f Ni
ay
Hue fe
it if te Wi :
ea a at
es
fe tt
Ay
oe is
iH rite Hi ,
y Pel
rane Hee
au pases
fh
Cornell Law School Library
|
Pe elaine:
| INCA
BISHOP’S
NEW CRIMINAL LAW.
Vou. I.
GENERAL AND ELEMENTARY.
A TREATISE
on
THE CRIMINAL LAW
AS NOW ADMINISTERED IN THE
UNITED STATES
x &
BY
EMLIN McOLAIN, A.M., LL.D.
CHANCELLOR oF THE Law DeparTMENtT or THE STATE UNrverstry or Iowa
IN TWO VOLUMES
VOLUME I
CHICAGO
CALLAGHAN AND COMPANY
1897
Lhsbee
BY
EMLIN McCLAIN.
KE
12.44
ai.
STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPERS,
MADISON, WIS.
PREFACE.
It is proper that the author of a law book should state its
‘general nature and scope and the principles in accordance
with which it is constructed so that the reader may make in-
‘telligent use of it and understand how far it is to be relied
upon. The object, then, of this treatise is to present under a
‘convenient and methodical arrangement the principles of the
‘criminal law as they have been established by adjudication,
-so far as they are Dew recognized and applied in the states of
this Union. The primary and controlling purpose has been
'to state the law for lawyers; and while in so doing it has been
‘deemed of the utmost importance to clearly and succinctly
present the general rules relating to the subject as announced
‘by text-writers and judges, yet the fact has also been recognized
‘that it is in the application of these general rules, and not in
the broad statement of them, that the difficulties arise which
dJawyers must contend with and courts must settle.
The principles of the criminal law are comparatively sim-
ple and quite definitely established, but it would be misleading
to assume that this branch of the law has ceased to develop,
and that the full statement of it as made in one decade will
serve every purpose for succeeding decades; for new appli-
‘cations of established doctrines are constantly being made,
which in themselves become a part of the established law and
must be understood and made use of in solving new cases as
‘they arise. Even in states where the criminal law has been
codified this development is constantly going on, and the
interpretation and application of the statutory rules and def-
dii
PREFACE.
initions give as much occasion for the development of the law
as does the explanation of common-law principles in states
where codification is not attempted. Indeed, legislative mod-
ifications of the common law of crimes have become so gen-
eral that even in states where there is no formal codification
there is a large body of statutory law on the subject, cover-
ing not only new offenses, but also, to a great extent, the
ordinary common-law crimes, and it is therefore wholly futile
to attempt to distinguish between the common law and the
statutory law of the subject; but it is important to give prom-
inence to the common-law principles as compared with such
statutory provisions as are not uniform and relate to minor
matters.
The attempt to state the criminal law as found in the de-
cisions, having in mind the general principles of the subject
but stating them with reference to their applications, has led to:
the citation of a very large number of cases, the endeavor of the
author having been to make use of every criminal case of any
general value decided in the courts of last resort in the United
, States and those accessible in the standard English reports, in-
cluding the cases from both these sources so far as accessible
in the official reports up to within eight months of the date of
publication, and including also some important cases not acces-
sible in the official reports when the book goes to press. In
handling this great body of cases, the aim has been to so:
differentiate them into groups by the statements of the text,.
and further explanations made in the notes, that there shall not
be a large number of them cited indiscriminately to any one
general proposition. But where many cases embody the appli-
cation of the same principle, the author has not hesitated to
cite all of them, realizing that for the lawyer or the judge it is.
frequently of great importance that he be able, by searching —
through the cases in which the proposition is applied, to find
iv
PREFACE.
minor differences which may not be amplified in a text-book
without undue prolixity, and yet which may be very important
in the solution of the particular question under consideration.
It is seldom that two cases are exactly alike, and their differ-
ences may in subsequent cases be made the basis of an impor-
tant distinction which could not have been anticipated and its
consequences pointed out at the time the cases themselves were
decided. But in handling this mass of decisions embodying
the criminal law, the greatest care has been exercised to avoid
mere digesting, and to state in a methodical manner and ac-
cording to proper classification the principles of the subject,
and not merely the points adjudicated.
In the development of our common law the functions of the
text-writer necessarily change from time to time under chang-
ing circumstances. When authorities are few he may be to
some extent a prophet and an originator; but as the ground is
more fully covered in detail by judicial decisions, he necessarily
limits himself more strictly to an orderly arrangement and con-
cise statement of that which has been determined; and finally
when the number of adjudications on the subject which he is
considering has become so great as to cover practically all the
important questions which are likely to arise, his function is to
put all in order and preserve a proper perspective which shall
make general and well-established principles stand out boldly
among the bewildering details of complicated cases, without
obliterating distinctions which may be of the greatest im-
portance when they are pertinent, but would mislead if mag-
nified into prominent dividing lines. It is futile to speak of
one of these functions as greater than another. The business
of the text-writer is to make the law as available as possible to
the lawyer, and he may well allow the direction and extent of
the exercise of his individual talents to depend upon the nature
and circumstances of the particular question under diseussion.
. v
PREFACE.
The law in almost any subject may be so stated by gener-
alization that there can be no conflict in the decisions cited, or
it may, on the other hand, be so technically and minutely stated
that as to almost any proposition conflicts among the decisions
shall appear. It should be so stated, however, as to avoid dif-
ferences in the authorities which are apparent rather than real ;-
but where, as is frequently the case in making an application
to particular circumstances of general rules, contradictory con-
clusions have been reached, the discrepancy should be noted, so
that, as between different views, that one may be chosen which
is consonant with reason and the weight of authority. It may
be a question, however, how far an author should attempt by
his own reasoning and judgment to settle the questions as to
which the courts entertain conflicting views. Frequently such
questions are not to be settled by mere reasoning, but rather
on grounds of practical expediency ; and usually the cases them-
selves furnish better guidance to the solution of the difficulty
than the reasoning of a text-writer set out within the limits
of the space which he may properly devote to any one such
question.
While it is not the plan of this treatise to cover criminal
procedure in general nor the rules of criminal evidence, yet in
connection with each crime there are rules as to the form of
the indictment and the evidence admissible on questions pecul-
iar to that particular crime which can be better stated as a
part of the substantive law of that crime than in connection
with a discussion of the general law of procedure, for these
peculiarities usually depend on the nature of the crime. Such
rules as to procedure and evidence as relate to the particular
crime are therefore here stated in the discussion of that crime.
In other words, the object borne in mind has been to give the
lawyer with reference to any particular branch of the crimi-
nal law that information which he is likely to want in the
vi
PREFACE.
consideration and trial of a case arising under. that branch.
In this view it is clear that the forms of indictment for each
crime are properly given in connection with the discussion of
that crime. The forms which have been selected are almost
without exception based upon those which have been found
sufficient in particular cases and therefore have judicial sanc-
tion. It has not been thought desirable to present a multi-
tude of forms, but to give only such as indicate the ordinary
language used in stating the ingredients of each offense.
Civil cases have been sparingly cited, it being thought that
in the statement of the criminal law the authorities should be
limited to cases in which the principles of the criminal law are
applied. Nevertheless so far as has been necessary civil cases
have been made use of as illustrating principles not otherwise
covered or explaining necessary distinctions. In citing cases
the official reference is uniformly given, from which it will be
possible to find them in any series not official in which they
may be included. While duplicate references may in some
eases be a matter of convenience, yet to give them in every
instance would involve more space than the corresponding ad-
vantage would warrant.
It may be proper for the author to say, by way of explana-
tion as to his fitness for dealing with this subject, that not only
has the present treatise been in preparation for more than
seven years, but that for eight years prior to commencing the
work he had been engaged in teaching criminal law, having
prepared during that time for the use of his classes an Outline
of Criminal Law and Procedure in about two hundred and
fifty pages, stating the general principles of the subject, which
is still in use as the class book in criminal law in the school
with which he is connected. The present treatise, however, is
in no sense an expansion or outgrowth of that Outline, but is the
result of an attempt to gather together and state in connected
vii
PREFACE.
form the principles of the criminal law established by adjudi-
cation as they have been worked out in detail in the courts,
for it is thus that the law grows and will continue to grow, all
efforts at generalization, condensation and codification to the
contrary notwithstanding.
E. McC.
Law DEPARTMENT, STATE UNIVERSITY oF Iowa,
Iowa Ciry, February, 1897.
viii
ANALYSIS OF CONTENTS.
VOLUME I.
PART I.
NATURE AND SOURCES.
CHAPTER 1.
ORIGIN OF CRIMINAL LAW;
DEFINITION AND NATURE
OF CRIME.
§ 1. Theory of criminal punish-
ment.
2. History of criminal law.
3, Place of criminal law in ju-
risprudence.
4. Definition.
&. What deemed criminal pro-
ceeding.
6. Breach of city ordinance.
% Penal statutes; actions qui
tam.
8. Penalty, exclusive or con-
current.
9. Contempts.
10. Crime distinct from tort and
from breach of contract.
11, Civil remedy not merged or
suspended.
CHAPTER 2.
HOW CRIMES PRESCRIBED;
WHAT DEEMED CRIMINAL;
CLASSIFICATION OF CRIMES.
§ 12. Written and unwritten law.
18. Common-law offenses not
recognized.
In the federal courts.
Commion-law definitions and
general principles.
What deemed criminal.
Classes of offenses.
Felony and misdemeanor.
Other classifications; high
crimes and misdemeanors.
14,
15,
16.
17.
18,
49,
ix
§ 20. Infamous crimes,
21, Misdemeanors,
22. Merger.
CHAPTER 3.
OFFENSES PRESCRIBED UNDER
GENERAL POLICE POWER
AND MUNICIPAL ORDI-
NANCES.
§ 23. Criminal law a part of the
police power.
Various grounds of regula-
tion.
24,
25. Evil course of life.
26. Common scold.
27, Common barrator.
28. Habitual criminals.
29. Regulation of business; sale
of liquors, opium, danger-
ous articles.
30. Protection of public health.
31. Health of employees.
32. Unwholesome provisions.
33. Adulterated food and drinks.
34, Imitation butter, cheese and
lard; oleomargarine.
35. Inspection laws.
86. Regulations of professions;
physicians, pharmacists,
dentists.
87. Practice of law.
88, Licenses in other callings.
89, Regulation of business in
particular localities.
40. Public callings.
41, Insurance.
42, Bankers; factors; mercan-
tile agencies.
43, Corporate business.
§ 44,
45,
48,
47,
48,
49,
50.
51.
52.
53.
54,
55.
56.
57,
58.
59.
60.
61,
62,
63.
64,
65.
66.
67.
68.
69.
70.
71,
72,
73,
ANALYSIS OF CONTENTS,
Occupation tax; peddlers,
itinerant merchants.
Protection of public inter-
ests.
Protection of game and fish.
Protection of brands.
False weights and measures;
frauds.
Regulation of warehouse-
men.
Regulation of sales.
Enticing away servants.
Rescue of distrained prop-
erty.
Usury.
Civil rights.
Regulation of employment.
Sale of diseased animals,
Regulation of marriage.
Abandonment of wife or
child; care of children.
Protection of minors.
Indecency and profanity.
Vagrants.
Municipal regulations.
Ordinances and statutes on
same subject.
Impose punishments,
Reasonableness of
nances,
Suppression of nuisances.
Quarantine.
Sale of liquors.
Power to regulate does not
include power to prohibit.
Regulation of streets and
public places.
Regulation of markets and
market places.
Regulations as to fire.
Regulation of employments.
CHAPTER 4.
ordi-
CONSTITUTIONAL LIMITA-
§ 74,
1.
TIONS.
Applicable to criminal stat-
uteg,
Interference with obligation
of contracts and other
vested rights,
§ 76,
77,
78.
79,
80.
Interference with interstate:
commerce.
Uniformity of operation;
equality of protection.
Ex post facto laws
Bills of attainder.
Cruel and unusual punish-
ments,
CHAPTER 5.
PENAL STATUTES; CONSTRUC-
§ 81.
82,
83,
96.
97.
98,
99.
100.
101.
102,
103,
104,
105.
106.
107,
108,
109.
110.
TION; REPEAL,
Construction.
Reason of the statute.
Strict construction.
Not so as to defeat intent..
Letter and spirit.
Legislative intent.
Statutes in pari materia..
Civil code.
General and special provis-
ions.
General clause;
enumeration.
Implied repeal.
Implied repeals not favored.
What amounts to a repeal.
As between general and spe-
cial provisions.
Effect of statute upon pre-
existing common law.
Effect of repealsas to offenses
already committed.
Effect on pending prosécu-
tions. :
Repeal after conviction.
Repeal after judgment pend-
ing an appeal.
Effect of partial repeal or
partial invalidity.
Saving clause.
Repeal of repealing statute.
Statutes construed prospect-
ively.
Effect of invalidity of statute..
Construction of terms.
Grammar and punctuation.
Singular for plural.
“ And,” “ or,”
“ May.”
Definition of terms,
particular
ANALYSIS OF CONTENTS,
PART II.
CRIMINAL INTENT AND CAPACITY.
CHAPTER 6.
THE CRIMINAL INTENT.
§ 111. Tort and crime distinct as to
intent.
Intent, essential element in
crime.
Acting under claim of right.
Legal advice.
Acting under legal or other’
authority.
Compulsion.
Acting as detective,
Decoying to crime,
Other illustrations,
Motive and intent distin-
guished. :
Malice.
Specific criminal intent.
Intent presumed.
Allegation and proof of in-
tent.
Statements as to intent.
Variance of the act from the
intent.
Intent alone.
Intent in. statutory offenses.
CHAPTER 7%.
CRIMINAL NEGLIGENCE,
§ 129. As supplying intent.
180. Causing injury.
CHAPTER 8.
IGNORANCE OR MISTAKE,
§ 131. When a defense.
132. Ignorance or mistake of law.
133. Ignorance or mistake of fact.
134, Duty to know the facts.
185. Mixed mistake of law and
fact.
CHAPTER 9.
NECESSITY AND COMPULSION.
§ 1386. How far excuse.
187, Avoiding injury to one’s self.
112,
113,
114.
115,
116.
117,
118,
119,
120.
121,
122,
123,
124,
126.
126.
127.
128,
§ 188 Defense of person or prop-
erty. "
139. Extent of right to defend
the person.
140. Defense of family and others..
141. Resisting unlawful arrest.
142. Defense of property.
148, Power of custodian of build--
ing.
144. Protection of dwelling.
CHAPTER 10.
COVERTURE.
§ 145. Presumption of coercion.
146. Exception in case of murder..
14%. Presumption not couclusive..
148, ‘Wife’s separate business,
CHAPTER 11.
INFANCY.
§ 149. When complete defense.
150. Presumption of innocence.
151. Over fourteen years,
152. Evidence of capacity; ques-—
tion for the jury.
153. Proof of age.
CHAPTER 12.
INSANITY AND INTOXICATION.
§ 154. Lack of mind; imbecility.
155. Deaf and dumb,
156. Complete insanity; right anc
wrong theory.
15%. Uncontrollable impulses;
moral insanity.
158. Partial insanity; insane de-
lusions.
159, Insanity caused by intoxica-
tion.
160. Intoxication alone no de-
fense.
161, Intoxication as bearing upon
the specific intent.
162, In cases of homicide.
168, Voluntary intoxication,
xi
§ 164
165.
166.
167.
168,
169,
170.
171,
172,
178,
174,
1%.
§ 186,
187,
188.- Whether
189.
190.
191,
192,
ANALYSIS OF CONTENTS.
Defense of insanity; how
raised.
Question for the jury.
Preliminary investigation.
Evidence of insanity.
Acts and declarations of ac-
cused.
Mental condition before and
after the crime.
Hereditary.
Other evidence.
Opinions of experts.
Opinions of those not ex-
perts.
Presumption.
Burden of proof. {
PART III.
§ 176,
177,
178.
179,
§ 180.
181,
182,
183.
184,
185.
Amount of evidence; vari-
ous rules.
Beyond a reasonable doubt.
By preponderance of evi-
dence.
Reasonable doubt sufficient.
CHAPTER 13.
CORPORATIONS.
Liability to indictment.
Whether deemed “person.”
Liable for non-feasance,
Also for misfeasance.
Criminal intent.
Allegation and proof of cor-
porate existence,
CONNECTION WITH THE ACT.
CHAPTER 14.
AGENCY.
As affecting criminal liabil-
ity.
Principal’s liability.
authority pre-
sumed.
Illegal sales of liquor by serv-
ant. ,
Liability of agent or servant.
Liability of partners,
Management of property.
CHAPTER 15.
COMBINATIONS; PRINCIPAL
§ 193,
194,
196..
196.
197,
AND ACCESSORY.
I. In GENERAL
Acts, as well as intent, essen-
tial.
Participation necessary.
Persons acting together.
Whether or not act contem-
plated in the original de-
sign.
Acts outside of original de-
sign.
g 198,
199,
200.
201.
202.
203,
Abandonment of original de-
sign.
Accomplices;
abettors.
What is sufficient procure-
ment or participation.
Detectives.
Consent to crime; particeps
criminis,
Acts or declarations of ac-
complices or confederates.
aiders and
IL. PRINCIPAL AND ACCESSORY.
204,
205.
206.
207.
208.
209.
210.
Distinction.
Principals in first and sec
ond degree.
Constructive presence.
Accessory before the fact.
Accessory in manslaughter.
Accessory after the fact.
Crimes in which accessories
not recognized.
III. PROCEDURE AS TO ACCESSORIES.
211.
212,
213,
214,
xii
Jurisdiction and venue,
Indictment; joinder.,
Charging principals.
Charging accessories,
§ 215.
216.
§ 219,
§ 220,
221,
229,
- 298,
224,
225,
“226.
227,
228,
228a.
229,
” -§ 280.
ANALYSIS OF CONTENTS.
Accessory not tried before
principal.
Guilt of principal must be
shown,
PART IV.
§ 217.
218.
Statutory provisions.
Statutes making accessory
guilty of substantive of-
fense.
UNCOMPLETED ACT; WHEN CRIMINAL.
How far intent must have
been carried.
CHAPTER 16.
ATTEMPTS,
Solicitations.
Attempts deemed criminal.
Intent involved.
What acts sufficient.
Preparation distinguished
from attempt.
Illustrations,
Impossibility.
Attempts to poison.
Indictment.
Forms. .
Included offense.
CHAPTER 17%.
ASSAULTS.
How classified.
~
I. Smee ASSAULT AND ASSAULT
“ee
281.
282.
288.
234.
285.
236.
237,
238.
239,
240,
AND BATTERY.
What constitutes; attempt
to commit battery.
Cases of attempt; menace
not enough.
Putting in fear.
Present ability.
What acts sufficient; bat-
tery.
Administering injurious
drug.
Wilful or negligent exposure,
or improper treatment of
another.
Indecent assault,
Intent.
Unlawfulness,
§ 241.
249,
248,
244,
245,
257,
258.
259,
260.
261.
262.
Justification.
Lawful chastisement,
Correction of wife.
Control of premises.
Protection of property.
Self-defense.
Effect of civil action.
Mitigation or aggravation.
Effect of consent.
Principal and accessory.
Jurisdiction.
Indictment.
Form.
Included offense.
AGGRAVATED ASSAULTS,
How classified.
What constitutes aggrava-
tion.
Shooting, cutting, stabbing,
wounding, inflicting great
bodily harm, etc.
Assaults with dangerous or
deadly weapons.
Loaded weapons,
Intent.
Indictment.
Forms.
Included offense.
IIL ASSAULTS WITH FELoNiovs In-
263.
264,
265.
266.
267.
268.
xiii,
TENT.
Whether felonious or not.
What included.
The intent involved.
Ability to commit the injury
threatened.
Justification, excuse, or miti-
gation.
Indictment;
sault.
charging as-
ANALYSIS OF OONTENTS.
§ 277. Justification or excuse.
278. With intent to commit man-
slaughter.
279. Assault with intent to kill.
IV. AssavuLt witH INTENT TO KILL | Vy, Assavur To po Great BODILY
INJURY.
280. What constitutes; how
shown.
VIL ASSAULT WITH INTENT TO Ros.
281. What constitutes,
PART V,
OFFENSES AGAINST THE PERSON.
§ 269. Charging the intent.
270. Forms.
271. Included offenses,
272, Joinder.
