 1059) . 443
Jour. Rep. 163) 36 | Pattee, Commonwealth v. (12 Cush.
—, Com’th v. (4 Allen, 313) 723}. 601) _ . 177, 855, 891
—, Com’th v. (9 Met. 263) 744, 753} Patten v. Rhymer (3 Ellis & E.1) 854,
— v. Cutler Mill Dam Co. (20 855
Maine, 353) 1128 | —— v. Smith (4 Conn, 450) 819
v. Flint (Holt, 366) 297 | Patterson v. Barlow (10 Smith, Pa.
v. Mise (27 Ala. 480) 1183] 54) 809
—, People v. (4 Johns. 424) 285, 286 v. Gaines (6 How. U.S. 550) 2644
— , Reg. v. (9 Car. & P. 45) 310|—— ». State (21 Ala. 571) 1049
— Reg. v. (Leigh & C. 459; 9 Cox
C.'C. 475) 257, 261
— , Rex v. (2 East P. C. 592; 1
Leach, 320, n.) 190d, 194, 196, 204, oS
2
v. State io Ala. 365) 426
v. State (27 Ind. 898) 1003
v. State (4 Ohio State, 563) 1049
— v. State (26 Texas, 204) 912
— v. State (5 Texas Ap. 579) 85 a
——, State v. (1 Houst. Crim. 9) 344
— State v. (81 N. C. 548) 482 a, 4475
—, State v. (2 Ire. 346) 612, 613
—, (T. U. P. Charl. 311) 218
v. Tatum (3 Saw. 164) . 158
Pattison v. Bankes (Cowp. 540) 48, 49
Pattle, Rex v. (1 Stra. 405) 29
Patton, State v. (4 Ire. 16) 138
Patty, United States v. (9 Bis. 429) 961
Paty, Rex v. (2 East P. C. 1074; 1
Leach, 72; 2 W. Bl. 721) 247, 440, 442
Paul v. Ball (31 Texas, 10) 346
v. Hazleton (8 Vroom, 106) 1128, 1130
—, State v. (5 R. 1.185) 792, 1069, 1070
——,, State v. (6 Vroom, 352) 292| Paulina, The v. U.S. (7 Cranch, 52) 77
, State v. (26 Vt. 357) 36 | Paulus, Com’th v. (11 Gray, 305) 336
Parkhurst v. Foster (1 Salk. 387; Pauska v. Daus (31 Texas, 67) 274
Carth. 417) 7 | Payne v. Baldwin (8 Sm. & M. 661) 187
29
Parkinson v. State (14 Md. 184) 31, 26a,
70, 76, 82, 992, 1012, 1013
Parks v. State (3 Texas Ap. 337) 673
v. State (4 Texas Ap. 184) 696, 697
—, State v. (29 Vt. 70) 1003
Parnell, State v. (16 Ark. 506) 1037
Parramore v. Taylor (11 Grat. 220) 98
Parris v. People (76 Ill. 274) 447 b
Parrot v. Lawrence (2 Dil. 3832) 301 @
, Rex v. (6 Car. & P. 402) 291
Parrott v. State (6 Eng. 574 923
—— v. Conner (3 Bibb, 180) 52
—, People v. (3 Denio, 88) 952, 955, 958
——, Rex v. (4 Car. & P. 558) 314
v. State (74 Ind. 203) 1021, 1032
Peables v. Hannaford (18 Maine,
106) 31 a, 111, 1130
Peacock, People v. (98 Ill. 172) 84, 90, 194
v. Reg. (4 C. B. n. 8. 264) 110¢
Peak v. State (10 Humph. 99) 728
Pearce v. Atwood (13 Mass. 824) &6
— v. Bank of Mobile (33 Ala. 693) 57,
v. Stevens (87 Conn. 93) 163 126, 156
Parry v. Jackson (4 T. R. 516) 261 b| ——, Rex v. (1 Leach, 527; 2 East
Parshall, People v. (6 Parker C. C. P. C. 1072) 433, 437
129 634, 641|-——-, Rex v. (2 Leach, 1046) 142
Parsley v. Hutchins (2 Jones, N. C. —— v. State (40 Ala. 720) 1045 a
159) 1002 | —, State v. (2 Blackf. 318) 662, 663
Parsons v. Bedford (3 Pet. 433) 90 | ——, State v. (Peck, 66) 440, 442
—— v. Brigham (84 Maine, 240) 163, 1082 | ——, United States v. (2 McLean,
v, Chamberlin (4 Wend. 512) 105] 14) 141, 216, 246
—— v. Hunter (2 Sumner, 419) 258 | Pearcy, State v. (44 Misso. 159) 112 6
~—— v. State (2 Ind. 499) 852, 855, 899, | Pearse v. Morrice (2.A.& E.84) 2554
987 | Pearson, Com’th v. (3 Met. 449) 1061
816
PER
Secrron
Pearson, Commonwealth ». (23 Pick.
280, note) 1039
—— v. Lovejoy (53 Barb. 407) 120
—, Rex v. (4 Car. & P. 572) 271
Pease, Com’th v. (110 Mass. 412) 1069
—, People v. (80 Barb. 588) 824, 826
INDEX TO THE CASES CITED.
PHE
SECTION
Perkins, State v. (42 Vt. 899) 355
— v. Thornburgh (10 Cal. 189) 249
Perley, Com’th v. (2 Cush. 559) 1018
——, Com’th v. (180 Mass. 469) 1182
Perrigo, Com’th v. (8 Met. Ky. 5) 903
Perrin, In re (2 Drury & Warren,
—, People v. (27 N. ¥.45) 8064, 826) 147; 1 Con. & L. 567)
— v. Whitney (5 Mass. 380) 126 | Perry v. Com’th (8 Grat. 632) 83a, 180
Peat’s Case (2 Lewin, 111) 613 v. Edwards tia N. Y. 223) 1021, 1022
—— (2 Lewin, 288) 613 | —— v. Jefferson (94 Ill. 214) 189d
Peat, Rex v. (1 East P. C. 229) 770 v. New Orleans, &c. Railroad
Peck v. Burr (6 Seld. 294) 254} (55 Ala. 413) 42 d, 396
—, People v. (11 Wend. 604) 255 | —— v. People (14 Ill 496) 163
—— »v. San Antonio (51 Texas, 490) 36 a | ——, People v. (13 Barb. 206) 999
— v. Weddell (17 Ohio State, 271) 36, v. Perry (2 Barb. Ch. 311) 160
299 v. Perry (2 Paige, 501) 160
Peckham, Com’th v. (2 Gray, 514) 1007 | —, Reg. v. (2 Cox C. C. 223) TAT
—, State v. (3 R. I. 289) 992 | —, Reg. v. (Dears. 471; 6 Cox C.C.
Pedigo, State v. (71 Misso. 448) 427| 631
Peel, Rex v. (Russ. & Ry. 407) 141 v. Selma, &c. Railroad (58 Ala.
Peer’s Case (5 Grat. 674) 1045| 546) 37
Peet v. Nalle (30 La. An. 949) 154, 163 | —— v. State (44 Texas, 473) 476
Peete v. State (2 Lea, 513) 828 | ——, State v. (5 Ohio State, 497) 34
Pegram, Commonwealth v. (1 Leigh, —, State v. (44 Texas, 100) 163
569) 163, 171, 183 v Wilson (7 Mass. 393) 113
Peirce v. New Hampshire (5 How. Perryman, Com’th v. (2 Leigh, 717) 728
U.S.504) [Same as License Cases] 990 | Perrysburg, State v. (14 Ohio State,
Pekin v. Smelzel (21 Ill. 464) 997 | 472) 81a, 126
Petham v. Messenger (16 La. An. 99) 119] Person, State v. (3 Vroom, 134) 18
Pellatt v. Ferrars (2 B. & P. 542) 259 | Persons v. State (3 Texas Ap. 240) 248
Pelles v. Saunderson (2 Dy.170 8) 895] Pervear v. Com’th (5 Wal. 475) 991
Pemberton, State v. (2 Dev. 281) 854 | Peter, State v. (8 Jones, N. C. 19) 212
Pemble v. Clifford (2 McCord, 31) 115
Pembliton, Reg. v. (Law Rep. 2 C.C.
119; 12 Cox C.C. 607; 9 Eng.
Rep. 501) 437
Pendergast v. Peru (20 Ill. 51) 1052
Pendergrast v. Foley (8 Ga. 1) 261 a
Pendleton v. Barton (4 W. Va. 496) 119
Penn v. Perry (28 Smith, Pa. 457) 301
Penniman, Petition of (11 R. I. 888) 85a
Pennington, State v. (8 Head, 119) 4476
Pennock, Com’th v. (8S. & R.119) 277
—— v. Dialogue (2 Pet. 1) 97
Pennsylvania Hall, In re (5 Barr, 204) 180
Pennsylvania Railroad v. Riblet (16
Smith, Pa. 164) 91
Pennybaker v. State (2 Blackf. 484) 1025
Penson, Rex v. (5 Car. & P. 412) 591
Penton v. Brown (1 Keb. 698) 290
—— v. Browne (1 Sid. 186) 290
Percavil, Com’th v. (4 Leigh, 686) 246
Percheman, U. S. v. (7 Pet. 51) 32
Perdue v. Ellis (18 Ga. 586) 992
—— v. State (2 Humph. 494) 308
Pereira, Rex v. (2 A. & E. 375) 80
Perez v. State (48 Ala. 356) 852, 884, 891
Perine v. Van Note (1 Southard, 146) 1,
Perkes, Rex v. (1 Car. & P. 300) 312
Perkins’s Case (1 Lewin, 535) 7718
Perkins, State v. (6 Fost. N. H.9) 1003,
1082
—, State u. (53 N. H. 435) 1052
52
Peterborough v. Catesby (Cro. Jac.
166) 105
Peters v. Goulden (27 Mich. 171) 85a
v. New Orleans, &c. Railroad
(56 Ala. 528) 303
Petersburg Judges, United States v.
(1 Hughes, 493)
Peterson v. Knoble (35 Wis. 80) 1031a
——, People v. (9 Cal. 313) 422
——, State v. (70 Maine, 216) 728
——, State v. (41 Vt. 504) 1007, 1032
Pettis v. Johnson (56 Ind. 139) Qu
Peyton v. Moseley (3 T. B. Monr. 77) a
15
Pfeifer, State v. (26 Minn. 175) 997
Phalen v. Commonwealth (1 Rob. Va.
713) 856, 957, 958
——,, State v. (3 Harring. Del. 441) 856
v. Virginia (8 How. U.S. 163) 957
Phares v. Walters (6 Iowa, 106) 263
Pharmaceutical Society v. Lond., &c.
Supply Assoc. (5 Ap. Cas. 857; 5
Q. B. D. 310; 4 Q. B. D. 318)
212
Phelan v. Douglass (11 How. Pr. 198) 108
Phelps, Com’th ». (11 Gray, 73) 1048
—— v. Hawley (8 Lans. 160) 112
—— »v. Hawley (52 N. Y. 23) 112
—— v. Parks (4 Vt. 488) 164
—— »v. People (72 N. Y. 334) 423
—— , People v. (5 Wend. 9) 176
—— v. Racey (60 N. Y. 10)
—, State v. (9 Md 21)
817
1134, 1135
691
PIL
SECTION
Philadelphia v. Fox (14 Smith, Pa. is
169
Philadelphia and ‘Erie Railroad v.
Catawissa Railroad (3 Smith, Pa.
20) 101, 104
Phile v. Anna (1 Dall. 197) 211
Philips v. State (2 Yerg. 458) 1020
Phillips v. Broadley (9 Q. B. 744) 260a
—, Com’th »v. (11 Pick. 28) 180, 204
— v. Fadden (126 Mass. 198) 112
-— v. Hopwood (5 Man. & R. 15;
10 B. & C. 39) 186
v. Meade (75 III. 334) 1124, 1125
v. New York (1 Hilton, 483) 36a, 178a
INDEX TO THE CASES CITED.
POA
SEcTION
Pim v. Nicholson (6 Ohio State, 176) 364
, Rex v. (Russ. & Ry. 425) 174
Pimental v. San Francisco (21 Cal.
351) 261
Pinchback, State v. (2 Mill, 128) 216, yee
58
Pines v. State (50 Ala. 153) 312
Pingeer v. Snell (42 Maine, 53) 159
Pinkerton v. Woodward (38 Cal. 557) 297
Pinson v. State (23 Texas, ear} 320
Piper, Com’th v. (9 Leigh, 657 138
Pippin v. Ellison (12 Ire. 61 344
Piqua v. Zimmerlin (35 Ohio State,
507) 997
— , Reg. v. (2 Moody, 252) 223 | Pirates, United States v. (6 Wheat.
——, Rex v. (8 Camp. 78, 76) 745, 756, 757 ) 163, 242, 304
——., Rex v. (1 Crawf. & Dix C. C. Pitman v. Bump, (5 Oregon, 17) - 265
164) 318 | —— v. Commonwealth (2 Rob. Va.
—, Rex v. (Russ. & Ry. 369) 261,264; 800) 169, 183, 855
v. State (51 Ala. 20) 882, 855, 878 | —— », Flint (10 Pick. 504) 80, 146
v. State (15 Ga. 518) 102 v. Maddox (2 Salk. 690) 2494
v. Tecumseh (5 Neb. 312) 1003 | Pitt v. Laming (4 Camp. 738) - 297
Philpott v. St. George’s Hospital (6 ——, Rex v. (1 W. BI. 380) 804
H. L. Cas. 388) 1] Pitte v. Shipley (46 Cal. 154) 95a
Philpotts, Reg. v. (1 Car. & K.112) 182] Pittman, State v. (10 Kan. 593) 1032,
Phipson v. Harvett (1 Cromp. M. & 1033 a, 1042
R. 473) 160
Phenix Bank, Comth v. (11 Met. 129) 212
Piatt v. Vattier (1 McLean, 146) 265
Picard v. McCormick (11 Mich. 68) 1014
Pickens v. State (20 Ind. 116) 1024
Pickering v. James (Law Rep. 8 C. P.
' 489) 250 a
Picket, Rex v. (2 East P. C. 501) 287
Pickett v. People (8 Hun, 83) 961, 962
v. State (10 Texas Ap. 290) 794
, State v. (11 Nev. 255) 496
Pierce’s Case (16 Maine, 255) 193
Pierce, In re (46 Vt. 374) 10382
—— v. Bartrum (Cowp. 269) 22
—— v. Commonwealth (10 Bush, 6) 999
——, Com’th v. (11 Gray, 447) 680, 681
— v. Hillsborough (54 N. H. 483) 1032
— ». Hillsborough (57 N. H. 824) 1032
—— v. Hopper (1 Stra. 249) 198
—— v. Pierce (46 Ind. 86) 16, 35a
—, Rex v. (3 M. & S. 62) 49
v. State (13 N. H. 536) 992
—, State v. (7 Ala. 728) 435
—, State v. (14 Ind. 302) 163, 739
Pieri v. Shieldsboro (42 Missis. 493) 19, 21
Pitts v. Millar (Law Rep. 9 Q. B. 380) 1109
——, State v. (58 Misso. 556) 255
Pittsburg, Commonwealth v. (2 Har-
ris, Pa. 177)
Pittsburg, &c. Railroad v. South West
Pennsylvania Railway (27 Smith,
Pa. 178)
Pittstown v. Plattsburgh (18 Johns.
407)
Pitzer v. Burns (7 W. Va. 68) 261a
——, State v. (23 Kan. 250) 1042
Place v. State (8 Blackf. 319) 1032
Planters’ Bank v. Black (11 Sm. &
M. ba 8
v. State (6 Sm. & M. 628) 160
Planters’ and Merchants’ Bank v. An-
drews (8 Port. 404) 212
Plaquemine v. Roth (29 La. An. 261) 20
Platt v. Brown (16 Pick. 553) 280
v. Hill (1 Ld. Raym. 381) 395, 400,
401
-—— v. London (1 Plow. 35) 1906
——,, People v. (17 Johns. 195) 1129
—— v. Sherry (7 Wend. 236) 168, 164
Platteville v. Bell (43 Wis. 488) 20, 24, 407
Pierpont v. Crouch (10 Cal. 315) 156 a| Pleasants v. Rohrer (17 Wis. 577) 265
Pierson v. Post (3 Caines, 175) 1133 | Plets v. Johnson (8 Hill, N. Y. 112) 886
—, Reg. v. (1 Salk. 882) 667 | Pleuler v. State (11 Neb. 547) 992, 9924
—, Rex »v. (Andr. 310) 627 | Plumb v. Sawyer (21 Conn. 351) 82
Pigg v. State (48 Texas, 108) 248 | Plummer v. Com’th (1 Bush, 26) 10034
Pigot, Rex v. (Holt, 758) 619 | —— v. Plummer (87 Missis. 185) 104
Pike v. Jenkins (12 N. H. 265) 200, 204] —, State v. (1 Ire. 115) 1003 a, 1082
, Rex v. (1 Leach, 817; 2 East Plunket, State v. (2 Stew. 11) 247, 298
P.'C. 647) 216
Pilkey v. Gleason (1 Iowa, 522) 31
Pillerin, U. S. v. (13 How. U. 8. 9) 32
Pilling, Reg. v. (1 Fost. & F. 324) 333
Pilsbury, State v. (81 La. An. 1) 147
818
Plunkett v. State (69 Ind. 68) 1007, 10345,
1038, 1039
——, State v. (3 Harrison, 5 22
——, State v. (64 Maine, 534) 1057, 1058
Poag v. State (40 Texas, 151) » 428
POW
SECTION |
Poage ov. State (3 Ohio State, 229) 386
Poertner v. Russel (83 Wis. 193) 97
Poggi, People v. (19 Cal. 600) 422
Pointer, Com’th v. (5 Bush, 801) 1126
Police Jury of Plaquemines v. Pack-
ard (28 La. An. 199)
Polinsky, v. People (11 Hun, 390)
86a
23
Polk v. State (62 Ala. 2387) 788 b
Pollard v. Lyon (1: Mac. Ar. 296) 664
—- v. Lyon (91 U. S. 225) 691
Polly, Reg. v. (1 Car. & K. 77) 276
Pomeroy v. Com’th (2 Va. Cas. 342) 346
—, Com’th v. (5 Gray, 486, note) 34, 992
Pond v. Maddox (38 Cal. 572) 39
—— v. Negus (3 Mass. 230) 255
—— v. People (8 Mich. 150) 285, 286
v. State (47 Missis. 39) 1052
Pons v. State (49 Missis. 1) 1032
Pool, State v. (2 Dev. 202) 167
Pooley, Rex v. (3 B. & P. 311; Russ.
& Ry. 81)
— , Rex v. (Russ. & Ry. 12)
Poor Law Commissioners, Rex v. (6
A. & E. 1) 80
Pope v. Lewis (4 Ala. 487) 1i7
—— v. State (2 Swan, Tenn. 611) 1000
Popp, State v. (45 Md. 482) 46, 98, 1032
338
INDEX TO THE CASES CITED.
PRI
SECTION
Powell v. State (62 Ind. 531) 852, $55, 889
v. State (7 Texas Ap. 467)
—, State v. {i Lea, 164) 803, 1011
——, State v. (10 Rich. 378)
Power v. Tazewells (25 Grat. 786)
Powers, In re (29 Mich. 604)
, In-re (25 Vt. 261) 992
—, Com’th v. (123 Mass. 244) 1057, 1058
— v. Decatur (54 Ala. 214) 1000
—— v. Shepard (48 N. Y. 540) 154
v. State (44 Ga. 209) 728, 733
——, State v. (25 Conn. 48) 1044
-—, State v. (36 Conn. 77) 189 d, 204
——, State v. (75 N. C. 281) 806
Powlter’s Case (11 Co. 29a) 82
Prather v. Palmer (4 Pike, 456) 1051
— v. People (85 Ill. 36) 1033 a
—— v. State (12 Texas Ap. 401) 1020
——,, State v. (54 Ind. 63) 613
Pratt v. Atlantic and St. Lawrence
Railroad (42 Maine, 579)
—, Com’th v. (126 Mass. 462) 1025
—— v. Huggins (29 Barb. 277) 2644
v. Jones (25 Vt. 303) 163
, State v. (34 Vt. 323) 970
Pray v. Burbank (12 N. H. 267) 222
——, Commonwealth v. (13 Pick.
Porte, United States v. (1 Cranch 359) 1037, 1042, 1084
C. C. 869) 2 | —— v. Edie (1 T. R. 318) 49, 70, 82
Porter’s Case (Cro. Car. 461) 229 | Preble v. Brown (47 Maine, 284) 1128
Porter, Com’th v. (4 Gray, 426) 1016 | Presbrey v. Williams (15 Mass. 198) 107,
—— v. State (58 Ala. 66) 1090 259
— v. State (51 Ga. 300) 855, 874| Prescott v. Illinois and Michigan
— v. State (5 Sneed, 358) 946) Canal (19 Ill. 324) 29
——, State v. (4 Harring. Del. 556) 806 | —— v. Kyle (103 Mass. 381) 1069
—— v. Waring (69 N. Y. 250) 406 | —— v. Otterstatter (4 Norris, Pa.
Porterfield v. Clark (2 How. U.S.76) 115) 634) 195 a4
Portis v. State (27 Ark. 360) 855, 863, 867 | —— v. State (19 Ohio State, 184) 792
Portland Bank v. Maine Bank (11 —, State v. (27 Vt. 194) 992, 1056
Mass. 204) 29, 107, 108
Posey, Commonwealth v. (4 Call, 109) 207,
213, 277
—, State v. (1 Humph. 384) 852, 855,
873, 929
Poteet, State v. (8 Ire. 23) 678
——, State v. (86 N. C. 612) 1013
Potter, People v. (47 N. Y. 375) 70, 92, 924
——, Reg. v. (2 Den. C. C. 285; 15
Jur. 498; 20 Law J. x. s. M. C.
170; 4 Eng. L. & Eq. 575)
——, State v. (52 Vt. 33)
Potts, Rex v. (Russ. & Ry. 353)
——,, State v. (75 N. C. 129).
295
610, 680
139
242, 279
Poulton, Rex v. (5 Car. & P. 329) 780
Povey, Reg. v. (Dears. 32; 6 Cox
C. C. 83) 610
ca Co. v. Burkhardt (97 U. 8.