OR MURDER.
273. The assault.
274. The'intent.
275. Allegation and proof of in-
tent.
276. Connection of intent and
act.
CHAPTER 18.
HOMICIDE,
§ 282. Scope of the chapter,
282a. Table of homicide,
L CavsaTIon,
Means of killing.
Threats, fear.
Accident.
Negligence; failure to pro-
vide for dependent per-
sons,
Physicians and chemists,
Railroad companies.
Wrongful act.
Suicide.
By act of another; combi-
nation; conspiracy.
Proximate or remote cause;
death from wound,
293. Time of death.
II, WHo DEEMED PERSON.
294. Human being; child unborn.
295. Person in the king’s peace.
283.
284,
285.
286.
287,
288,
289.
290.
291,
292,
III, HomicipEs Not CRIMINAL; Jus-
TIFIABLE OR EXCUSABLE; SELF-
DEFENSE,
296. How distinguished.
297. In executing sentence of
death.
§ 297a. In acting under military
command,
298. In arresting or detaining
criminals, :
299, Resisting commission of fel-
ony.
800. Accidental killing.
801. Self-defense.
802, Danger to life or of injury-
to the person.
303. Imminent danger.
304. Apparent danger.
805. Belief of danger.
306. Reasonableness of belief.
807. Threats and character of de-
ceased.
308. Necessity.
309. Party in the wrong,
310. Duty to withdraw.
311. Duty to retreat.
312. Where felony threatened, or
invasion of home.
813, Protection of others,
314. Right to pursue.
315, Instruction as to self-defense..
316. Burden of proof.
IV. Murprr,
317. Felonious.
818, Division into murder and
manslaughter.
319. Malice aforethought,
xiv
& 320.
321,
322,
323,
324,
325.
326,
327,
329,
330.
331.
232,
333,
334,
335,
336.
337,
338,
339.
340.
341.
342,
343.
344,
345.
346,
347,
348,
ANALYSIS OF CONTENTS.
Meaning of term.
Malice in general.
Express or implied.
Intent to kill the person
killed or another.
Dueling; fighting by con-
sent.
General recklessness; acts
dangerous to life,
In the attempt to commit a
felony.
Attempt to procure abortion.
In resisting lawful arrest.
“Aforethought;” delibera-
tion; premeditation.
Evidence of malice.
Intoxication or insanity as
affecting the question of
malice.
Whether malice presumed;
use of deadly weapon.
Presumption of malice from
killing.
Instructions as to malice.
MANSLAUGHTER.
How distinguished.
Intentional killing;
manslaughter.
Provocation.
What sufficient.
Quarrel; mutual combat; tu-
mult.
Resisting unlawful arrest.
Wife in adultery; insults to
females, etc.
Homicide irrespective
provocation.
Cooling time.
Sufficiency of provocation as
affected by intoxication
or insanity of defendant,
character of deceased, etc.
Question of law or fact.
Burden of proof; sufficiency
of evidence.
Unintentional killing in
doing wrongful act; at-
tempted abortion.
Unlawful violence in doing
lawful act.
when
of
xv
350.
351.
§ 349. Death from negligence.
What deemed negligence,
Examples.
VI. Statutory DEGREES oF MuR-
DER AND MANSLAUGHTER.
352,
358.
354.
355.
356.
358.
859.
360.
361.
362.
363,
364,
365.
366.
367.
368.
VIL
369.
370.
To determine extent of pun-
ishment.
Degrees of murder.
First degree; by poison or
lying in wait.
In perpetrating certain fel-
onies.
Wilful, deliberate, and pre-
meditated killing.
Wilfulness; intentional kill-
ing.
Deliberate and premeditated.
Evidence of deliberation and
premeditation.
Intoxication or insanity as
showing want of delibera-
tion or premeditation.
Indictment for first degree.
Finding as to degree.
Fixing the punishment.
Fixing the degree of punish-
ment on plea of guilty.
Murder in second degree.
Question of law and fact.
Conviction of second degree
under indictment of first
degree.
Degrees of manslaughter.
JURISDICTION AND VENUE.
Jurisdiction.
Venue.
VIII. THe INDICTMENT. *~
871.
872.
373.
373a.
374,
375.
376.
377.
Murder and manslaughter
distinguished.
Elements.
Name of the party charged;
“sound mind.”
The person killed.
Human being; in the king’s
peace.
Killing two or more persons.
Time and place of wrongful
act.
The means of killing.
§ 3878,
379.
3880.
381,
382,
383,
384,
385.
386.
387.
388,
ANALYSIS OF CONTENTS.
Method; assault, weapon,
strangulation, poison, etc.
Negligence.
Description of wound.
Death.
Allegations of intent; feloni-
ously, wilfully, with mal-
ice aforethought.
Intent to kill.
Opening and conclusion.
In general; allegations of
fact; clerical errors,
Under statutes.
Form of indictment in gen-
eral.
Particular forms.
IX, PROCEDURE AND PUNISHMENT.
389,
390.
391.
392,
393.
_ 894,
395.
396.
397.
398,
399,
400.
401.
402.
403.
404,
405.
406.
407.
408,
409,
410.
411,
412,
418,
Included offenses,
Effect of conviction of lower
degree or included of-
fense.
Instructions as to lower de-
gree or included offense.
Verdict.
Punishment.
Sentence.
X. THE EVIDENCE,
Venue.
Corpus delicti.
When corroboration neces-
sary.
Identity of body.
Alibi of alleged deceased.
Cause of death.
Proof of suicide.
Death from natural causes.
Identity of accused.
Guilt of third persons,
Real evidence,
Photographs.
Experiments,
Circumstantial evidence.
Weight and sufficiency of
circumstantial evidence.
Best evidence; eye-witnesses,
Res geste.
Declarations as part of res
geste.
Antecedent acts and decla-
rations,
g 414,
415,
416.
417,
418,
419,
420.
421,
422,
423,
424,
425,
426,
427,
428,
429,
430.
431.
Narrative of past transac-
tion.
Declarations as to physical:
condition.
Motive.
Relations of parties.
Evidence of intent,
Threats and hostile acts of
accused.
Confessions and admissions.
by defendant. ;
Acts and behavior of defend-
ant subsequent to the hom-
icide.
Defendant’s character.
Threats, character, and occu-
pation of deceased.
Declarations of deceased.
Dying declarations.
Sense of impending death.
As to what matters admis-
sible.
Competency of evidence;
opinions.
Form of statement.
Admissibility for the court.
Credibility and weight.
CHAPTER 19.
MAYHEM AND MAIMING.
§ 432. Mayhem; maiming.
' 483, Whether felony.
434, What constitutes maiming.
435. Intent.
436. Indictment.
436a, Forms.
437. Included offense.
CHAPTER 20.
RAPE AND CARNAL ABUSE OF
§ 438,
439,
440,
441,
442,
443,
xvi
FEMALE CHILDREN.
Rape defined.
The force involved.
Resistance.
Without consent.
Age of the female as bearing
upon the question of con-
sent.
Carnal abuse of females un-
der the age of consent.
§ 444.
445,
446,
447,
449,
450.
451,
452,
454,
455,
456.
457,
458. .
459.
460.
461.
ASSAULT WITH INTENT TO COM-
MIT RAPE; OR ATTEMPT TO
COMMIT RAPE,
§ 462.
463,
464,
465.
466.
467.
ANALYSIS OF CONTENTS.
What deemed the age of con-
sent. 5
Woman insensible.
Consent obtained by fraud.
Woman imbecile or insane.
Consent through fear.
Who may commit: husband;
boy; woman; joint prin-
cipals, .
The act; penetration; emis-
sion.
The intent.
Indictment,
Forms.
Included offenses,
Evidence; outcry or com-
plaint,
Evidence of complaints only
corroborative.
Other discrediting evidence.
Corroboration of prosecu-
trix,
Physical condition.
Previous unchastity; rela-
‘tions between parties, etc.
Other crimes; burden of
proof, etc.
CHAPTER 21.
What acts necessary; in-
cluded assault,
Intent.
Consent,
Effect of incapacity to com-
mit rape.
Indictment.
Forms.
PART VI.
§ 468.
469.
470.
471,
472,
473,
474,
475.
476,
477.
478,
479,
481.
482,
483,
484,
CHAPTER 22.
ROBBERY,
Definition.
The violence.
Putting in fear.
The taking and carrying
away.
The value.
The property of another,
From the person.
Against the owner’s will.
Participation.
Injury to different persons,
Degrees of the offense; ag-
gravation.
The intent,
Indictment.
Description
value.
Statutory provisions,
Form of indictment,
Included offense.
of property;
CHAPTER 23.
KIDNAPPING; FALSE IMPRIS-
§ 485,
ONMENT.
Nature of offenses.
False imprisonment,
Unlawfulness,
Method of detention. .
Kidnapping.
Against the will.
Intent.
Indictment; form,
OFFENSES AGAINST THE HABITATION.
CHAPTER 24.
BURGLARY AND STATUTORY
BREAKINGS AND ENTER-
INGS.
§ 493,
494.
495.
Definition.
The habitation.
House of another.
§ 496,
497,
498,
499,
xvii
Buildings connected with or
appurtenant to the dwell-
ing; common roof.
Within the curtilage,
Buildings adjacent,
Buildings not connected
with a dwelling; statue
tory provisions.
ANALYSIS OF OONTENTS.
§ 500. The breaking.
501. Constructive breaking.
602. Breaking out.
603. The entry.
604. Night-time; day-time under
statutes.
505. The intent.
506. Evidence of intent.
‘507. Intent disproved.
508. Indictment; description of
property.
509. Description of offense in-
tended; goods stolen or
intended to be stolen.
09a. Venue.
$10. “Burglariously,” “ feloni-
ously,” etc.
$11. Joinder of offenses; included
offenses.
$12. Agegravation; degrees,
$13. Forms of indictment.
$14, Evidence; recent possession
of stolen property.
515. Other evidence.
516. Possession of burglars’ tools,
CHAPTER 25.
ARSON AND OTHER BURNINGS.
§ 517. Definition.
518. What constitutes “the
house.”
619. Other buildings within the
curtilage; adjacent build-
ings; barns.
520. Buildings not part of the
dwelling; grain, hay, etc.
521. The house of another.
522. Intent to defraud insurance
companies and others,
523. The burning.
524. Person in the building.
525. Other matters of aggrava-
tion; degrees; night-time.
526. The intent.
527. Indictment; venue,
528. Description of property.
529. Description of ownership.
530. Allegation of intent.
531. Forms of indictment.
632. Included offenses,
533, Evidence,
PART VII.
OFFENSES AGAINST PROPERTY.
CHAPTER 26,
LARCENY.
L DEFINITION.
§ 534. Technical.
535. In brief.
II, WHat Property SUBJECT TO
LARCENY.
636. Not realty.
537. Where the severance and
carrying away are not con-
tinuous,
538. Animals fere nature or
without value.
539. Dogs and cats. +
540. Domestic animals or fowl,
and their product.
§ 541, Animals, alive or dead.
542, Other instances of property.
543. Things of value; written in-
struments; choses in ac-
tion.
III. OWNERSHIP OF THE PROPERTY.
544, Property without owner;
abandoned.
545. Property temporarily out of
owner’s control; lost or
left in another’s custody.
546. What sufficient ownership;
special owner, bailee or
custodian; part owner.
547, One’s own property; intent
to charge another.
. xviii
ANALYSIS OF CONTENTS.
¥V. Toe Act; TAKING AND CaRRY-
§ 548,
549,
550.
561.
552,
558,
654.
-555.
556.
557,
358.-
559.
560.
361.
562.
563,
564.
565.
566.
567.
568.
569.
570.
571.
572.
573,
ING AWay.
What sufficient asportation.
Trespass necessary.
What constitutes trespass.
Continuous trespass; distinct
articles; different owners.
Taking goods from, one
county to another.
Taking-goods from one state
or country to another.
Misappropriation by bailee.
Carriers or other bailees
breaking bulk.
Larceny by servant or mere
custodian.
Consent of owner; collusion.
Consent of servant or cus-
todian or wife.
Further as to consent; force,
duress, fraud.
Property obtained by trick
or fraud.
Mutual mistake and subse-
quent wrongful appropria-
tions.
Obtaining possession only,
but with intent to appro-
priate.
Obtaining property by false
pretenses.
V. INTENT.
An essential element.
Under claim of right.
Intent to appropriate; tem-
porary use.
Pecuniary advantage with-
out permanent appropria-
tion.
For the thief’s benefit; lucri
causa.
Intent contemporaneous
with act.
Intent relating back.
Lost property.
Intent; how charged and
proved or disproved.
Connection with the offense;
principal and accessory;
receiver.
VI. CompounpD LARCENIES.
§ 574,
B75.
576.
577.
578.
579.
580.
Elements of aggravation.
From the person.
From the dwelling-house.
From the house. =
From a building, store-house,
warehouse, vessel, etc.
In night-time or day-time.
Common thief.
VIL VaLvE aS DETERMINING Pun-
ISHMENT; GRAND AND PETIT,
581.
582.
583.
584.
585.
586.
587.
588.
589.
590.
591.
592,
593.
594.
595.
596.
597.
598.
599.
600.
601.
602.
603.
604,
605.
606.
xix
Felony.
Some value essential.
What essential for grand lar-
ceny.
Aggregate value.
Value, how estimated.
Allegation and proof of
value.
Finding as to value.
What sufficient finding.
Cases where value immate-
rial; horse-stealing, etc.
VIII. PROCEDURE.
Jurisdiction and venue.
Indictment.
Description of the property.
Sufficiency of description in
particular cases,
Description of animals.
Written instruments, bills
and notes.
Bank-notes, treasury notes,
etc.
Money, coin.
Money not goods and chat-
tels.
Evidence of identity and
value.
“ Personal property,” “ goods
and chattels.”
Ownership.
Joint ownership;
owners.
What sufficient ownership.
Ownership in corporation.
Effect of mistake in name.
Defective indictment cured
by verdict.
several
§ 607.
608.
609.
610.
611.
612,
613.
614.
615.
616.
617.
618.
619.
620.
ANALYSIS OF CONTENTS.
Allegation of “stealing, tak-
ing, and carrying away.”
Felonious intent.
As an included offense;
joinder.
Forms of indictment.
Restitution of property.
IX. EVIDENCE.
Corpus delictt.
Identification of property.
Identification of defendant;
declarations: circumstan-
tial evidence.
Other crimes.
Recent possession of stolen
goods.
Effect of such evidence; pre-
sumption; burden of proof.
Sufficiency of explanation.
When possession deemed
sufficiently recent.
Possession exclusive.
CHAPTER 27.
EMBEZZLEMENT.
I, NATURE OF THE OFFENSE.
§ 621.
622.
628.
624,
625.
What constitutes,
Definition.
How distinguished from lar-
ceny.
Whether statute exclusive.
Whether embezzlement is a
form of larceny.
II. By Servant, CLERK, AGENT, ETC,
626.
627,
628.
629.
630,
631.
682,
633,
634,
Who deemed servant or
clerk.
Who deemed agent.
For hire.
Trustees, attorneys, collect-
ors, etc.
Custodian,
Partnerships and associa-
tions.
Officers or agents of corpora-
tions.
Persone under the age of
sixteen years,
Property received by virtue
of employment.
§ 635.
~ 636,
637.
638,
639.
640.
641,
642,
643.
Illegally received.
What property subject to
embezzlement; value.
What acts sufficient.
Conversion of property.
Conversion of money; de~
mand and refusal.
Failure to account or pay
over.
Intent necessary.
Other acts.
Without employer’s consent..
III, By CaRRIER OR OTHER BAILEE..
644,
Carrier liable.
IV. By PuBLIC OFFICERS.
645.
646.
647.
648.
649,
650.
651.
652.
653.
654.
655.
656.
656a.
FALSE PRETENSES;
Special statutory provisions.
Who deemed public officer.
De facto officer.
Public funds.
What constitutes conversion.
V. PROCEDURE.
Venue.
‘Time.
Description of money or
property.
Ownership of property.
The relation under which.
the property is received.
Description of the act.
Joinder of counts; duplicity.
Forms of indictment.
CHAPTER 28.
CHEATS.
AND FRAUDS.
I, NATURE OF THE OFFENSES.
§ 657.
658.
659.
660.
661.
662.
663.
6638a.
664.
665.
xXx
General scope of this chapter..
General divisions.
Distinguished from larceny..
Cheat defined.
Cheating by false tokens.
Swindling by gambling de-
vices, ete.
False packing.
Frauds on hotel-keepers.
False personation.
False pretenses; general nat-
ure of the offense.
ANALYSIS OF CONTENTS.
Ti. SUFFICIENCY OF THE FALSE PRE-
§ 666.
667.
668.
669.
670.
671.
672.
673.
674.
675.
676.
677.
678.
679.
TENSE,
False pretense; what consti-
tutes.
Relevancy of the pretense,
continued.
Misrepresentation of fact.
Distinguished from opinion.
Statements as to value, or
indebtedness.
Incumbrance on property.
Fraudulent second sale.
Misrepresentation of author-
ity.
‘Checks, drafts, orders, or ac-
counts.
Using false money, notes, or
checks.
Contract; warranty.
False representations in sale
of horse.
False promises; statement of
fact as distinguished from
promise.
False statements of financial
ability.
z
IIL CONNECTION BETWEEN THE FALSE
PRETENSE AND THE WRONG DONE.
680.
681,
682,
683.
684.
685.
686.
687.
IV.
688.
689.
690,
691.
Fraud accomplished.
By means of the false pre-
tense,
Illegality of mutual purpose.
Made to or by agent or third
person.
Pretense relied upon.
Falsity of pretense; fraud
perpetrated.
Controlling cause.
Want of prudence of person
defrauded.
INTENT AND KNOWLEDGE.
Purpose to defraud.
Intent.
Knowledge of falsity.
Evidence of intent; other
transactions.
V. THE FRAUD PERPETRATED.
§ 692. What constitutes property.
693. Notes, checks and other in-
struments,
694. Obtaining signature.
695. Obtaining charity.
VI. INDICTMENT AND EVIDENCE.
696. Venue.
697. Parties indictable; combina-
tion.
698. The indictment; statutory
form.
699. Statement of the false pre-
tenses.
700. Setting out the words or in-
strument.
701. Several pretenses.
702. Falsity of the pretenses.
703. Intent.
704, Person defrauded.
705. Corporation deemed person.
706. How fraud effected; means.
707. Name of party defrauded;
ownership of property.
708. Description of the property.
709, Value.
710. Variance.
711. Forms of indictment.
712, Restitution.
CHAPTER 29.
RECEIVING STOLEN GOODS.
§ 713. Nature of the offense.
714, What acts sufficient.
715. What goods.
716. Guilty knowledge.
717. Intent.
718. Indictment; description of
the property.
719. Description of the larceny.
720. Jurisdiction and venue.
721, Allegation of intent and
knowledge.
722. Joinder.
723. Finding of value.
724, Evidence.
725. Recent possession.
726. Guilty knowledge.
727. Forms of indictment.
xxi
ANALYSIS OF CONTENTS.
CHAPTER 30. § 734, The thing threatened; vio-
lence.
OBTAINING PROPERTY BY 735. Injury to business.
THREATS; BLACKMAIL. 736. Injury to character.
§ 728. What constitutes. 787. Threat to prosecute.
729. Sending threatening letters. 738. The advantage obtained.
730. Threats for the purpose of 739. Venue.
extortion. 740. The indictment.
731. American statutes. 741. Forms of indictment.
732. The threat. 742, Evidence; other acts.
733. Must be communicated.
VOLUME IL.
PART VII.
OFFENSES AGAINST PROPERTY (Contrnvzp).
CHAPTER 31.
FORGERY AND COUNTERFEIT-
§ 743,
744,
745,
746.
747.
748,
749,
730.
751.
752.
753.
754,
755.
756.
57,
758.
759,
ING.
General nature.
I. ForGERY.
Defined.
Written instruments.
Part false.
Classes of instruments.
Effect of statutes; felony or
misdemeanor.
What instruments,
Public records or process;
wills,
Bonds and deeds.
Notes, bills, checks and other
instruments. .
Undertakings, warrants, or
orders for the payment of
money or the delivery of
goods,
Receipts.
Books of account.
Validity or legal effect of the
writing.
Apparent legal efficacy.
Invalid instrument.
Invalid for lack of authority.
§ 760.
761.
762.
763.
764.
765.
766,
767.
768.
769.
770.
771.
772,
773.
774,
75.
776.
Delivery not essential.
False signature; similarity
not essential.
Unauthorized signature.
By procurement. /
Fictitious name.
Alteration.
Intent to defraud.
Intent inferred.
Execution of the intent.
Fraudulent tendency of the
act.
Person to be defrauded.
Name of person intended to
be defrauded.
Existence of corporation.
Perpetration of fraud.
II. COUNTERFEITING.
What deemed counterfeit;
similitude.
Foreign coin or notes.
Intent.
III. Possession oF COUNTERFEITING
777.
778,
779.
xxii
TOOLs.
What criminal,
Of intent.
How charged.
ANALYSIS OF OONTENTS.
IV. UTTERING, PASSING, OR Havine
§ 780,
781.
782.
788,
784,
785,
786.
787.
788.
789.
790.
791.
792.
793.
794.
795.
796.
797,
798.
799,
800.
801.
802.
803.
804.
805.
806.
808.
809.
“810.
IN POSSESSION.
Offenses defined.
What constitutes an uttering.
Passing counterfeit money.
What constitutes a passing,
Having in possession.
What constitutes possession.
Possession with intent.
Representation of genuine-
ness.
The intent.
Guilty knowledge.
V. PROCEDURE.
Jurisdiction of state and
United States.
Venue.
Indictment.
Description of instrument.
Setting out the instrument.
Foreign language; transla-
tion.
Purport.
Immaterial matters.
Variance.
Name forged; idem sonans.
Statutory provisions as to
indictment.
Allegations as to the act.
Allegation of intent; feloni-
ously.
Different offenses; duplicity.
Form of indictment.
VI. EVIDENCE.
Production of instrument.
Comparison of handwriting.
Capacity of defendant and
other matters.
Evidence of other crimes.
Inferences from the act or
possession.
In cases of conspiracy.
CHAPTER 32.
MALICIOUS MISCHIEF; WIL-
§ 811.
812.
FUL TRESPASS.
Nature of these crimes.
Malicious mischief by early
statutes; Black Act. .
x
§ 818.
814,
815.
816.
817.
818.
819.
820.
821,
822.
823,
824.
825.
826.
827.
828,
829.
830.
831.
882.
833.
834.
835.
§ 836.
887.
838.
839,
840.
841.
§ 842,
843.
844,
xiii
Distinguished from larceny.
Injuries to personal prop-
erty.
Injuries to animals.
Altering brand, etc.
Injuries to machinery.
Injuries to vessels.
Injury to public property.
Forcible trespass.
Injury to buildings.
Hunting or fishing without
permission.
Injuries to real property.
Trespass after warning, or
when forbidden.
Offenses against possession.
The intent; malice.
Under claim of right.
Under claim of authority.
Malice against owner.
Indictment; ownership of
property.
Other description.
The act, how charged.
Astointent. -
Value of property.
Joinder.
CHAPTER 33.
FORCIBLE ENTRY AND DE-
TAINER,
Common-law offenses.
What constitutes forcible
entry.
Forcible detainer.
Possession involved.
Description of premises.
Restitution.
CHAPTER 34.
FRAUDULENT CON VEY ANCES S
CONCEALMENT OF PROP-
ERTY.
General characteristics.
Concealing or disposing of
‘property to defraud cred-
itors.
Fraudulent conveyances,
ANALYSIS OF CONTENTS.
§ 845. Fraud perpetrated.
846. Removal or disposal of prop-
erty covered by chattel
mortgage.
847. Consent of mortgagee. |
§ 848.
849.
850.
851.
Selling or removing property
subject to lien.
The intent.
Venue.
Indictment.
PART VIII.
OFFENSES AGAINST PUBLIC JUSTICE.
CHAPTER 35.
PERJURY.
I. WHat CONSTITUTES.
§ 852. Definition.
858. Elements of the offense.
IL THe Oatu.
854. Essential.
855. Before authorized officer.
856. Acting officer.
857. State officer acting under
federal statute.
Ili. In a Court Havine JURISDIC-
TION.
858, Jurisdiction essential.
IV. WHERE AN OATH IS AUTHORIZED.
859. Collateral proceedings
court.
in
860. Proceedings not in court.
V. MATERIALITY.
861. Essential.
862. Collateral facts.
863. Illustrations.
864. As to credibility of witness.
865. Effect immaterial.
866. Materiality is for the court.
VI. Fausity.
867. Essential.
868. Statement of fact.
VIL INTENT.
869. What essential.
870. Advice of counsel.
VII. Tue INDICTMENT.
871. Jurisdiction.
872, Requisites,
§ 873.
874,
875.
876.
877.
878.
879.
880.
881.
882.
888.
884.
885.
886.
887.
888.
889.
890.
891.
892.
The proceeding.
Description of the oath.
Authority of officer.
Jurisdiction of the court.
The matter falsely sworn.
Materiality.
Availability and effect.
The averment as to falsity.
Intent; knowledge.
Time and place.
Separate counts; several as-
signments.
Joinder of defendants.
Forms of indictment.
IX. THE EVIDENCE.
As to the proceedings or
issue.
Administration of the oath.
The testimony or statement.
Materiality.
Wilful falsity.
Sufficiency of testimony;
contradictory statements
of accused.
One witness not sufficient.
X. SUBORNATION; ATTEMPT TO PRO-
893.
894,
895.
§ 8y6.
897.
898,
899.
xxiv
CURE.
What constitutes.
Attempt to procure or incite,
Form of indictment.
CHAPTER 36.
BRIBERY.
What constitutes,
Who subject to bribery.
Bribing witness,
Bribing jurors; embracery.
ANALYSIS OF CONTENTS.
§ 200.
901.
902.
903,
Venue.
Indictment.
Forms of indictment.
Evidence.
CHAPTER 37%.
‘OFFICIAL MISCONDUCT; EX-
TORTION.
Usurpation.
Abuse of authority.
Misconduct.
Refusal to act.
Disregard of duty.
Neglect of duty.
Permitting a prisoner to es-
cape.
Public contracts.
Who deemed officer.
Intent.
Extortion.
Indictment for misconduct
er neglect.
Stating the office.
Alleging the intent.
Describing the act or omis-
sion.
Removal; penalty.
CHAPTER 38.
OBSTRUCTING JUSTICE.
I. In GENERAL
§ 920. What constitutes.
§ 904.
905.
906.
907.
908.
909.
910.
911.
912,
$13.
914
‘915,
916.
917.
918.
919.
II. ResIsTING AN OFFICER.
§ 921.
922,
923,
924.
When criminal.
What officers; authority.
What constitutes resistance.
Intent; justifiable resist-
ance.
Indictment.
Allegation of act.
Charging the intent.
Duplicity.
Evidence.
925.
926.
927,
928.
929.
III BREAKING JAIL; Escars; RE&s-
CUE.
What- criminal.
Legality of arrest or confine-
ment.
Pound-breach.
Intent.
Indictment.
Practice.
Evidence.
930.
931,
982,
933.
934,
935.
936.
IV. TAMPERING WITH A WITNESS.
937. Nature of the offense.
CHAPTER 39.
MISPRISION OF FELONY; COM-
POUNDING OFFENSES.
§ 938. What constitutes misprision.
939. Compounding offenses,
940. Further as to the crime of
compounding.
PART IX.
OFFENSES AGAINST THE ELECTIVE FRANCHISE.
CHAPTER 40.
VIOLATION OF ELECTION
LAWS.
Under statutes.
What deemed an election.
Illegal voting.
Disqualified voters.
§ 941.
942,
943,
944,
§ 945.
946,
947,
Crimes by election officers.
Interference with elections.
Improperly influencing vot-
ers.
Federal election laws,
Intent.
Indictment.
Evidence.
948,
949,
950.
951,
xxXV
ANALYSIS OF CONTENTS.
PART X.
OFFENSES AGAINST PUBLIC PEACE AND SECURITY.
CHAPTER 41.
CONSPIRACY; UNLAWFUL COM-
BINATION.
I. WHat CONSTITUTES THE OFFENSE.
§ 952.
953,
954,
955.
956.
957,
958.
959.
960.
961,
962,
963.
964.
965.
966.
967.
968.
969.
970.
971.
972.
973.
974,
975.
976.
977.
978.
979.
980.
981.
982,
983.
984,
General nature.
Definitions.
Purpose or means as crim-
inal or unlawful.
Common-law conspiracy.
Conspiracies to commit a
crime.
To charge with crime.
To slander.
To seduce female or entice
to prostitution.
To defraud private persons.
To deprive of a right.
To injure the public.
In restraint of trade.
To defraud the government.
To overthrow the govern-
ment.
Overt act.
Impossibility.
The combination.
Joining in the execution.
Liability of one for acts of
all.
Intent.
II, PRocEDURE
Jurisdiction and venue.
Limitation.
The indictment; allegation
of wrongful purpose.
Setting out the unlawful
means.
Bills of particulars.
Charging overt act.
Duplicity.
Merger.
Joinder of offenses.
Joinder of defendants.
The person to be injured.
Description of property.
Statutory language.
' § 985.
986,
987.
988,
989.
990.
Variance.
Form of indictment.
Punishment.
III, EVIDENCE.
Declarafions and acts of co-
conspirators. |
Proof of the existence of
the conspiracy.
Necessity of corroboration.
CHAPTER 42.
RIOT; UNLAWFUL ASSEMBLY.
§ 991.
992,
993.
994,
995.
996.
997.
998,
999.
1000.
1001.
1002.
I. In GENERAL.
Nature of offenses.
II. Riot anp Rout.
Definition.
Unlawtulness of act or
manner.
Numbers of persons.
Participation.
Conviction of one alone..
Reading the riot act.
Indictment.
Forms of indictment.
Description of property.
Included crime.
Punishment. ®
III UNLAWFUL ASSEMBLY.
1008.
1004.
1005.
Defined.
Intent sufficient.
Statutory definition.
CHAPTER 43.
AFFRAYS AND BREACHES OF
§ 1006,
1007.
1008.
1009.
1010.
1011,
xxvi
THE PEACE.
I. AFFRAY.
Defined.
Fighting by consent; mere
words not enough,
In a public place.
Indictment.
Conviction of joint offense..
Included offense.
ANALYSIS OF CONTENTS.
IL BREACH OF THE PEACE AND DIs-
1012.
1013.
1014.
1015.
1016.
1017.
1018.
1019.
1020.
1021.
ORDERLY CONDUCT.
What constitutes,
Prize-fighting.
Injuries to property.
Shooting in streets or high-
ways.
Noise and disturbance,
Threatening and insulting
language.
Disorderly persons;
grants; drunkards.
Public place.
Disturbance of family or
neighborhood.
Method of charging offense.
va-
II. DISTURBANCE OF MEETINGS.
1022,
1023.
1024,
1025.
1026.
1027.
» 1028,
What constitutes.
What deemed public meet-
ing.
Congregation assembled for
worship.
Disturbance of school.
What deemed a disturbance.
The intent.
The indictment.
CHAPTER 44.
CARRYING CONCEALED WEAP-
§ 1029.
1030,
1031.
1082,
10383.
1034.
1035.
1036.
§ 1071.
1072.
ONS.
At common law.
Constitutionality of stat-
utes,
What made criminal.
The intent.
What weapons.
Exceptions; apprehension
of attack.
On one’s own premises.
Travelers.
§ 1087.
1038,
1039,
Officers.
Indictment.
Evidence.
CHAPTER 45.
LIBEL AND SLANDER.
§ 1040.
1041.
1042,
1048,
1044,
1045,
1046,
1047.
1048,
1049,
1050.
1051.
1052.
1053.
1054,
1055.
1056.
1057.
1058.
1059.
1060.
1061.
1062,
1063.
1064.
1065.
1066.
1067.
1068.
1069.
1070.
PART XI.
OFFENSES AGAINST CONJUGAL AND PARENTAL
RIGHTS.
CHAPTER 46.. § 1078.
BIGAMY. 1074,
Definition. 1075.
What constitutes.
xxvii
Nature of the offenses.
Definition.
Common law or statutory.
As against private individ-
uals.
As against a family or class
or corporation.
As against wife.
As against the dead.
As against public, officers.
As against government.
Blasphemous or obscene
publications.
Freedom of the press.
The truth as a defense.
Privileged publications.
Intent; malice.
Mitigation. |
Publication.
Liability for acts of serv-
ants or agents.
Slander.
Venue.
Indictment.
Colloquium and innuendo.
Setting out the language.
In foreign language.
‘Whole publication.
Indecent matter not set out.
Alleging publication.
Description of the person.
Allegation of intent.
Duplicity.
Forms of indictment.
Functions of court and jury.
The second marriage.
Validity of prior marriage.
Prior marriage terminated
by divorce.
§ 1076.
1077.
1078.
1079.
1080.
1081.
1082.
1083,
1084.
1085.
§ 1086.
1087.
1088.
1089.
1090.
1091.
1092.
§ 1109.
1110.
1111.
1112.
1118.
1114,
1115.
1116.
1117.
1118.
1119.
ANALYSIS OF CONTENTS.
Intent; belief as to death
of former consort.
Jurisdiction and venue.
Limitation. |
Indictment.
Negativing proviso.
Allegation of intent.
Evidence; proof of former
marriage.
Admissions of defendant.
Evidence that former
spouse is still living.
Testimony of husband or
wife.
CHAPTER 4%.
ADULTERY.
What constitutes.
Living in adultery; habit-
ual intercourse.
Validity of marriage.
Presumption of continu-
ance.
Termination by divorce.
Intent; knowledge.
Mutual criminal intent.
PART XII.
OFFENSES AGAINST CHASTITY,
§ 1098.
1094,
1095.
1096.
1097.
1098.
1099.
Complaint of husband or
wife.
Indictment.
Joinder; included offenses,
Evidence as to the mar-
riage.
Proof of act.
Proof of other acts,
Competency of husband or
wife as a witness.
CHAPTER 48.
ABDUCTION OF FEMALES.
§ 1100.
1101.
1102.
1108.
1104.
1105.
1106.
In case of girls. ,
From the custody of parent
or guardian.
Consent.
What constitutes a taking.
Purpose of the abduction.
Knowledge as to age.
Chastity of the female.
1106a. Abduction or enticement
1107.
1108,
RALITY.
CHAPTER 49.
SEDUCTION.
Classification of sexual | § 1120.
crimes. 1121.
Table of sexual crimes. 1122,
What constitutes seduction. 1123.
Seductive arts; promise of 1124,
marriage.
Prosecutrix unmarried and
chaste.
Indictment.
Included offenses.
Marriage a bar.
Evidence in general.
Evidence of chastity.
Sufficiency of evidence; cor-
roboration. F
of woman; pimping or
procuring.
The indictment.
Evidence.
DECENCY AND MO-
CHAPTER 50.
INCEST.
What constitutes,
Mutuality.
The act.
Indictment.
Evidence.
CHAPTER 51.
FORNICATION AND BASTARDY.
§ 1125.
1126.
1127.
1128.
1129,
xxviii
Fornication; when punish-
able.
Bastardy.
Jurisdiction and venue.
Complaint.
Evidence,
ANALYSIS OF CONTENTS.
CHAPTER 52.
ILLICIT COHABITATION.
§ 1180. How far criminal.
1131. Intent; joint offenses.
1132. Other incidents of indict-
ment and evidence.
CHAPTER 53.
PROSTITUTION AND LEWD-
NESS.
§$ 1133. Prostitution and
walking.
Frequenting houses of ill-
fame.
Lewdness.
Indecent exposure.
night-
1134.
1185:
1136.
CHAPTER 54.
KEEPING DISORDERLY
HOUSES.
What deemed criminal.
Keeping houses of ill-fame.
What deemed a house.
What constitutes a keeping.
Procuring or encouraging.
Permitting the use or leas-
ing for the purpose.
Indictment.
Forms of indictment.
Evidence,
§ 1187.
1138.
1139.
1140.
1141.
1142.
1148.
1144,
1145.
CHAPTER 55.
PROCURING ABORTION; CON-
CEALING BIRTH OF BAS.
TARD.
§ 1146.
1147,
1148,
1149.
1150.
Procuring abortion.
Where death results.
Attempting; advising.
Consent; necessity.
The indictment.
Evidence.
Concealing birth of a bas-
tard.
§ 1151.
1152.
CHAPTER 56.
SODOMY.
§ 1153.
1154.
1155.
What constitutes.
Indictment.
Evidence.
CHAPTER 57.
OBSCENITY AND INDECENCY.
§ 1156.
1157.
Obscene language.
Indecent exhibitions and
prints.
1158. Indictment and evidence.
CHAPTER 58.
a
BLASPHEMY AND PROFANITY.
§ 1159. What constitutes.
1160. Indictment.
CHAPTER 59.
CRUELTY TO ANIMALS.
§ 1161. What punishable.
1162. What deemed animal.
1163. Intent.
1164. Indictment.
CHAPTER 60.
VIOLATION OF RIGHT OF SEP-
ULTURE.
Failure to bury; prevent-
ing inquest.
Disposal of dead bodies.
Violation of graves,
Desecration of cemeteries.
§ 1165.
1166.
1167.
1168.
xxix
ANALYSIS OF CONTENTS,
PART XIII.
OFFENSES AGAINST PUBLIC HEALTH AND GENERAL.
WELFARE.
CHAPTER 61.
PUBLIC NUISANCE.
§ 1169. What constitutes.
1170. Further as to what consti-
tutes a nuisance.
1171. Whether public benefit a
defense.
1172. Acts under public author-
ity.
1178, Illegal continuance of use.
1174, Liability of owner or serv-
ant.
1175. Effect of contribution to the
nuisance.
1176. Intent and knowledge.
1177. Venue.
1178. Indictment; charging pub-
lic nature.
1179. Charging the act.
1180. Joinder of different acts;
continuance.
1181. Description of locality.
1182. Abatement.
1183. Forms of indictment.
CHAPTER 62.
OFFENSES AS TO HIGHWAYS.
I. OBSTRUCTION OR NON-REPAIR OF
HIGHWays.
§ 1184. Deemed a nuisance,
1185. Failure to open or repair.
1186. Obstruction; what consti-
tutes.
1187. Obstruction by railroads.
1188. Continuance of obstruction.
1189. The intent.
1190. What deemed highway.
1191. Private ways,
1192. Streets, alleys and public
places.
1193. Indictment.
1194. Title in defendant,
II. OpstRucTION OF NAVIGABLE
RIVERS,
§ 1195. When criminal.
III. INTERFERENCE WITH THE OPER--
ATION OF RAILROADS.
1196. What criminal.
IV. Law oF THE Roan.
1197. Turning to the right; bi-
cycles.
1198. Racing on the highway..
CHAPTER 63.
VIOLATION OF LIQUOR LAWS.
I. GENERAL STatTuToRY REGULA-
TIONS; CONSTITUTIONALITY AND
CONSTRUCTION OF STATUTES;
CONCURRENT FEDERAL, STATE
AND CITY REGULATIONS.
§ 1199. General character of stat-
utory regulations.
1200. Constitutionality of liquor
legislation.
1201. Federal constitution; four-
teenth amendment.
1202. Regulation of commerce.
1203. Restriction of transporta-
tion into the state.
1204. Sale in original package.
1205. Effect of Wilson law.
1206. Under state constitutions.
1207. Due process of law; taking
private property for pub-
lic use.
1208. Jury trial.
1209. License; impairing obliga-
tion of contract.
1210. Local or special laws; local:
option.
1211. Uniformity of taxation.
1212, Conditions for granting li-
cense.
1218, Constitutional prohibition.
\ xXxXxk
8 1214,
1215,
1216.
1217.
ANALYSIS OF CONTENTS,
Sale by public agent.
Constitutionality of provis-
ions as to evidence.
Construction of statutes.
Concurrent effect of fed-
eral, state and city pro-
visions.
4d], WHat Deemed INTOXICATING
1218,
1219.
1220,
1221.
1222,
Liquor.
Law or fact; judicial no-
tice.
Mixed or compounded liq-
uor.
Particular classes of liq-
uors.
Other descriptions; “spirit-
uous,” “fermented,” etc.
Evidence as to character of
liquor; knowledge by de-
fendant.