1
Powell, People v. (63 N. Y. 88) 231
— v. Price (4 C. B. 105) 277, 284
—, Reg. ». (14 Eng. L. & Eq. 575;
2 Den. C. C. 403) 344
v. State (27 Ala. 51) 1021
v. State (63 Ala. 177). 1013
President, &c. v. Holland (19 Ill. 271) 10382
Presnell, State v. (12 Ire. 103) 1023
Prestney, Reg. v. (3 Cox C.C. 505) 435
Preston v. Hunt (7 Wend. 68) 182, 282
v. State (63 Ala. 127) 789
——, State v. (48 Vt. 12) 1032
Pretty v. Solly (26 Beav. 606) 1l2a
Prettyman, State v. (3 Harring. Del.
570) 1008
Prevost, Succession of (12 La. An.
677) 18, 14
Prewitt, State v. (10 Texas, 310) 921
Price, Commonwealth v. (8 Leigh,
757) 852, 855, 878
v. Hopkin (18 Mich. 318) 31
—— v. Pollock (42 Ind. 497) 141
——, Reg. v. (8 Car. & P. 282) 314
——, Reg. v. (3 Per.& D. 421; 11 A.
& E. 727; 4 Jur. 29); 188, 250, 821
— , Rex v. (5 Car. & P. 510) 223
——, State v. (50 Ala. 568) 36a
——,, State v. (6 Halst. 208) 244
v. Thornton (10 Misso. 185) 132
Prideaux v. Webber (1 Lev. 31) 261a
Priester, State v. (Cheves, 103) 1045
819
Proprietors of Bridges v. Hoboken
Land, &¢. Co. (2 Beasley, 503) 301
‘Prosser v. Chapman (29 Conn. 615) 164
Protector, The (9 Wal. 687) 261la
v. Ashfield (Hardr. 62) 137
Providence v. Bligh (10 R. I. 208) 1000
Prussing, United States v. (2 Bis. 844) 991
Public Schools v. Trenton (8 Stew.
Ch. 667) 103
Puddifoot, Rex v. (1 Moody, 247) 247
‘Pugh v. Leeds (Cowp. 714) 8la
—, Reg. v. (6 Mod. 140) 168, 168
: , State v. (15 Misso. 509) 447, 1116
Pulaski v. Downer (5 Eng. 588) 159
‘Pulbrook, Reg. v. (9 Car. & P. 87) 335
Pulling v. People (8 Barb. 884) 111
Pulse v. State (6 Humph. 108) 1013
‘Pulver v. Burke (56 Barb. 390) 933
Purcell v. Com’th (14 Grat. 679) 298, 878
Purdie, State v. (67 N. C. 826) 447b
Purdom, State v. (8 Misso. 114) 854, 855,
881
Purdy v. People (4 Hill, N. ¥. 884) 37
, State v. (36 Wis. 213) 804
Purnell v. Wolverhampton New
Water Works (10 C. B. n. 8. 576) 1128
Pursell v. New York Life Ins. &c. Co.
(42 N. Y. Super. 883) 249
Pursey, Rex v. (12 Mod. 435) 795
Purtle, Com’th v. (11 Gray, 78) 1057
Puryear v. State (44 Ga. 221) 791
16) 1046, 1049, 1052
Putnam, Commonwealth ». (4 Gray,
v. Longley (11 Pick. 487) 80 82
——— v. Putnam (8 Pick. 438) 586
——, State v. (35 Iowa, 561) 271a
——, State v. (88 Maine, 296) 1002, 1003
Pyle v. Maulding (7 J. J. Mar. 202) 105
‘Quackenbush v. Danks (1 Denio, 128) 82
Quant, People v. (2 Parker C. C. 410) $90,
992, 1032
Quantity of Distilled Spirits (3 Ben.
70) 278
820
QUA INDEX TO THE CASES CITED. RAT
SECTION Section
Prim v. State (82 Texas, 157) 418 | Quarles, State v. (18 Ark. 307) 915
Primelt, Reg. v. (1 Fost. & F. 50) 635 v. State (6 Humph. 661) — 205, 871,
Primm, State v. (61 Misso. 166) 262 935, 937
Prince, Reg. v. (Law Rep. 2 C.C. Quartemas v. State (48 Ala. 269) 66, 697
154; 13 Cox C. C. 188) 681 a, 682 a | Quigg, People v. (59 N. Y. 83) 1126
‘——, Rex v. (2 Car. & P. 617) 271 | Quigley v. Gorham (5 Cal. 418) 101
Prince George’s Commissioners v. Quinn, Com’th v. (12 Gray, 178) 1069
Laurel (51 Md. 457) 151 | —— v. People (11 Hun, 336) 280
Pringle, Reg. v. (2 Moody, 127) 841 | —— v. People (71 N. Y. 561) 280, 285
Prior v. State (4 Texas, 383) 902 | ——, People v. (18 Cal. 122) 179
Pritchard v. Spencer (2 Ind. 486) 82, 263 | —— ». State (35 Ind. 485) 809, 835
Privilege of Priests (12 Co. 100) 250.4 | Quitzow v. State (1 Texas Ap. 65) 418
Prizer, State rv. (49 Iowa, 531) 629
Probasco v. Moundsville (11 W. Va.
501) 82 | Raake, Reg. v. (2 Moody, 66 ; 8 Car.
Procureur v. Bruneau (Law Rep. 1 & P. 626) 329, 333
P. C. 169) 2] Rabb v. Graham (43 Ind. 1) 141
Prohibitory Amendment Cases (24 Rachel, The, v. U.S. (6 Cranch, 829) 177
Kan. 700) 990, 998 | Rackley, State v. (2 Blackf. 249) 86
Rader v. Southeasterly Road Dist.
of Union (7 Vroom, 273) 178
zv. Union (10 Vroom, 509) 36 a
Radford, Reg. v. (1 Car. & K.707; 1
Den. C. C. 59) 306
Raffles, Reg. v. (1 Q B. D. 207) 1003
Ragsdale, U. 8. v. (Hemp. 497) 72, 198
Rahl, State v. (83 Texas, 76) 691
Railroad v. Hecht (95 U. S. 168) 112,176
—— v. Husen (95 U. S. 465) 1135
—— v. McClure (10 Wal. 511) lla
Railroad Tax Cases (13 Federal Rep.
722) 1080
Raines, State v. (8 McCord, 533) 129
Rainey v. State (8 Texas Ap. 62) 27la
Raleigh v. Kane (2 Jones, N. C. 288) 999
Ralston v. Lothain (18 Ind. 303) 176
Ramaley v. Leland (43 N. Y. 539) 347
Ramey v. State (14 ‘Texas, 409) 921
Ramsay, United States v. (Hemp. 481) 193
Ramsdell, Commonwealth v. (130
Mass. 68) 1020, 1057
Ramsey v. Heenan (2 Minn. 330) 37
v. State (6 Eng. 35) : 1032
Randall, Rex v. (Russ. & Ry. 195) 255,
328, 338
—, Rex v. (3 Salk. 27)
984
Randle v. State (42 Texas, 680) 952, 957
——, State v. (41 Texas, 292) 952
Randles, State v. (7 Humph. 9) 839
Randolph v. Bayue (44 Cal. 866) 78
— v. Easton (23 Pick. 242) 1051
— v. Larned (12 C. E. Green, 557) 181
v. Middleton (11 C. E. Green, 643) 82
—— v. Milman (Law Rep. 4 C. P.
107) 189¢
—— v. State (14 Ind. 232) 261¢
—— v. State (9 Texas, 521) 193, 855
——,, State v. (1 Misso. Ap. 15) 1136
—— v. Ward (29 Ark. 238) 2614
Rann v. Green (Cowp. 474) 398
Ratcliff v. Ratcliff (1 Swab. & T. 467) 77
Ratcliffe’s Case (3 Co. 37 a) 633
Rater v. State (49 Ind. 507) 1048
Rathbone v. Bradford (1 Ala. 812) 28
REE
INDEX TO THE CASES CITED.
SEcTION |
Rathbun c. Acker (18 Barb. 393) 193
Ratzky v. People (29 N. Y. 124) 185
Rau v. People (63 N. Y. 277) 1006, 1007,
1032
Rauch v. Commonwealth (28 Smith,
Pa. 490 997, 1044. a
Raudebaugh v. Shelley (6 Ohio
State, 307) 156
Rauscher, State v. (1 Lea, 96) 42b
Ravenscroft, Rex v. (Russ. & Ry. 161) 328
Rawlings v. State (2 Md. 201) 426
Rawlins v. Ellis (16 M. & W. 172;
10 Jur. 1039) 198
Rawson v. State (19 Conn. 292)+ 82, 194,
200, 1061, 1069
Ray, Ex parte (45 Ala. 15) 98
— v. Com’th (12 Bush, 397) 293, 294
— ». State (50 Ala. 172) 852, 855, 878,
908, 920
Raymond, State v. (24 Conn. 204) 1057,
1058
v. United States (14 Blatch. 51) 258
Raynard v. Chase (1 Bur. 2) 196
Rea, Reg. v. (Law Rep. 1 C. C. 365;
12 Cox C. C. 190) 591
Read v. Com’th (22 Grat. 924) 110¢
— v. Frankfort Bank (23 Maine,
318)
— v. Potter (Cro. Jac. 138)
—, Reg. v. (2 Car. & K. 957; 1
Den. C. C. 377 ; 3 Cox C. C. 266) 491
—, State v. (45 Iowa, 469) 6914
—, State v. (12 R. I. 184) 1032
——. State v. (12 R. I. 137) 992
Reader, Rex v. (4 Car. & P. 245) 289
Ready v. State (62 Ind.1) 852, 855, 889
Ream v. Com’th (3 8. & R. 207) 204
Reams v. State (23 Ind. 111) 992, 1039
Reardon, Com’th v. (6 Cush. 78) 658, 67
Reckards, State v. (21 Minn. 47) 21
Records, State v. (4 Harring. Del.
554 852, 861, 878
Rector, State v. (84 Texas, 565) 432, 435,
4476, 1100, 1113, 1114
Red, State v. (7 Rich. 8) 86
ae State v. (5 Harring. Del.
5
397
1013
Redding v. Com’th (3 B. Monr. 339) 1039
Redditt v. State (17 Texas, 610) 299
Redgate v. Haynes (1 Q. B. D. 89) 858,
891
Redgrave v. Redgrave (38 Md. 93)
Redman v. Sanders (2 Dana, 68) 204, 225
— ». State (38 Ala. 428) 852, 873
Redmond «. Glover (Dudley, Ga. 107) 105
v. State (86 Ark. 58) 1021, 1022
Redpath v. Nottingham (5 Blackf.
267 1002
85, 9924
—— v. Davis (8 Pick. 514) 193
v. Ingham (3 Ellis & B. 889) 246a
—— v. Omnibus Railroad (33 Cal. 212) 34
-—.,, People v. (47 Barb. 235) 1130
—— v. Rawson (2 Litt. 189) 83a
Reed v. Beall (42 Missis. 274)
613 |
6 | Rembert v. State (56 Missis. 280)
RIC
SECTION
Reed, Reg. v. (23 Law Times Rep.
156; 28 Eng. L. & Eq. 133) 245
——, Reg. v. (2 Moody, 62; 8 Car.
& P. 623; 2 Lewin, 185) 339
—— v. Rice (2 J. J. Mar. 44) 792
v. Richardson (98 Mass. 216) 150
v. State (8 Ind. 200) 477
——,, State v. (85 Maine, 489) 1039
Reekspear, Rex v. (1 Moody, 842) 204
Rees, Rex v. (6 Car. & P. 606) 271
Reese, United States v. (92 U. S. 214) 804
Reeves, Reg. v. (5 Jur. x. s. 716) 423
v. State (9 Texas, 447) 905, 909
Reich v. State (63 Ga. 616) 1021, 1022
Reichart, Com’th v. (108 Mass. 482) 1069
Reiche v. Smythe (7 Blatch. 235) 1104
Reid, Commonwealth v. (1 Pa. Leg.
Gaz. Rep. 182) | 745
——, Com’th v. (8 Philad. 385) 760
v. State (20 Ga. 681) 84
—— v. State (8 Texas Ap. 430) 1119
——, State v. (1 Ala. 612) 793
22
1021
Reinhard v. New York (2 Daly, 243)
Reinhart v. State (29 Ga. 522)
Reis v. Graff (51 Cal. 86) 8
Reithmiller v. People (44 Mich. 280) 189 a,
9924
1113,
1114
1037
220
428
Remby, Com’th v. (2 Gray, 508)
Remnant, Rex v. (5 T. R. 169)
Renfro v. State (9 Texas Ap. 229)
Renwick v. Morris (3 Hill, N. Y.
621; 7 Hill, N. Y. 575) — 163, 169, 250,
250 a, 252
Reopelle, Reg. v. (20 U. C. Q. B.
260 329, 334
Restall v. London, &c. Railway (Law
Rep. 3 Ex. 141) 178
Reynes, U. S. v. (9 How. U. S. 127) 14, 32
Reynolds, Com’th v. (114 Mass. 306) 1025
v. Doyle (2 Scott N. R. 45; 1
Man. & G. 753) 260 a
v. Geary (26 Conn. 179) 9902, 992
5 | —— v. Holland (35 Ark. 56) 145
——, People v. (5 Gilman, 1) 38
v. State (24 Ga. 427) 456
v. State (1 Kelly, 222) 84, 260 a
v. State (3 Kelly, 53) 179
v. State (1 Texas Ap. 616) 789
—, State v. (47 Vt. 297) 1057
v_ United States (98 U. S. 145) 596
——,, United States v. (1 Utah, 226) 5968
Rhodes v. Smethurst (6 M. & W.
351; 4M. & W. 42) 2614
—, State v. (2 Ind. 321) 1067
—, U.S. v. (1 Abb. U. S. 28) 792
Rice v. Com’th (12 Met. 246) 204
——, Commonwealth v. (9 Met. 253) 20
v. Foster (4 Harring. Del. 479) 36
v. People (38 Ill. 485) 1037
zv. Ragland (10 Humph. 545) 338
—— r. Railroad (1 Black, 358) 177 a, 178
—, Reg. v. (Bell C. C. 87) 416
821
RIV
SECTION
Rice, Rex v. (6 Car. & P. 634) 34
v. State (3 Kan. 141) 852, 884, 840
v. State (10 Texas, 545) $78, 901
— ». State (10 Texas Ap. 288) 7884
Rich v. Flanders (89 N. H. 304) 91
v. Keyser (4 Smith, Pa. 86) 95a, 98
v. State (9 Texas Ap. 176 185
Richards v. Dyke (8 Q. B. 256 164
v. Patterson (30 Missis. 583) 160
—, Rex v. (Russ. & Ry. 193) 328, 829
—— v. Woodward (113 Mass. 285) 990
Richardson, In re (6 Law Reporter,
892; 2 Story, 571) 28, 29
— v. Broughton (3 Strob. 1) 141, 231,
23
—, Com’th v. (126 Mass. 34) 603, 604 a
—— v. Emswiler (14 La. An. 658) 119
——, Rex v. (6 Car. & P. 335) 216
— v. Richardson (6 Ohio, 125) 261b
—— v. State (3 Coldw. 122) 179
— v. State e Texas, 142) 678
—— v. State (37 Texas, 346) 697
Richeson, State v. (45 Misso. 575) 1088,
, 10
INDEX TO THE CASES CITED.
2 |——, State v. (9 Ire. 356)
ROB
SEcTIoN
1| Rivers v. State (10 Texas Ap. 177) 440,
4475
Rives v. Guthrie (1 Jones, N. C. 84) 105
Rix v. Borton He A. & E. 470) 160
Road in Hatfield (4 Yeates, 892) 177
Roadley, Reg. v. (14 Cox C. C. 463) 496
Robb, Reg. v. (4 Fost. & F. 59) 634
v. State (52 Ind. 216) 852
Robbins’s Case (Whart. St. Tr. 392) 14
Robbins v. Omnibus Railroad (32
Cal. 472) 86
—— v. People (95 Ill. 175) 28, 24, 856
—— v. State (8 Ohio State, 181) 154, 475,
: 746, 747
1044
Roberson v. Lambertville (9 Vroom,
62) ; : 407, 408, 997
Robert, Respublica v. (1 Dall. 39) — 225
Roberts v. Armstrong (1 Bush, 263) 2604
—— v. Barnes (27 Wis. 422) 464
v. Commonwealth (11 B.
Morr. 3) 852, 855, 878
v. Com’th (10 Leigh, 686) 904, 909
90 | ——, Com’th v. (1 Cush. 505) 1040, 1042
Richter, State v. (28 Minn. 81) 1021 | —— v. Landecker (9 Cal. 262) 250a
Rickart v. People (79 Ill. 85) 10138 v. O’Conner (33 Maine, 496) 1024
Ricker, State v. (29 Maine, 84) 142 | ——, Reg. v. (2 Moody, 258; Car. &
Riddick v. The Governor (1 Misso. M. 652) 828, 334
147) 70, 187;——, Reg. v. (2 Russ. Crimes,
v. Walsh (15 Misso. 519) 70,81} 3d Eng. ed. 522) 329, 332
Ridenour v. State (65 Ind. 411) 799 | ——, Respublica v. (2 Dall. 124; 1
Ridgelay, Rex v. (1 Leach, 189) 204| Yeates, 6) 656, 691
Ridgeley, Rex v. (1 East P.C. 171) 204|—— »v. State (82 Ohio State, 171) —_ 853,
Ridgeway v. State (41 Texas, 231) 414 884, 894
v. West (60 Ind. 371) 855, 856 | —— v. State (2 Tenn. 423) 180, 184
Ridgley v. State (7 Wis. 661) 1106, 110 c| ——, State v. (3 Brev. 139) 458
Ridley v. Sherbrook (3 Coldw. 569) 807,|-——, State v. (55 N. H. 483) 1025
‘809, 810 | ——, State v. (1 Tread. 116) 222
Ridling v. State (56 Ga. 601) 1021 | —— v. Yarboro (41 Texas, 449) 57
Rigg v. Wilton (18 Ill. 15) 97| Robertson, Commonwealth v. (5
Riggins v. State (4 Kan. 173) 84u} Cush. 438) 2z, 26, 82
Riggs, Com’th v. (14 Gray, 376) 295 v. State (1 Texas Ap. 311) 426
v. Martin (5 Pike, 506) -178 v. State (12 Texas Ap. 641) 92a
v. Pfister (21 Ala. 469) 130 | ——, State v. (82 Texas, 159) 312
— v. State (30 Missis. 635) 261 d | Robeson v. State (3 Heisk. 266) 692
Rigoney v. Neiman (23 Smith, Pa.
330) 248
Riley, Com’th v. (14 Bush, 44)
, People v. (15 Cal. 48)
v. State (9 Humph. 646)
—— v. State (43 Missis. 897 ; 2 Mor-
ris State Cas. 1632) 987, 1024, 1087, 1049
Rillieux, U. S. v. (14 How. U.S. 189) 32
Rindskoff v. Curran (34 Iowa, 325) 1030
Rineman »v. State (24 Ind. 80) 1022
Ripley, State v. (2 Brev. 300) 168
Rising v. Dodge (2 Duer, 42) 187
Ritchie v. Smith (6 C. B. 462) 1384
—, State v. (2 Dev. & Bat. 29) 896
Ritte v. Com’th (18 B. Monr. 85) 855, 866
River Wear Commissioners v. Adam-
son (2 Ap. Cas. 743) 95 a
Rivers v. Cole (88 Iowa, 677) 84
—— v. State (57 Ga. 28) 426
822
Robinius v. State (63 Ind. 285) 1021, 10484
v. State (67 Ind. 94) 1021, 1022
Robins v. May (11 A. & E. 213) 386
—, Reg. v. (1 Car. & K. 456) 631 a
6
——, Reg. v. (1 Cox C. C. 114) 257
Robinson, Ex parte (12 Nev. 263) 1076,
1080
—— v. Bidwell (22 Cal. 379 34, 86
— v. Burleigh (5 N. H. 2 261
— v. Com’th (6 Bush, 809) 592
—. Com’th v. (126 Mass. 259) 1069
— v. Mayor (1 Humph. 156) 22
— ». Reid (50 Ala. 68) 141
—. Rex v. (2 Bur. 799) 188, 250
——, Rex v. (2 Leach, 749; 2 East
P. C. 1110) 163, 174, 346
— , Rex ». (1 Moody, 327) 812
— , Rex v. (2 Stark. 485) 204
ROH INDEX TO THE
SEoTION !
261 ¢
Robinson v. State (57 Ind. 118)
876, 917
—— v. State (24 Texas, 152)
— v. State (5 Texas Ap. 519) 428
— v. State (6 Wis. 585) 346
—, State v. (383 Maine, 564) 204, 1032,
1057
——, State v. (89 Maine, 150) 1044 a
——,, State v. (49 Maine, 285) 990
—, State v. (19 Texas, 478) 992
—, United States v. (4 Mason, 807) 304
—— »v. Varnell (16 Texas, 382) 82
Robson, Reg. v. (Leigh & C. 93; 9
Cox C. C. 29) 421, 423
Roby v. West (4 N. H. 285) 180
Rochdale Canal v. King (14 Q. B. 122) 251
Rochester v. Bridges (1 B. & Ad.
847) 250 a
— ». Collins (12 Barb. 559) 22
—, People v. (50 N. Y. 525) 36 a |
—, Reg. v. (7 Ellis & B. 910) 255 |
—— v. Upman (19 Minn. 108) 20, 997
Rochtschilt v. Leibman (2 Stra. 836) 261
Rock Hill College v. Jones (47
Md. 1) 177 a
Rockwell v. Clark (44 Conn. 534) 112
— v. Hubbell (2 Doug. Mich. 197) 84
Rodebaugh v. Hollingsworth (6 Ind.
339) 715
Roderica, State v. (35 Texas, 507) 852, 855, |
884, 912
Roderick, Rex v. (7 Car. & P. 795) = 188
Roderigas, People v. (49 Cal. 9) 642, 642 a, |
6
47
Rodgers v. People (86 N. Y. 360) 287
— v. State (26 Ala. 76) 855, 902 |
Rodriguez, Ex parte (89 Texas, 705) 814°
Rodway, Reg. v. (9 Car. & P. 784) 341)
Roe, People v. (1 Hill, N. Y. 470) 992
—, People v. (5 Parker C. C. 231) 263, |
264 |
Roediger v. Simmons (14 Abb. Pr.
N. 8. 256) 961
Rogers’s Case (2 Greenl. 301) 402 |
Rogers v. Alexander (2 Greene, Iowa,
443) 1032
— v. Goodwin (2 Mass. 475) 104
— v. Hoskins (15 Ga. 270) 164
— v. Jones (1 Wend. 237) 20, 23, 26 |
338 |
332, 335
1052
—, Reg. v. (8 Car. & P. 629)
—, Reg. v. (9 Car. & P. 41)
—, Rex v. (2 Camp. 654) —
——, Rex v. (1 Leach, 89; 2 East P.
C. 606)
—— v. Smith (4 Barr, 93) 277
v. State (9 Texas Ap. 43) 462
—, State v. (39 Misso. 431) 1037, sin
287 |
Rogier, Rex v. (2 D. & R. 481; 1B.
& C. 272)
Rohrbacher v. Jackson (51 Missis.
785)
—, State v. (10 Nev. 250) 36 b, 37
—, State v. (10 Nev. 319) 159
— v. Watrous (8 Texas, 62) 159, 163 |
886
CASES CITED. RUH
SECTION
Roland, Com’th v. (12 Gray, 182) 1042
v, State (9 Texas Ap. 277) ° 688
Roles v. Roswell (5 T. R. 538) 112
Rolfe v. Delmar (7 Rob. N. -Y..80) 952, 959
Rolland v. Commonwealth (1 Norris,
Pa. 306) : 79, 243, 312
Rollins, State v. (8 N. H. 550) 186
Romp v. State (3 Greene, Iowa, 276) 893,
804
Ronan, Com’th v. (126 Mass. 59) 1069
Rood v. Chicago, &c. Railway (43
Wis. 146) | 177
— v. McCargar (49 Cal. 117) 34
Roop v. Delahaye (2 Col. Ter. 307) 1030
Roosevelt v. Godard (52 Barb. 533) 90
Root v. Bradley (1 Kan. 437) : 263
—— vr. State (10 Gill & J. 374) 691
Ropes v. Clinch (8 Blatch. 304) 14
Roquemore v. State (19 Ala. 528) 298, 903
Rorie, State v. (28 Ark. 726) 862
Rose v. The Governor (24 Texas, 496) 103
v. State (1 Texas Ap. 400) 1120
Rosebaugh v. Saffin (10 Ohio, 81) 25
Rosenbaum v. State (4 Ind. 599) 1032
Rosenplaenter v. Roessle (54 N. Y.
262) 72
Ross v. Boswell (60 Ind. 235) 10064
—— v. Faust (54 Ind. 471) 303
—— v, Jones (22 Wal. 576) 2614
— v. People (17 Hun, 591) 1021
——, Rex v. (Russ. & Ry. 10; 2 East
P. C. 1067) 220
v. State (55 Ala. 177) 261
——, State v. (7 Blackf. 322) 896
——,, State v. (26 Misso. 260) 739
—, State v. (49 Misso. 416) 179
——, United States v. (1 Gallis. 624) 304
Rosseter'v. Cahlmann (8 Exch. 361) 141
Rossett v. State (16 Ala. 362) “10454
Rossiter, People v. (4 Cow. 143) 103
Roten, State rv. (86 N. C. 701) 784, 787
Roth v. State (10 Texas Ap. 27) 337, 415
Rottenberry v. Pipes (53 Ala. 447) 85a
Rounds v. Waymart (31 Smith, Pa.
395) 112 a, 156
Rountree v. State (10 Texas Ap. 110) 435,
' 4476
Rourke, Rex v. (Russ. & Ry. 386) 235
Rover, State v. (13 Nev. 17) 1387
Rowe, Com’th v. (14 Gray, 47) 1050
Rowley, Rex v. (Russ. & Ry. 110) 204, 09
——, State v. (12 Conn. 101)" 97
Royal v. State (9 Texas, 449) 905
Royster, State v. (65 N. C. 539) 248
Ruby, State v. (68 Maine, 543) 1069
Rucker, State v. (24 Misso. 557) 1094
0 , Ruckmaboye v. Mottichund (8 Moore
P. C. 4; 82 Eng. L. & Eq. 84) 97, 115,
2616
Ruff v. Bull (7 Har. & J. 14) . + la
Ruffner, Com’th v. (4 Casey, Pa. 259) 264
Ruggles, Com’th v. (10 Mass..891) 1132
Ruhl, State.v. (8 Iowa, 447) 631, 682, 633,
2 641
823
SAI INDEX TO THE CASES CITED. SAN
: SECTION SEcTION
Run, State v. (35 N. H. 222) 1057 | St. Louis v. Foster (52 Misso. 513) 36,
Rumrill, Commonwealth v. (1 Gray,
_ 888) 1013, 1018
Rumsey v. Lake (55 How. Pr. 889) 112
Rundlett, State v. (83 N. H. 70) 258, 1032
Runyon v. State (52 Ind. 320) 1004
Rupe, State v. (41 Texas, 33) 768, 7794
Rupp v. Swineford (40 Wis. 28) 95a
Rushworth, Rex v. (Russ. & Ry. 317;
2 Russ. Crimes, 3d Eng. ed. 517) 829
Russel, Rex v. (1 Leach, 8) 341
Russell v. Com’th (3 Bush, 469) 804, 843
v. Com’th (7 8. & R. 489) 167
—, Reg. v. (Car. & M. 541) 810
— , Reg. v. (3 Ellis & B. 942) 469
— , Rex v. (1 Moody, 356) 745
, Rex v. (1 Moody, 377) 312
v. Sloan (83 Vt. 656) 1013, 1020
v. Wheeler (Hemp. 3) 19
Rust v. State (4 Ind. 528) 1032
——, State v. (35 N. H. 488) 1039
Rutherford v. Com’th (2 Va. Cas. 141) 344
—— v. Greene (2 Wheat. 196) 84
Rutledge, State v. (8 Humph. 32) 163, 169
Rutter v. State (4 Texas Ap. 57) 688
Ryall v. Rolle (1 Atk. 165) 49
Ryalls v. Reg. (13 Jur. 259; 18 Law
J.n.s. M. C. 69
Ryan, Com’th v. (9 Gray, 187)
——, Com’th v. (108 Mass. 415)
v. Hoffman (26 Ohio State, 109)
v. Lynch (68 Ill. 160)
—— »v. State (5 Neb. 276)
—t. State (82 Texas, 280)
—— v. Vanlandingham (7 Ind. 416)
Rye, State v. (9 Yerg. 386) :
Ryegate v. Wardsboro (30 Vt. 746)
Ryland, Reg. v. (11 Cox C. C. 101)
Rymer, Reg. v. (2 Q. B. D. 136; 13
Cox C. C. 878)
105
1038
1069
82
37
65
119
255
716
86
493
297
Saal, Com’th v. (10 Philad. 496)
oe &e. Streets, In re (74 N. Y.
5
Saco v. Gurney (34 Maine, 14)
Sacramento v. Bird (15 Cal. 294)
—— v. Crocker (16 Cal. 119)
Sadi, Rex v. (2 East P. C. 601)
—, Rex v. (1 Leach, 468; 2 Eas
P. C. 748) 139, 344
Safford v. People (1 Parker C. C.
474 639, 648
+—, People v. (5 Denio, 112) 238, 1020,
1
: 027
St. Anthony Falls Waterpower Co.
v. King Bridge (23 Minn. 186) 347 a
St. Charles v. Powell (22 Misso. 525) 103.
St. Edmund’s, Reg. v. (2. Q. B.72) 159
St. George, Reg. v. (9 Car. & P. 483) 245
1032
86a
177, 178
159
1098
337
St. Giles, Reg. v. (3 Ellis & E. 224) 86
St. Joseph, State v. (87 Misso. 270) 36
Saint Leonards, Shoreditch v. Frank-
lin (3 C. P. D. 377) 212
824
98, 1524, 181
—— v. Grone (46 Misso. 574) 20
—— v. Independent Ins. Co. (47
Misso. 146) 154
v. McCoy (18 Misso. 238) 20
v. Russell (9 Misso. 507) 18
—— v. Shields (62 Misso. 247) 37
—— v. Siegrist (46 Misso. 593) 297, 299
v. Sullivan (8 Misso. Ap. 455) 852,
901
St. Louis Church v. Bonneval (18
La. An. 321) 1094
St. Louis County Court v. Sparks
(10 Misso. 117) 255
—, State v. (41 Misso. 52) 163
St. Louis Gas Light Co. v. St. Louis
(46 Misso. 121) 141
7 | St. Louis, &c. Railroad v. Teters (68
112
Til. 144)
St. Martin v. New Orleans (14 La.
An. 113 29, 126
St. Martins, Reg. v. (Law Rep. 2 Q.
B. 493 108
St. Mary, Warwick, Reg. v. (1 Ellis
& B. 816) 29, 108, 110
St. Pancras v. Batterbury (2 C. B.
n. 8. 477) 250 4
—,, Rex v. (6 A. & E. 1) 1126
St. Paul v. Traeger (25 Minn. 248) 19, 20
—— v. Troyer (3 Minn. 291) 997
St. Peter’s Church v. Scott (12 Minn.
395)
Salem Turnpike and Chelsea Bridge
v. Hayes (5 Cush. 458) 163, 170
Salina v. Seitz (16 Kan. 143) 997
Saline County Court, State v. (48
Misso. 390) 112
Salisbury, Reg. v. (2Q. B. 72) 154, 160
—,, Rex r. (5 Car. & P. 155) 271
Salkeld v. Johnson (2 C. B. 749) 77
—— v. Johnston (1 Hare, 196) 49
Sallie v. State (39 Ala. 691) 345
Salmon v. Burgess (1 Hughes, 356) 29
—,, Rex v. (Russ. & Ry. 26) 433
Salomon, People v. (46 Ill. 415) 36
——, People v. (51 Ill. 37) 36
—— v. State (27 Ala. 26) 958
v. State (28 Ala. 83) 958, 966
Salt Lake City v. Wagner (2 Utah,
400 997
Salters v. Tobias (3 Paige, 338) 192
Salters’ Company v. Jay (8 Q. B.109) 48
Sam Slick, The (2 Curt. C. C. 480) 93
Samanni v. Com’th (16 Grat. 542) 2424
Samperyac, U. S. v. (Hemp. 118) 85, 176
Sampeyreac v. U. S. (7 Pet. 222) 84
Sampson v. Commonwealth (5 Watts
& 8. 385) 289
v. Sampson (63 Maine, 828) 264¢
——.,, State v. (12 S. C. 567) 283
Samuel, Com’th v. (2 Pick. 103) 1088
v. Evans (2 T. R. 569) 42a
San Antonio v. Gould (34 Texas, 49) 36a
SCH INDEX TO THE CASES CITED. scu
SEcTION SECTION
Sanborn »v. Fireman’s Ins. Co. (16 Schenault v. State (10 Texas Ap. ve
Gray, 448) 111 410 515
Sanderlin v. State (2 Humph. 315) 800, | Schieve v. State (17 Wis. 252) 163
1011, 1060, 1061, 1068 | Schilling, State v. (14 Iowa, 455) 1069
Sanders, Com’th v. (5 Leigh, 751) 285 | Schlesinger v. Stratton (9 R. I. 578) 1030
—— v. Elberton (50 Ga. 178) 1008 | Schlicht v. State (56 Ind. 173) 1006 a,
—, Reg. ce. (9 Car. & P.79) 216, 295 1014
—, State v. (30 Iowa, 582) 660 | Schlict v. State (31 Ind. 246) 1047
Sandy v. State (58 Ala. 371) 160, 163 | Schmail, State v. (25 Minn. 368, 869) 1037
— v. State (60 Ala. 18) 291 | ——,, State v. (25 Minn. 370) 1052
——, State v. (3 Ire. 570) | 289. 294, 810 | Schmeider v. McLane (4 Abb. Ap.
San Mateo v. Southern Pacific Rail- 154)
road (same as Railroad Tax Cases, Schmidt v. State (14 Misso. 187) 1386,
- which see) . 1080 1024, 1052
Sanford, State v. (1 Nott & McC. 512) 194] Schmitker, Ex parte (6 Neb. 108) 997
San Francisco v. Canavan (42 Cal. 541) 18 | Schneider v. Hosier (21 Ohio State,
— v. Hazen (5 Cal. 169) : 82| 98 1031 a
—,, People v. C Cal. 127) 84) Schnierle, State v. (5 Rich. 299) 111
, People v. (21 Cal. 668) 84|Schoeppe_v. Commonwealth (15
San Francisco, &c. Railroad, People Smith, Pa. 61) 261
v, (28 Cal. 254) 154 | Schooler v. State (57 Ind. 127) 852, 891
—, People v. (35 Cal. 606) 91] Schoonmaker, People v. (63 Barb.
San José v. San José, &c. Railroad 44) 70, 72, 76
(53 Cal. 475) ; 98 | Schott v. People (89 Ill. 195) 405
Sanner v. State (2 Texas Ap. 458) 271a|—— v. State (7 Texas Ap. 616) 432 a
Santo v. State (2 Iowa, 165) 34, 36, 91, | Schriefer v. Wood (5 Blatch. 215) 101
1057 | Schrumpf v. People (14 Hun, 10) 406
Sappington v. Carter (67 Ill. 482) 1013 Schuster v. State (48 Ala. 199)’ 852, 863,
Sarchet, U. S. v. (Gilpin, 273) 99 874
Sassovich, People v. (29 Cal. 480) 91 | Schutze v. State (30 Texas, 508) 1042
Satterwhite v. State (3 Texas Ap. Schuyler v. Mercer (4 Gilman, 20) 112,
428) 255 155
Saunders v. Carroll (12 La. An. 793) 84 | Schweiter, State v. (27 Kan. 499) 1087
Savage, Reg. v. (18 Cox C. C. 178) 585, | Schwuhow v. Chicago (68 Ill. 444) 20, 992,
609 992 a, 997
—, Rex v. (1 Ld. Raym. 347) 250 | Scidmore v. Smith (138 Johns. 322) —_ 163
—, State v. (32 Maine, 583) 93, 220 | Scofield v. Collins (3 Cow. 89) 82, 93
——, State v. (48 N. H. 484) 1044 | Scoggin v. Taylor (8 Eng. 380) 168
Savannah v.Hussey (21 Ga. 80) 28, 997
—, State v. (T. U. P. Charl. 235) 22,
141, 163, 164, 852
Saviers, People v. (14 Cal. 29) 902
Savoye, State v. (48 Iowa, 562) 625
Saunders, State v. (19 Kan. 127) 1185
Sauser v. People (8 Hun, 802) 602
Sawyer, Rex v. (2 Car. & K. 101) 141
— v. State Board of Health (125
Mass. 182) 1093
Say v. Stephens (Cro. Car. 135) 895
Scaggs, State v. (83, Misso. 92) 890
Scammon v. Scammon (8 Fost. N. H.
419) 298
Scanlan v. Childs (83 Wis. 663) 104, 996
Scannel, Com’th v. (11 Cush. 547) 486
Schafer v. State (49 Ind. 460) 1031 a
Ratan, Succession of (18 La. An. | ‘s
Schaffner v. State (8 Ohio State,
642 1013
Schaunhurst, State v. (84 Iowa, 547) 727,
728, 735
Schedda v. Sawyer (4 McLean, 181) 271
Scheftels v. Tabert (46 Wis. 489) 98, 1
1| Scull v. Edwards (8 Eng. 24)
Scoggins v. State (82 Ark. 205) 260 a, 586
609, 612
Scott v. Clark (1, Iowa, 70) 31
— v. Com’th (2 Va. Cas. 54) 152, 177
v. Lunt (7 Pet. 596) 115
— , Reg. v. (3 Q. B. 543) 220
—— v. Searles (1 Sm. & M. 590) 82
—— v. Seymour (1 H. & C. 219) 175
—— v. Smart (1 Mich. 295) 90, 180
—— »v. State (22 Ark. 369) 64
— v. State (29 Ga. 263) 876
v. State (25 Texas, Supp. 168) 1013,
1049
—, State v. (1 Bailey, 294) 255
——,, State v. (68 Ind. 267) 416
, State v. (17 Misso. 521) 36
Scovern v. State (6 Ohio State, 288) 249
Scribner, State v. (2 Gill & J. 4 958
Scrinegrour v. State (1 Chand. 48) 41, 168
Scrivener’s Company v. Brooking (2
Gale & D. 419; 6 Jur. 835) 22
Scudder v. Gori (18 Abb. Pr. 207; 28
How. Pr. 155) 178
——, Rex v. (1 Moody, 216) 757
——, State v. (3 Vroom, 203) at 2
825
SHA
SECTION
Seaborn v. State (20 Ala. 15) 255
—, State v. (4 Dev. 305) 159, 161, 163
Seagram v. Knight (Law Rep. 2 Ch.
Ap. 628) : 261 4
Seagrist, U. S. v. (4 Blatch. 420) 804
Seal v. State (13 Sm. & M. 286) 55
Seals, State v. (16 Ind. 352) 610
Seamans v. Carter (15 Wis. 548) 84
Searcy v. Stubbs (12 Ga. 437) 176
Searle, Com’th v. (2 Binn. 382) 166, 306
v. Williams (Hob. 288) 193
Searls v. People (13 Ill. 597) 697
Sears v. State (33 Ala. 847) 790
v. United States (1 Gallis. 257) 167
Seas, Rex v. (1 Leach, 304; 2 East
P. C. 643) 233
Seaton v. Chicago, &c. Railroad (55
Misso. 416) 250 d
Seaving v. Brinkerhoff (5 Johns. Ch.
829) 193
Second National Bank v. Curren (36
Iowa, 555) 1030
Sedgwick v. Bunker (16 Kan. 498) 85
Sefton, Rex v. (Russ. & Ry. 202) 280
Segur ». State (6 Ind. 451) 1040
Seibert v. Copp (62 Misso. 182) 85a
v. State (40 Ala. 60) 1046, 1049
Seidenbender v. Charles (4 8. & R.
151) 953
Seiple v. Elizabeth (3 Dutcher, 407) 112
Selden v. Preston (11 Bush, 191) 141,
261 a
Sellers v. Com’th (18 Bush, 331) 98
v. Dugan (18 Ohio, 489) 254
Semayne’s Case (5 Co. 91; Yelv. 29) 290
Seneca County Bank v. Lamb (26
Barb. 595) 22
Senior, Rex v. (1 Leach, 496 ; 2 East
INDEX TO THE CASES CITED.
SHE
SECTION
Shapley v. Garey (6 S. & R. 539)
105
Sharp v. Hubbard (2 Mod. 68) 105
v. Johnson (4 Hill, N..¥. 92) 198
—— v. Maguire (19 Cal. 577) 261
v. New York (81 Barb. 572) — 86 a
v. Speir (4 Hill, N. Y. 76) 193
—— v. State’ (17 Ga. 290) 1052
—v. Warren (6 Price, 181) 250 a
Sharpe’s Case (2 Lewin, 233) 220
Sharpe, Rex v. (1 Moody, 125) 232
Sharples, Rex v. (4 T. R. 777) 24
Sharrer, State v. (2 Coldw. 323) 1009
Shattuck, Com’th v. (14 Gray, 28) 1069
—— v. Woods (1 Pick. 171) 163
Shaver, Com’th v. (3 Watts & S. 338) 242
Shaw, Com’th v. (5 Cush. 522) 1044
——, Com’th v. (116 Mass. 8) 1057, 1069
——, Com’th v. (7 Met. 52) 826, 834, 841
v. Macon (21 Ga. 280) 147
—, People v. (5 Johns. 286) 330
— v. State (56 Ind. 188) 1004, 10064
—, State v. (2 Dev. 198) 1039
——, State v. (23 Iowa, 316) 1026
—, State v. (381 Maine, 523) 286
——, State v. (82 Maine, 570) 1000
—, State v. (85 N. H. 217) 1042, 1044,
1052
Shawbeck, State v. (7 Iowa, 322) 1082
Shaw-mux, U.S. v. (2 Saw. 364) 212
Shawnee v. Carter (2 Kan. 115) 197
Shea, Com’th v. (14 Gray, 386) 1007, 1069
Shean, State v. (82 Iowa, 88) 689, 648, 650
Shear, People v. (7 Cal. 139) 880
——,, State v. (51 Wis. 460) 660
Sheard, Rex v. (2 Moody, 13; 7 Car.
& P. 846) 314
Shearer v. State (7 Blackf. 99) 1052
——, State v. (8 Blackf. 262) 1060
P. C. 5938) 220 | Shearman, Com’th v. (11 Cush. 546) 1047
Sensabaugh, People v. (2 Utah, 473) 426 | Sheehey v. Cokley (48 Iowa, 188) 641,714
Septon, State v. (3 R. I. 119) 87 | Sheeley, State v. (15 Iowa, 404) 824
Sergeant, People v. (8 Cow. 189) 858, 874| Sheets v. Selden (2 Wal. 177) ~~ 31a, 105
Severance, State v. (49 Misso. 401) 104 | Sheffield Canal, Rex v. (4 New Sess.
——,, State v. (55 Misso. 378) 154|) Cas. 25; 14 Jur. 170) 18
Sewall v. Jones (9 Pick. 412) 192} Shelby v. Guy (11 Wheat. 361) 261 6b
Sewell v. Taylor (7 C. B. y. 8. 160) 298] Shelden v. Miller (9 La. An. 187) 354
Seymour, Ex parte (14 Pick. 40) 3849 | Shelters, State v. (51 Vt. 102) 343
v. Milford and Chillicothe Shelton v. Baldwin (26 Missis. 439) 163
Turnpike (10 Ohio, 476) 163 |——, Commonwealth v. (8 Grat.
v. State (51 Ala. 52) 1080
Shadbolt, Rex v. (5 Car. & P.604) 212
Shadle, State v. (41 Texas, 404) 36 a
Shadley, State v. (16 Ind. 230) 448, 444
Shafer v. Mumma (17 Md. 381) 24
, State v. (20 Kan. 226) 1027
Shaffer, State v. (21 Iowa, 486) 179
Shafher v. State (20 Ohio, 1) 58!
Shaftesbury v. Russell (1 B. & C. 666) 164
Shaftsbury v. Digby (3 Keb. 647; T.