HII, Systems oF REGULATION; LI-
1223,
1224,
1225.
1226.
1227,
1228.
1229,
1230.
1231.
1232,
CENSE; LocAL OPTION.
The license system.
License not retroactive.
Direct and collateral at-
tack; appeal.
Forfeiture or revocation.
Not assignable; who pro-
tected by; agent or part-
ner.
Authority to issue, discre-
tionary.
Selling without license; al-
legation and proof of li-
cense.
Carrying on the business
without a license.
Place of sale.
Local option.
AV. ILLEGAL SELLING OR KEEPING
1288.
1234,
1235.
1236.
FOR SALE.
What deemed a sale.
Consideration; barter or ex-
change.
Giving; furnishing; dispos-
ing of.
When sale complete; place
of sale.
§ 1237.
1238,
1239.
1240,
1241.
1242,
1243.
1244,
1245.
1246.
1247,
1248,
1249,
1250.
1251.
V. SPECIAL EXCEPTIONS IN
\
Liability for sales by serv-
ant.
Sales by partner or wife.
Liability of agent.
Furnishing to members of
club.
Purchaser not purtishable.
Transporting.
Unlawfully keeping for
sale.
The business of selling;
being common seller. ‘
Retailing; wholesaling.
Selling by small measure.
To be drunk on the prem-
ises.
Nuisance; keeping place for
illegal sale.
Charging and proving the
nuisance. —
Regulations as to receipts,
hour of closing, screens,
etc.
Intent.
CasEs
OF PHYSICIANS, DRUGGISTS, PRO-
DUCERS, ETC.
1252. Exceptions by statute; need
not be negatived.
1253. Sales by ‘physicians and
druggists.
1254. Sales by producers or man-
ufacturers.
VI. SPECIAL PROHIBITIONS,
1255. Provisions in general.
1256. Sales to prohibited persons.
1257. Intent or knowledge in such
cases.
1258. Sale to minor or intoxicated
person for another.
1259. Furnishing to minor or in-
toxicated person.
1260. Who deemed minor; allega-
tion and proof of age.
1261. Consent of parent or guard-
ian.
1262. Sales to habitual drunkard
or intoxicated person.
1263. Sales to Indians,
xxxi
ANALYSIS OF CONTENTS,
§ 1264, Selling on Sundays or holi-
days.
1265. Selling on election day.
1266. Selling near churches, edu-
cational institutions, etc.
VII. THE PROCEDURE; SEIZURE; IN-
DICTMENT; EVIDENCE.
1267. Seizure; property in liquors.
1268. Second offense.
1269. Venue.
1270. Indictment.
1271. Further as to description of
the particular act.
Time and place.
Description of kind, quan-
tity, price, etc.
Name of purchaser.
Joinder of offenses.
Variance; election.
Double punishment; _ in-
cluded offenses; previous
1272,
1273.
1274,
1275.
1276.
1277.
jeopardy.
1278. Negativing exceptions.
1279. Evidence.
1280. License as evidence.
1281. Burden of proof as to law-
fulness of sales.
CHAPTER 64.
GAMING AND BETTING.
I. GAMING IN GENERAL
§ 1282,
1283,
1284.
1285,
1286.
1287.
1288.
1289.
1290.
1291,
1292,
1293,
1294,
1295,
Introductory.
Gaming in general.
Statutory provisions.
What deemed games.
What deemed a wager.
When offense complete.
Aiding or procuring.
Indictment in general.
Names of parties.
Charging the game played.
The wager.
Time and place.
Joinder of defendants.
Charging different offenses;
duplicity.
1296. Evidence.
II. BEerrina.
§ 1297. In general; on horse-races— ie
1298 Betting on elections.
1299. Indictment; evidence.
Il, Common GAMBLER.
1300. Who is.
" IV. Gamine In PuBLIc PLACEs.
1301. In general.
1302. The place.
1303. Further as to public place..
1804. Indictment and evidence.
V. PooL SELLING.
1305. Statutory provisions.
VI. KEEPING A GaMING House.
1306. What criminal.
1307. Place and time.
1808. The keeper.
1809. The indictment and evi-
dence.
VII. KEEPING AND EXHIBITING GaAmM--
ING DEVICES AND TABLES.
1310. What constitutes,
1311. Procedure; indictment.
1312, Penalty; destruction of im--
plements.
VIII ALLOWING GAMES TO BE.
PLAYED ON THE PREMISES,
13138. When criminal.
IX. GaMING BY MINORS.
1314. Permitting to game or to:
resort.
CHAPTER 65.
LOTTERIES.
§ 1815. Definition.
1316. Statutes.
1317. Constitutionality.
1318, Indictment.
CHAPTER 66.
VIOLATION OF SUNDAY LAWS..
§ 1819, Nature of regulations; con—
stitutionality.
1820. What deemed Sunday.
xxxii
ANALYSIS OF CONTENTS.
§ 1321. Works of charity or neces-
sity excepted.
1322, Sunday traveling.
1823. Operation of railroads or
telegraph lines,
§ 1324. Carrying on business.
1825. Sunday amusements.
1826. Indictment.
PART XIV.
OFFENSES UNDER FEDERAL REGULATIONS.
CHAPTER 67.
POSTAL CRIMES.
In general.
Obstruction of mails.
Robbery of the mails,
Larceny or embezzlement
by postal servants.
Use of mails to defraud.
Sending obscene matter
through the mails.
‘Defamatory or threatening
matter.
Lottery advertisements.
Decoy letters.
CHAPTER 68.
REGULATIONS AS TO COM-
MERCE.
§ 1836. Discrimination.
13837. Unlawful combinations.
1338. Carriage of live-stock.
1838a. Trading with the Indians.
CHAPTER 69.
OFFENSES AGAINST BANKING
ACT.
§ 1839. False entries.
' 1840. Embezzlement; misapplica-
tion of funds.
OHAPTER 70.
OFFENSES AGAINST NEUTRAL-
ITY, IMMIGRATION AND NAT-
URALIZATION LAWS.
§ 1841. Violations of neutrality.
1342, Violence to foreign minis-
ter.
§ 1327.
1828,
1329,
1330,
1381.
1832,
1333.
1334.
1835.
§ 1343. Immigrationlaws; contract
labor.
Exclusion of Chinese.
To whom applicable.
Naturalization.
1344,
1345.
1346.
CHAPTER 71.
VIOLATION OF NAVIGATION
LAWS.
§ 1847, What criminal.
CHAPTER 72.
VIOLATION OF PENSION LAWS.
§ 1348. What criminal.
CHAPTER 73.
OF REVENUE
MAKING FALSE
VIOLATION
LAWS;
CLAIMS.
§ 1349.
1350.
1851.
1352.
Forfeiture of goods.
Licenses and stamps.
Customs duties.
Presenting false claims.
CHAPTER 74.
VIOLATION OF LAND LAWS.
§ 1853. What punishable.
xxxiii
ANALYSIS OF CONTENTS...
PART XV.
OFFENSES AGAINST SOVEREIGNTY.
§ 1357. Levying war; rendering aid
CHAPTER 75. and comfort.
TREASON. 1858. Overt act.
§ 1854. History of the crime. CHAPTER %6.
1355, Constitutional definitions. PIRACY.
1356. Statutory definitions. § 1859. Nature of the offense.
xxxiv
CRIMINAL LAW.
PART I.
NATURE AND SOURCES.
‘CHAPTER 1.
ORIGIN OF CRIMINAL LAW—DEFINITION AND NATURE OF
CRIME.
81. Theory of criminal punishment.— The infliction by
the governing power, in any community, of punishment for
acts deemed so far detrimental to the public welfare as to
make such repressive measures necessary, seems to be a useful
and inherent function of government. But the theory under
which such power is exercised is by no means so simple as the
universal acceptance, without question, of the practical fact
would lead us to suppose. Indeed there are many conflicting
and inconsistent theories propounded, for the most part by
moralists and philosophers, on which the right and duty of the
state to punish crime is upheld.! This whole theoretical dis-
cussion, however, seems to be of no consequence whatever in
determining what the criminal law is. It does not throw any
light on the solution of the questions which come before the
courts for determination. It is of interest, nevertheless, to
notice that the so-called absolute theory, making it the duty
of the government to punish crime because it is wrong,— the
wrongness, of course, depending on the notions of right pre-
vailing with those who make and administer the law,— gave
way to preventive or general welfare theories with the intro-
duction of notions of natural law and a social compact, as illus-
trated in Blackstone? and Beccaria;* and that when in turn
1These theories are collected and ?4Com.,ch. 1.
discussed in Whart. Cr. L. ch. 1, 3See his Essay on Crimes and
where the authorities on the subject Punishments, especially ch. 7,
are referred to.
1
§ 2.] NATURE AND SOURCES OF CRIMINAL Law. [Parr I.
the social compact and natural law theories of government
were abandoned, they had already revolutionized the existing
ideas as to criminal punishment, and had brought about con-
ceptions which were quite in harmony with the theory of
government developed by reason of the peculiar origin of our
state and federal governments, and thus paved the way for
what may perhaps be called the American theory of criminal
law, that punishment is to be inflicted for the protection of
the people against the repetition of similar wrongs on the part
of the criminal himself or others. The American system, which
follows the English, as contrasted with the continental, in treat-
ing all men as equals before the law and presuming innocence:
until the contrary appears, has pushed even farther than the
English doctrine the notion of justice in criminal punishment,
recognizing that even the criminal shall not be unjustly, un-
fairly and unequally dealt with; and the adjustment of the
punishment to the nature of the act and the moral capability
of the actor is made a prominent consideration.2, Any contrast
to be drawn between the American and the English systems.
relates, however, rather to the English system as it prevailed
in the time of Blackstone, just prior to American Independence,
than to its present state, for the same moral movement toward:
humanity and justice, which is so noticeable in the develop-
ment of the criminal law in America, has had the effect in
England of revolutionizing the whole system as it existed in
Blackstone’s time, and there is perhaps no appreciable differ-
ence between the theories recognized in the English criminal
law of to-day and those which are assumed in America.
§ 2. History of criminal law.— Of more importance than
the discussion of theories of criminal responsibility would be
the accurate statement of the exact facts with reference to the
development of the different features of our criminallaw. But
such a statement would involve investigations quite outside of
the proper scope of a general treatise. It will be sufficiently
accurate for present purposes to say that among the Anglo-
1The whole subject as looked at 22 Wilson’s Works (Andrews’ ed.),.
from the American point of view is 844-6. This view is the basis for the
fully discussed in 2 Wilson’s Works constitutional provisions against.
(Andrews’ ed.), part 8, ch. 1, p. 887. cruel and unusual punishments, and
See, alsa, Livingston’s report on the other like clauses in the federal and.
Penal Code for Louisiana, state constitutions, ,
Cu. 1.] ORIGIN AND DEFINITION. [§ 2.
Saxons was found a somewhat elaborate system of police super-
vision and a complicated scheme of compensation to be paid
by wrong-doers, both to the ruler and to the injured party.
That prominence was given to the making of some sort of
reparation to the injured party rather than to punishment for
the general public benefit is apparent, not only from the pro-
visions for payment of such compensation adjusted to the
rank of the injured party and the wrong done him, called the
weregild,! but also from the prevalence of the system of appeals
of felony, which amounted practically to the infliction of pun-
ishment by the government on the wrong-doer, not on behalf
of the government itself, but on behalf of the injured party or
his relatives, and which was deemed so far a private right
that the prerogative of mercy could not be exercised by the
government, on account of the private interest involved.? There
was also, however, a well-recognized right to punish corporally,
usually by death or some form of mutilation, the wrong-doer who
did not pay the penalty imposed for his wrongful act, or whose
act was so atrocious as to be deemed beyond pecuniary satis-
faction. Corporal punishment was also allowed in some cases
of second offense, where the first offense subjected the wrong-
doer only to a pecuniary penalty. It seems to have been con-
sidered that the payment of the penalty was an absolution
from the private vengeance which would otherwise be permis-
sibly inflicted by the injured party or his friends, it being to
the interest of the public that private feuds be suppressed and
the peace maintained. And where corporal punishment was
still permitted, it was perhaps looked upon as a lawful exercise
of vengeance on the part of those injured, being regulated,
however, by the public authorities, or inflicted by them in be-
half of those injured. It is, indeed, claimed by some that the
whole criminal law is based on this early notion of vengeance,’
and that therefore the punishment inflicted is not intended
merely as preventive, but also as a satisfaction of the natural in-
stinct of revenge which arises on the part of the individuals of
a community as against one who has done an atrocious wrong.
It appears, however, that even among the Germanic tribes, be-
14.Bl. Com. 413, 3 Holmes’ Com. L, 2, 87, 41,
22 Wilson’s Works (Andrews’ ed.),
340, 841,
3
§ 3.] NATURE AND SOURCES OF CRIMINAL LAw. [Part I.
fore the Anglo-Saxons transferred themselves to Great Britain,
there was a well-recognized right on the part of the people in
their public capacity to inflict capital punishment for public
wrongs; a right which is supposed to have been in the nat-
ure of self-defense, a power to exclude from the community
those who could not be allowed to continue in the community
without injury to others. This power was exercised in the
Anglo-Saxon system of government by the great Council of
State as a matter of public administration, and an outgrowth
thereof was the process of outlawry, which was a prominent
feature of civil as well as of criminal procedure. The outlaw
was simply regarded as a public enemy, having no longer any
right whatever in the public state. The system of criminal law
which we have derived from the Anglo-Saxons, and which has
been molded in England and America during the centuries of
its development by changing theories of criminal responsibility
and individual rights, is drawn therefore, perhaps, from at
least two distinct sources, the one involving redress to the in-
dividual, the other protection to the state. It is worthy of
note, also, that the present marked distinction between a tort
and a crime, the one being an injury to the individual, for
which the wrong-doer must make compensation, and the other
an injury to the public growing out of the same wrong, for
which criminal punishment should be inflicted, was not known
to the Anglo-Saxon law.? The relations between crime and
-tort will be hereafter discussed.’
§ 3. Place of criminal law in jurisprudence.— When the
notion of crime has become so well defined that an offense of
that character is looked upon as a wrong to the public, dis-
tinct from the wrong to any private person who may be inju-
riously affected, then it is evident that the criminal law is a
part of the public law, that is, the law affecting the relation of
the state or governing power to the subject, and not a part of
the private law which affects the relations of subjects to each
other;* for although many acts are punishable because they are
1See Hammond’s Notes to 4 Bl. 3 Infra, § 10.
Com., ch. 1. 4Holland, Jurisp., chs. 9 and 10,
*See in general, 2 Pollock & Mait- criticising Austin, Jurisp., lec. 44,
land’s Hist. Eng, 1, 446; 1 Steph.
Hist. Cr. L. 51,
4
Ca. 1.]
ORIGIN AND DEFINITION,
[§ 4.
infringements of private right, yet the punishment is for the
protection of the whole public and not for the satisfaction of
the injured party. The natural division of the law relating to
crime is into criminal law proper, that is, the substantive law
of crime, which determines what is punishable, and criminal
procedure, the adjective law of crime, which prescribes the
method by which it is determined whether a crime has been
committed, and in accordance with which punishment is in-
flicted. The plan of discussion which has been adopted for
this work, however, combines with the criminal law proper so
much of criminal procedure as relates peculiarly to each par-
ticular crime.
§ 4. Definition.— A crime is an act or omission punishable
as an offense against the state.!
lAn old definition is found in
Staundforde’s Plees Del Coron (1583),
where it is said that “pleas of the
crown are the pleas which relate to
(conteignont) offenses done against
the crown and dignity of the king.”
And the author then proceeds to de-
scribe crimes, such as treason, homi-
cide, rape, larceny, burglary, etc.
This illustrates the view of a crime
as a direct injury to the sovereign,
for the punishment of which a pro-
ceeding in his name, as the party
wronged, was allowed. The notion
that the king is the representative
only of the public and that the pro-
ceeding is for the benefit of the pub-
lic seems to be modern. Other defi-
nitions are as follows: —
“A crime or misdemeanor is an
act committed or omitted in viola-
tion of a public law, either forbid-
ding or commanding it: ” 4Bl. Com.
5. Quoted in U.S. v. Eaton, 144U.8.
677, 688; Ex parte Hollwedell, 74 Mo.
395, 401; S. v. Bishop, 7 Conn. 181,
185; Ex parte Hickey, 4 Sm. & M.
751, 788; In re Bergin, 31 Wis. 383,
886, And see cases cited infra, § 17,
as to whether crime includes misde-
meanor, which quote the whole defi-
nition.
It is thus distinguished from
“A crime is any wrong which the
government deems injurious to the
public at large, and punishes through
a judicial proceeding in its own
name:” 1 Bish. Cr. L., § 32.
“A crime may be defined as an
act or omission, in respect of which
legal punishment may be inflicted
on the person who is in default,
either by acting or omitting to act:”
1 Steph. Hist. Cr.L. 1. But this au-
thor proceeds to say that his defini-
tion is too wide for practical pur-
poses, and that if applied in its full
latitude it would embrace all law
whatever, for one specific peculiar-
ity, by which all law is distinguished,
is that it is coercive, and all coercion
at some stuge involves the possibility
of punishment: Ibid. 2.
In Colorado the penal code defines
a crime or misdemeanor to be the
violation of a public law, in the
commission of which there shall be
a union or joint operation of act
and intention, or criminal negli-
gence: Kent v. P., 8 Colo. 563, And
as to union of act and intent, see
Buckner v. C., 14 Bush, 601; Roberts
v. P., 19 Mich. 401, and infra, § 112.
The term “crime” includes the
more trivial offenses known as mis-
§ 5.] NATURE AND SOURCES OF CRIMINAL LAW. [Parr I.
a civil injury, which is considered only as a wrong against an
individual. As will hereafter appear, some acts or omissions
may be both crimes and civil injuries;! but the distinction is
that, in case of a crime, the state is deemed the injured party
and punishes the wrong-doer in the interests of the general
public and in its own name, while in the case of a civil injury,
although the state furnishes means for redress, the proceeding
is directly in the name and under the control of the party in-
jured. The state in the sense here intended is simply the gov-
erning power acting in behalf of the people; in England it
means the sovereign and parliament; in the United States it
means the federal or state government, according as the offense
is one against the United States or one of the states.’
§ 5. What deemed criminal proceeding.— As the definition
of a crime involves the fact that cognizance is taken of it in a
criminal proceeding, it becomes important to know what is
deemed a criminal proceeding. If the object of the proceeding
is to recover a penalty, in the nature of damages to the injured
party, and not as a punishment only in behalf of the state, the
proceeding is not criminal.* All acts for which the remedy is
demeanors, as well as the moreatro- name of the King (or Queen) against
cious ones called felonies. Although the offender, the title of the prosecu-
Blackstone’s definition, as above tion being Rex (or Reg.) v. ——.
given, would seem to indicate that And in accordance with the same
misdemeanors are not crimes, he view the indictment concludes,
proceeds immediately afterward to “against the peace of the King (or
explain his meaning tothe contrary. Queen).” In the United States the
And in general to the effect that the form of expression varies in the dif-
term crime includes misdemeanor, ferent states. In some the title is
see In re Bergin, 31 Wis. 383, 386; In “The State of —— v.—,”in others
re Clark, 9 Wend. 212, 222; Inre Voor- “The Commonwealth of —— v.—,”
hees, 32 N. J. 141; Van Meter v. P.,60 in still others, “The People of the
Til, 168, 170; Lehigh County v. Schock, State of —— v.—;”and correspond-
113 Pa, St. 373; andseeinfra,§17. The ingly the indictment concludes,
term “criminal offense” as usedina “against the peace and dignity of
state constitution is held to cover the state of ——,” or “the common-
misdemeanors: Slaughter v. P., 2 wealth of ——,” or “the people of
Doug. (Mich.) 334, note. A conviction the state of ——.”
before a police judge of the offense 380 held where statute provided
of intoxication is a conviction of a for recovery by indictment against
crime: P. v. French, 102 N. Y. 583. a railway company of a penalty for
1 Infra, § 10. the benefit of the widow and child or
*The fact that a proceeding is in heirs, in case of the death of any
behalf of the public is indicated in person through its negligence: S. v.
England by its being brought inthe Grand Trunk R. Co, 58 Me. 176.
6
Cz. 1.] ORIGIN AND DEFINITION. [§ 5.
by indictment are not necessarily criminal! The fact that a
statute provides for the recovery of a penalty by civil action
for the use of the county,’ or for the forfeiture of some right
or license as a penalty,’ does not render the proceeding crim-
inal,‘ On the other hand, the fact that a fine imposed is to be
for the benefit of any party, municipality, or person, injured
by the offense, does not make it necessary that the proceeding
be in the name of the person or corporation to be benefited,
but it may be in the usual form of a criminal case.» However,
even where a penalty is to be recovered by an action for debt,
the proceeding may be in some respects governed by the rules
of criminal actions, so that the declaration must be equally cer-
tain in charging the facts necessary to bring defendant within
the statute, as though it were a criminal accusation.® The
form of the action does not determine whether an act forbid-
den by statute is a crime, but the object of the statute will
control. If it is designed to prevent a public injury or wrong,
the act forbidden is criminal; but if merely to redress a private
wrong it is civil, whatever the form of the action.’ Nor does
1 Where a statute provided forthe penalty or forfeiture: S. v. Bangor,
removal of the register of deeds on 30 Me. 341; and see case cited in last
presentment by the grand jury, or preceding note. The fact that rem-
on information, it was held that the edy is by complaint does not conclu-
proceeding was not criminal: 8. v. sively show that the action is crim-
Leach, 60 Me. 58. So where a stat- inal, but the fact that the proceed-
ute provided that money drawn in ings provided for are such as are
a lottery should be forfeited and usual in criminal cases is strong evi-
might be recovered for the use of dence of an intention that the pro-
the commonwealth by indictment, ceeding be criminal: S. v. Stearns,
it was held that the proceeding was 31 N. H. 106.
not necessarily criminal: C. v. 78. v. Ford, 70 Mo. 469.
Howes, 15 Pick. 231. Under a stat- 38. v. Burnett, 77 Mo. 570.
ute providing that fines imposed for 4 Quasi-criminal actions to enforce
violation of a statute duty, when no a fine for the breach of some police
other mode of collection isexpressly regulation, in which imprisonment
stated, may be recovered by indict- is not a part of the punishment, but
ment, it was held that indictment only a means for enforcing payment
would lie to enforce against a rail- of the penalty, are not criminal in
way company a forfeiture for ob- such sense that defendant necessa-
structing a highway by its engines rily has a right to a trial by jury:
and cars: 8. v. Grand Trunk Ry., 59 Inwood v. S., 42 Ohio St. 186.
‘Me. 189. Soa proceeding by indict- 5C. v. Newell, 5 Gray, 76.
ment to recover damages against a 6S, v. Androscoggin R. Co., 76 Me.
city for death caused by leaving the 411.
streets in a dangerous condition 78. v. Shoemaker, 20 N. J. 153;
was held not to be an action for a S. v. Stearns, 31 N. H. 106. Thus,
q
§ 6.] NATURE AND SOURCES OF CRIMINAL LAW. [Part I,
the fact that the tribunal in which the action is prosecuted
has no power to enforce payment by imprisonment affect the
nature of the prohibited act.! Where the statute provides that,
upon conviction of an act specified, the person guilty thereof
shall be fined, etc., the proceeding to enforce the penalty is
criminal; and in general an offense against the public good
which may be penal is punishable as a crime.’ The fact that
an act or omission renders a party liable to a pecuniary for-
feiture, which when collected goes into the public treasury, does
not necessarily render the act a crime;‘ but a prosecution by
indictment in which a fine is to be imposed is a criminal prose-
cution.®
§ 6. Breach of city ordinance.— Where a city is given au-
thority to enact ordinances and punish violations thereof by
imprisonment, or by fine enforcible by imprisonment, a prose-
forcible entry may be punished by the violation of a liquor law is made
indictment as a breach of the peace, a lien upon the property used for
while restitution may be enforced that purpose does not make the pro-
bya civil suit. Cruiser v.8.,18N.J. ceeding to enforce such judgment a
206. criminal prosecution: Polk County
1Hinman v. Taylor, 2 Conn. 357; v. Hierb, 37 Ia, 361. So a penalty
S. v. Keenan, 57 Conn. 286; 8. v. imposed for violation ofa police reg-
Stearns, 31 N. H. 106. ulation is not necessarily a criminal
2P. v. Goshen, etc. Turnpike Road, punishment: S, v. Grove, 77 Wis. 448.
11 Wend. 597, A penalty imposed for the offense of
38. v. Bishop, 7 Conn. 181. Thus, disturbing the public ditches, to be
a failure to construct fish-waysina recovered by the overseer for the
dam and thereby obstructing the benefit of the ditch, and to be en-
passage of fish, contrary to the stat- forced by compulsory labor on the
ute, is criminal: C. v. Essex Co. 13 public works, is not punishment for
Gray, 239. Statutes prohibiting the a crime: T. v. Baca, 2 N. Mex. 183;
sale of liquors without a license are T. v. Tafoya, 2 N. Mex. 191. On the
criminal, and prosecutions there- other hand, a statute providing that
under will be governed by rules ap- penalty and damages for trespass
plicable to criminal procedure: §,v. may be recovered by civil action or
Volmer, 6 Kan. 879; Haug v. Gillett, on indictment and for imprisonment
14 Kan. 140,142, A prosecutionunder for non-payment of the judgment in
a statute requiring a certificate for such civil suit is not unconstitu-
the practice of medicine is a crim- tional as providing imprisonment
inal prosecution: Ex parte Wong for debt: Blewett-v. Smith, 74 Mo. 404.
You Ting, 106 Cal. 296. Violation A statute providing for recovery of
by an officer of a statutory regula- double damages by an injured party
tion as to payment of warrants isa is penal, as imposing a penalty or
criminal offense: Ex parte Howe, 26 forfeiture: Union Pac. R. Co. v. Proc-
Ore, 181, tor, 12 Colo, 194,
‘The fact that the judgment for 5 In re Clark, 9 Wend. 212, 221,
8
Cu. 1.] ORIGIN AND DEFINITION.
[§ 7.
cution under such an ordinance, although in the name of the
city, is generally held to be a criminal proceeding! This is
particularly true where the act prohibited by the ordinance is
one which is against the public at large, rather than the mu-
nicipality as such, and falls within the legal notion of a crime;
and in such a case the constitutional provisions as to jury trial
in criminal cases are applicable? But violations of municipal
police regulations, as, for example, those concerning markets,
streets, water-works, city officers, etc., which do not come
within the general criminal legislation of the state, are not to
be deemed crimes in the constitutional sense, and may be pros-
ecuted in a summary manner.’ Proceedings for violations of
a city ordinance may be in the name of the city when so pro-
vided by statute‘ without a violation of constitutional provis-
ions requiring that 2H prosecutions shall be conducted in the
name and by the authority of the state.’
§ 7. Penal statutes; actions qui tam.
Statutes sometimes
provide for forfeiture enforcible by the state, or by a private
18. v. West, 42 Minn. 147; P.
v. Hanrahan, 75 Mich. 611, 620;
Davenport v. Bird, 34 Ia. 524; Ja-
quith v. Royce, 42 Ia. 406; S. v.
Vail, 57 Ia. 103; Columbus City
v. Cutcomp, 61 Ia. 672. But in In-
diana it is held that an action by
a city to recover a penalty for the
violation of an ordinance is a civil
action, even though process is by
warrant, and the fine may be en-
forced by imprisonment: Goshen v.
Croxton, 84 Ind. 239; Quigley v.
Aurora, 50 Ind. 28; Greensburgh v,
Corwin, 58 Ind. 518. In Louisiana
and Missouri it is held that the
term “crime” as used in the vonstitu-
tion means a breach of the general
law of the state, and does not refer
to the violation of a city ordinance:
S. v. Heuchert, 42 La. An. 270;
Kansas v. Clark,.68 Mo. 588. In
Georgia it is said that the words
“criminal case” in the constitu-
tion do not apply to the violation
of police regulations of cities and
towns: Williams v. Augusta, 4 Ga.
509. So in Ohio it is held that the
violation of a city ordinance is nota
felony ora misdemeanor: S. v. Rouch,
47 Ohio St. 478, A city cannot punish
criminally the violation of an ordi-
nance unless such power is expressly
conferred: S. v. Bright, 38 La. An. 1.
2Taylor v. Reynolds, 92 Cal. 573,
quoting from 1 Dill, Mun. Corp.,
§ 483; Ex parte Wong You Ting, 106
Cal. 296.
8Callan v. Wilson, 127 U.S. 540,
quoting from 1 Dill. Mun. Corp.,
§ 433. See, also, Ibid., § 411. Viola-
tions of municipal ordinances are
usually prosecuted summarily, and
the right of trial by jury is not
guarantied: S. v. Fourcade, 45 La.
An. 717; Board of Police, etc. of
Opelousas v. Giron, 46 La, An, 1864,
48. v. King, 37 Ia. 462.
5Davenport v. Bird, 34 Ia, 524;.
Bautsch v. S., 27 Tex. Ap. 342. But
in Missouri this result is reached on
the theory that a proceeding to re-
cover a pecuniary penalty for vio-
lation of a city ordinance is not a
criminal prosecution: Ex parte Holl-
wedell, 74 Mo. 395.
NATURE AND SOURCES. OF CRIMINAL LAW.
§ 8.] [Parr I.
informer on his own behalf, or by a private informer who
is allowed to prosecute an action for the penalty, a portion
of which is to go to him individually. Actions of the last
class are called gu tam actions on account of the use of these
words at the beginning of the information by which the pro-
ceeding is instituted. These penal actions, however, whether
in the name of the state or of an individual informer, are civil
and not criminal? They may be perhaps criminal in their
nature;* but, as already indicated,‘ the fact that a pecuniary
forfeiture, when collected, goes into the public treasury, does
not make the act for which it is imposed criminal. .
§ 8. Penalty, exclusive or concurrent.— A statute giving
a civil remedy for an act already criminal does not take away
the right to proceed by indictment unless expressly so provided.’
The fact that the statute provides a civil punishment for an
offense does not prevent its also being punishable criminally.
The punishment may be cumulative.6 The intention of the
legislature is to be considered. If the act prohibited has been
previously an indictable offense, it will be presumed that the
civil penalty therefor is cumulative;" but when the act creates
a new offense and makes that unlawful which was lawful be-
fore, and prescribes a particular penalty and mode of proced-
ure, that penalty alone can be enforced.’ or to be confronted by
the witnesses against him,’ but the defendant may be re-
lieved from punishment by executive pardon, as in case of
conviction for crime.’’ The procedure is governed by the
analogies of a criminal prosecution,’ and it is said that the
imposition of a fine in such cases is a judgment in a crim-
inal case.® Civil contempts are not analogous to crimes, but
the remedy afforded is civil in its nature.” It is evident that,
even in cases of criminal contempt, the contempt as such is not
deemed a crime; for instance, no indictment is required." The
same act may constitute both a contempt and a crime, and may
be dealt with as either without regard to proceedings of the
1U. S. v. Hudson, 7 Cranch, 32;
Fishback v. S., 181 Ind. 304.
2Tn re Mason, 48 Fed. R. 510.
38. v. Knight, 3 S. Dak. 509. If
contempt of a federal court is to be
classed at all as a crime, it is a mis-
demeanor and not a felony: In re
Acker, 66 Fed. R. 290.
4P, v. Cowles, 4 Keyes (N. Y.),
38, 46; P. v. Bennett, 4 Paige, Ch.
282; P. v. Spalding, 10 Paige, Ch.
284,
5Bates’ Case, 55 N. H. 325; Ex
parte Grace, 12 Ia. 208. ‘
6S. v. Mitchell, 3S. Dak. 223.
TEx parte Hickey, 4 Sm. & M. 751.
8 Bates’ Case, 55 N. H. 325; 5S. v.
Matthews, 37 N. H. 450; In re
Sims, 54 Kan. 1; In re Manning, 44
Fed. R. 275; U.S. v. Jose, 63 Fed. R.
951.
5 New Orleans v. Steamship Co., 20
Wall. 387, 392; Fischer v. Hayes, 6
Fed. R. 63.
10 Hawley v. Bennett, 4 Paige, Ch.
162; S. v. Becht, 23 Minn. 411; Beck
v. S., 72 Ind. 250; Leopold v. P., 140
Ill. 552; First Cong. Church v. City
of Muscatine, 2 Ia. 69; Jordan v.
Circuit Court, 69 Ia. 177; U. S. v.
Lancaster, 44 Fed. R. 885. Jury trial
cannot be refused where the pro-
ceeding is substantially to determine
aprivate right: Ex parte Grace, 12
Ta. 208.
ll Arnold v. C., 80 Ky. 300; Ex parte
Wall, 107 U.S. 265.
11
§ 10.] [Part I.
other character.!. At common law, many acts now considered
only as contempts were punishable criminally? _
§ 10. Crime distinct from tort and from breach of con-
tract.— As has already been suggested,’ crimes differ from
torts in that the wrong in one case is deemed to be to the pub-
lic, and in the other case to the individual injured. The same
act may constitute both a crime anda tort. A tort may, or may
not, constitute a crime; and likewise, a crime may, or may not,
be a tort. Itis to be noticed that crimes and torts are similar
in this: each is the breach of a general duty imposed upon all.
Breaches of contract, that is, violations of obligations arising
merely by assent of the parties, are not torts;* neither are
they criminal. While there may be a crime involved in the
violation of duties growing out of a relation assumed by con-
tract, it is the breach of general duty and not the breach of
NATURE AND SOURCES OF CRIMINAL LAW.
the contract obligation which is deemed criminal.
1Foster v. C., 8 Watts & S. 77;
Brooker v. C., 12 Serg. & R. 175; In re
Brule, 71 Fed. R. 943; Burke v. T,.,
2 Okl. 499: Rex v. Lord Ossulston,
2 Strange, 1107.
2 Rex v. Lord Ossulston, 2 Strange,
1107; Foster v. C., 8 W. & S. 77;
Brooker v. C., 12 Serg. & R. 175.
3 Supra, § 4
4 Austin’s Jurisp., lectures 17 and
27; 1 Bish. Cr. L., ch. 16. It may be
that, in general terms, every crime
includes a private injury (see 4 Bl.
Com. 5; 2 Wilson’s Works, Andrews’
ed., 339); but there are crimes, such
as treason, bribing election officers,
orsending obscene literature through
the mails, in which the element of
private injury can be considered
present only by the merest fiction:
Hammond’s note to 4 Bl. Com. 5.
5 While some torts are said to be
based upon breach of contract, the
fact seems to be that in such cases
it is not the breach of the contract
which constitutes a tort, but the vio-
lation of a duty which may arise
from a special contract relation and
which is imposed upon all who oc-
cupy that relation; so that the
wrong is not merely a breach of
contract, but also a breach of gen-
eral duty. Thus, a carrier who has
received goods for transportation
may be sued in tort for not deliver-
ing them safely; but such an action
is founded on his general duty as
carrier, not on the violation of the
special contract under which the
goods may have been accepted: Tat-
tan v. Great Western R. Co., 2 El. &
El. 844; Smith v. Seward, 3 Pa. St. 342,
6 That mere breach of contract not
involving any fraud or breach of
trust is not criminal, see Rex v.
Wheatly, 2 Burr. 1125; 8S. C., 1 Ben-
nett & Heard, Lead. Cr. Cas. 1 and
note. In South Carolina there is a
statute making the violation of a
contract between land-owner and
laborer an indictable offense, but it
has been held unconstitutional, not
as imposing involuntary servitude,
but as making a discrimination in
the punishment imposed as between
the two parties: S. v. Williams, 32
8. C. 123. In Alabama there is a
statute by which one convicted of
an offense may contract with the
party who becomes his surety for
12
Cu. 1.]
ORIGIN AND DEFINITION.
[§ 11.
§ 11. Civil remedy not merged or suspended.— In England
there is a rule of the common law to the effect that no civil
action against one who has committed a felony can be main-
tained for damages caused thereby, until a criminal proceeding
for the wrong to the public has been prosecuted.! This rule
was in some early cases recognized as prevailing here,’ but the
decided weight of authority in the United States is to the ef-
fect that this doctrine of the common law is not in force with
us, and that a civil suit for damages may be maintained against
the wrong-doer regardless of whether a criminal prosecution
for the act has been commenced or brought to a conclusion.’
the fine and costs to render personal
services in liquidation thereof, and
making it criminal to fail to carry
out such contract: Wade v. 8., 94
Ala. 109. And such statute is held
valid even as to an infant: Wynn
v. 8., 82 Ala. 55. But there can be
no such punishment imposed for
failure to repay money advanced,
as this would amount to imprison-
ment for debt: Smith v. S., 82 Ala. 40.
1Gimson v. Woodfull, 2.C. & P. 41;
Crosby v. Leng, 12 East, 409; Lut-
terell v. Reynell, 1 Mod. 282; Mark-
ham v. Cob, Latch, 144; Cooper v.
Witham, Lev. 247; Higgins v.
Butcher, Yelv. 89; Dawkes v. Cove-
neigh, Style, 346; Wellock v. Con-
stantine, 2 H. & C. 146; Chowne v.
Baylis, 31 Beav. 351. But this doc-
trine has been held not applicable
to an action against a person other
than the wrong-doer; for instance,
the purchaser of stolen goods:
White v. Spettigue, 13 M. & W. 603;
Peer v. Humphrey, 2 A. & E. 495;
Stone v. Marsh, 6 B. & C. 551. The
doctrine only applies so far as is re-
quired by public policy: Wickham
v. Gatrill, 2 Sm. & G. 358; Dudley,
etc. Banking Co. v. Spittle, 1 Johns.
& H. 14. The recent English cases
throw discredit upon if they do not
overthrow the entire doctrine:
Wells v. Abrahams, L. R. 7 Q. B. 554
(1872); Midland Ins. Ca. v. Smith, 6
Q. B. D. 561 (1881).
2 Grafton Bank v. Flanders, 4 N. H.
239; Story v. Hammond, 4 Ohio,
376; Foster v. Tucker, 3 Me. 458;
Boody v. Keating, 4 Me. 164; Crowell
v. Merrick, 19 Me. 392; McGrew v.
Cato, Minor, 8; Bell v,. Troy, 35 Ala.
184; Adams v. Barrett, 5 Ga. 404. In
some states this supposed rule has
been abolished by statute: Belknap
v. Milliken, 23 Me. 381; Van Duzer
v. Howe, 21 N. Y. 531; Chiles v.
Drake, 2 Met. (Ky.) 146.
3 Boston, etc. R. Co. v. Dana, 1
Gray, 83; Boardman v. Gore, 15
Mass. 831; Pettingill v. Rideout, 6
N. H. 454; Hollis v. Davis, 56 N. H.
74, 85; Quimby v. Blackey, 63 N. H.
77; Allison v. Farmers’ Bank, 6 Rand.
204, 228; Cross v. Guthery, 2 Root,
90; Patton v. Freeman, 1 Coxe, 113,
note; White v. Fort, 3 Hawks, 251;
S. C., 1 Bennett: & Heard, Lead. Cr.
Cas. 84 and note; Hepburn’s Case,
8 Bland, 114; Robinson v. Culp, 3
Brev. 802; Nash v. Primm, 1 Mo.
178; Mann v. Trabue, 1 Mo. 709; Bal-
lew v. Alexander, 6 Humph. 433;
Mitchell v. Mims, 8 Tex. 7; Smith
v. Weaver, 2 Hayw. 108; Lofton v.
Vogles, 17 Ind. 105; Short v. Baker,
22 Ind. 148; Hutchinson v. Bank, 41
Pa. St. 42; Foster v. C., 8 Watts
& S. 77; Piscataqua v. Turnley, 1
Miles, 312; Blassingame v. Glaves, 6
B. Mon. 88; Ocean Ins. Co. v. Fields,
2 Story, 59. That an act is so far in-
jurious to the whole people as to be
13
§ 11.] [Parr I.