Jones, 49 899
Shand v. Gage (9 S. C. 187) 261a
Shannon v. Com’th (2 Harris, Pa. 226) 667
——, State v. (36 Ohio State 428) 1134
Shapleigh, State v. (27 Misso. 344) 990
826
592) 852, 855, 861, 872
Shenton, State v. (22 Minn. 311) 1118
Shepard, People v. (86 N. Y. 285) 88, 41
Shepardson v. Milwaukee, &c. Rail-
road (6 Wis. 605) 34
Shepherd v. Hills (11 Exch. 55) 2504
—— v. People (25 N. Y. 406) 185
9 | ——, Reg. v. (Law Rep. 1 C. C. 118;
11 Cox C. C. 119)
—,, Rex v. (2 East P. C. 944) 204, 828,
——, Rex v. (1 Leach, 539; 2 East
P. C. 1073) 433, 487
Sheppard v. Gosnold (Vaugh. 159) 97
——, Reg. v. (9 Car. & P. 121) 7
SIM
SECTION
Sheppard, Rex v. (1 Leach, 226) 204, ah
2)
—— »v. State (42 Ala. 531) 427
—— v. State (1 Texas Ap. 304) 299, 852,
884, 904
—— v. State (1 Texas Ap. 522) 177
Shepperd v. Sumter (59 Ga. 535) 1093
Sherban v. Com’th (8 Watts, 212) 940, 941
Sheriff, Com’th v. (7 Philad. 84) 805
Sherrod v. State (25 Ala. 78) 298
Sherwood, State v. (75 Ind. 15) 754, 755
Shields v. Bennett (8 W. Va. 74) 36 a, 36)
Shihagan v. State (9 Texas, 430) 298, 902
Shilling v. State (5 Ind. 443) 1067
Shinn v, Com’th (3 Grant, Pa. 205) 169
Shiver v. State (23 Ga. 230) 691
Shoemaker, State v. (7 Misso. 177) 216
Shorter v. State (63 Ala. 129)
Shortridge, Commonwealth v. (3
J. J. Mar. 638) 10:
Shorts, State v. (3 Vroom, 898) 954, me
96
Shott, Reg. v. (8 Car. & K. 206) 487
Shotwell v. State (37 Misso. 359) 756
Shouse, Com’th v. (16 B. Monr. 825) 942
Shreveport v. Levy (26 La. An. 671) 19, 20
Shrewsbury’s Case (9 Co. 46 b) 88
Shriedley v. State (23 Ohio State, 180) 78
Shropshire v. Glascock (4 Misso.
536 246, 852, 855, 861
788 b
—, Reg. v. (8 A. & E. 173) 107, 110
Shubrick v. State (2 S. C. 21) 248
Shukard, Rex v. (Russ. & Ry. a 141
Shult, State v. (41 Texas, 548) 84, 908
Shumpert, State v. (1S. C. 85) 85a, a
92
Shuttleworth v. State (85 Ala. 415) 1021
Sibley v. Phelps (6 Cush. 172) -336
—v. Smith (2 Mich. 486) — 77, 80, 198
Sickles v. Sharp (13 Johns. 497) 199
Siebold, Ex parte (100 U. S. 371) 804
Sierra v. U.S. (9 Ct. of Cl. 224) 261a
Sights v. Yarnalls (12 Grat. 292) 999, 1002
Sikar v. Chicago, &c. Railroad (21
Wis. 370) | 186
Sikes v. State (80 Ark. 496) 739
Silcot, Rex v. (3 Mod. 280) 793
Sill, Reg. v. (Dearsly, 10; 14 Eng.
L. & Eq. 135) 163
Silsbee, Com’th v. (9 Mass. 417) 138
Silver, State v. (9 Nev. 227) 86a
Simco v. State (8 Texas Ap. 406) 84a
Simington v. State (5 Ind. 479) 163
Simmons, State v. (3 Ala. 497) 316
——, State v. (66 N.C. 622) — 1013, 1045
Simmonsto, Reg. v. (1 Car. & K. 164) 610
Simms v. State (60 Ga. 145) 852, 855, 874
—— v. State (8 Texas Ap. 280) 179
INDEX TO THE CASES CITED.
SMA
r SECTION
Simpson, Com’th v. (9 Met. 188) 140, 142
38} —— v. Margitson (11 Q. B. 23) 105
——, People »v. (50 Cal. 304) 310
——, Reg. v. (Car. & M. 669) 135
—, Reg. v. (10 Mod. 341) 80
——, Reg. v. (10 Mod. 378) 141
—— v. State (10 Yerg. 525) 163, 169
——, State v. (73 N. C. 269) 232, 482,
432 a, 447 b
—— v. Sutton (Phillips, 112) 111
—— v. Woodward (5 Kan. 571) 449
=—— v. Yeend (Law Rep. 4 Q. B.626) 804
Sims v. Canfield (2 Ala. 555) 265
—— v. Cross (10 Yerg. 460) 232
v. Marryat (17 Q. B. 281) 37
v. Sims (75 N. Y. 466) 205
Singer v. People (13 Hun, 418) 498
Sinking Fund Commissioners v.
Northern Bank (1 Met. Ky. 174) 178
5 | Sipe v. Finarty (6 Iowa, 394) 848, 938, 937
Sir John Knight’s Case (8 Mod. 117) 163,
166, 168
Sisson, Commonwealth v. (126
Mass. 48) 1067, 1069
Six Fermenting Tubs, United States
v. (1 Abb. U. S. 268) 77a
Skeen, Reg. v. (Bell C. C. 97) 92d
Skelley, Com’th v. (10 Gray, 464) 1069
Skelton v. Bliss (7 Ind. 77) 254
——, Reg. v. (3 Car. & K. 119) 715
Skidmore v. State (43 ‘Texas, 93) 320
Skinner v. Hettrick (73 N.C. 53) 1128
v. Perot (1 Ashm. 57) 848
—— v. State (80 Ala, 524) 299
Skolfield, State v. (63 Maine, 266) 1132
Skutt, Rex v. (1 Leach, 106; 2 East
P. C. 582)
Slack, Com’th v. (19 Pick. 304)
232, 239
— v. Jacob (8 W. Va. 612) 90
Slacum, U.S. v. (1 Cranch C. C. 485) 261
217
82, 182,
Slagle, State v. (82 N. C. 653) 744
Slaren, Ex parte (8 Texas Ap. 662) 20
Slate, State v. (24 Misso. 530) 1060
Slattery v. People (76 Ill. 217) 747
Slaughter v. Com’th (18 Grat. 767) 1097
—— »v. State (7 Texas Ap 128) 461
——, State v. (70 Misso. 484) 728
Sledd v. Com’th (19 Grat. 818) 1073, 1097
Sleep, Reg. v. (9 Cox C. C. 559) 773
Sleeth v. Murphy (Morris, 321) 263
Sleght v. Kane (1 Johns. Cas. 76) 261a
Slifer, Com’th v. (8 Smith, Pa. 71) 45, 46
Sloan v. Biemiller (84 Ohio State,
492) 1128
—— Com’th v. (4 Cush. 52) 238, 1020
v. State (8 Blackf. 361) 18, 1032
——, State v. (55 Iowa, 217) 260 a, 588, 613
Simonds, Com’th v. (14 Gray, 69) 336 | Slocum v. People (90 Ill. 274) 687, 641
—— v. Powers (28 Vt. 354) 70, 98 | ——, State v. (8 Blackf. 315) 440
——, State v. (38 Misso. 414) -18| Slusser v. State (71 Ind. 280) 612, 513
‘Simons, State v. (17 N. H. 88) - 1052} Sly, State v. (4 Oregon, 277) | 24
Simonton, Ex parte (9 Port. 390) 112 | Smails v. White (4 Neb. 300) 86a
Simpkin, Ex parte (2-Ellis & E. 392).110c | Small, State v. (26 Kan. 209 420
827
SMI INDEX TO THE CASES CITED, SMI
SECTION ' SECTION
Small, State v. (31 Misso. 197) 1016 , Smith, Reg. v. (Dears. 661; 7 Cox
—, U.S. v. (2 Curt. C. C. 241) 820| CC. C. 98; 33 Eng. L. & Eq. 569) 340
Smalls, State v. (11 S. C. 262) 37| ——, Reg. v. (2 Den. C. C. 449; 9
Smedes, State v. (26 Missis. 47) 178a| Eng. L. & Eq 532)
Smelser v. State (81 Texas, 95) 678
Smets v. Weathersbee (R. M. Charl.
537)
Smith, Case of (Syme, 185)
21a
——, Ex parte (40 Cal. 419) 156, 163
— v. Adrian 1 Mich. 495) 992, 1024,
1032, 1052
— »v. Allen (31 Ark. 268) 212
— v. Arapahoe Dist. Court (4
Colo. 235) 177
— v. Bartram (11 Ohio State, 690) 115
—— v. Bouvier (20 Smith, Pa. 825) 848
—— v. Cassity (9 B. Monr. 192) 259
v. Causey (22 Ala. 668) 193
v. Com’th (6 B. Monr. 21) 1068
—— v. Commonwealth (4 Grat. 5382) 204
—, Commonwealth v. (6 Bush,
3 1076, 1080, 1097
—, Com’th v. (6 Cush. 80) 977
—, Com’th v. (1 Grat. 553) 1037
——, Com’th v. (14 Mass. 374) 204
—, Commonwealth v. (102 Mass.
144) 1013, 1069
—, Commonwealth v. (103 Mass.
44) 168, 1124, 1125
——, Com’th v. (111 Mass. 407)
271a
—, Com’th v. (7 Pick. 137) 204, 214
——, Commonwealth v. (1 Whart.
Dig. 6th ed. 1177) 597
— v. Hickman (68 Il. 31 1031
v. Hoyt (14 Wis. 252) 31, 186
—— v. Humphrey (20 Mich. 398) 84
— v. Janesville (26 Wis. 291) 36
— vw. Joyce (12 Barb. 21) 1030
— v. Judge (17 Cal. 547) 85a
—— v. Kendall (6 T. R. 128) 336
— v. Kibbee (9 Ohio State, 563) 88a
v. Kinne (19 Vt. 564) 239
v, Lint (37 Maine, 546) 691
— v. Lockwood (13 Barb. 209) 249
—"0
. Look (108 Mass. 139) 250 d, 1132
— ». Lusher (5 Cow. 689) 836
— v. McCarthy (6 Smith, Pa. 359) 36
v. Madison (7 Ind. 86) 856
—— v. Moffat (1 Barb. 65) 155, 192
— v. Morse (2 Cal. 524) 85a
v. Newby (13 Misso. 159) 2614
—— v. Packard (12 Wis. 871) 85a
— ». People (25 Ill. 17) 163
v. People (47 N. ¥. 380) 70, 82, 86,
151, 198
—— v. People (1 Parker C. C. 583) 990,
992
—, People v. (69 N. Y. 175) 1032
—— v. Philadelphia (2 Parsons, 293) 178 a
—v. Randall (6 Cal. 47) 93
—, Reg. v. (1 Car. & K. 423) 271
—, Reg. v. (1 Car. & K. 700; 1
Den. C. C. 79) 833
— Reg. v. (8 Car. & P, 173) 314
828
841
—, Reg. v. (Law Rep. 1 C. C. 266) 128,
1389
8 | ——, Reg. v. (7 Mod. 77) 1042
—, Reg. v. (2 Moody, 295) 326, 338
—, Rex v. (2 Doug. 441) 138, 250
—, Rex v. (2 East P. C. 497; 2
Leach, 1018) 279, 280
—, Rex v. (1 Moody, 178) 312
—, Rex v. (1 Moody & R. 256) 279
—, Rex v. (Russ. & Ry. 267) 212
— , Rex v. (Russ. & Ry. 516) 271
— v. Sherry (50 Wis. 210) 299
— v. Smith (21 Ill. 244) 985
v. Smith (Mart. N. C. 26) 28
—— v. Smith (19 Wis. 522) 98
— v. Spooner (3 Pick. 229) 192
— v.
State (22 Ala. 54) 852, 855, 878,
1038
—— v. State (23 Ala. 39) 298, 855
v. State (37 Ala. 472) 299, 878
v. State (39 Ala. 554 697
— v. State (52 Ala. 384 298
v. State (55 Ala. 1) 1021
v. State (62 Ala. 29) 262
— v. State (19 Conn. 493) 1007, 1009,
1021, 10454
— v. State (63 Ga. 168) 443, 4476
—- v. State (3 Heisk. 511) 788 a
v. State (1 Humph. 896) 968, 974
— v. State (5 Humph. 163) 210,855,
858, 861
v. State (28 Ind. 321) 54
— v. State (5 Humph. 168) 858
v. State (69 Ind. 140) 788 b
v. State (33 Maine, 48) 744
— ». State (14 Misso. 147) 159, 168
v. State (12 Ohio State, 466) eae
49
. State (1 Stew. 506) 159, 108/15
1
_-v
v. State (17 Texas, 191 868
— v. State (24 Texas, 547 1022
— v. State (41 Texas, 168 452
— v. State (42 Texas, 464) 798
v. State (43 Texas, 483) 452, 453
v. State (1 Texas Ap. 133) 428
— v. State (5 Texas Ap. 318) 58
— v. State (7 Texas Ap. 286) 166
v. State (8 Texas Ap. 141) 428
v. State (10 Texas Ap. 420) 799
—, State v. (Cheves, 157) 46,82, 200,
216, 316
—, State v. (38 Conn. 397) 838 a, 84
—,, State v. (3 Heisk. 465) 968
——, State v. (6 Humph. 394) 99
—, State v. (59 Ind. 179) 154, 163
——, State v. (7 Iowa, 244) 160
——. State v. (46 Iowa, 670) 243
—, State v. (54 Iowa, 743) 650 a
—, State v. (30 La. An. 846) 128
SOL
/ SEcTION
Smith, State v. (32 Maine, 869) 189, 204,
745
—, State v. (61 Maine, 386) 1055, 1057
——, State v. (Me Maine, 828) 255, 2554
—, State v. (Meigs, 99) 858, 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. (Phillips, 8302) 486, 489, 490
—, State v. (10 R. 1. 258) 1125
—, State v. (8S. C. 127) 156
—, State v. (21 Texas, 748) 443
——,, State v. (44 Texas, 443) 1097
992
——, State v. (22 Vt. 74)
—, State v. (44 Texas, 443) 166
—— »v. Stevens (82 Ill. 554) 189d
—, U.S. v. (4 Day, 121) 242, 261 a, 264
——,, United States v. (1 Mason, 147) 304
——,, United States v. (5 Wheat. 153) 242
—— v. Van Gilder (26 Ark. 527) 85
Smithee v. Garth (83 Ark. 17) 91
Smitherman v. State (27 Ala. 23) 690, 701
INDEX TO THE CASES CITED.
SPR
SECTION
Somerset v. Dighton (12 Mass. 883) 84, 93
Sonnerkalb, State v. (2 Nott &
McC. 280)
Soragan, State v. (40 Vt. 450)
1021
405, 408,
407
Soto, People v. (49 Cal. 67) 54, 199 a, 248
Souders, United States v. (2 Abb.
U. S. 456
804
Souter v. The Sea Witch (1 Cal. 162) 141
South, State v. (5 Rich. 489) 242
South Ottawa v. Perkins (94 U. S.
260) 37, 87 a
Southwark Bank v. Commonwealth
(2 Casey, Pa. 446) 29, 77, 151
Southwood v. Myers (8 Bush, 681) 297
Southworth v, State (5 Conn. 325) 163, 171
Sovereign v. State (7 Neb. 409) 16, 36 5
Sowers, State v. (52 Ind. 311) 298
Sowle, Commonwealth v. (9 Gray,
304) 443, 446, 1119
Spaight v. State (29 Ala. 32) 855, 858
Spain, State v. (29 Misso. 415) 1037
Spake v. People (89 Ill. 617) 999 a, 1000
——, State v. (1 Ire. 14) 220, 852, 855, 861, | Sparks v. Clapper (30 Ind. 204) 85a
878, 1032 , Com’th v. (7 Allen, 534) 688
Smoot v. State (18 Ind. 18) 852, 870 | Sparrenberger v. State (53 Ala. 481) 295
Smouse, State v. (49 Iowa, 634) 1033 | Sparrow v. Davidson College (77 N.
—, State v. (50 Iowa, 43) 1032) C. 35) "79, 243
Smyth v. State (8 Eng. 696) 739 | ——, Rex v. (2 Stra. 1123) 255
Sneed v. Com’th (6 Dana, 338) 227 | ——, State v. (N. C. Term R. 93) 422
—, State v. (25 Texas Supp. 66) 265, | Spaulding v. Alford (1 Pick. 33) 31
266 | Spears v. State (2 Texas Ap. 244) 515
Snell v. Bridgewater Cotton Gin . v. State (8 Texas Ap. 467) 1098
Man. Co. (24 Pick. 296) ° 154
—, Rex v. (2 Moody & R. 44) 216,771,
172
—v. State (50 Ga. 219) ;
— v. State (4 Texas Ap. 171)
Snelling, Com’th v. (4 Binn. 379)
—, Reg. v. (Dears. 219; 23 Law
J.n.s. M. C. 8; 17 Jur. 1012;
422
788 ¢
199
Specht v. Commonwealth (8 Barr, 312) 2387
v. Com’th (12 Harris, Pa. 103) 1032
Special Sessions, People v. (12 Hun, a
65
B)
as People v. (18 Hun, 330) 484
Spect v. Arnold (52 Cal. 455) 1138
Speed, Rex v. (1 Ld. Raym. 583) 182, 232
Speer v. Com’th (23 Grat. 935) 1076, en
22 Eng. L. & Eq. 597) 835 | —— v. State (60 Ga, 381)
Snider v. State (5!) Ala. 64) 1070 « | —— v. State (2 Texas Ap. 246) 108
Snoddy v. Cage (5 Texas, 106) 97 | Speller, State v. (86 N. C. 697) 788 b, 789,
Snover, State v. (138 Vroom, 341) 1130, 793
1182 | Spencer v. Board of Registration (1
Snow, Commonwealth v. (116 Mass. McAr. 169)
47) 749, 754, 758 v. McBride (14 Fla. 403) 267
——, State v. (3 R. I. 64) 84, 992, 998, | ——, Rex v. (Russ. & Ry. 299) 271
1056, 1057 | —— v. Spencer (4 Md. Ch. 456) 261 a
Snowden v. Snowden (1 Bland, 550) 149 v. State (20 Ala. 24) 242,
Snowley, Rex v. (4 Car. & P. 8390) 271 | —— ». State (5 Ind. 41) 147
Snyder, People v. (2 Parker C. C. v. State (31 Texas, 64) 678, 688
23) 280, 285 | Spicer, Reg. v. (1 Den. C. C. 82; 1
Soares, Rex v. (2 East P. C. 974) 189 Car. & K. 699) 212, 247, 326
Society, &c. v. New Haven (8 Wheat. Spielman v. State (27 Md. 520) 1091
464) 2| Spillers, State v. (80 Texas, 517) 464
Solander v. People (2 Colo. 48) 749
Soldiers’ Voting Bill (45 N. H. 595) 811
Solomon »v. Cartersville (41 Ga.157) 87
—— v. Dreschler (4 Minn. 278) 188 a,
1030
Solomons, State v. (3 Hill, S. C. 96) ie
Spinks v. State (8 Texas Ap. 125) 428, 429
Spitler v. Young (63 Misso. 42) 22
Sponsler, People v. (1 Dak. Ter. 289) pee
Spooner v. Fletcher (3 Vt. 138) 819
— v. McConnell (1 McLean, 337) 303
Spragins v. Houghton (2 Scam. 877) 810
829
STA INDEX TO THE CASES CITED, STB
SEoTION SEcTION
Sprague v. Birdsall (2 Cow. 419): 113 | Stead v. Carey (1 C. B. 496) 88, 112
——, Com’th v. (128 Mass. 75) 1057 | Stealing Women, Case of (12 Co. 20) 617
—— v. Norway (81 Cal. 173) 106 | Steamship Co. v. Joliffe (2 Wal. 460) 178,
——, State v. (4 R. I. 257) 176 : : 250 a
Spratt v. State (8 Misso. 247) 909 | Stearns v. Atlantic, &c. Railroad (46
Sprecker v. Wakeley (11 Wis. 432) 265) Maine, 95) 187
Spring, Com’th v. (19 Pick. 896) 1000 | ——, Com’th v. (2 Met. 843) 204, 271
— v. Olney (78 Ill. 101) 67 |—— v. Ingraham (1 Thomp. & C.
Springer v. McSpadden (49 Misso. 299) 36
Springfield v. Connecticut River Rail-
road (4 Cush. 63) 189 a
v, Edwards (84 Ill. 626) 92, 92 a
Sprinkle, State v. (7? Humph. 36) 1088
Squier v. State (66 Ind. 317) 852, 856, 889
Squire, Com’th v.-(1 Met. 258) 292
—, Rex v. (2 Stark. 349) 271
—— v. State (46 Ind. 469) 696 a, 607,
608, 610, 611
Squires, People v. (14 Cal. 12) 1784
, State v. (26 Iowa, 340) 85
—— v. Whisken (8 Camp. 140) 859
Staats v. Hudson River Railroad (4
Abb. Ap. 287) 154
—, U.S. v. (8 How. U. S. 41) 204
Stacey v. Lintell (4Q. B. D.291) 190¢
v. State (8 Texas Ap. 121) | 265
Stackhouse v. Halsey (3 Jolins. Ch.
74) 106
Stafford v. Ingersol (3 Hill, N. Y. 88) 163
——, State v. (67 Maine, 125) 1069
Staley, State v. (3 Lea, 565) 1032, 1037
Stallard v. Marks (3 Q. B. D. 412) 1013
Stallings, State v. (3 Ind. 631) 917
Stallion, Rex v. (1 Moody, 398) 291, an
Stamey, State v. (71 N. C. 202) sae
33.4
Standen v. University of Oxford (W.
Jones, 17) 126
een v. State (17 Ohio State,
453)
Stanley, Rex v. (Russ. & Ry. 482)
— v. State (26 Ala. ae 1022
Stanton v. Simpson (48 Vt. 628) we
a
—, State v. (87 Conn. 421) 1013
—, State v. (1 Ire. 424) 309
Stanton’s Liquors, State v. (88 Conn.
233) a
Stapp v. State (3 Texas Ap. 138) 40
Starr, State v. (67 Maine, 242) 1006 a,
1007
—, U.S. v. (Hemp. 469) 84, 193
State, Ex parte (62 Ala. 231) 926, 178a
State Bank v. Bates (6 Eng. 120) 261
— v. Cason (5 Eng. 479) 261
State Line, &c. Railroad’s Appeal
(27 Smith, Pa. 429) 86a
State Lottery Co. uv. Fitzpatrick (3
Woods, 222)
State Treasurer v. Weeks (4 Vt. 215) 142
Staten, State v. (6 Coldw. 233) 806, 807,
Stayton v. Hulings (7 Ind. 144)
830
80!
256
218) 1127
——, State v. (11 Fost. N. H.106) 407
—— v. Stearns (16 Mass. 167) 164
Stedman v. Crane (11 Met. 295) 280, 287,
290
Steedman, State vr. (8 Rich. 312) 10387
Steel v. State (26 Ind. 82) ; 119
Steele v. Midland Railway (Law
Rep. 1 Ch. Ap. 275) 277
v, State (61 Ala. 218) 163
—— v. State (5 Blackf. 110) 34
—— v. State (1 Texas, 142) 255
Stein v. State (50 Ind. 21) 1044
Steines v. Franklin (48 Misso. 167) 112
Steinwehr v. State (5 Sneed, 686) 816
Stephen v. State (40 Ala. 67) 184
— v. State (11 Ga. 225) 484
Stephens, Com’th v. (14 Pick. 370) 847
—— v. People (89 Ill. 387) 811
— v. State (14 Ohio, 386) 1045
—, State v. (63 Ind. 542) 698, 700
—— ». Watson (1 Salk, 45) 984
Stephenson, Commonwealth v. (3
Met. Ky. 226) 804
—, Com’th v. (8 Pick. 854) 812
—— v. Higginson (3 H. L. Cas. 638;
18 Eng. L. & Eq. 60) 96, 100
——, State v. (2 Bailey, 334) 46, 190, 192,
193, 200
—— v. Wait (8 Blackf. 608) 177 a. 2616
Sterling, State v. (8 Misso. 697) 856, 957
Stern v. State (53 Ga. 229) 852, 877
Sterne v. State (20 Ala. 43) 163, 1084
Stetson, People v. (4 Barb. 151) 281
Stevens v. Chicago (48 Ill. 498) 406
— v. Com’th (4 Leigh, 683) 207
— v. Dimond (6 N. H. 330) 182
— v. Emson (1 Ex. D. 100) 999 4
— v. Evans (2 Bur. 1152) 2504
—— v. Gourley (7 C. B. n. 8. 99) 292
—— v. Jeacocke (11 Q. B. 731) 2504
—— v. People (67 Ill. 687) 1024
Stevenson v. McReary (12 Sm. &
M. 9) a
——,, People v. (18 Wend. 341) 171, 249,
252, 1027
—, Rex v. (1 Moody, 409) 314
—— v. State (6 Baxter, 681) 1894
v. State (65 Ind. 409)
1018, 1014
v. State (2 Pike, 291) 856
v. State (3 Pike, 66) 916
7 | ——, State v. (47 Maine, 357) 1057
——, State v. (36 N. H. 69) 973
—, State v. (2 Pike, 260) : 81
9 | Steward, Commonwealth v. (7 Dane
Abr. 136)
STO
SECTION
Steward v. Lamoreaux (5 Abb. Pr. 14) 178
— v. State (7 Texas Ap. 326) 609
Stewart v. Com’th (10 Watts, 806) 208
— vv. Kahn (11 Wal. 493) 261a, 267
—— v, Spedden (5 Md. 433) 261a
— v. State (13 Ark. 720) 82
—— v. State (4 Blackf. 171) 212
—— v. State (9 Texas Ap. 321) 414
——, State v. (6 Conn. 47) 289
—, State v. (31 Maine, 515) 1024
—, State v. (47 Misso. 382) 82, 1032
——, State v. (26 Ohio State, 216) 2504
v. Stringer (41 Misso. 400) 119
—— v. Walters (9 Vroom, 274) 87
Stickman, People v. (34 Cal. 242) 289
Stief v. Hart (1 Comst. 20) 137
Stillwell, State v. (20 Ark. 96) 876
—, State v. (16 Kan. 24) 853, 855, 858,
885
Stilz v. Indianapolis (55 Ind. 515) 18
Stimpson v. Pond (2 Curt. C. C. 502) 258
Stimson, State v. (4 Zab. 9) 337
Stine v. Bennett (13 Minn. 153) 31, 85, 263
Stinehouse v. State (47 Ind. 17) 646, 651
Stinson, State v. (17 Maine, 154) 82, 1035,
1037
Stipp v. Brown (2 Ind. 647) . 265
Stirman v. State (21 Texas, 734) 159
Stith v. State (13 Ark. 680) 855, 876, 878
Stock, Rex v. (2 Leach, 1015; Russ.
& Ry. 185; 2 Taunt. 339) 279, 280
Stockdale v. State (82 Ga. 225) 788, 792
Stockden v. State (18 Ark. 186) 917
Stockett v. Bird (18 Md. 484) 64
Stockton, &c. Railroad v. Stockton
(41 Cal. 147)
Stoddart v. Smith (5 Binn. 355)
Stodder, Commonwealth v. (2 Cush.
562 18, 19, 22
Stoehr, Com’th v. (109 Mass. 365) 1057
Stoever v. Immell (1 Watts, 258)
v. Whitman (6 Binn. 417)
Stogdel, State v. (13 Ind. 565)
Stogsdale, State v. (67 Misso. 630)
855, 884
Stoke Damerel, Rex v. (7B. &C.5638) 80
Stokes v. Rodman (5 R. I. 405) 85
——, State v. (Coxe, 392) 141
Stoll, State v. (2 S. C. 538) 163
Stollenwerk v. State (55 Ala. 142) 248, 426
Stoller, State v. (88 lowa, 321) 199a, 245
Stoltz. People (4 Scam. 168) 890
Stone v. Mississippi (101 U. S. 814) 147
——, Reg. v. (1 Den. C. C. 181; 2
_ Car, & K. 364) 339
——, Rex v. (1 Leach, 334; 2 East
P.C. 643) * 233, 295
—— v. State (63 Ala. 115) 312
—— v. State (3 Heisk. 457) 485
—— v. State (30 Ind. 115) 1048
—— v. State (12 Misso. 400) 1094
—— v. State (Spencer, 401) 204
—— v. State (3 Texas Ap. 675) 852, pe
4
INDEX TO THE CASES CITED.
SUC
: SEcTION
Stone, State v. (68 Misso. 101) 420, 422,
424
—, State v. (43 Wis. 481) 177
Stoneham v. State (3 Texas Ap. 594) 428
Stoneman v. Whaley (9 Iowa, 390) 79, 163
Storer v. Freeman (6 Mass. 435) 805
Storkey, State v. (63 N. C. 7) 487
Stoughton v. Baker (4 Mass. 522) 142,
1129
—— v. Hill (3 Woods, 404) 346
Stout, Commonwealth v. (7 B. Monr.
247) 182, 632
——,, People v. (23 Barb. 349) 36
Stowel v. Zouch (1 Plow. 353) 82, 190
Stowell, Commonwealth v. (9 Met.
572) 852, 861, 8Q1, 1061
Stoyell, State v. (54 Maine, 24) 641
Strack, People v. (8 Thomp. & C. 165;
1 Hun, 96) : 82
Stradling v. Morgan (1 Plow. 199) 46
Stratton v. Hague (4 Call, 564) 182
Strauss v. Heiss (48 Md. 292) 159
— v. Pontiac (40 Ill. 301) 997
—, State v. (49 Md. 288) 997
, State v. (77 N. C. 600) 407, 1038 a@
Street v. Commonwealth (6 Watts
& S. 209) 155, 163
v. Hall (29 Vt. 165) 1032
— v. Sanborn (47 Vt. 702) 1031
—— v, State (7 Texas Ap. 5) 445
Streeter v. People (69 Ill. 595) 1068
Streubel v. Milwaukee, &c. Railroad
(12 Wis. 67) 177a
Striker v. Kelly (7 Hill, N. Y. 9) 255
Strong v. Birchard (5 Conn. 357) 105
— v. Bliss (6 Met. 393) 150
v. Clem (12 Ind. 37) 88a
v. Daniel (5 Ind. 348) 33
v. Dennis (13 Ind. 514) 8a
v. State (1 Blackf. 193) 163, 167, 185
—— r. Stebbins (5 Cow. 210) 193
Strother v. Hutchinson (4 Bing. N.C.
83) 1908
Stroud v. State (55 Ala. 77) 788 b
——,, State v. (1 Brev. 551) 237
Struble v. Nodwift (11 Ind. 64) 1020
Struckman v. State (21 Ind. 160) 1089
‘| Stuart v. Clark (2 Swan, Tenn. 9) 303
—— v. Kinsella (14 Minn. 524) 36a
——, State v. (23 Maine, 111) 1045a
Stubbs v. State (53 Missis. 437) 976
Stucker, State v. (33 Iowa, 395) 1024
Stultz, State v. (20 Iowa, 488) 991
Sturdevant, People v. (23 Wend. 418) 958,
961, 965
Sturgeon v. State (1 Blackf. 39) 137
Sturges v. Crowninshield (4 Wheat.
122
— : Maitland (Anthon, 208) 664
Sturgis v. Hull (48 Vt. 302) 83 a, 84
Sturtevants v. Alton (3 McLean, 893) 137
Stutson, State v.\(Kirby, 52) - 204
Stuttsman v. State (57 Ind. 119) 1130, rr
1] Suche, In re (1 Ch. D. 48)
831
‘SWA INDEX TO THE CASES CITED. TAT
SECTION SEcTION
Sublett 7. State (9 Texas, 53) yUz | Swancoat v. State (4 Texas Ap. 105) 697,
Sudbury Meadows v. Middlesex
Canal (23 Pick. 36) 137, 250, 250a
Suffolk Justices, Reg. v. (2 Q. B. 85) 159
Sugar v. Sackett (13 Ga. 462) 198
Sugland, Commonwealth v. (4 Gray,
i 481, 486, 487
476) 41, 152
449
10454,
1069
v. La Crosse, &c. Steam Packet
Co. (10 Minn. 286) 119
—— v. McCammon (51 Ind. 264) 20
‘
Sullivan v. Adams (3 Gray,
—, Com’th v. (107 Mass. 218)
—, Com’th v. (123 Mass. 221)
703
Swann v. Buck (40 Missis. 268) 154, 159
Swans, Case of (7 Co. 156) 1133
Swanson, Reg. v. (7 Mod. 101) 617
Swartzbaugh v. People (85 Ill. 457) 440,
4476
Swayn v. Stephens (Cro. Car. 245) 2618
Swayne v. Stevens (W. Jones, 252) 2616
Sweat v. State (4 Texas Ap. 617) 428
Sweet v. Wabash (41 Ind. 7) 997
Sweeting, Rex v. (1 East P. C. 457) 633
Sweetser, People v. (1 Dak. Ter. 308) 243
——.,, State v. (53 Maine, 488) 112, 587
—— v. Oneida (61 Ill. 242) 20, 997 | Swendsen, Reg. v. (14 Howell St. Tr.
— v. Park (33 Maine, 438) 192, 1031] 559) 622
—— v. People (15 Ill. 233) 154, 168, 186, | Swift v. Applebone (23 Mich. 252) 148
1032 | —— v. Luce (27 Maine, 285) 72, 81
v. State (32 Ark. 187) 696, 697 | ——, State v. (10 Nev. 176) 37
v. State (86 Ark. 64) 768 | ——, State v. (11 Nev. 128)
—, State v. (85 N. C. 506) 628, 629 | Swift Courtney, &c. Co. v. United
, State v. (12 R. I. 212) 691| States (14 Ct. of Cl. 481) 104
Sulston v. Norton (3 Bur. 1235; 1 Swift Run Gap Turnpike, Common-
W. BI. 317) 804| wealth v. (2 Va. Cas. 361) 250
Summerlin v. State (38 Texas Ap. 444) 298, | Swindel v. State (32 Texas, 102) 248
788c, 798 | Swinford, In re (6 M. & S. 226) 105
Summey, State v. (Winston, No. IL.
108) 1009, 1029
Sumner v. Cummings (23 Vt. 427) 177
— , State v. (10 Vt. 587) 194, 232, 245
Sumter v. Deschamps (4 S. C. 297) 20
Superior District Court, State v. (29
La. An. 223)
Supervisors v. U. S. (4 Wal. 435)
Supervisors of Elections’ Case (114
Mass. 247) 806 a
Surman v. Darley (14 M. & W. 181) a.
89
Surtees v. Ellison (9 B. & C. 750) 177a
Sussex v. Strader (3 Harrison, 108) 301
Sussex Peerage Case (11 Cl.& F.85) 48,
70, 72, 82
Sutcliffe v. State (18 Ohio, 469) 471, 475
—, State v. (4 Strob. 872; 13 Law
Reporter, 165) 218, 277, 289
Sutherland v. De Leon (1 Texas, 250) 90,
176
649
31
112
——, State v. (30 Iowa, 570)
Sutphin v. Crozer (1 Vroom, 257; 3
Vroom, 462)
Sutton v. Moody (5 Mod. 375; 2 Salk.
556; 1 Ld. Raym. 250)
—, Rex v. (4M. & S. 532)
—— v. Sadler (3 C. B. n. 5. 87)
— v. State (12 Fla. 135) 788
—,, State v. (25 Misso. 300)
Swadley, State v. (15 Misso. 615)
Swain v. Bussell (10 Ind. 488)
Swainson v. Bishop (52 Misso. 227)
Swallow, Rex v. (1 Russ. Crimes, 8d
Eng. ed. 791) 812
v. State (20 Ala. 80) 291, 861, 878
Swan v. State (11 Ala. 594) 291, 1011
—— v. State (29 Ga. 616) 966
8382
Swinney, Commonwealth v. (1: Va.
Cas. 146) 344, 345, 346
v. Fort Wayne, &c. Railroad
(59 Ind. 205) - 154, 163
Swisher, State v. (17 Texas, 441) 36
Swope, State v. (7 Ind. 91) 97
——,, State v. (20 Ind. 106) 794, 797
Sword v. State (6 Humph. 102) 1042, 1044
Sydney v. State (8 Humph. 478) 131
Sykes, Reg. v. (1 Q. B. D. 52) 999
——,, State v. (28 Conn. 225) 958, 959, 961,
962, 962 4
Sylvester, Commonwealth v. (18
Allen, 247) 852, 878
—, Reg. v. (2 B. & S. 322) 999
Syracuse Bank v. Armstrong (25
Minn. 580) 836
Szudurskie, Rex v. (1 Moody, 429) 338
Tabb v. Baird (3 Call, 475) 254
Tabler v. State (84 Ohio State, 127) 759
Taggart, Com’th v. (8 Grat. 697) 1037
Talbot, Com’th v. (2 Allen, 161) 343
Talcott v. Harbor Commissioners (53
Cal. 199) 1128
Tallamon v. Cardenas (14 La. An. 509) 186
Tallapoosa v. Tarver (21 Ala. 661) 1098
Tallassee Manuf. Co. v. Glenn (60
Ala. 489) 36a
Tandy, Rex v. (1 Car. & P. 297) 276
Tannis v. St. Cyre (21 Ala. 449) 154
Tardiff v. State (23 Texas, 169) 1024
Tarr, Com’th v. (4 Allen, 315) 686
Tate v. State (5 Blackf. 174) 346, 901
Tatlock, Reg. v. (2 Q. B. D. 157; 18
Cox C. C. 328) 340
Tatman v. Strader (23 Ill. 493) 862
TER
SECTION
Tattersal, Rex v. (1 Russ. Crimes,
3d Eng. ed. 27) 185
Tattle v. Grimwood (3 Bing. 493) 186
Tatum v. State (63 Ala. 147) 1021, 1034,
1045a
Taunton v. Sproat (2 Gray, 428) 1026
Taunton Saint James, Rex v. (9 B
& C. 881) 87
Taylor v. Americus (39 Ga. 59) 22
— , Commonwealth v. (14 Gray, 26) 858,
y 861, 874
v. Flint (35 Ga. 124) 35a
—— v. Humphries (17 C. B. n. 8.
589) 1052
— v. Mitchell (7 Smith, Pa. 209) 84
v. Morton (2 Curt. C. C. 454) 11a, 14
— v. Newman (4 B. & §. 89; 9 Cox
C. C. 314) 132
— v. Oldham (4 Ch. D. 395) 1124
v. Palmer (31 Cal. 240) 87, 110¢
——, People v. (3 Denio, 91) 964
—, People v. (2 Mich. 250) 286
—»v. Pickett (52 Iowa, 467) 1003, 1020
—, Reg. v. (1 Car. & K. 213) 328
— , Rex v. (1 Leach, 49; 2 East P.
C. 1020) 8
—, Rex v. (Russ. & Ry. 378) 163, 171,
: 204, 224
—, Rex v. (Russ. & Ry. 418) 238, 287
—— v. Rushing (2 Stew. 160) 1774, 178
—— »v. State (22 Ala. 15) 29
— v. State (31 Ala. 383) 2:
— ». State (7 Blackf. 93) 151, 177, 180
— v. State (44 Ga. 263) 426
— vv. State (6 Humph. 285) 482, 440,
“442, 448, 446
—— v. State (7 Humph. 510) 163, 171
— v. State (49 Ind. 555) 1052
——, State v. (29 Ind. 517) 416
—, State v. (31 La. An. 851) 2604
—,, State v. (45 Maine, 322) 311
—, State v. (2 McCord, 483) 152, 168,
171, 204, 242, 260
—— v. Taylor (3 A. K. Mar. 18) 261
— ». Taylor (10 Minn. 107) 92a, 805
— v. U.S. (3 How. U. S. 197) 195, 199
Teague, Rex v. (2 East P. C. 979;
Russ. & Ry. 33) 826
Tegler v. Shipman (88 Iowa, 194) 1018
Temple v. Hays (Morris, 9) 2
——, State v. (88 Vt. 37) 734
Templeton v. Horne (82 Ill. 491) 85a
Ten Cases of Shawls, U. S. v. (2
Paine, 162) 243
Ten Eyck v. Frost (5 Cow. 346) 40
Tenbroek, United States v. (2 Wheat.
248; Pet. C. C. 180) 216, 273
Tennessee v. Davis (100 U. S. 257) 33
—— v. Sneed (96 U. S. 69) 85a
Tennyson v. Yarborough (7 Moore,
258; 1 Bing. 24)
Territt ». Bartlett (21 Vt. 184) 1031
Terry, Commonwealth v. (2 Va. Cas.
7 855, 861
53
.
INDEX TO THE CASES CITED.
THO
. SroTION
Terry, State v. (4 Dev. & Bat. 185) 289,
852, 855
10454
341
——, State v. (35 Texas, 366)
Testick’s Case (2 East P. C. 925)
Tewksbury, Commonwealth vu. (11
Met. 55 7938, 995
Texas v. White (7 Wal. 700) — 95a, 246
Thacher, Commonwealth v. (97 Mass. __-
583 955, 962
Thackam, State v. (1 Bay, 358) 290
re v. The Farmer (Gilpin,
52:
Thacker v. Hawk (11 Ohio, 376) 274
Thames v. Hall (Law Rep. 3 C. P.
415) 154, 156
Thayer v. Bond (3 Mass. 296) 82
—,, Commonwealth v. (8 Met. 528) 1008,
1018, 1041
—— v. Partridge (47 Vt. 423) 1031
—— v. Thayer (101 Mass. 111) 682
Theriat v. Hart (2 Hill, N. Y. 380) 98
Thileneus, State v. (48 Misso. 479) 365
Thoman, Reg. v. (12 Cox C. C. 54) 445
Thomas v. Afflick (4 Harris, Pa. 14) 107
v. Commonwealth (2 Leigh, 741) 204
1| ——, Gom’th ». (10 Gray, 483) - 836
v. Daniel (2 McCord, 354) 147
v. Hinkle (35 Ark. 450) 805
v. Hot Springs (84 Ark. 553) 1078,
1093
—— v. Mahan (4 Greenl. 513) 118
— v. People (59 Ill. 160) 951, 952, The
95:
——, Reg. v. (4 Car. & P. 287) 223
—, Rex v. (2 Hast P. C. 605; 2
Leach, 877) 204
— v. Richmond (12 Wal. 349) 17a, 19
v. Scott (23 La. An. 689) 31
—— v. Shoemaker (6 Watts & 8.179) 105
State (30 Ark. 433) 437
State (38 Ga. 117)
State (59 Ga. 784)
v. State (5 How. Missis. 20)
v. State (37 Missis. 353) 1018, 1052
State (8 Texas Ap. 112) 177
——., State v. (47 Conn. 546) 992, 1068,
1069
— , State v. (50 Ind. 292) 852, 884, 890,
895
— v
—
<=
oo).
3 | ——, State v. (53 Iowa, 214) 660, 733
—-, State v. (80 La. An. 600) 429
——., State v. (8 Rich. 295) 36 a, 260
——, State v. (18 W. Va. 848) 1018
Thomasson »v. State (15 Ind. 449) 992, 1020
Thompson v. Alexander (11 Ill. 54) 268
—— v. Bassett (5 Ind. 535) 177, 1032
—— v. Blanchard (3 Comst. 335) 339
vy. Bulson (78 Ill. 277) 67
——, Com’th »v. (6 Allen, 591) 357, 664, 666
——, Commonwealth v. (11 Allen,
23) 597, 663, 666
——, Com’th v. (99 Mass. 444) 671, 687
——, Com’th v. (108 Mass. 461) 754
——, Com’th v. (12 Met. 231) 206
883
THU
SEcTION
Thompson v. Corpstein (52 Cal. 658) 1187
v, Harvey (4 H. & N, 254) 1001
v. Hill (3 Yerg. 167 164
v. Lack (3 C, B. 540) 82
— v. Lacy (3 B. & Ald. 283) 297
v. Mt. Vernon (11 Ohio State,
88) 17 a, 22, 997
v. Read (41 Iowa, 48) 265
— , Reg. v. (16 Q. B. 832; 4 Eng.
L. & Eq. 287) 127, 257, 260
— , Reg. v. (20 Law J. nv. 8. M. C.