Various reasons are assigned for not recognizing in the United
States the rule of the common law in this respect, the principal
of which are that, as there are prosecuting officers with us
specially charged with instituting and carrying on criminal
proceedings for the state without the intervention of a private
prosecutor, it is not necessary to hold out the same inducement
to the injured party to be active in the prosecution of the of-
fense as it was in England, where there were no prosecuting
officers, and a criminal proceeding must be carried on at private
expense; and that as felonies are not with us generally punish-
able capitally and by forfeiture of goods, the civil proceeding
has a value which it did-not have in England, where conviction
of the felon resulted in his execution and the confiscation of
his goods! The common-law rule postponing a civil suit to a
criminal prosecution was never applied in cases of misde-
meanor,? but in such cases courts have sometimes suspended
the criminal prosecution until the determination of a civil ac-
tion for the same act.2 The injured party, however, cannot be
required to elect between a criminal prosecution and a civil
action. The fact that criminal punishment may be inflicted’
will not prevent the giving of vindictive or exemplary damages
in a civil suit for the same injury.6 But if by law the prosecu-
tor is entitled to and has received a portion of the penalty im-
posed in a criminal prosecution, it has been held that plaintiff
may be limited in his civil suit for the same injury to nominal
damages.®
NATURE AND SOURCES OF ORIMINAL LAW.
criminal is no defense in a civil
action for private injury resulting
therefrom: Story v. Hammond, 4
Ohio, 376.
1Boston, etc. R. Co. v. Dana, 1
Gray, 83.
2Foster v. C., 8 Watts & S. 77;
Fissington v. Hutchinson, 15 L. T. 390.
3P, v. Genesee General Sessions,
13 Johns. 85; C. v. Bliss, 1 Mass, 32.
In a subsequent Massachusetts case,
however, the court refused to con-
tinue a criminal proceeding to await
the result of the civil action, it not
appearing that the injured party
was needed as a witness for the gov-
ernment: C. v. Elliott, 2 Mass, 372,
4 Jones v. Clay, 1 Bos, & P. 191,
5 Wilson v. Middleton, 2 Cal. 54;
Cook v. Ellis, 6 Hill, 466; Klopfer v.
Bromme, 26 Wis. 372; Brown v.
Swineford, 44 Wis. 282; Wolff v.
Cohen,8 Rich. 144; Roberts v. Mason,
10 Ohio St. 277; Boetcher v. Staples,
27 Minn. 308; Chiles v. Drake, 2 Met.
(Ky.) 146; Hendrickson v. Kingsbury,
21 Ia. 879; Guengerich v. Smith, 36
Ta. 587; Wheatley v. Thorn, 23 Miss.
62; Corwin v. Walton, 18 Mo. 71;
Cole v. Tucker, 6 Tex. 266. Contra,
Fay v. Parker, 53 N. H. 342; Murphy
v. Hobbs, 7 Colo. 541; Taber v. Hut-
son, 5 Ind, 322; Humphries v. John-
son, 20 Ind, 190.
6 Jacks v. Bell, 3 C. & P. 316,
14
CHAPTER 2.
HOW CRIMES PRESCRIBED —WHAT DEEMED CRIMINAL—CLAS-
SIFICATION OF CRIMES.
§ 12. Written and unwritten law.— What acts and omis-
sions are punishable as offenses against the state must be de-
termined by law. In this as in other respects the law may be
unwritten as well as written. From a historical point of view
there is no doubt but that acts injurious to the public were
punishable as crimes by the courts without having been pro-
hibited by any statute, the criminal law, like other portions of
the law, being in its origin unwritten or customary. It is also
true that there have been statutory modifications of the un-
written law as to crimes, so that many of them were specific-
ally defined by statute and punishment therefor prescribed
and the procedure regulated from very early times. And thus.
the unwritten criminal law has been continually modified and
supplanted by written law. The criminal law of England as
thus composed of both written and unwritten portions, includ-
ing statutes of England passed prior to the English settlements
in this country, became common law in the states of the Union
and remained in force after their independence, so far as it was.
adapted to the conditions of the people and in harmony with
the genius of their institutions and not changed by the consti-
tution or statutes of the particular state.! English statutes
1C, v. Chapman, 13 Met. 68; S. v.
Rollins, 8 N. H. 550; S. v. Moore, 26
N. H. 448; Green v. &., 3 Colo. 68.
As to how far the common law is in
force in the states of the Union, see
Boyer v. Sweet, 4 Ill. 120; Wagner
v. Bissell, 3 Ia. 396; Kerwhacker v.
Cleveland, etc. R. Co., 3 Ohio St. 172;
Van Ness v. Pacard, 2 Peters, 187,
144. Inthe states composed of ter-
ritory acquired from Spain, France
and Mexico, which was already set-
tled at the time of acquisition, the
civil law and not the common law
was the prevailing system; but by
special action in these states the
common law has been adopted as a
body, except in Louisiana, where it
is made the basis of the criminal
law only, while the civil law as it.
had prevailed under the French rule
still remains as the prevailing sys-
tem in other cases: S. v. Mull.n, 14
La. An. 570; Grinder v.'S., 2 Tex. 333.
The adoption in Louisiana in 1805
of the common law of England as
15
NATURE AND SOURCES OF CRIMINAL Law. [Part I.
§ 12]
passed after the English colonization of this country and prior
to the independence of the states are a part of the common law
so far as they were applicable to and recognized in the colonies.
The adoption of a written constitution or of statutes with ref-
erence to crimes does not abrogate the common law? so far as
the doctrines of the common law are not covered by constitu-
tional or statutory enactments;* nor does the fact that the stat-
utes provide for the punishment of certain classes of cases
recognized as crimes by the common law preclude punishment
under the common law of cases not falling within the statutes.‘
Thus, an indictment may be sufficient to charge an offense at
common law, although not sufficient to show a crime under a
statute passed in regard to similar cases.? But where an act
not previously criminal is made punishable by a statute pro-
viding a special method of enforcing the penalty, that method
is exclusive;* and if the statute fully provides for the punish-
ment of a certain class of crimes, the common law as to such
crimes is abrogated.’ If the common-law punishment for a
the basis of criminal jurisprudence
did not operate to adopt subsequent
English statutes: S. v. Davis, 22 La,
An. 77. In the portions of the ter-
ritory acquired in the Louisiana pur-
chase, not settled at the time of such
purchase, the common law has been
introduced, both in civil and crim-
inal matters: See Prell v. McDonald,
7 Kan. 426, 450.
10Opinion of Baldwin, J., in Bains
vy. Schooner James and Catharine,
Bald. 544; S. v. Mairs,1 N. J. 385;
Morris’ Lessee v. Vanderen, 1 Dall.
64, 67; Resp. v. Mesca, 1 Dall. 73;
Opinion of Judges, 3 Binn, 595; Cal-
vert’s Lessee v. Eden, 2 Har. & McH.
235; Moore’s Lessee v. Pearce, 2 Har.
& McH, 241.
28, v. Danforth, 3 Conn. 112.
3C, v. Mohn, 52 Pa, St. 248; Rolland
v. C., 85 Pa. St. 66; Wilson v. C., 96
Pa. St. 56; S. v. Wilson, 3 Mo. 125;
T. v. Ye Wan, 2 Mon. T. 478; T. v.
Flowers, 2 Mon. T. 531.
4C. v. Farrell, 5 Allen, 180. If the
legislature enacts statutes affirma-
tory of the common law, adding new
regulations and supplying addi-
tional remedies, this does not repeal
the common law unless the inten-
tion of the legislature is plain to
supersede it on the whole general
subject: C. v. Rumford Chemical
Works, 16 Gray. 231; C. v. Flannelly,
15 Gray, 195. When two different
acts constitute a common-law of-
fense, a statute specially providing
a penalty for one does not super-
sede the common-law punishment;
8. v. Mullikin, 8 Blackf. 260. Thus,
a statute granting to the city the
right to prohibit gaming and card-
playing does not abrogate the com-
mon-law crime of keeping a gaming-
house: S. v. Crummey, 17 Minn. 72.
5S. v. Appling, 25 Mo. 815; &. v.
Rose, 32 Mo. 560.
6 Thus, if the method provided is a
civil action, indictment will not lie:
S. v. Huffschmidt, 47 Mo. 78. But if
the act is merely prohibited, indict-
ment will lie: Journey v. S.,1 Mo.
428.
™TMcNamee v. P., 81 Mich. 473;
Smith v. S., 14 Mo. 147; S.v. Wacker,
1a
Cu. 2.] [§ 13.
HOW CRIMES PRESCRIBED.
criminal act is uncertain or obsolete, in the absence of any stat-
ute on the subject, fine and imprisonment may be imposed at
the discretion of the court.! So where an act is made criminal
by statute, but no procedure or punishment is provided, the
omission will be supplied from the common law.?
§ 13. Common-law offenses not recognized.—In some
states the common law has been expressly repealed as to crimes,
so that nothing is punishable unless made so by statute.? In
other states where criminal codes have been adopted, which
are apparently intended to cover the whole ground, it is held
that the common law is repealed without any special statutory
provision to that effect, and that there are no crimes except as
specified by statute The supreme court of Iowa suggests
71 Wis. 672. Astorepeal of common
law by statute, see infra, § 95.
JJames v. C., 12 Serg. & R. 220;
‘C. v. Mohn, 52 Pa. St. 248; Wilson
v. C96 Pa. St. 56. If an act has
been punishable at common law, or
by previous statute, it will continue
under the criminal code to be pun-
ishable as a misdemeanor: Foote v.
P., 56 N. Y. 321.
2Jim v. S.,3 Mo. 108; Sanders v.
$., 85 Ind. 318; S. v. Parker, 91 N. C.
650; S. v. Fletcher, 5 N. H. 257;
Beery v. U.S., 2 Colo. 186; Mackey
v. P., 2 Colo, 18. But to the contrary
it has been said thatif the offense is
created by statute, but no punish-
ment is provided, none can be im-
posed: 8. v. Ashley, Dudley, 188. So
a constitutional prohibition is not
self-executing: In re Breene, 14 Colo.
401.
3Thus, in Indiana, the statute pro-
vides that crimes shall be defined
and punishments therefor fixed by
statute, and not otherwise; and it
was held that a statute must define
the offense with some degree of mi-
_ nuteness: Hackney v. S., 8 Ind. 494;
Jennings v. 8, 16 Ind. 3385; Marvin
v. S., 19 Ind. 181; and that an infor-
mation or indictment must enumer-
ate and charge all the substantial
elements entering into the statutory
description of the offense: Cranor v.
S., 89 Ind. 64; Howard v. S., 67 Ind.
401. But it was afterwards said
that this statutory provision, abro-
gating the common law, was not
binding on subsequent legislatures,
and if, by later statute, punishment
was provided for acts enumerated
but not defined, such statute would
be valid and repeal the prior general
statute as to common-law offenses
to that extent: Wall v.S., 23 Ind.
150 (overruling the cases first cited
in this note); S. v. Oskins, 28 Ind.
364; Hood v. S., 56 Ind. 263; Ardery
v. 8. 56 Ind. 328; Peachee v. S., 63
Ind. 399; Hartford v. S., 96 Ind. 461.
But these cases do not, when prop-
erly construed, hold that there can
be common-law crimes, but only that
if punishment is provided for what
was a common-law offense, without
a full definition of it, the common-
law definition will be resorted to:
Ledgerwood v. S., 134 Ind. 81; and
see Stephens v. S., 107 Ind. 185; Jones
v. S., 59 Ind. 229.
4 Smith v. S., 12 Ohio St. 466; Sover-
eign v. S., 4 Ohio St. 489; Allen v. S.,
10 Ohio St. 287, 801; Key v. Vattier,
1 Ohio, 182, 144; Estes v. Carter, 10
Ta. 400; S. v. Gaunt, 18 Oreg. 115;
8. v. Young, 55 Kan. 349. In Mis-
souri it is held that no punishment
2 17
NATURE AND SOURCES OF ORIMINAL LAW.
§ 14.] [Part I.
that as the constitution gives criminal jurisdiction to the dis-
trict court as prescribed by law, and the legislature has pro-
vided a general criminal code, it must be understood that the
jurisdiction of the court is limited to the crimes and modes of
procedure specified in such code.’ But in Minnesota, where
there is also a general criminal code, it is held that the com-
mon law as to crimes is stil] in force except so far as abrogated
by statute, either expressly or by implication?
§ 14. In the federal courts.— The federal government being
one of specified powers, its courts have only limited authority,
and cannot exercise jurisdiction to punish crimes except so far
as such jurisdiction is expressly conferred by the constitution or
by statutes in accordance therewith; and therefore no common-
law crimes are recognized.* Although general admiralty juris-
diction is conferred by the federal constitution upon the gov-
ernment of the United States, and such jurisdiction includes the
criminal as well as the civil branch of admiralty, yet no gen-
eral criminal jurisdiction in admiralty cases has thus far been
conferred upon the federal courts. Under the admiralty power,
can be imposed except as authorized
by statute: Ex parte Meyers, 44 Mo.
279. So in Michigan, although un-
enumerated crimes are recognized,
the punishment must be provided
by statute: In re Lamphere, 61 Mich,
105. The criminal code of Ohio is
not amendatory of, nor in addition
to, the common law, but an entirely
new and independent system: La-
sure v. S., 19 Ohio St. 48. In Cal-
ifornia the penal code is-to be con-
sidered without reference to the
common law, in determining the
sufficiency of informations or indict-
ments: P. v. Mahlman, 82 Cal 585; P.
v. Goggins, 80 Cal. 229; P. v. Tom-
linson, 66 Cal. 344. And to same ef-
fect, see S. v. Gaster, 45 La. An. 636.
1Estes v. Carter, 10 Ia. 400.
28. v. Pulle, 12 Minn. 164 (overrul-
ing Benson v. S., 5 Minn. 19).
3U. 8. v. Hudson, 7 Cranch, 32;
U. 8. v. Coolidge, 1 Wheat. 415; U.S.
v. Bevans, 8 Wheat. 336; U. S. v,
Wiltberger, 5 Wheat. 76; U. 9. v.
Hall, 98 U. S. 348, 345; U. S. v. Brit-
ton, 108 U. S. 199; U.S. v. Eaton, 144
U.S. 677; U.S. v. Walsh, 5 Dill. 58;
U.S. v. Barney, 5 Blatch. 294; U.S.
v. Taylor, 1 Hughes, 514; U. 8. v.
De Groat, 80 Fed. R. 764; In re
Greene, 52 Fed. R. 104. Early cases
.in the circuit court were conflicting
on this point: Case of Henfield,
Whart. St. Tr. 49; Case of Williams,
Whart. St. Tr. 652; U. S. v. Ravara,
2 Dall. 297; U.S. v. Worrall, 2 Dall.
384; U.S. v. Burr, 2 Robertson, 481.
The Hudson and Coolidge cases
above cited were decided without
argument, and in the second one the
court was not agreed, but the result
reached has since been generally ac-
quiesced in, although no subsequent
case involving the exact question
has been before the supreme court.
That the United States has no com-
mon law, see Manchester v. Massa-
chusetts, 189 U. S. 240; Gatton v:
Chicago, R. I. & P. R. Co, (Ia.), 68 N. W.
R, 589.
18
HOW ORIMES PRESORIBED.
Cu. 2.] [$§ 15, 16.
congress has defined crimes which are punishable in the federal
courts; but no criminal jurisdiction is conferred, even in ad-
miralty cases, aside from that given by these statutes. There-
fore, whatever might be the authority of congress to, confer
general admiralty jurisdiction in criminal cases, thus far the
admiralty crimes, as well as the common-law crimes, cognizable
by the federal courts, are only those defined by statute.!
§ 15. Common-law definitions and general principles.—
Without regard to whether the common law is in any particu-
lar state superseded as the source of criminal jurisdiction, it
remains the basis of criminal jurisprudence in the courts of the
states of the Union,’ and of the United States also, and the
terms and provisions found in statutes are to be construed in
reference thereto;* therefore, if the statute provides a punish-
ment for a crime which is not fully defined by the statute, the
common law will be resorted to for a definition, even though
the common law as to crimes is not in force.
§ 16. What deemed criminal.— Those acts. and omissions
are criminal which are made so by law; that is, by the com-
mon law or by statute. While the criminal law remained
largely unwritten, it was for the courts to determine what acts
were so far detrimental to the public as to be punished as
crimes, the distinction being borne in mind that, to constitute
a criminal offense, the act must be such as to injuriously affect
the public, and not merely a breach of contract or a private in-
jury.> It thus appears that where the common law as to crimes
1U. S. v. Bevans, 8 Wheat. 336;
U. S. v. Wiltberger, 5 Wheat. 76;
U.S. v. Rodgers, 150 U.S. 249; C. v.
Peters, 12 Met. 387.
2 As to Louisiana, see supra, note
to § 12.
3 Smith v.8., 12 Ohio St. 466; Estes
v. Carter, 10 Ia. 400; Nicholls v. S.,
68 Wis. 416; S. v. Bertheol, 6 Blackf.
474; S, v. Boll, 59 Mo. 321.
4Ledgerwood v. S&, 134 Ind. 81;
Hedderich v. S., 101 Ind. 564; S. v.
Berdetta, 73 Ind. 185; P. v. Miller,
82 Cal. 107; 8. v. Twogood, 7 Ia. 252;
Houston v. C., 87 Va. 257; 8. v. Gas-
ter, 45 La. An. 636; U.S. v. De Groat,
30 Fed. R. 764; U.S. v. King, 34 Fed.
R. 302; U.S. v. Boyd, 45 Fed. R. 851;
In re Greene, 52 Fed. R.104. The fact
that an ordinance provides a pun-
ishment for playing or carrying on
the game of “policy,” without de-
fining it, does not render it invalid:
S. v. Carpenter, 60 Conn. 97.
5Rex v. Wheatly, 2 Burr. 1125;
8. C., 1 Bennett & Heard, Lead. Cr.
Cas. 1, and note; Rex v. Storr, 3
Burr. 1698; Rex v. Atkyns, 3 Burr.
1706; S. v. Burroughs, 7 N. J. 426. AJl
crimes that injuriously affect public
society are indictable at common
law. The test is not whether prece-
dents can be found in the books, but
whether they affect the public pol-
19
§ 17.] NATURE AND SOURCES OF CRIMINAL LAw. [Parr I.
is still in force, the courts have the power to punish acts inju-
rious to the public other than those prescribed by statute; yet
very few instances will be found among the modern cases in
which the courts have taken it upon themselves to declare acts
criminal which do not come within the description of well-rec-
ognized common-law offenses. It would not be improper to
generalize as to what classes of acts are at common law deemed
so far injurious to the public as to be punishable, yet such a
discussion would be unprofitable, for it would involve a discus-
sion of the essential features of the different common-law crimes,
which can best be considered under the discussion of the crimes
themselves. But some groups of offenses, mainly statutory,
which may be distinguished as made such by virtue of the
general police powers of the state, are discussed in the next
chapter.
§ 17. Classes of offenses.— At common law all offenses were
said to be treasons, felonies, or misdemeanors;! but as to trea-
sons, it will appear hereafter that what was formerly in Eng-
land known as petit treason is now felony,’ and even high
treason was said to be a felony and something more.’ In the
United States, treason is, perhaps, not anywhere regarded as
a class of crime distinct from felony. Some classification of
offenses, based on their relative criminality, seems in the nature
of things important, and whatever may be the origin of the
division into felonies and misdemeanors, the fact that particu-
lar distinctions in the proceedings and the punishment are still
made to depend on whether the offense in question is of the
one grade or the other, makes the grouping of offenses into fel-
onies and misdemeanors of present consequence, although the
basis of the grouping may be to some extent uncertain, and
‘ lacking in uniformity in the different states. Although Black-
stone, after his definition of “crime,” * recognizes a use of the
term “misdemeanor” to indicate something less than a crime,
icy or economy: C. v. Randolph, indict one man for making a fool of
146 Pa, St. 88. Thus, bribery of an another:” Reg. v. Jones, 1 Salk. 379.
elector is punishable at common !1 Bish. Cr. L, ch. 43.
law: S. v. Jackson, 78 Me. 91; C. v. 2 Infra, ch, 75.
McHale, 97 Pa. St. 397. But there 31 Hale, P. C. 497; 1 Hawk. P.G., ,
must be something more than a pri- ch. 25, § 2; 4 Bl. Com. 94; 3 Inst. 15;
vate injury, e. g., false pretense with- 2 Wilson’s Works (Andrews’ ed.), 348
out false token. “We are not to 4 Supra, § 4, note.
20
“
Cn. 2.] HOW CRIMES PRESCRIBED. [$ 18.
yet the whole passage shows that for legal purposes misde-
meanors are included in the general word “ crimes,” and to that
effect his language is quoted in many cases.!