183; 15 Jur. 654) 163
——, Rex v. (1 Leach, 338) 238
—, Rex v. (2 Leach, 771; 2 East
P. C. 498) 279
— , Rex v. (2 Leach, 910) 341
v. State (20 Ala. 54) 82
v. State (87 Ala. 151) 1004
v. State (6 Humph. 138) 1024
— v. State (45 Ind. 495) 1049
v. State (51 Missis. 353) 447d
v. State (54 Missis. 740) 265
—, State v. (44 Iowa, 899) 1033a, 1057
——, State v. (2 Kan. 432) 992
—, State v. (10 La. An. 122) 1044
—, State v. (70 Maine, 196) 163, 1132
—,, State v. (41 Misso. 25) 84
—, State v. (2 Strob. 12) 168, 166, Be
2
1000
Thorley, Rex v. (1 Moody, 343) 271
Thorn, Reg. v. (2 Moody, 210; Car.
& M. 206) 216, 326, 328, 332, 334, 339
Thorne v. Cramer (15 Barb. 112) 36
—, Rex v. (2 East P. C. 622) 163
——,, State v. (81 N. C. 555) 447 b
Thorniley, Com’th v. (6 Allen, 445) 991
Thornton v. Boyd (25 Missis. 598) 106
—, Commonwealth v. (113 Mass.
457) 1114, 1116
——,, State v. (387 Misso. 360)
Thorp, Rex v. (5 Mod. 221)
Thorpe v. Adams (Law Rep. 6 C. P.
Thomson ». Norris (62 Ga. 538)
625
125) 1l2a@
——,, Reg. v. (Dears. & B. 562; 8
Cox C. C. 29) 271
— v. Rutland, &. Railroad (27 Vt.
140) 990
v. Schooling (7 Nev. 15) 81, 159, 163
Thrasher, Com’th v. (11 Gray, 450) 680
Threadgill, State v. (76 N. C. 17) 404
Three Railroad Cars, United States
v. (1 Abb. U. 8. 196 78
Three Tons of Coal, United States
v. (6 Bis. 379) 195
Threlkeld, Rex v. (4B. & Ad. 229) 66,67
Thurlow, Commonwealth v. (24
Pick. 874) 1037, 1044
— v. Massachusetts (5 How. U.S.
504) [Same as License Cases. 990
Thurman v. State (18 Ala. 276) 98, 274
Thurstin, State v. (35 Maine, 205) 676
Thurston v. Adams (41 Maine, 419) 1057
—— v. Prentiss (1 Mich. 198) 249, 250a
834
INDEX TO THE CASES CITED.
24 | Tisdale, State v. (2 Dev. & Bat. 159)
TOL
SECTION
Tibbetts, People v. (19 N. Y. 523) 303
——, State v. (35 Maine, 81) 1049
——, State v. (86 Maine, 553) 1032
Ticknor’s Estate (13 Mich. 44) 87
Tidwell, State v. (5 Strob. 1) 149, 624,
628
Tiernan, Com’th v. (4 Grat. 545) 898, 917
v. Rinker (102 U. 8.123) 990, 990 8,
1080
152
1182
Tierney v. Dodge (9 Minn. 166)
Tiffany, Com’th v. (119 Mass. 300)
Tillery, State v. (1 Nott & MeC.9) 336
Tilman, State v. (80 La. An. 1249) 484
Tilton, Commonwealth v. (8 Met.
282) 852, 855, 859, 1111
—— v. Swift (40 Iowa, 78) 84a, 85
Timmens, State v. (4 Minn. 325) 6604
Timmins, Reg. v. (Bell C. C. 276; 8
Cox C. C. 401) 620, 634, 637, 644
Timmons v. State (34 Ohio State,
426) 318
Timothy, Commonwealth v. (8 Gray,
80) 1007, 1048, 1057, 1058
Tims v. State (26 Ala. 165) 34, 152
Timson v. Moulton (3 Cush. 269) — 1030
Tinicum Fishing Co. v. Carter (9
Norris, Pa. 85 1180
Tinkler, Reg. v. (1 Fost. & F. 513) ee i
Tinsdale, People v. (10 Abb. Pr. w.s.
374) i 1106, 1117, 1121
Tinsley, Reg. v. (4 New Sess. Cas.
47; one 174; 19 Law J. N. 5.
M. C. 164
Tiphaine, People v. (3 Parker C. C.
241 84
Tipler v. State (57 Missis. 685) 801
Tippecanoe, State v. (45 Ind. 501) 999
Tipton v. State (27 Ind. 492) 832
v. State (2 Yerg. 542) 974
262
Tisdell v. Combe (7 A. & E. 788) 2464
Tithe Commissioners, Rex v. (14 Q.
B. 459) 112
Titley, Reg. v. (14 Cox C. C. 502) 747
Tittle v. Thomas (30 Missis. 122) 336
Titus v. Preston (1 Stra. 652) 105
v. State (42 Texas, 578) 789
Tivey v. People (8 Mich. 128) 1524
——, Reg. v. (1 Den. C. C. 63; 1 Car.
& K. 704) 182, 163, 434, 440, 442
Tobacco Factory, U. S. v. (1 Dil. 264) 14
Tobacco-pipe Makers v. Loder (16
Q. B. 765)
v. Woodroffe (7 B. & C. 838)
Toledo, &c. Railroad v. Nordyke (27
Ind. 95)
tose &e. Railway v. Cole (50 IL.
Tolland v. Willington (26 Conn. 578) 301
Tollett v. Thomas (Law Rep. 6 Q. B.
60
22
514) 79, 243, 862
Tolson v. Kaye (8 Brod. & B. 217) 259
——, Reg. v. (4 Fost. & F. 103) 610
TRE
SECTION
Tombeckbee Bank, State v. (1 Stew.
347) 177
Tomkins v. Taylor (21 N. Y.173) — 1008
Tomlin v. Dubuque, &c. Railroad
(32 Iowa, 106)
—, People v. (35 Cal. 503)
INDEX TO THE CASES CITED.
TUR
Src
Trevenner, Reg. v. (2 Moody & R. Seni
476) 416
143
22
5
Trickey, Com’th v. (18 Allen, 559)
Trigally v. Memphis (6 Coldw. 382)
303 | Trimble v. State (27 Ark. 355) 855, 868,
Tomlinson v. Bullock (4 Q. B. D. 230) 28:
30
867
6 | Trimmer, Com’th v. (1 Mass. 476) 281, 312
Tompkins, Ex parte (58 Ala. 71) 966 | ——, Com’th v. (8 Norris, Pa. 65) 8064
v. Taylor (21 N. Y. 1738) 1007 | Tripp v. Flanigan (10 R. I. 128) 1000
Tompson, Com’th v. (2 Cush. 551) = 678 v. Grouner (60 Ill. 174) 138
Tonella v. State (4 Texas Ap. 325) 992 v. Hennessy (10 R. I. 129) 1018
Toney v. State (61 Ala. 1) 855, 867 v. Norton (10 BR. I. 125) 1000
Toole’s Appeal (9 Norris, Pa. 376) 999 Troth, State v. (6 Vroom, 377) 288
Toole, State v. (29 Conn. 342) 280 | ——, State v. (7 Vroom, 422) 288
Tootle, State v. (2 Harring. Del. 541) 212, | Trott v. Irish (1 Allen, 481) 1052
247, 248 | Trotter, State v. (6 Yerg. 184) 944
Topping, Reg. v. (Dears. 647; 7 Troy’s Case (1 Mod. 5) 189
Cox C. C. 108; 36 Eng. L. & Eq. Troy v. Bacon (2 Abb. Ap. 127) 42b
614) . 587 v. Cheshire Railroad (3 Fost.
Torney v. State (13 Misso. 455) 852} N. H. 83) 250 a
Torrance v. McDougald (12 Ga. 526) 82
Torrey v. Corliss (33 Maine, 333) 82
— v. Millbury (21 Pick. 64) 255
Tottenham, Rex v. (7 Car. & P. 237) 216
Troy, &e. Railroad v. Commonwealth
(127 Mass. 43)
Truax v. Pool (46 Iowa, 256) 299
True v. Plumley (36 Maine, 466) 110¢
Towle v. Blake (38 Maine, 528) 1081 | Trueman v. Lambert (4 M. & S. 234) 49
—— v. Marrett (8 Greenl. 22) 159, 161, | ——, Rex v. (1 East P. C. 470) 610
163 | Truitt v. People (88 Ill. 518) 853, 855,
— v. Smith (2 Rob. N. Y. 489) 156 } 890
—, State v. (48 N. H. 97) 198 | Trull v. Wilson (9 Mass. 154) 276
Towles, Ex parte (48 Texas, 413) 34| Trustees of Brookhaven v. Strong
Townley v. State (3 Harrison, 311) 1044} (60 N. Y. 56)
Townsend, In re (4 Hun, 31) 250 a | Tryon, Com’th v. (99 Mass. 442) 1025
— v. Brown (4 Zab. 80) 65 | Tubbs, Com’th v. (1 Cush. 2) 1018
—— v. Read (10 C. B. x. 8. 308) 243 | Tuberville v. State (4 Texas, 128) 736
—, Reg. v. (2 Car. & K. 168) 271 | Tuchin, Reg. v. (2 Ld. Raym. 1061) 103
—, Reg. v. (Car. & M. 178) 271 | Tuck v. Waldron (31 Ark. 462) 997
Townsend Savings Bank v. Epping Tucker, Ex parte (25 Ark. 567) 855
(3 Woods, 390) 1 | —— v. Burns (2 Swan, Tenn. 35) 180
Townsey, People v. (5 Denio, 70) 163, 177, | ——, Com’th v. (110 Mass. 403) 310
184, 1032
Toynbee, People v. (2 Parker C. C.
829; 2 Parker C. C. 490; 3 Ker-
nan, 378) 992, 993
Tracey, State v. (12 R. I. 216) 1067
Tracy v. Perry (5 N. H. 504) 1026
— v. Reed (4 Blackf. 56) 164
—, Reg. v. (6 Mod. 30) 139
——, Rex v. (Russ. & Ry. 452) 313
—— v. State (3 Misso. 1) 1092
Trainor, Commonwealth v. (123
Mass. 414) 1037
Trammell v. County Judge (37 Ark.
374) 992
Trapnall, Ex parte (1 Eng. 9) 163
Trapp, State v. (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. 299) 31
Tremble v. Crowell (17 Mich. 493) 150
Trenton, State v. (9 Vroom, 64) 1124
Trenton Mutual Life and Fire Ins.
Co. v. Johnson (4 Zab. 576) 848
——, Reg. v. (2 Q. B. D. 417; 18
Cox C. C. 600) 1096
— vt. State (16 Ala. 670) 346
v. State (35 Texas, 118) 666, 672, tke
7
Tufts, State v. (56 N. H. 187) 1032, 1057
Tuke, Reg. v. (17 U. C. Q. B. 296) sr,
0
Tullet v. Linfield (3 Bur. 1455) 105
Tulley v. Corrie (10 Cox C. C. 584) 747
Tully v. Com’th (18 Bush, 142) 262
Turbeville v. State (56 Missis.793) 340
Turck v. Richmond (18 Barb. 533) 1080
Turley v. Logan (17 Ill. 151) 29
v. State (8 Heisk. 11) 261d
Turman v. State (4 Texas Ap. 586) 316
Turner v. American Baptist Mis-
sionary Union (5 McLean, 345) 14
—— v. Barlow (8 Fost. & F. 946) 105
——, Com’th v. (4 B. Monr. 4) 1066
, Com’th v. (1 Cush. 493) 19, 22
— , Reg. v. (8 Car. & P. 755) 220, 771
——., Reg. v. (9 Cox C. C. 145) 596 a
——., Rex v. (4 B. & Ald. 510) 1078
——, Rex v. (6 Car. & P. 407) 279, 285
8385
UNI
SECTION
Turner, Rex v. (1 Leach, 805; 2 East
P. C. 492) 279
— v. State (40 Ala. 21) 79, 163
— v. State (7 Texas Ap. 596) 418, 428
——, State v. (5 Blackf. 253) 1082
Turney v. Wilton (86 Ill. 385) 87
Turpen v. Tipton (7 Ind. 172) 178 a
Turtle v. Hartwell (6 T. R. 426) 190
Tuskaloosa Bridge v. Jennison (33
Ala. 476)
Tuton v. State (4 Texas Ap. 472)
Tutt, State v. (63 Misso. 595) 812
Tuttle v. Com’th (2 Gray, 505) 1026
—, Com’th v. (12 Cush. 502) 1044, 1052
120
177
INDEX TO THE CASES CITED.
VAN
SECTION
Union Ins. Co. v. Hoge (21 How. U.
8. 35 104
Union Iron Co. v. Pierce (4 Bis. 327) 88a,
85 b, 154, 177
Union Pacific Railroad, United
States v. (91 U.S. 72) 46, 75, 76,77
United Patriots’ National Benefit
Soc, In re (4 Q. B. D. 29) 157
University v. Williams (9 Gill & J.
365) 91
Upchurch, State v. (9 Ire. 454) 168, 193,
196, 199
Updyke v. Skillman (8 Dutcher, 131) 292
——, State v. (72 N. C. 146) 107
——, Com'th v. (12 Cush. 505) 1045 | —— v. Ten Broeck (3 Vroom, 105) 261
— v. Hills (6 Wend. 213) 127, 232| Urlyn, Rex v. (2 Saund. Wms. ed.
— v. State (1 Texas Ap. 364) 853, 855, 308, note) 166
858 | Usener v. State (8 Texas Ap. 177) 387
— ». State (4 Conn. 68) 208
Tuxbury’s Appeal (67 Maine, 267) 97
Tweed, State v. (8 Dutcher, 111) 835
Twenty-eight Cases (2 Ben. 63) 195
Twenty-eight Packages, United
States v. (Gilpin, 3806) 195, 225
Twenty-five Cases of Cloths, United
States v. (Crabbe, 356) 160, 187
Twenty-four Coils of Cordage,
United States v. (Bald. 502) 100
Twenty-two Packages of Cloth v.
United States (16 Pet. 342) 160
Twisleton, Rex v. (1 Lev. 257; 1
Sid. 387) 640
Twitchell v. Com’th (9 Barr, 211) 625
Twitty, State v. (1 Hayw. 102) 286
Two Hundred Chests of Tea (9
Wheat. 430) 99
Twogood, State v. (7 Iowa, 252) 160
Twombly, Commonwealth v. (119
Mass. 104) 1069
Twyne’s Case (3 Co. 80) 192
Tyers, Rex v. (Russ. & Ry. 402) 271
Tyler v. People (8 Mich. 320) 91, 803
—, People v. (36 Cal. 522 186
v. State (2 Humph. 37 830
—— v. Tyler (19 Ill. 151) 97
Tynan v. Walker (35 Cal. 634) 76, 2614
Tynen, U. S. v. (11 Wal. 88) 157, 158
Tyson v. Postlethwaite (13 Ill. 727) 163
— v. Thomas (McClel. & Y. 119) 1384
Uecker v. State (4 Texas Ap. 234) 432,
445, 4476
Ulmer v. State (61 Ala. 208) 1032, 1083 a
v. State (14 Ind. 52) 261¢
Ulrich v. Com’th (6 Bush, 400 1022
—, People v. (2 Abb. Pr. 28 1104
Ulster, People v. (63 Barb. 83) 85
Underwood »v. State (19 Ala. 632) 1184
Union, State v. (4 Vroom, 850) 18, 36 a,
85 a
Union Branch Railroad v. East Ten-
nesse and Georgia Railroad Bank-
ing Co. (14 Ga. 327)
836
168
Utica Ins. Co., People v. (15 Johns.
358) 77, 98, 212
Uwchlan Township Road (6 Casey,
Pa. 156) 177, 1774
Vail v. Strong (10 Vt. 457) 1014
Vaile, Reg. v. (6 Cox C. C. 470) 814, a
Valentine, State v. (7 Ire. 225) 848
Valesco v. State (9 Texas Ap. 76) 248
Vallance v. Everts (3 Barb. 553) 1048
— v. King (3 Barb. 548) 163
Van Alstine v. People (87 Mich. 523) 41
Van Baalen v. People (40 Mich. 258) 999
Van Buren v. Downing (41 Wis.
122)
Van Buskirk v. Newark (26 Ohio
State, 37) . 407
Van Deleer, People v. (58 Cal. 147) 747
—, Rex v. (1 Stra. 69) 80
Vander Plunken v. Griffith (Cro.
Eliz. 236) 395
Vanderpoel v. O’Hanlon (53 Iowa,
246) |
Vanderwall v. Commonwealth (2
Va. Cas. 275) 105
Vanderwood v. State (50 Ind. 26) 1034
v. State (50 Ind. 295) 1034 b
Vandeventer v. New York and New
Haven Railroad (27 Barb. 244) 141
Vandine, Petitioner (6 Pick. 187) 20, 22
——, Com’th v. (6 Grat. 689) 298
Vangorden v. State (49 Ind. 518) 10484
Vanhorne v. Dorrance (2 Dall. 804) 12
Van Houten, State v. (37 Misso. 857) 756
Van Inwagan v. Chicago (61 Ill. 81) 177.4
Van Loon v. Lyon (4 Daly, 149) 82
Vannoy v. Patton (5 B. Monr. 248) 1030
— v. State (64 Ind. 447) 1000, 1001
Van Rensselaer v. Livingston (12
Wend. 490) :
—— v. Onondaga (1 Cow. 443) 198
Van Riper v. Essex Public Road (9
Vroom, 23)
Vans v. Higginson (10 Mass. 29) 2616
voo
SECTION
Van Shaack, Commonwealth »v. (16
Mass. 105) 10, 311
Van Stone, Commonwealth v. (97
. Mass. 548) 1048
Van Stralen, State v. (45 Wis. 487) 159
Van Swartow ». Commonwealth (12
Harris, Pa. 131) 992, 1032
Van Valkenburgh v. Torrey (7 Cow.
252) 176, 180, 190, 193, 199, 852, 855,
873
Van Veghten v. Van Veghten (4
Johns. Ch. 501)
Van Zant v. People (2 Parker C. C.
168) 1032
Vasser v. State (55 Ala. 264) 482, 486
Vaughan, Reg. v. (8 Car. & P. 276) 341
Vaughn v. State (5 Iowa, 869) 1057
Vaux v. Brook (4 Co. 39. b) 279
—»v. Vollans (4 B. & Ad. 525) 255
Vawter, State v. (7 Blackf. 592) 756
Veach v. Elliott (1 Ohio State, 139) 852,
855, 984
Veal v. State (8 Texas Ap. 474) 184, 185
Veazie v. China (50 Maine, 518) 256
—— v. Dwinel (50 Maine, 479) 3803
Venour’s Settled Estates, In re (2
Ch. D. 522) 61
Verden, State v. (24 Iowa, 126) 1069
Vermillion v. Potts (10 Ind. 286) 154
‘Vernon, State v. (53 Misso. 128) 156
Verona Central Cheese Co. v. Mur-
taugh (50 N. Y. 314) 190 e
Verona Central Cheese Factory v.
Murtaugh (4 Lans. 17) 198
Very, Commonwealth v. (12 Gray,
124) : 1045
Vestry v. Mathews (4 Des. 578)
Vicaro v. Commonwealth (5 Dana,
17a
INDEX TO THE CASES CITED.
(0 | ——, State v. (84 N. H. 495)
WAL
: SECTION
Voorhies, Commonwealth v. (12 B.
Monr. 361) 1002
Voss, U.S. v. (1 Cranch C.C.101) 184
W. Com’th v. (3 Pittsb. 463)
Waddell v. State (87 Texas, 854)
Waddington, Rex »v. (1 B. & C. 26)
747, 748
789
168,
1
71
Wade v. Deming (9 Ind. 35) 855, 861, 872
v. State (40 Ala. 74) 184
1044
Wadsworth, State v. (80 Conn. 55) 1024,
1045
Waggoner, State v. (52 Ind. 481) 298, 975
Wagner v. Tice (86 Iowa, 599) 141
Wagonseller v. Snyder (7 Watts, 343) 933
Waite, Com’th v. (11 Allen, 264) 1124
Wakefield’s Case (2 Townsend St.
Tr. 112; 2 Lewin, 279) 618, 628
Wakefield v. Phelps (87 N. H. 295) 86,
159
—— v. Smart (3 Eng. 488) 261 b
v. State (5 Ind. 195) 198
Wakeling, Rex v. (Russ. & Ry. 504) 216
Wakker, In re (Edm. Sel. Cas. 575) 420
Walbridge, People v. (6 Cow. 512) 399
Waldo v. Bell (18 La. An. 329) 1044
v. Wallace (12 Ind. 569) 24
Wales v. Stetson (2 Mass. 143) 118
Walford, Rex v. (5 Esp. 62) 174
Walgrave’s Case (2 Dy. 203 a) 895, 397
Walker v. Armstrong (54 Texas,
609)
v. Bank of Mississippi (2 Eng.
500) 263
v. Brockway (1 Mich. N. P. 57) 274
—v. Chapman (22 Ala. 116) 255, 258
504) 246, 854, 855, 859 v, Cincinnati (21 Ohio State, 14) 92,
Victory v. Fitzpatrick (8 Ind. 281), 249, 98
250 « v. Com’th (8 Leigh, 743) 271
Vigo’s Case (21 Wal. 648) 189 a | —— v. Com’th (2 Va. Cas. 515) 298
Vincent, Ex parte (26 Ala. 145), 96, 242, | v. Dunham (17 Ind. 483) 178 a
279 | —— v. Fox (2 Dana, 404) 290
—, Com’th v. (108 Mass. 441) 1132 | ——, People v. (17 N. Y. 502) 111
—— v. State (10 Texas Ap. 350) 413 | —— v. Prescott (44 N. H. 511) 1009
Vine, Reg. v. (Law Rep. 10 Q. B. —., Reg. v. (Law Rep. 10 Q. B.
195; 13 Cox C. C. 48) 83 a, 84a, 992a,} 355; 18 Cox C. C. 94) 250
999, 999 a | —— v. Shook (49 Iowa, 264) 1057
Vinsant v. Knox (27 Ark. 266) 98 | —— v. Special Sessions (4 Hun, 441) 1101,
Vinton v. Welsh (9 Pick. 87) 1130 1112
Virginia, Ex parte (100 U. S. 839) 804 | —— v. State (49 Ala. 329) 36a
Virt, State v. (8 Ind. 447) 164 | —— v. State (52 Ala. 376) 312
Vivian, Reg. v. (1 Car. & K. 719; —— v. State (63 Ala. 49) 312
1 Den. C. C. 35) 327, 331, 382, 8835 | —— v. State (5 Ga. 491) 691 a
Voetsch v. Phelps (112 Mass. 407) 1057 | —— v. State (2 Swan, Tenn. 287) 858
Volmer v. State (34 Ark. 487) 179 | —— v. State (9 Texas Ap. 38) _ 415
—, State v. (6 Kan. 871) 1007 | ——, State v. (3 Harring. Del. 547) 1087
Von Glon, State v. (1 McMul. 187) 210 | ——, State v. (28 La. An. 636) 293
Von Hoffman v. Quincy (4 Wal. —— , State v. (16 Maine, 241) 1008
535) 197 | ——, State v. (N. C. Term R. 229) 163,
Von Schmidt v. Huntington (1 Cal. 164
55) 82, 84|——v. Thelluson (1 Dowl. Nn. s.