§ 18. Felony and misdemeanor.— Assuming that, for pres-
ent practical purposes, all crimes are either felonies or misde-
meanors,” and that felonies include the offenses deemed more
serious in their nature, and therefore attended with a more
severe punishment, it becomes important to explain the basis
on which such division is made.
England, felonies were those crimes punishable capitally, or by
forfeiture of land, or goods, or both,’ but the term was not one
of settled meaning, and by some authorities the test was the
liability to forfeiture rather than the liability to capital pun-
ishment.t As used in the American colonies, the popular dis-
tinction seems to have been, however, between offenses punish-
able with death and those not so punishable.’ In statutes
creating or defining offenses, the language usually expressly
indicates whether the offense is to be deemed a felony or mis-
demeanor, and for practical purposes it may be said that those
crimes which, by the common law, were punishable capitally,
or which are expressly made felonies by statute, are now to be
considered of that class, while all other criminal offenses are
to be deemed misdemeanors,’ and no offense is to be deemed a
felony unless it comes within this description.’ But if the of-
14 Bl. Com. 5; Sevier v. Justices, Eng. L. 460. In Wilson’s Works
By the early common law in ‘
Peck (Tenn.), 384,357; Smith v. Smith,
84 Tenn. 472, 477; S. v. Collins, 1 Mc-
Cord, 355, 857; S. v. Peterson, 41 Vt.
504, 511; S. v. Savannah, 1 T. U. P.
Charl. 285; Lehigh County v.
Schrock, 118 Pa. St. 378, 378; Illies
v. Knight, 8 Tex. 312, 314; Morton v.
Skinner, 48 Ind. 123; Van Meter v.
P., 60 Ill. 168; In re Clark, 9 Wend.
212, 222; and see supra, § 4, note.
2P. v. French, 102 N. Y. 583; 8. v.
Rouch, 47 Ohio St. 478.
3 Lynch v. C., 89 Pa, St. 189; 1 Bish.
Cr. L., § 615.
44 BL Com. 94; 2 Steph. Hist. Cr.
L. 192; 1 Hawk. P. C, ch, 25;
Adams v. Barrett, 5 Ga. 404. For
the history of the early use of the
term, see 2 Pollock & Maitland, Hist.
at
(Andrews’ ed.), vol. 2, p. 348, the view
of Blackstone that the term “felony ”
is feudal in origin is vigorously com-
bated, and an earlier origin of the
word is insisted on.
‘Lynch v. C., 88 Pa. St. 189; 2
Swift’s System, 384; C. v. Newell, 7
Mass. 245; C. v. Barlow, 4 Mass. 439.
Originally, petty larceny was a fel-
ony, althogh never punishable cap-
itally, but later it was considered a
misdemeanor: 1 Steph. Hist. Cr. L.
192; C. v. Keith, 8 Met. 5381.
6S, v. Murphy, 17 R. I. 698.
78. v. Hord, 8 8. C. 84; Bruguier
v. U.S.,1 Dak. T. 5. The fact that by
statute an assault of a particular
character is designated as a feloni-
ous assault does not make the offense
NATURE AND SOURCES OF CRIMINAL LAW.
§ 19.] [Paxr I.
fense has been a felony, the mere reduction of the punishment
will not of itself change it to a misdemeanor.’ In most of the
states the statutes expressly provide a definition for the term
“felony,” and make it to mean any offense punishable with death
or confinement in the penitentiary ;? and under this definition
it is almost universally held that it is the liability to such pun-
ishment, rather than the fact that such punishment is actually
imposed, which makes the offense a felony; so that if, under
any circumstances, the court might for an offense impose a
sentence of death or imprisonment in the penitentiary, such
offense is a felony, although the court has the discretion to im-
pose and does impose another penalty.’ This statutory de-
scription of felony is applicable in all cases and for all purposes
where a distinction between felony and misdemeanor is neces-
sary to be made.* But it has been said in some cases that the
statutory definition serves only to explain the term as used in
the statutes and does not change the grade of common-law
offenses.®
§ 19. Other classifications ; high crimes and misdemean-
ors.— In Connecticut the higher grade of crimes is defined as
consisting of high crimes and misdemeanors, corresponding
substantially to felony at common law, although the term “fel-
a felony: C, v. Barlow, 4 Mass. 489.
Statutes regulating crimes against
the United States may reduce what
was a felony to a misdemeanor, un-
less the penalty is fixed by the con-
stitution: U. 8. v. Cross, 1 MacAr-
thur, 149,
18. v. Dewer, 65 N. C, 572.
2 Nichols v. S., 85 Wis. 308; Wilson
v. S., 1 Wis. 184; Buford v. C., 14 B.
Mon. 24; Tharp v. C., 3 Met. (Ky.)
411; P. v. War, 20 Cal, 117; In re
Pratt, 19 Colo. 188; Rafferty v. S., 91
Tenn. 655.
38. v. Smith, 32 Me. 369; 8. v. God-
dard, 69 Me. 181; C. v. Pemberton,
118 Mass. 36; P. v. Hughes, 187 N. Y.
29; S. v. Magoon, 61 Vt. 45; Johnston
v.S., 7 Mo. 188; 8. v. Green, 66 Mo.
631; S. v. Reeves, 97 Mo. 668: S. v.
Melton, 117 Mo. 618; Benton v. C., 89
Va. 570; In re Stevens, 52 Kan. 56;
Miller v. S., 58 Ga. 200; S. v. Waller,
43 Ark. 381. Some offenses may be
punishable either as felonies or as
misdemeanors, and it is said the pun-
ishment inflicted may determine the
grade: P. v. Cornell, 16 Cal. 187; but
see P. v. War, 20 Cal. 117. In New
Jersey the statute ‘ignores the dis-
tinction between felony and misde-
meanor, and all statutory offenses
are either misdemeanors or high mis-
demeanors, the latter being practi-
cally the same as felonies: Jackson
v. 8., 49 N. J. 252,
4P, v. Lyon, 99 N. Y. 210; Shay v.
P., 22.N. Y. 817; P. v. Park, 41 N. Y.
ai.
5 Drennan v. P., 10 Mich. 169; S. v.
Hurt, 7 Mo. 82]; Nichols v. 8. 85
Wis. 308; Wilson v. S., 1 Wis, 184;
Lynch v, C., 89 Pa. St. 189,
22
Ou. 2.] HOW ORIMES PRESCRIBED. [§ 20.
ony” isnotused.! The term “high crimes and misdemeanors ”
is used in the federal constitution? in specifying the grounds
for impeachment of president, vice-president, or other civil offi-
cer of the United States, but as used in this connection it does
not necessarily imply a criminal offense, much less a felony.
§ 20. Infamous crimes.— The constitution of the United
States‘ requires that prosecutions in the federal court for cap-
ital or otherwise infamous crimes shall be only on indictment,
and under this provision it has been held that any crime pun-
ishable by imprisonment in a state prison or penitentiary, with
or without hard labor, is an infamous crime.> The construc-
tion of the term in the state courts, as used in the state consti-
tutions or statutes, has left the meaning to depend on whether
the crime itself was infamous, rather than on the degree of the
punishment.’
1g. v. Lockwood, Kirby, 106; S. v.
Danforth, 3 Conn. 112; Southworth
v. &, 5 Conn. 325; S. v. Howard, 6
Conn. 475; S. v. Knapp, 6 Conn. 415;
S. v. Smith, 7 Conn. 428.
2 Art. 2, sec. 4.
3Cooley’s Prin. Const. L. 165.
4 Amendments, art. 5.
5Ex parte Wilson, 114 U. 8. 417;
Mackin v. U. S., 117 U. S. 348; Ex
parte Bain, 121 U. 8.1; Parkinson v.
U.S., 121 U. 8, 281; U.S. v. De Walt,
128 U. 8. 393; In re Mills, 185 U.S.
263; In re Claasen, 140 U. S. 200;
Bannon v. U.S., 156 U.S. 464. Prior
to the leading case it had been held
that what was an infamous crime
would depend on the nature of the
crime, and not the extent of the
punishment, and it was thought that
the term was to be construed accord-
ing to the same principle which de-
‘termines at common law whether
a witness previously convicted of
crime is incompetent to testify:
U. S. v. Block, 4 Sawyer, 211; and
see U. 8 v. Reilley, 20 Fed. R.
46; T. v. Farnsworth, 5 Mont. 303.
¥or further illustrations of the ap-
plication of the rule on this subject,
see U. S. v. Johannesen, 35 Fed. R.
411; U. S. v. Smith, 40 Fed. R, 755.
An infamous crime in this sense includes not
Inasmuch as it is provided by Re
vised Statutes, section 5541, that a
sentence for imprisonment for a
longer term than one year may be
ordered to be executed in any state
jail or penitentiary, a crime under
the laws of the United States pun-
ishable by sentence for a longer
period of imprisonment than one
year will be an infamous crime:
U..8. v. Cobb, 43 Fed. R. 570. And
it is immaterial whether the pun-
ishment actually imposed is impris-
onment in a state jail or peniten-
tiary, provided it is within the power
of the court to award such punish-
ment: In re Claasen, 140 U.S. 200;
Ex parte McClusky, 40 Fed. R. 71,
The fact that the crime is infamous
gives a right of appeal to the su-
preme court from a conviction in
the circuit court of the United
States: In re Claasen, 140 U. S. 200;
but not from a conviction in the
supreme court of the District of Co-
lumbia: In re Heath, 144 U. S. 92;
nor from the supreme court of a ter-
ritory: Farnsworth v. Montana, 129
U.S. 104,
68. v. Cram, 84 Me. 271; S. v. Nolan,
15 R. I. 529,
23
8§ 21, 22.] NATURE AND souRons or crnunan Law. [Parr I.
only treason and felony, but also every species of the erimen
Jfalsi, such as perjury, conspiracy, and barratry.!
§ 21. Misdemeanor.— From the discussion in the preceding
paragraph it will appear that every criminal offense not a
felony is a misdemeanor, but it is sometimes specially provided
by statute that when a public duty is imposed, or the doing of
any act is prohibited by statute, the omission or the prohibited
act, as the case may be, shall constitute a misdemeanor, and if
no other punishment is provided, then such omission or wrong-
ful act shall be punished as directed in that connection.? In
general, violations of statutory duties imposed for the protec-
tion of the people are punishable at common law, even though
no penalty is fixed by the statute itself.’
§ 22. Merger.— The same act cannot be punishable both asa
felony and asa misdemeanor. It was said at common law that
the misdemeanor was merged in the felony. But the question
whether on an indictment for a misdemeanor the defendant
may be convicted, though the evidence shows the commission of
a felony involving the misdemeanor charged, or whether on an
indictment for felony defendant may be convicted of a misde-
meanor thus involved, is one of procedure rather than of law.
It is sufficient to suggest here that at common law the misde-
meanor and the felony, though the misdemeanor is included in
the felony, are deemed distinct crimes, and proof of one will
not warrant conviction of the other; but that in many states
of this Union, either by statute or by judicial legislation, a con-
viction of an included misdemeanor may be had under a charge
of felony. This question will be found discussed under the
head of the separate crimes where a misdemeanor is deemed
included in a felony.
1 Barker v. P., 20 Johns. 457; C. v.
Rogers, 7 Met. 500.
2P. v. Long Island R. Co., 134 N. Y.
506; P. v. Meakim, 183 N. Y. 214;
S. v. Conlee, 25 Ia. 237; and see
Foote v. P., 56 N. Y. 321. If the
statute provides that acts or omis-
sions shall be deemed misdemeanors
within the meaning of the statute,
when specially declared by law to
be such, it is the statute law of the
state and not the common law that
is meant: S. v. Grove, 77 Wis. 448,
3C. v. Silsbee, 9 Mass. 417; S. v.
Startup, 39 N. J. 423; Reg. v. Walker,
L. R. 10 Q. B. 355.
4Rex v. Harmwood, 1 East P. C.
411; Reg. v. Button, 11 Q. B. 929;
C. v. Roby, 12 Pick. 496; C. v. Parr,
5 Watts & S. 845; Johnson v. s.,
29 .N. J. 458; 8. v. Durham, 72 N.C.
447,
5See as to homicide, infra, § 389;
as to assaults, infra, § 258; as to rob-
bery, infra, § 484,
24
CHAPTER 3.
OFFENSES PRESCRIBED UNDER GENERAL POLICE POWER, AND
MUNICIPAL ORDINANCES.
§ 23. Criminal law a part of the police power.— Undoubt-
edly the authority to determine what crimes are punishable
‘and to provide for their punishment is a part of the general
police power of a sovereign and independent state, and, not
being conferred by the constitution of the United States upon
the federal government, remains with the separate states of
this Union. But, aside from the crimes recognized at common
law and resting on the general principles of protection to life,
the person, and property, new offenses are constantly being
created by statute to prevent the commission of acts deemed
by the legislature to be inimical to the public welfare, some of
which are so analogous to common-law crimes that no other
reason for their punishment need be suggested than the better
protection of the public against classes of acts which have be-
fore been recognized as criminal, while others rest on doctrines
of expediency not of such general recognition, and yet. deemed
sufficient by the legislature to warrant the infliction of a crim-
inal punishment upon the violator. Some such distinction as
this seems to be indicated by the terms malum in se and malum
prohibitum,} that is, a crime which is such by reason of its in-
herent nature, and a crime’ existing by reason of statutory pro-
hibition only. The distinction is perhaps of no practical ,
utility, and some crimes which are only mala prohibita have
become so generally recognized by statute in different jurisdic-
tions that they may be spoken of as covered by the criminal law
11 Bl. Com. 54, 57; 2 id. 420; 4 id.
29, 42. Offenses against the statutes
prohibiting gaming and lotteries are
mala prohibita, not mala in se: Stone
v. Mississippi, 101 U.S. 814, 821. Carry-
ing concealed weapons, though not
evil in itself, may be prohibited as
tending to breach of the peace or
other public injury: S. v. Shelby,90
Mo.802; and further as to this offense,
see infra, ch, 44. Mali prohibiti are
taken judicial notice of as criminal
when committed in a country where
the common law prevails: Morrissey
v. P., 11 Mich. 327.
:
25
8§ 24, 25.] NATURE AND SOURCES OF ORIMINAL LAW. [Parr I.
in the same general sense as the crimes which are universally
recognized as mala in se. But it is nevertheless true that in
each state of the Union, as well as in England, are many stat-
utes providing for the criminal punishment of particular acts
or omissions which are made punishable only by reason of pe-
culiar circumstances, or in order to effect some statutory pur-
pose which would not be regarded as common to all jurisdic-
tions.
§ 24. Various grounds of regulation.— The grounds on
which these various police regulations are based are not al-
ways easy to determine. Some of the offenses thus defined are
analogous to offenses well recognized, and hereafter separately
discussed, but it is difficult in many instances to determine just’
what particular object the legislature had in mind in making
the act penal—whether to prevent it as a nuisance, or as a
breach of the peace, or as a species of fraud, or as detrimental
to public health, or whether the prevention is merely a,means
of raising revenue. The police power is so varied in its applica-
tion that it is impossible to anticipate and classify the grounds
on which it may, by the legislature, be deemed expedient and
proper to regulate human action, and therefore in this chapter
are grouped a variety of instances of the exercise of such power
without any pretense that they cover the whole field, and with-
out any definite reason, more than that of convenience, for
separating them from the well-recognized groups of crimes to
be hereafter discussed.
§ 25. Evil course of life-— Under the general police power
it is proper to provide for the punishment of those who pursue
a course of life prejudicial to the public welfare, such as com-
mon thieves, gamblers, night-walkers, etc., without regard to
their guilt of any one particular criminal offense.! But the
1 Morgan v. Nolte, 87 Ohio St. 23;
C. v. Hopkins, 2 Dana, 418; 8. v.
ing ita misdemeanor to commit any
act injurious to the public health or
Noyes, 80 N. H. 279; World v. S., 50
Md. 49. The offense of being a com-
mon night-walker consists in the
habit of being out late at night for
some wicked purpose: Watson v.
Carr, 1 Lewin, 6; Roscoe, Cr. Ev. 262.
The term includes eaves-droppers,
mischief-makers, persons of ill-fame
and their associates: 1 Burns, Jus-
tice, 765. But a general statute mak-
public morals, or tending to the per-
version of public justice or the due
administration of the laws, is void
for indefiniteness: Ex parte Jack-
son, 45 Ark. 158, The offense of being
a common night-walker, like that of
being a common scold, etc., may be
charged in general terms: S. v. Dow-
ers, 46 N. H, 543,
26
Ox. 3.] OFFENSES UNDER POLICE POWER. [$§ 26-28.
state cannot punish conduct which does not itself constitute an
injury to the public, nor show intention or preparation to com-
mit an offense, such as associating with persons reputed to be
thieves and prostitutes.!
§ 26. Common scold.— On analogous principles the common
law recognizes the crime of being a common scold.? This of-
fense, while recognized, as shown by the cases just cited, in
those states where the common law of crimes prevails, is in
fact, however, only one example of the crime of nuisance, and
analogous offenses may be found considered under that general
head. It is also analogous to the offenses punishable as
breaches of the peace. A similar offense is that of being a
common railer and brawler as defined by statute, which may
be committed by the use of immoderate and vituperative lan-
guage, even in one’s own house, and in sudden altercation, if
such use is so frequent and notorious as to amount to a dis-
turbance of the public peace.®
§ 27. Common barrator.—An offense known to the common
jaw, but which has found only the slightest recognition in the
United States, is that of common barratry, which consists in
frequently exciting and stirring up of suits and quarrels, either
at law or otherwise.®
§ 28. Habitual criminals.—It is not unusual to provide by
statute a heavier punishment in case of larceny, receiving
stolen goods, forgery and like crimes, for a second or subse-
quent offense of the same character than for the first offense,
the reason for such additional punishment being that the first
punishment has been ineffectual or that the criminal has
evinced a depravity which merits a greater punishment and
needs to be restrained by severer penalties.’ Such additional
18t. Louis v. Fitz, 53 Mo. 582. 8 Co. 36b; C. v. Davis, 11 Pick. 432;
24 Bl. Com. 168; 1 Hawk. P. C., C. v. McCulloch, 15 Mass, 227.
ch. 75, § 14; 1 Bishop, Crim. Law, 78. v. Moore, 121 Mo. 514; 8. C.,
§ 1102; Baker v. S., 53 N. J. 45; C. v. Moore v. Missouri, 159 U.S. 673; P. v.
Mohn, 53 Pa. St. 248; James v. C, Stanley, 47 Cal. 118; Kelly v. Pe;
12 Serg. & R. 220; U.S. v. Royall, 8 115 Ill. 583; Blackburn v. S., 50 Ohio
‘ranch, C. C. 620; Reg. v. Foxby, 6 St. 428; Ingalls v. S., 48 Wis. 647;
Mod. 11. Maguire v.S., 47 Md. 485; Johnson
3 Infra, ch. 61. v. P., 55 N. H. 512; Wood v. P., 53
4 Infra, ch. 48. N. Y. 511; P. v. Butler, 3 Cow. 347;
5C. v. Foley, 99 Mass. 497; Stratton Palmer v. P., 5 Hill, 427; Sturtevant
v. C., 10 Met. 217. v. C., 158 Mass. 598; C. v. Graves, 155
64 Bl, Com. 134; Case of Barretry, Mass. 163; C. v. Harrington, 130
av
[Parr J.
§ 29.] NATURE AND SOURCES OF CRIMINAL LAW.
punishment is not deemed a second punishment for a former
offense, but a punishment for a subsequent aggravated offense."
It is the last offense which is punished, and therefore such a
statute will not be ex post facto, although the first offense re-
lied on as an aggravation was committed before the statute
authorizing the increased punishment for the subsequent of-
fense.2” An indictment under which it is sought to impose a
higher penalty by reason of a previous conviction must allege
the fact of such conviction.2? There may be a conviction for
the first offense if the aggravation is not sufficiently alleged or
proved. Sometimes the third conviction at the same term of
court, for the same crime, is made punishable in a higher de-
gree?