Vooght v. Winch (2 B. & Ald. 662) 3803] 578) 2424
887
WAR
SECTION
Walker v. Wynne (3 Yerg. 62) 19
Wall, Ex parte (48 Cal. 279) 36
v. McNeil (20 Ga. 239) 163
— , People v. (88 Ill. 75) 92
—— »v. State (32 Ark. 565) 687
v. State (23 Ind. 150) 147
v. State (18 Texas, 682) 177
—, State v. (84 Maine, 165) 1007
Wallace, Com’th v. (7 Gray, 222) 1050
, Commonwealth v. (123 Mass.
400) 1057, 1058.
—,, Commonwealth v. (123 Mass.
1 1057, 1058
v. Dyson (1 Speers, 127) 336
—— v. Hull (28 Ga. 68) 1051
— v. Miner (6 Ohio, 366) 142
v. Minor (7 Ohio, part 1, 249) 142
—, People v. (9 Cal. 30) 476
——, People v. (70 Ill. 680) 36 a, 42 b
—, 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
——,, State v. (80 N. C. 401) 678
Walley, Estate of (11 Neb. 260) 112, 154:
Walling v. Potter (35 Conn. 183) 297 |
Wallis v. Mease (3 Binn. 546) 1133
Walls v. McGee (4 Harring. Del. 108) 103
v. State (82 Ark. 565) 584, 586
v. State (7 Blackf. 572) 288, 789
—, State v. (54 Ind. 561) 346
Walrath v. Redfield (18 N. Y. 457)
Walston v. Com’th (16 B. Monr. 15)
Walter v. People (82 N. Y. 147)
Waltermire v. Westover (4 Kernan,
16
Walters v. Commonwealth
Wright, Pa. 135)
— v. Duke (31 La. An. 668)
—, Reg. v. (Car. & M. 588)
— , Rex v. (1 Moody, 18)
——, State v. (64 Ind. 226)
64 a
(8
477
1093
334, 335
284, 285
67, 432 a,
447 b
Waltham, Reg. v. (3 Cox C. C. 442) 314
Walton, Com’th v. (2 Brews. 487) 651
—— v. State (62 Ala. 197) 200, 204, 1021,
1024, 1029
v. State (14 Texas, 381) 874
v, State (6 Yerg. 377) 328, 329, 830
—, State v. (62 Maine, 106) 271a
Walwin v. Smith (1 Salk. 177) 195
Walworth v. Routh (14 La. An.
205) 2644
Wands, People v. (23 Mich. 385)
Wan-kon-chaw-neek-kaw v. United
States (Morris, 332) 255
Ward v. Gray (6 B. & S. 345) 301 4
v. Greeneville (8 Baxter, 228) 19, 20
v, Severance (7 Cal. 126) 250 a
—— v. Snell (1 H. BL. 10 195 4
v. State (22 Ala. 18} 852, 855, 881
v. State (87 Ala. 158) 85
— v. State (56 Ga. 408)
838
815
INDEX TO THE CASES CITED.
WAT
SEcTION
8 | Ward v. State (48 Ind. 289) 1021, 1022,
33 O
— »v. State (31 Md. 279) 1080
— v. State (2 Misso. 120) 855, 915
v. State (17 Ohio State, 82) 852, 874
—, State v. (57 Ind. 537) 852, 889
—, State v. (6 N. H. 529) 168, 326, 336
——, State v. (9 Texas, 370) 898, 909
Wardell, Commonwealth v. (128
Mass. 52) 714
Warden v. Tye (2 C. P. D. 74) 973 a
Warden of St. Paul’s v. The Dean
(4 Price, 65) 246a
Ware v. Greene (37 Ala. 494) 103
v. Hylton (8 Dall. 199) 13
—— v. Owens (42 Ala. 212) 85 a
—— v. Regent’s Canal (3 DeG. &J.
Ch. 212 ; 28 Law J. Ch. 153) 7
Wareham v. State (25 Ohio State,
601
Warfield, In re (22 Cal. 51) 104, 104.4
v. Fox (3 Smith, Pa. 382) 181
v. Watkins (30 Barb. 395) 178
Waring v. Clarke (5 How. U. S. 441) 100
Warman, Reg. v. (1 Den. C. C. 188) 314
Warner v. Commonwealth (1 Barr,
154) 174, 193, 338
v. Fowler (8 Md. 25) 193
—, United States v. (4 McLean,
463) 80, 82, 476, 477
Warren v. Charlestown (2 Gray, 84) 34
v. Mathews (6 Mod. 78) 1128
—, People v. (4 Barb. 814) 208, a
66
—— v. State (46 Ala. 549) 954
v. State (61 Ala. 177) 955
—— v. State (18 Ark. 195) 920
——,, State v. (18 Texas, 45) 447b
Warrington, Ex parte (3 DeG., M.
& G. 159) 154
v. Furbor (8 East, 242) 196
v. State (18 Ark. 195) 919
, State v. (33 Maine, 30) 279
Wartman v. Philadelphia (9 Casey,
Pa. 202) 28
Wasden »v. State (18 Ga. 264) 708
Wash v. State (14 Sm. & M. 120) 216
Washburn v. McInroy (7 Johns.
134) 244, 1026
, State v. (48 Misso. 240) 261¢
Washingham’s Case (2 Plow. 565) 65
Washington v. Franklin Railroad (34
Md. 159) 36 a
v. Hammond (76 N. C. 88) 23
—— v. Page (4 Cal. 388) 36 a, 256
v. State (68 Ala. 855) 247
v. State (8 Eng. 752) 856, 992
uv. State (36 Ga. 242) 787, 799
Washington Park, In re (62 N. Y.
131) 119, 250.4
Washington, &c. Turnpike v. State
(19 Md. 289) 164
4| Water Works v. Burkhart (41 Ind.
364)
WEA
SECTION
Waterford, &c. Railway v. Logan
INDEX TO THE CASES CITED.
WEL
SEO’
Weaver ». Lapsley (43'Ala. 224) 36a
(14 Q. B. 672) 8 | —— v. Maillot (15 La. An. 395) 163
Waterford and Whitehall Turnpike ——, Reg. v. (Law Rep. 2 C. C. 85;
v. People (9 Barb. 161) 164; 12 Cox C. C. 527) 491
Waterhouse v. Keen (4 B. & C. 200; Webb v. Baird (6 Ind. 18) 163
6 D. & R. 257) 3 |—— v. Fairmaner (3 M. & W. 473) 107,
Waterman, Com’th v. (122 Mass. 43) 7389 108, 110 a
— v. Waterman (34 Mich. 490) 346 | Webber v. Com’th (33 Grat. 898) 1098
Waters v. Campbell (4 Saw. 121) 57 v. Howe (86 Mich. 150) 1030
— v. Lilley (4 Pick. 145) 1128 v. Virginia (103 U.S. 344) 1080
—, State v. (1 Strob. 59) 916 | —— v. Williams (36 Maine, 512) 1031
Watford, Reg. v. (9 Q. B. 626) 75 | Weber v. Manning (4 Misso. 229) 263
Watkinds, United States v. (7 Saw. Webster v. Com’th (7 Dana, 215) 1067
85) 836 | —— v. French (12 Ill. 302) 256
Watkins v. Haight (18 Johns. 138) 84 | —— v. People (14 IIL. 365) 250 d
—, Rex v. (1 Russ. Crimes, 3d ——., People v. (2 Doug. Mich. 92) 1035
Eng. ed. 574) 772 | —— v. Reid (Morris, 467) 14
— vv. Wassell (20 Ark. 410) 249 | —— v. State (8 Blackf. 400) 896
Watrous, State v. (13 Iowa, 489) 446 | ——, State v. (5 Halst. 293 1042
Watson v. Blaylock (2 Mill, 351) 149 | ——, State v. (17 N. H. 5438) 482, 435
—— v. Hall (46 Conn. 294) 190 d, 231 | —, U. S. v. (Daveis, D. C. 38) 49, 82
— vv. Martin (10 Cox C. C. 56) 855, 867
— v. Mercer (8 Pet. 88) 85, 185
— v. Pears (2 Camp. 294) 81a, 107
—, Rex v. (2 East P. C. 562) 220
—, Rex v. (2 East P. C. 680) 233
—— v. State (55 Ala. 150) 248, 425, 426
— v. State (55 Ala. 158) — 36.a, 1006a
—— v. State (8 Ind. 123) 852, 855, 873,
927, 928
—— v. State (9 Texas Ap. 237) 754, 756,
760, 761
Wedge, Rex v. (5 Car. & P. 298) 486, 491
Weed v. People (56 N. Y. 628; 3
Thomp. & C. 50) ; 761
v. State (55 Ala. 13) 491, 1021, 1034 a
——,, State v. (1 Fost. N. H. 262) 33
Weekly, State v. (29 Ind. 206) 298
Weeks, State v. (67 Maine, 60) Qila
——., State Treasurer v. (4 Vt. 215) 142
Weidman v. People (7 Bradw. 38) 10704
Weikman »v. City Council (2 Speers,
371 1057
2
)
—, State v. (5 Blackf. 155) 1044 | Weil v. State (52 Ala. 19) 1098
—, State v. (4 Ind. 595) 337 | Weinberg v. State (25 Wis. 370) 589, 610
— v. Thorp (1 Phillim. 269) 654 a| Weir v. Cram (37 Iowa, 649) 11386
Watt v. State (61 Ga. 66) 289 | ——, State v. (83 Iowa, 184) 36
Wattles v. People (18 Mich. 446) 805, | Weireter v. State (69 Ind. 269) 1013, 1016
806 a, 828} Welch, Com’th v. (2 Dana, 330) 177
Watts v. Com’th (5 Bush, 309) 110 ¢ | ——, Com’th v. (97 Mass. 593) 1025
—, Com’th v. (4 Leigh, 672) 211 | —— v. Jugenheimer (56 Iowa, 11) 1031a
, Reg. v. (1 Eng. L. & Eq. 558 ; ——, Reg. v. (2 Car. & K. 296) 271
2 Den. C. C. 14) 1) —, Reg. v. (2 Den. C. C. 78; 1
— v. State (6 Texas Ap. 263) 414| Eng. L. & Eq. 588; 15 Jur. 186) 806
—, United States ». (1 Bond, 580) 195] —, Reg. v. (1 Q. B.D. 23; 138 Cox
Waupun v. Moore (84 Wis. 450) 20,21] C.C. 121) 437
Waverly, The (7 Bis. 465) 119, 250 a | —— v. State (50 Ga. 128) 471T
Way, People v. (10 Cal. 336) 828 | ——, State v. (36 Conn. 215) 20, 997
——,, State v. (5 Neb. 283) 682, 703 | ——, State v. (26 Maine, 30) 688
——, State v. (6 Vt. 811) 656, 678, 691 | —, State v. (21 Minn. 22) 815, 825, 828
Wayman v. Com’th (14 Bush, 466) 806 a
——, State v. (7 Port. 463) 871, 874
v. Naylor (2 Blackf. 32) 186 |] —— v. Stowell (2 Doug. Mich. 382) _ 22
Wayne Circuit Judge, People v. (37 —— v, Wadsworth (80 Conn. 149) 177
Mich. 287) 1| Weld v. Hornby (7 East, 195) 1129
Waynick, State v. (45 Iowa, 516) 1068 Welker v. Potter (18 Ohio State, 85) 366
Weaks, State v. (7 Humph. 522) 1021 | Welland, Rex v. (Russ. & Ry. 494) 247,
Wear v. Adamson (1 Q. B. D. 546; 426
2 Ap. Cas. 743) 189 a | Weller, Com’th v. (14 Bush, 218) 36
——, People v. (11 Cal. 49) 255
Weatherby v. Banham (5 Car. & P.
228 1018
666
142
——, State v. (48 Maine, 258)
Weatperhens v. Bledsoe (2 Tenn.
—, Commonwealth v. (110 Mass.
175) 1180, 1182
—— v. Weyand (2 Grant, Pa. 103) 187,
250 a
Wells v. Buffalo (14 Hun, 488) lla
v. Iggulden (3 B. & C. 186) 66
—, Reg. v. (1 Fost. & F. 109) 424
——, Rex v. (1 East P. C. 414) 185
839
WES INDEX TO THE CASES CITED. WHI
SEcTION SECTION
Wells v. State (69 Ind. 286) . 1088 | Westwood, Rex v. (2 Dow. & C. 21;
—— v. State (11 Neb. 409) 427, 428| 4 Bligh, n.s.213; 7 Bing. 1; 4B.
v. State (3 Lea, 70) 154, 854, 855! & C. 781) 18
v. State (9 Texas Ap. 160) 693, 700 | ——, Rex v. (Russ. & Ry. 495) 279, 284
——, State v. (31 Conn. 210) 490 | Wetherbee, Com’th v. (101 Mass. 214) 297
——,, State v. (46 Iowa, 662) 404, 792| Wetherby v. Foster (5 Vt. 136) 319
——,, State v. (48 Iowa, 671) 648, 649 | Wethersfield v. Humphrey (20 Conn.
——, State v. (28 Misso. 565) 1019} 218) 303
Welman, In re (20 Vt. 653) 28, 29, 31 a,| Wetmore v. State (55 Ala. 198) 104, 855
108 | —— v. Tracy (14 Wend. 250) 169
Welsh, Com’th v. (1 Allen, 1) 1069 | Wetumpka v. Winter (29 Ala. 651) 101
, Com’th v. (110 Mass. 359) 1069 | Whalen, Com’th v. (16 Gray, 23) 1018
—, Reg. v. (Temp. & M. 409) 306 | Whaley,Com’th v. (6 Bush, 266) 602, 606,
—— , State v. (3 Hawks, 404) 45 | Whalin v. Macomb (76 III. 49) 1000
Welton v. State (91 U. S. 275) 1080 | Wharton Peerage (12 Cl. & F, 295) 2424
—, State v. (55 Misso. 288) 1080 | Wheaton v. Hibbard (20 Johns. 290) 163
Wendel v. Durbin (26 Wis. 390) 255,) Wheeldon, Reg. v. (8 Car. & P. 747) 312
256 | Wheeler v. Chicago (24 Ill. 105) 112, 255
Wendover v. Lexington (15 B. Monr. v. Chubbuck (16 Ill. 361) 31
258) v. Cincinnati (19 Ohio State, 19) 20
Wentworth, State v. (65 Maine, v. Goulding (13 Gray, 589) 250 d
234 1033 a | ——, People v. (18 Hun, 540) 805, 806 a
, State v. (35 N. H. 442) 1037 v. Philadelphia (27 Smith, Pa.
Werfel v. Com’th (5 Binn. 65) 1182] 338) 42a, 42¢
Werneke v. State (50 Ind. 22) 1021, 1022
West v. Columbus (20 Kan. 633) 997
, Com’th v. (1 Dana, 165) 917
— v. Pine (4 Wash C. C. 691) 154
——, Reg. v. (2 Car. & K. 784; 2Cox
C. C. 500) 742
—, Reg. v. (2 Car. & K. 496; 1
Den. C. C. 258) 341, 348
—, Rex v. (Owen, 1384) 167
v. State (32 Texas, 651) 456
v. State (1 Wis. 209) 645, 648, 651
West Branch Boom Co. v. Dodge (7
Casey, Pa. 285) : 85
West Feliciana Railroad v. Johnson
(5 How. Missis. 273) 31
West Ham Union v. Ovens (Law
v. Rice (4 Brews. 129)
—— v. Spencer (15 Conn. 28)
354
933
v. State (23 Ga. 9) 163
— v. State (42 Md. 563) 852, 855, =
89
, State v. (25 Conn. 290) 992
Wheeling v. Campbell (12 W. Va.
36) 103 a
Wheelock, People v. (8 Parker C. C.
9 1007
v. State (15 Texas, 260) 291, 878
Whetstone, State v. (13 La. An. 376) 193
Whiley, Reg. v. (2 Moody, 186) 599
Whistler, Reg. v. (2 Salk. 642; 11
Mod. 25) 139, 189 5
Whitaker v. Haynes (49 Cal. 596) 160,
1
Rep. 8 Ex. 37) 340 63
West Philadelphia Passenger Rail- ——., Reg. v. (3 Cox C. C. 50) 145
road v. Union Passenger Railroad Whitall v. Gloucester (11 Vroom, 302) 299
(9 Philad. 495) 36 a | Whitcher v. Shattuck (3 Allen, 319) 1013
West Riding of York, Rex v. (7 Whitcomb v. Rood (20 Vt. 49) 97
East, 588) 801 |; ——, State v. (52 Iowa, 85) 662
West Riding of Yorkshire, Reg. v. (2 ——, Territory v. (1 Montana, 359) 656,
Eng. L. & Eq. 296) 204 673
—, Reg. v. (1 Q. B. D. 220) 180} White v. Blum (4 Neb. 555) 82
v. Rex (2 Dow, 1) 3801 v. Boot (2 Tr. 274) 149
, Rex r. (4 B. & Ad. 685) 107, 110 v. Buss (3 Cush. 448) 858
Westbrook Manuf. Co. v. Grant (60 — rv. Com’th (4 Binn. 418) 204
Maine, 88) 29 ; ——, Com’th v. (18 B. Monr. 492) 1034
Westcott . Miller (42 Wis. 454) 97 | ——, Commonwealth v. (15 Gray,
Western Union Railroad v. Fulton 407) 1006 a, 1007
(64 Il. 271) 4 | ——, Com’th z. (10 Met. 14) 1048
Westinghausen v. People (44 Mich. ——, Com’th v. (8 Pick. 453) 164
265 996 | —— v. Crutcher (1 Bush, 472) 107
Weston v. Carr (71 Maine, 856) 1057 v. Johnson (28 Missis. 68) 82, 155, 163
v. McDowell (20 Mich. 858) 844, |, People v. (24 Wend. 520) 473
1090 | ——, Reg. v. (8 Car. & P. 742) 271
——, People v. (3 Neb. 312) 70, 82 | ——, Reg. v. (9 Car. & P. 282) 326, 834
—, State v. (4 Neb. 216) 11 a | ——, Reg. v. (2 Crawf. & Dix C. C.
—, State v. (6 Neb. 16) 92b! 479) 291
840
WIG
SECTION’
White, Reg. v. (Dears. 203; 20 Eng.
L. & Eq. 585) 171
—v. State (44 Ala. 409) 231
—— »v. State (49 Ala. 344) 312
— v. State (4 Texas Ap. 488) 259, 261 d,
264
—— v. State (11 Texas Ap. 476) 1029,
1084, 1039
—, State v. (23 Ark. 275) 1000
——, State v. (7 Baxter, 158) 1013
—, State v. (4 Jones, N.C. 349) —-286
——, State v. (13 La. An. 573) 348
——,, State v. (76 N. C. 15) 404
— v. Steam Tug Mary Ann (6
Cal. 462) 120
—— v. Tax Collector (3 Rich. 186) 274
—, U.S. o (6 Cranch C.C. 38) 261¢
—,, U.S. o. (2 Hill, N. Y. 59) 103
Whitehead v. Wells (29 Ark. 99) 31, 98
Whitehurst v. State (48 Ind. 478) 177
Whiteley v. Chappell (Law Rep. 4
Q. B. 147; 11 Cox C. C. 307)
Whiteman, Reg. v. (Dears. 353; 6
Cox C. C. 370; 25 Eng. L. & Eq.
590) ; 445
Whitfield v. Longest (6 Ire. 268) 22
—, Rex v. (1 Russ. Crimes, 3d
8184
Eng. ed. 728) 315
—— v. State (4 Pike, 171) 917
Whiting v. State (14 Conn. 487) 1088.4
Whitman, Commonwealth v. (118
Mass. 458) 1105, 1114, 1116
—— v. Hapgood (10 Mass. 437) 84
Whitmarsh, Commonwealth v. (4
Pick. 233) 204, 214, 309
Whitmell, U. S. v. (3 Murph. 187) — 1003
Whitnash, Reg. v. (7 B. & C. 596) 245
Whitney, Com’th v. (11 Cush. 477) 972
—, Com’th v. (5 Gray, 85) 970, 978, 979
v. McConnell (29 Mich. 12) 423
——, Rex v. (1 Moody, 3) 212, 344, 442
—— ». State (10 Ind. 404) 966
—— v. State (10 Texas Ap. 377) 855
—— v. Whitney (14 Mass. 88) 93
Whittaker, Reg. v. (2 Car. & K. 686;
1 Den. C. C. 809) 77, 135, 145
——, State v. (83 Misso. 457) 1092
Whittier, State v. (21 Maine, 341) 448
Whittingham, Reg. v. (9 Car. & P.
234) 291, 313
Whittington, Ex parte (34 Ark. 894) 999
Whitton v. Marine (1 Dy. 95 a) 395
—— v. State (37 Missis. 379) 1024
Whitworth v. Ferguson (18 La. An.
602) 268
—, State v. (8 Port. 434) 159, 163, 168,
852, 855, 890
Wickey, State v. (54 Ind. 488) 1042, 1069
—, State v. (57 Ind. 596) 1042
Wicks, Rex v. (Russ. & Ry. 149) 338
Wiedemann v. People (92 Ill. 814) 1034 a
Wigg, Reg. v. (2 Ld. Raym. 1163) pie
9
Wiggin v. New York (9 Paige, 16) 255
INDEX TO THE CASES CITED.
WIL
esr SECTION
Wiggin, 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. I. 199) 82, 163, 166,
167
Wilbraham v. Hampden (11 Pick.
322 137
Wilbur v. Crane (13 Pick. 284) 181, 155
Wilburn, State v. (7 Baxter, 57) 793
Wilcock’s Case (2 Russ. Crimes, 3d
Eng. ed. 497) 336
Wilcox, Commonwealth v. (1
Cush. 503) 1034, 1037
—— v. State (7 Blackf. 456) 910
v. State (26 Texas, 145) 852, 901
——, State v. (42 Conn. 364) 36
—, State ». (66 Ind. 557) 1000
——, State v. (3 Yerg. 278) 199
—— v. Wood (9 Wend. 346) 3la
Wilcoxson v. State (60 Ga. 184) 328
Wild v. Harris (7 C. B. 999) 638
Wilde v. Com’th (2 Met. 408) 82, 163
——, Rex v. (1 Doug. 97, in note) 401
Wilder, Com’th v. (127 Mass. 1) 4324
v. Lumpkin (4 Ga. 208) 834
v. Maine Central Railroad (65
Maine, 332) 84a
——, State v. (7 Blackf. 582) 739
Wiles v. State (33 Ind. 206) 1000, 1001
Wiley, Reg. v. (1 Eng. L. & Eq. 567;
2 Den, C. C. 37) 204
—— v. State (3 Coldw. 362) 248
—— v. State (52 Ind. 516) 798, 800 a
—. U.S. v. (11 Wal. 508) 261 a, 267
—— v. Yale (1 Met. 553) 137
Wilforth, State v. (74 Misso. 528) 788¢
Wilkins, Com’th v. (121 Mass. 356) 19,20
——, State v. (17 Vt. 151) 326, 336, 337
Wilkinson v. Gaston (9 Q. B. 137) 38la
— v. Gill (10 Hun, 156) 958, 959
v. Leland (2 Pet. 627) 40, 70, 77
——, State v. (2 Vt. 480) 163, 164, 170
Willace, Rex v. (1 East P. C. 186) 261
Willard, Com’th v. (22 Pick. 476) 1029
v. Reinhardt (2 E. D. Smith, sie
148)
—— v. State (4 Ind. 407) 1039
Willetts, United States v. (5 Ben. 220) 195
Willey v. State (46 Ind. 363) 743
—— v. State (52 Ind. 246) 755
William Gray, The (1 Paine, 16) 124, Bee
Williams v. Augusta (4 Ga. 509) 22
—— v. Cammack (27 Missis. 209) 36
——, Com’th v. (4 Allen, 587) 1024, 1029
, Com’th v. (2 Cush. 582) 276
—, Com’th »v. (3 Gray, 461)
——, Com’th ». (6 Gray, 1) 1050
—, Com’th v. (110 Mass. 401) 485, 436
—., Com’th v. (9 Met. 273) 340, 341
—— v. Davidson (43 Texas, 1) 19, 20
— v. Dixon (65 N.C. 416) 482 a, 487
— v. Drewe (Willes, 392) 128
841
WIL
SECTION
190 e
Williams v. Evans (1 Ex. D. 277)
tbe
—— v. Garignes (80 La. An. 1094)
—— v. Lear (Law Rep. 7 Q. B. 285)
—— 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, 163
— v. Pritchard (4 T. R. 2) 113, 160,
190 d
— v. Reg. (10 Jur. 155) 167
— v. Reg. (7 Q. B. 250) 163, 166, pie
——, Reg. v. (2Car. & K. 51) 326, 329, oe
—, Reg. v. (Car. & M. 259) 135
, Reg, v. (9 Cox C. C. 338) 445
——, Reg. v. (11 Cox C. C. 684) 780
——, Reg. v. (1 Den. C. C. 89) 188
——, Reg. v. (14 Law J... M. C.
164) 167
v. Register (Cooke, Tenn. 214) 40
232, 236
—,, Rex v. (1 Leach, 529)
211
—, Rex v. (1 Moody, 107)
— , Rex v. (1 W. Bl. 93) 45
v. Roughedge (2 Bur. 747) 186
v. School District (Wright, 578) 274
Spencer (5 Johns. 352) 290
v. State (44 Ala. 24) 586, 599, 613
v. State (54 Ala. 131) 610
State (85 Ark. 480) 1045 a, 1052
= Ue
SS 5
INDEX TO THE CASES CITED.
WIL
SEcTION
Williamson, Commonwealth ». (2
Va. Cas. 211 848
v. Farrow (1 Bailey, 611) 105
v. Keokuk (44 Iowa, 88) 86a
v. State (16 Ala. 431) 1092
——, State v. (19 Misso. 884) 1034
Willing v. Bozman (52 Md. 44) 11382
Willington v. Stearns (1 Pick. 497) an
42
Willion v. Berkley (1 Plow. 223) 103
Willis, Com’th v. (145. & R. 398) 1075
—, State v. (37 Misso. 192) 1090, 1091
v. Warren (1 Hilton, oo 917
Willison v. Watkins (8 Pet. 43) 259
Willoughby, Rex v. (2 East P. C.
581) 826, 833
——,, Rex v. (2 East P. C. 944) 204, 828
v. State (40 Texas, 69) 452, 453
Willsea, People v. (60 N.Y. bat 86a
Willshire, Reg. v. (6 Q. B. D. 866;
14 Cox C. C. Baty 589, 609, 611
Wilmington, &c. Railroad, State v.
(74 N. C. 148) 83a
Wilmot v. Rose (3 Ellis & B. 563) 49
Wilson v. Appleton (17 Mass. 180) 2616
—— v. Biscoe (6 Eng. 44) 82
v. Buckman (13 Minn. 441) 85
—— v. Com’th (12 B. Monr. 2) 1027, 1068
v. Com’th (3 Bush, 105) 315
— v. Commonwealth (14 Bush,
v. State (61 Ga. 417) 791| 159) 1038 a, 1034, 1037
— v. State (2 Ind. 489) 729, 732 | ——, Com’th v. (11 Cush. 412) 1042
—— v. State (48 Ind. 306) 36 a, 1012, 1021, ; ——, Com’th v. (9 Leigh, 648) 855
1022 | —— »v. Forbes (2 Dev. 30) 303
—— v. State (64 Ind. 553) 298, 714, 719 | —— v. Herbert (12 Vroom, 454) li7a
— v. State (47 Missis. 609): 484, 495 | —— ». Hill (2 Beasley, 143) 613
— v. State (12 Sm. & M. 58) 216, 346, | —— v. Knubley (7 East, 128) 49
881, 935, 939, 947 | ——, People v. (3 Bradw. 368) 402
— v. State (42 Texas, 466) 788 c | ——, People v. (62 N. Y. 186) 805
v. State (1 Texas Ap. 90) 480, 486 v. Red Wing School Dist. (22
—— v. State (10 Texas Ap. 8) 427| Minn. 488) 88a
—, State v. (8 Hill, S. C. 91) 1049 | ——, Reg. v. (9 Car. & P. 27) 271
——, State v. (21 Ind. 206) 447 | —_, Reg. v. (87 Eng. L. & Eq. 605 ;
— , State v. (20 Iowa, 98) 604,606] Dears & B. 127; 7 Cox C. C. 190) 747,
—,, State v. (25 Maine, 561) 814 748, 749, 757
— , State v. (6 R. I. 207) 1018 | —, Reg. v. (8 Fost. & F.119) 589, 609
—, State v. (2 Rich. 418) 163, 166, 176, | ——, a Beg. v. (8 Q. B. D. 42) 14
185 v. Rybolt (17 Ind. 391) 844
— , State v. (11 S. C. 288) 114, 18, 20,
State (81 Ala. 371) 299
State (52 Ala. 299) 884, 836, amr,
ee Os
, 23, 24, 143 | — v.
—, State v. (2 Strob. 474) 246 2a
——, State v. (8 Texas, 255) 67 | —— »v. State (83 Ark. 557 798, OL
——,, State v. (1 Vroom, 102) 1027, 1068 | —— ». State (85 Ark. 414 997, 1033 a
v. Stein (38 Ind. 89) 826 v. State (24 Conn. 57) 293, 295
-— v. Suffolk Ins. Co. (13 Pet. 415) 14] —— v. State (52 Ga. 40) 799
——v. Swansea Canal Nav. Co. (Law —— v. State (58 Ga. 828 634, 638
Rep. 3 Ex. 158) 255 a | —— v. State (2 Ohio State, 319) 746
—— v. Tappan (3 Fost. N. H. 885) 254, | —— v. State (5 Texas, 21) 902
1016 v. State (3 Texas Ap. 206) 428
—— v. U.S. (12 Ct. of Cl. 192) 348 | ——, State v. (3 Brev. 196) 326, 336
——, United States v. (6 McLean, ——, State v. (Cheves, 163) 246
133 03 | ——, State v. (Coxe, 439) 312
—, U.S. v. (1 Paine, 261) 28, 29, 81a , State v. (1 Hayw. 242) 283, 286
—— v. Warsaw (60 Ind. 457) 858
842
——, State v. (22 lowa, 364) 658, 670, 688
WOL
SECTION
Wilson, State v. (2 Lea, 28) 1074
——, State v. (42 Maine, 9) 801 a
—,, State v. (43 N. H. 415) 154, 156
—, State v. (47 N. H. 101) 293
— , State v. (5 R. I. 291) 1048
—, United States v. (Bald. 78) 97, 135,
142, 194, 200, 242, 820, 416
——, United States v. (8 Wheat. 253) 103
— v. Wall (34 Ala. 288) 14
Wiltberger, United States v. (5
Wheat. 76 141, 193, 804
Wiltshire v. Baker (11 C. B. n. 8.237) 295
Winburn v. Cochran (9 Texas, 123) 265
Windell, State v. (60 Ind. 300) 938
Windham »v. State (26 Ala. 69) 298, 855,
86:
Window, Rex v. (3 Camp. 78) 126
Windsor v. Commonwealth (4 Leigh,
680) 298, 855, 896
— »v. State (13 Ind. 375) 432a
Winn v. Jackson (12 Wheat. 185) 356
~—, United States v. (8 Sumner, 209) 209
Winona v. Burke (23 Minn. 254) 406
—— v. Whipple (24 Minn. 61) 997
Winooski v. Gokey (49 Vt. 282) 42 a, 42,
406, 856
Winright, State v. (12 Misso. 410) 739
Winsett v. State (57 Ind. 26) 1045 a
Winship v. People (51 Ill. 296) 347 a
Winslow v. Kimball (25 Maine, 493) 70,82
——, United States v. (8 Saw. 837) 1044
Winston v. McCormick (1 Ind. 56) 264a@
Winstrand, State v. (87 lowa, 110) 992
Winter v. Jones (10 Ga. 190) 82
v. Perratt (6 Man. & G. 314) 100
——, Rex v. (Russ. & Ry. 295) 291
—— ». State (30 Ala. 22) 1024
Winterfield v. Stauss (24 Wis. 394) 248
Wintermute v. Clark (5 Sandf. 2£2) 297
—, People v. (1 Dak. Ter. 63) 186
Wise, Reg. v. (1 Cox C. C. 80) 167
Wishon, State v. (15 Misso. 503) 1042
Withers v. Denmead (22 Md.185) 164
——, Rex o. (1 Moody, 294; 4 Car.
& P. 446) 314
De neen v. Dunlap (1 McCord,
46
Witkouski v. Witkouski (16 La. An.
232 186
Witt, Rex v. (1 Moody, 248) 280
Wittkowsky v. Wasson (71 N. C.451) 1014
Wittmar, State v. (12 Misso. 407) 1007
Wolcott, Com’th v. (110 Mass. 67) 979
— v. Wigton (7 Ind. 44) 92
Wolf v. Clark (2 Watts, 298) 1079
—- v. Lowry (10 La. An. 272) 104a
—— v. State (4 Texas Ap. 332) 426, 428
—, State v. (46 Misso. 584) 1047
Wolfarth, State v. (42 Conn. 155) 83a, 1032
Wolfe v. Tyler (1 Heisk. 313) 336
Wolfenberger, State v. (20 Ind. 242) 289
Wolff v. State (6 Texas Ap. 195) 696
Wolverhampton New Waterworks v.
Hawkestord (6 C. B. n. 8.336) 2504
INDEX TO THE CASES CITED:
woo
SECTION
Wolz v, State (83 Texas, 881) 855, 858
Wood’s Case (1 Co. 40a) 65
Wood v. Brown (6 Daly, 428) 112
—— v, Commonwealth (11 Bush, 220) 110
—, Commonwealth v. (11 Gray, 85) 743,
746, 747, 749, 760, 761
——, Com’th ». (111 Mass. 408) 1107, 1113
v. Erie Railway (72 N. Y. 196) 190e
—— v. Fitzgerald (3 Oregon, 568) 804
— v. Fort (42 Ala. 641 28
—— v. London (1 Salk. 397) 403
—— v. Mytton (10 Q. B. 805) 336
—, Rex v. {t Car. & P. 381) 814
—, Rex v. (1 Moody, 278) 314
— v. Riley (Law Rep. 3 C. P.26) 31
9 | —— v. Smith (23 Vt. 706) 141, 231, 238
v. State (48 Ga. 192) 638, 639, 648
—— »v. State (62 Ga. 406) 609, 687
—, U.S. v. (8 Wash. C. C. 440) 320
—— v. Wood (Phillips, N. C. 538) 189a
Woodbury v. Berry (18 Ohio State,
456 72,
Woodcock v. McQueen (11 Ind. 14) 848,
936
Wooddy v. Com’th (29 Grat. 837) 1097
Wooden v. Shotwell (3 Zab. 465; 4
Zab. 789) — - 952, 953, 955
Woodford v. Patterson (82 Barb. 630) 1014
Woodhead, Rex v. (1 Moody & R.
549) 211
Woodhurst, Reg. v. (12 Cox C. C. 448) 484,
496
Woodly, State v. (2 Jones, N. C. 276) 1052
Woodrow, Reg. v. (15 M. & W. 404) 132
—, Reg. v. (2 New Sess. Cas. 3846) 132
Woodruff v. Gilchrist (15 Johns. 89) 49
v. Parham (8 Wal. 123) 1080
—— v. Scruggs (27 Ark. 26) li7a
Woods’s Appeal (25 Smith, Pa. 59) 92
Woods v. Com’th (1 B. Monr. 74) 1066
——, Com’th v. (10 Gray, 477) 886
—— v. Pratt (5 Blackf. 377) 1002
v. Woods (2 Curt. Ee. 516) ©7127
Woodside, State v. (9 Ire. 496) 160
Woodward v. Hamersly (Skin. 8138) 105
——,, Rex »v. (2 East P. C. 653) 443
7 |——, Rex v. (1 Moody, 323) 291
—— v. Sarsons (Law Rep. 10 C. P
738) 255
—— v. State (5 Texas Ap. 296) 58, 8005
——,, State v. (84 Maine, 293) 168, 1003,
1052
——., State v. (25 Vt. 616) 244, 1035
Woodworth v. Paine (Breese, 294) 2464
—— v. State (4 Ohio State, 487) 1033a@
v. State (26 Ohio State, 196) a
Tla
Woody v. State (82 Ga. 595) 1016
Wool, State v. (86 N. C, 708) 1019
Wooldridge, Rex v. (1 Leach, 307; 1
East P. C. 179) 101, 307
Woolever v. Stewart (86 Ohio State, 16
146 ¢
Woolt v. Chalker (31 Conn. 121) 1133
843
wre
SECTION
Woolsey v. Cade (54 Ala. 378) 97
Wooster v. State (6 Baxter, 533) 295, 1011
Wooten v. Miller (7 Sm. & M. 880) 141
Worcester, Commonwealth v. (126
Mass. 256) 1065
—, Commonwealth v. (3 Pick. 462) 20,
+ 22, 26, 163, 406
Worden, State v. (46 Conn. 349) 164, one
Wormingall, Rex v. (6 M. & 8. 850) 106
Worrall, Rex v. (7 Car. & P. 516) 292
Worrell v. State (12 Ala. 782) 215
Wortham v. Com’th (5 Rand. 669) 905
Worthen v. Badgett (82 Ark..496) 36a, 87
Worthingtham, State v. (23 Minn.
528) 691
Worthington v. Black (18 Ind. 344) pe
3
Woulfe, State v. (58 Ind. 17) 10382
Wragg v. State (14 Ala. 492) 232
Wray, State v. (72 N. C. 253) 1020
Wreidt v. State (48 Ind. 579) 1024, 1037
Wright v. Boston (9 Cush. 233) 20
v. Com’th (27 Smith, Pa. 470) 793
—, Com’th v. (12 Allen, 190) 1069
——, Commonwealth v. (1 Cush. 46) 78
—— v. Defrees (8 Ind. 298) 38
v. Freeman (5 Har. & J. 467) =: 168
895
84
1000
164
246
1020
—— v. Gerrard (Hob. 306)
v. Hale (6 H. & N. 227)
— v. Lanckton (19 Pick. 288)
—— v. Marsh (2 Greene, Iowa, 94)
= v. Pearson (Law Rep. 4 Q. B.
682
—— v. People (101 Ill. 126)
——, People v. (6 Thomp. & C. 518;
3 Hun, 306) 1003 a
v. Pratt (17 Misso. 48) 261
—, Reg. v. (9 Car. & P. 754) 145, 774,
775
108
—, Rex v. (1 A. & E. 484)
—, Rex ». (1 Bur. 548) 250, 250 ¢
——, Rex v. (7 Car. & P. 159) 209, 844
—— v. Smith (13 Barb. 414) 168, 1032
v. Sperry (21 Wis. 331) 255
v. State (8 Blackf. 385) 697
—— v. State (30 Ga. 325) 435, 487
-— v. State (10 Texas Ap. 476)
—, State v. (52 Ind. 307) 512, 513
——,, State v. (4 Jones, N. C. 808) 1018
——, State v. (4 McCord, 358) 189, 174,
741
— v. Ware (50 Ala. 549) 42d
Wrocklege v. State (1 Iowa, 167) 1089,
1
060
Wroth v. Johnson (4 Har. & McHH.
284) 933
Wyat, Reg. v. (1 Salk. 880) 188
Wyatt, Commonwealth v. (6 Rand.
694 246, 852, 855, 864
—, Reg. v. (2 Ld. Raym. 1189)" 138
—, Rex v. (Russ. & Ry. 230) 255
Wycherley, Reg. v. (8 Car. & P. 262) 745
Wyckoff v. Boggs (2 Halst. 188) 287, 739
844
416
INDEX TO THE CASES CITED.
You
SEcTION
Wycombe Railway, Reg. v. (Law
Rep. 2 Q. B. 310) 71
Wyer, Rex v. (1 Leach, 480; 2 East
P. C. 753; 2 T. R. 77) 189, 204
Wyman v. Campbell (6 Port. 219) 154
, Com’th v. (8 Met. 247) 246, 271
Wyndham, Rex v. (Russ. & Ry. 197) 126
Wynehamer v. People (2 Parker C. C.
377; 2 Parker C. C. 421; 3 Kernan,
878) | 990, 992, 998, 1082
Wynhamer »v. People (20 Barb. 567) 1032
Wynn v. Davies (1 Curt. Ec. 69) 160
—— v. Lee (5 Ga. 217) 21a
—, Reg. v. (1 Den. C. C. 865; 1
Temp. & M. 82; 13 Jur. 107; 18
Law J. n. 8. M. C. 51) 163
Wynne, In re (Chase Dec. 227) 29
, State rv. (1 Hawks, 451) 1002
v. Wright (1 Dev. & Bat. 19) 1080
Yancey v. Hankins (Minor, 171) 198
Yandell, Rex v. (4 T. R. 521) 2424
Yarbrough, State v. (1 Hawks, 78) 164
Yard v. Carman (2 Penning. 9386) 1128
Yarmouth v. North Yarmouth (84
Maine, 411) 34, 1774
v. Sinrmons (10 Ch. D. 518) 65, 189¢
Yates v. Milwaukee (10 Wal. 497) 19, 21
— v. Nash (8 ©. B. wn. s. 581) 336
—, Rex v. (1 Moody, 170; Car.
Crim. Law, 273) : 340
Yazoo City v. State (48 Missis. 440) 992
Yeager, Ex parte (11 Grat. 655) 112, 999
Yeaker v. Yeaker (4 Met. Ky. 338) 32
Yearby, State v. (82 N. C. 561) 210
Yeaton v. U.S. (5 Cranch, 281) 177
Yellow River Imp. Co. v. Arnold (46
Wis. 214) 42b
Yoke, State v. (9 Misso. Ap. 582) 961, 965
York v. Dalhousen (9 Wright, Pa,
872) 348
—— v. Middleburgh (2 Y. & J. 196) an
19
—, Reg. ce. (14 Q. B. 81) 103
—, Rex v. (1 A. & E. 828) 1954
}——, Rex v. (8 B. & Ad. 770) 22
York, Dean of, In re (2 Q. B. 1) 17
York, &., Railway v. Reg. (1 Ellis &
B. 858) 112
Youmans, State v. (5 Ind. 280) 1638, 178
Young, Com’th v. (16 Grat. 664) 10848
—— v. Higgon (6 M. & W. 49) 108, 110
—— v. Ledrick (14 Kan. 92) 85a
v. McKenzie (3 Kelly, 31) 155
—, Reg. v. (5 Cox C. C. 296) 613
—v. Shaw (1 D. Chip. 224) 164
v. State (58 Ala. 858) 190, 1018
—— »v, State (34 Ind. 46) 999
—— v. State (42 Texas, 462) 798
—— ». State (7 Texas Ap. 75) 615
——,, State v. (5 Coldw. 51) 10389
——,, State v. (47 Ind. 150) 86a
——,, State v. (17 Kan. 414) 154, 163
ZAR
SECTION
Young, State v. (8 Vroom, 29) 2
Young Men’s, &c. Soc., People v. (41
Mich. 67) : 86a
Youngblood v. Sexton (82 Mich. 406) 990,
991
Zacharie v. Godfrey (50 Ill. 186) ~ 261a
Zachary v. Chambers (1 Oregon, 821) 126
Zantzinger v. Ribble (86 Md. 32) 255
Zarresseller v. People (17 Ill. 101) ee
INDEX TO THE CASES CITED.
9 | Zeitler, State v. (63 Ind, 441)
ZYL
SEcTIon
1039
Zeizer v. State (47 Ind. 129) 1021, 1034a
Zeller v.: State (46 Ind. 304) 1032
Zellers, State v. (2 Halst. 220) 277
Zook v. State (47 Ind. 463) 852, 884, 889,
894
Zouch v. Empsey (4 B. & Ald. 522) 110
v. Moor (2 Rol. 274) 68
Zschocke v. People (62 Ill. 127) 423
Zumhoff v. State (4 Greene, Iowa,
526) 992
Zylstra v. Charleston (1 Bay, 382) 22
845
University Press, Cambridge: John Wilson & Son.