§ 29. Regulation of business; sale of liquors, opium, dan-
gerous articles.— No branch of the police power is now bet-
ter established than that which regulates kinds of business.
which may be injurious to the public, even though no wrong
is necessarily involved therein.’ The best illustration of the
Mass. 35; Garvey v. C., 8 Gray, 382;
Plumbly v. C., 2 Met. 413; Ross’
Case, 2 Pick. 165; Rand v. C, 9
Grat. 738; Reg. v. Clark, 6 Cox, 210.
The former conviction must be for
a similar offense, but it is not neces-
sary that the punishment be identi-
cal with that of the offense which
is charged as a second offense: C. v.
Marchand, 155 Mass, 8; Kelly v. P.,
115 Til. 583.
1Moore v. Missouri, 159 U. S. 678;
8. C., S. v. Moore, 121 Mo. 514; C. v.
Marchand, 155 Mass. 8; Sturtevant
v. C., 158 Mass. 598; Kelly v. P., 115
Ill. 583. The same act relied upon
to constitute a third offense under
the statute may again be relied upon
to aggravate a subsequent offense.
Relying upon it once does not ef-
fect a merger: C. v. Hughes, 183
Mass. 496.
2?Blackburn v. S8., 50 Ohio St. 428;
Ex parte Gutierrez, 45 Cal. 429; C.
v. Graves, 155 Mass. 163; Ross’
Case, 2 Pick. 165; Rand v. C., 9
Grat. 738; and see infra, $78, The
New York statute was construed to
require that the second offense must
have been committed after convic-
tion for the first offense: P. v. Butler,
3 Cow. 847.
3P. v. Powers, 6 N. Y. 50; Stevens.
v. P., 1 Hill, 261; C. v. Harrington,
180 Mass. 35; Garvey v. C., 8 Gray,
882. And the prior conviction must
have preceded the commission of the-
second offense: S. v. Volmer, 6 Kan.
379.
4Palmer v. P., 5 Hill, 427; P. v..
O’Brien, 64 Cal. 58; Good v. S, 61
Ind. 69; Myers v. S., 92 Ind. 390. If
the increased punishment makes.
the offense a felony, the crime must.
be charged as feloniously committed
even though the first offense would
be a misdemeanor: 8S. v. Weldon, 70-
Mo. 572.
°S. v. Nelson, 29 Me. 829: Stevens
v. C., 6 Met. 241. In Virginia a stat- .
ute was upheld which imposed an
additional penalty if the accused.
was found to have been convicted
in the United States for a similar
offense: Reed v. C., 9 Gratt. 738,
6C. v. Vrooman, 164 Pa. St. 306.
28
Cx. 3.] OFFENSES UNDER POLICE POWER.
[§ 29.
exercise of power in this direction is the regulation of the sale
of intoxicating liquors, by way either of entire prohibition, or
the imposition of restrictions as to time, place and manner of
carrying on the business. There is no uniformity in the reasons
given for such regulations. In some states all sales, except for
a few authorized purposes, are forbidden, evidently on the
theory that the use of intoxicating liquors is injurious to the
health and morals; in others, restriction is thrown about the
business on the theory that the use of intoxicating liquors -
may be injurious and that improper use ought to be prevented;
while in still other cases, the regulation amounts to little more
than the enforcement of the payment of a tax to the state or
municipal corporation for the privilege of conducting the busi-
ness.’ It is believed that in no state is the drinking of liquor
made criminal,’ though there are frequently statutes for the
punishment of drunkenness.? The whole subject of the statu-
tory regulation of the sale of intoxicating liquors.is discussed
elsewhere. The validity of these statutes as against every
possible constitutional objection is fully established.> While
1A statute requiring a license
for the sale of intoxicating liquors
‘should not be treated as a mere rev-
enue law: Campbell v.8., 46 Ala. 116;
Lillensteine v. S., 46 Ala. 498. The
South Carolina Dispensary Act is
not a police regulation: In re Lang-
ford, 57 Fed. R. 570; Ex parte Jer-
vey, 61 Fed. R. 957; and it is un-
constitutional as interfering with
interstate commerce, inasmuch as
it not only attempts to regulate the
‘sale, but also the bringing into the
‘state, of intoxicating liquors: Ex
parte Edgerton, 59 Fed. R. 115; but
it is sustained by the last decision
of the state court: 8. v. City Coun-
cil, 42 S, C. 222 (overruling 8. v.
Jacobs, 41 S. C. 220). There is no
vested right in a citizen to carry on
‘the business of selling intoxicating
liquors, and a deprivation of the
privilege does not interfere with
any rights under the Fourteenth
Amendment of the Federal Consti-
tution: S. v. Brennan, 2 S. Dak. 384.
2As bearing upon the question
whether a prohibition of the use
would be constitutional, it may be
noted that a statute punishing as
a misdemeanor the smoking of opium
has been sustained: Ah Lim v. T., 1
Wash, 156. And see infra, § 1241.
3C. v. Morrissey, 157 Mass. 471.
And see infra, § 1018.
4 Infra, ch. 63.
5Bartemeyer v. Iowa, 18 Wall.
129; Beer Co. v. Massachusetts, 97
U.S. 25; Foster v. Kansas, 112 U. 8.
201; Mugler v. Kansas, 123 U. 8.
623. Earlier cases in the state courts
Held that a prohibition of sale could
not be made applicable to liquor
- already on hand: Wynehamer v. P.,
18 N. Y. 378; and that the legis-
lature could not appropriate to it-
self any such business or declare it
a nuisance, it being one generally
recognized throughout the civilized
world as a useful industry: Herman
v. S., 8 Ind. 545; Beebe v. S., 6 Ind.
501. The requiring of a license to
29
88 30-32.] NATURE AND souRcEs or crrminaL Law. [Parr I.
the United States may collect a revenue from the business of
selling liquor, the power of regulation for the public good is in
the state, and the payment of a license tax to the federal gov-
ernment does not exempt the business from state control.'
On similar grounds the sale of opium may be regulated? It is
not improper to prohibit the sale, or keeping for sale, of dan-
gerous articles, such as naphtha, ae in accordance with
regulations fixed by statute.’
§ 30. Protection of public health.— he a general principle
of law, aside from any statutory regulation, the doing of acts.
detrimental to the general public health is punishable as a nui-
sance;‘ but aside from the prevention of nuisances, there is a
general power to legislate with reference to the protection of
the public health; for instance, it may be made criminal to
contaminate the water supply,’ or to prevent the use, or danger
of use, of contaminated water in preparing food for sale.
Owners of tenement houses may be required to put in a water
supply on the order of the board of health.? The methods of
using machinery in manufacturing may be regulated so as to
protect the health of employees.* But regulations made by a
board of health under authority given to it must be reason-
able.2 Regulations discussed in the following paragraphs are-
supported to a considerable extent on the ground of being a
proper exercise of the power to preserve the public health.
§ 31. Health of employees.— A statute requiring street rail-
way companies to protect their employees against the inclem-
ency of the weather has been held constitutional.”
§ 32. Unwholesome provisions.— The sale of unwholesome.
food is a misdemeanor at common law," and it is not necessary
sell liquor is not an unwarrantable
interference with individual rights
when not unreasonable: Thomasson
v. S15 Ind. 449. That this legisla-
tion must not interfere with inter-
state commerce, see infra, § 76.
\McGuire v. C., 3 Wall. 387; Li-
cense Tax Cases, 5 Wall, 462; C, v.
Holbrook, 10 Allen, 200. ”
2Ex parte Yung Jon, 28 Fed. R.
808; S. v. Ah Chew, 16 Nev. 50; S.v.
Ching Gang, 16 Nev. 62.
3C. v. Wentworth, 118 Mass. 441;
Anderson v. Savannah, 69 Ga. 472,
And see Heisembrittle v. Charles-
ton, 2 MceMull. 233,
4 Infra, ch. 61.
58. v. Wheeler, 44 N. J. 88; P. v.
Borda, 105 Cal. 636; S. v. Frieberg,
49 Ohio St. 585.
8S. v. Schlemmer, 42 La. An. 1166..
7 Health Dep’t v. Rector, 145 N. Y.
382,
8P. v. Smith, — Mich. — 66 N..
W. R. 882.
9S. v. Speyer, 67 Vt. 502.
108, v. Smith, 58 Minn. 35.
11 Goodrich v. P., 19 N. Y. 574,
30
Cu. 3.] OFFENSES UNDER POLICE POWER.
[§ 33.
that it shall have actually caused sickness, to come within the
prohibition ;! but the provisions must be in such a state that
they would by their noxious, unwholesome and adulterous
quality have affected the consumer.? Under statutes relating
to the same subject, it is held that the sale must be for food,
and that, if for some other purpose, the offense is not com-
mitted. But it is said that it is not necessary to allege the
particular use for which the article was intended, either by the
seller or the purchaser. In general, it is sufficient to charge
the selling of the unwholesome food as good wholesome food,
without alleging that it was to be eaten, or that it was eaten,
or the particulars in which it was unwholesome.> And if the
statute describes the offense as selling with knowledge of the
unwholesomeness, such knowledge must be alleged with refer-
ence to the condition of the food, and not merely with refer-
ence to the sale itself. The question as to whether there can
be a conviction in such cases, without proof of knowledge and
intent on the part of the accused, is discussed fully under the
subject of intent.’
§ 33. Adulterated food and drinks.— The prohibition of
the sale of adulterated articles of food and drink is sustained,
not only on the ground of danger to the public health, but also
by way of preventing fraud; and therefore the fact that the
adulterated article is of equal utility with the genuine one, or is
of an inferior quality, without being injurious, will be immate-
rial.8 Such prohibition is usual as to the sale of milk, and it is
immaterial in what the adulteration consists.? Within such a
statute a sale is made when milk is sold by the glass at a restau-
rant,!® or as part of a meal." As a means of securing evidence
which boracic acid had been added
was held criminal: C. v. Gordon, 159
Mass. 8. The power to make such
regulations may be conferred upon
a city: Littlefield v. S., 42 Neb. 223.
10C. v. Vieth, 155 Mass, 442.
11C, v. Warren, 160 Mass. 533; C. v.
1 Goodrich v. P., 19 N. Y. 574
28. v. Norton, 2 Ired. 40.
3Schmidt v. S., 78 Ind. 41.
4C. v. Raymond, 97 Mass. 567.
5 Goodrich v. P., 19 N. Y. 574,
6C. v. Boynton, 12 Cush. 499,
T Infra, § 128.
8C. v. Judd, 2 Mass. 829; C. v.
Evans, 182 Mass. 11; S. v. Campbell,
64 N. H. 402.
99, v. Smyth, 14 R. I, 100; C. v.
Wetherbee, 153 Mass. 159. Under
such a statute the sale of cream to
Worcester, 126 Mass. 256; and to the
same effect as to oleomargarine, see
C. v. Miller, 131 Pa. St. 118. Delivery
under a contract covering a consid-
erable period constitutes a sale: C. v.
Holt, 146 Mass. 38,
31
[Parr I.
NATURE AND SOURCES OF CRIMINAL LAW.
§ 34.]
for the violation of such a statute, it is usual to provide for the
taking and examination by a health officer of samples of the
article, and this provision is not unconstitutional as depriving
the accused of evidence in his defense, inasmuch as the public
analysis is not conclusive? But this right to take samples can
only be exercised by virtue of some positive provision,’ and the
analysis must be conducted in accordance with the provisions
of the statute; otherwise the general rules of evidence apply
in such cases. As a means of preventing fraud in the sale of
adulterated articles which, though not unwholesome, are deemed
inferior to the genuine article, it is sometimes provided that
the sale can only be made where the article bears a stamp or
label showing its genuine character, and such a requirement is
not unconstitutional as applied to a patented article.’ To the
same end the sale of vinegar containing any coloring matter
may be prohibited entirely.$
§ 34. Imitation butter, cheese and lard; oleomargarine.
The exercise of the power mentioned in the preceding sec-
tion of preventing fraud, even where the article sold is not
injurious, is found in statutes which prohibit entirely the sale
of products made in the semblance of butter or cheese, but not
from milk; that is, manufactured by the use of animal fat.
Substitutes for butter have been quite extensively manufactured,
designated as oleomargarine, margarine, or butterine, and it is
against the sale of these substances that most of the statutes
are directed. It has now been distinctly settled that the manu-
facture or sale of such substances may be absolutely prohibited
on account of the danger of fraud involved therein, although
the substance may not in itself be harmful.7 Lard compounds
and substitutes are subect to similar regulation. There was
an inclination in some of the courts to hold that the absolute
1C. v. Carter, 182 Mass. 12; C. v.
Coleman, 157 Mass. 460.
28. v. Groves, 15 R. I. 208; C. v.
Spear, 143 Mass. 172.
3C. v. Smith, 141 Mass. 135; S. v.
Stone, 46 La. An. 147.
4C, v. Lockhardt, 144 Mass. 132.
5Palmer v. S., 39 Ohio St. 236; In
re Brosnahan, 18 Fed. R. 62. As to
the labeling of oleomargarine, see
the next section.
6 Pp, v. Girard, 145 N. Y. 105.
7Powell v. C., 114 Pa. St. 265; 8. C.,
Powell v. Pennsylvania, 127 U. S.
678; C. v. Shirley, 152 Pa. St. 170;
McAllister v. 8., 72 Md. 390; Pierce
v. S., 63 Md. 592; C. v. Huntley, 156
Mass. 236; Plumley v. C., 155 U. S.
461; S. v. Addington, 77 Mo. 110; P.
v. Arensberg, 105 N. Y. 123; S, v.
Newton, 50 N. J. 534,
8S, v. Aslesen, 50 Minn. 5,
82
Ou. 3.] [§ 38.
prohibition was not constitutional as long as the article was
not injurious, and was not so sold as to perpetrate a fraud.)
Most of the statutes recognize the justness of this distinction and
authorize the sale under such restrictions as shall prevent fraud ;
for instance, without coloration,’ or only with the display of
placards in the place where sold, and by the labeling of the ar-
ticle itself. The offense of exposing for sale such article is not
committed where the article is kept in a closed receptacle not
subject to public inspection.’ Furnishing oleomargarine as a
part of a meal constitutes a sale, within the terms of the stat-
ute.® The question as to whether knowledge or intent is es-
sential to constitute the offense will be fully discussed under
the heading of intent. As these statutes with reference to the
prohibition or regulation of the sale of oleomargarine would
probably not be applicable to the sale of such article brought
into the state as a subject of interstate commerce,’ congress
has passed a statute intended to accomplish the same object in
regard to the article thus imported;® but the federal statute
does not render invalid the prohibition or regulation of such
traffic by state legislation so far as it affects the article not
subject to interstate commerce.®
§ 35. Inspection laws.— There is a provision of the fed-
eral constitution ™ which prohibits the levying of a tax by a
state upon exports or imports from or to the state, except in
OFFENSES UNDER POLICE POWER.
1p, v. Marx, 99 N. Y. 377.
2C. v. Kelly, 163 Mass, 169.
3C. v. Crane, 162 Mass. 506; C. v.
Russell, 162 Mass. 520; C. v. McDon-
mell, 157 Mass. 407; C. v. Mills, 157
Mass. 405; C. v. Stewart, 159 Mass.
118; C. v. Crane, 158 Mass. 218; C. v.
Bean, 148 Mass. 172; C. v. Schollen-
berger, 156 Pa. St. 201; P. v. Arens-
erg, 103 N. Y. 388; Pierce v. 8., 63
Md. 592; S. v. Marshall, 64 N. H. 579.
4C. v. Byrnes, 158 Mass. 172. But
it may be exposed for sale although
still wrapped up: Wheat v. Brown,
1 Q. B. D. (1892), 418. Oleomarga-
rine and butterine are “provisions”
within the terms of a statute with
reference to carrying provisions
from place to place and exposing
them for sale without a license: C. v.
Lutton, 157 Mass. 392.
5C. v. Miller, 181 Pa. St. 118, And
see C. v. Warren, 160 Mass. 533, with
reference to a similar provision as
to adulterated milk.
6 See infra, § 128.
7In re McAllister, 51 Fed. R. 282;
In re Worthen, 58 Fed. R. 467. But
it has been held that such regula-
tions are valid even as to the sale
of such article brought from another
state: C. v. Schollenberger, 156 Pa.
St. 201; C. v. Paul, 148 Pa. St. 559.
8U.S. v. Eaton, 144 U.S. 677; U.S.
v. Ford, 50 Fed. R. 467.
9Plumley v. Massachusetts, 155 U.
S. 461; C. v. Crane, 158 Mass. 218; S. v.
Newton, 50 N. J. 534.
10 Art. I, sec. 10.
3 33
§ 36.] [Parr I.
the enforcement of its inspection laws; and from this it is
inferred that the state may, as has been done in various in-
stances, require an inspection of articles held for sale in the
state; either for export or for sale after being imported.’ Such
inspection is usually required, however, for the purpose of pre-
serving the character of the state’s productions and to prevent
the reputation thereof from being injured by exports of an
inferior quality, or of packages intended to deceive as to the
weight or quantity.? But they are also supported as a means
of preventing the import of articles in such form that they
may be used for the purpose of fraud or imposition;* for in-
stance, the inspection of illuminating oil is thus provided for
in some states. Such inspection may properly be required to
prevent the property of the people of the state from being un-
lawfully taken out of the state for the purpose of depriving them
of such property, and on this ground a statute may require an
inspection of hides for export in order that a register of the
brands thereof may be preserved and the export of unbranded
hides prevented.’ But inspection laws will be unconstitutional
that are so unreasonable in their provisions as to practically pre-.
vent the sale in the state of goods brought from another state.®
§ 36. Regulation of professions; physicians, pharma-
cists, dentists.— In the exercise of the inherent power to pre-
scribe such rules as will protect the health and safety of the
people, the state may determine the qualifications necessary to
entitle persons to practice medicine;’ but it is not a violation
NATURE AND SOURCES OF CRIMINAL LAW.
1Gibbons v. Ogden, 9 Wheat. 1,
203.
Brimmer v. Rebman, 138 U. S. 78;
Voight v. Wright, 141 U. S. 62; Bow-
2Gibbons v. Ogden, 9 Wheat. 1,
208; Turner v. Maryland, 107 U. S.
388, 51, 58; P. v. Compagnie Generale
Transatlantique, 107 U. S. 59; C.v.
King, 1 Whart. 448. Examples of
state inspection laws are collected
in a note to 9 Wheat. 119.
3Brown v. Maryland, 12 Wheat.
419; Clintsman v. Northrop, 8 Cow.
45.
‘Patterson v. Kentucky, 97 U.S.
501; Downing v. S., 66 Ga. 160; Ex
parte Robinson, 29 Tex. Ap. 186.
5 Neilson v. Garza, 2 Woods, 287.
6 Minnesota v. Barber, 186 U.S, 318;
man v. Chicago & N. W. R. Co., 125.
U.S. 465, 488.
TDent v. West Virginia, 129 U.S.
114; 8.C.,S. v. Dent, 25 W. Va. 1; Dris-
coll v. C., 93 Ky. 393; 8. v. Gregory,
83 Mo. 128; 8S. v. Medical Society, 32
Minn. 324; Harding v. P., 10 Colo.
887; Eastman v. 8S. 109 Ind. 278;
Williams v. P., 121 IIL 84; P. v.
Moorman, 86 Mich. 433; Nicholson
v. S, 100 Ala. 182; S. v. Carey, 4
Wash, 424; Gee Woo v.S., 86 Neb.
241. Such a regulation is not an ex
post facto law as to physicians al-
ready in practice: Fox v. T., 2 Wash.
84
Ox. 3.] OFFENSES UNDER POLICE POWER.
[§ 36.
of the usual statutory provisions on this subject to advise or
give medicine to a sick person merely as a neighbor or friend,
where no compensation is received or expected; it is the hold-
ing one’s self out as a physician which is prohibited! But
some statutes make it immaterial whether or not any compen-
sation is received or expected.? It is usual to provide for a
board which shall issue licenses on proof of proper qualifica-
tions, and revoke them on proof of lack of such qualifications,
or for misconduct.’ To sustain a prosecution under the stat-
utes on this subject, all the facts necessary to show an act of
the defendant to have been such as the statute forbids must be
alleged. But it is not necessary to specify any particular per-'
son whom the defendant treated.2 Under the provisions in
many states requiring report to be made of deaths and the
cause thereof, a physician may be punished for failing to make
such report.6 The wicked, ignorant, unskilful, rash and im-
proper treatment of a patient by one acting as a physician,
whether licensed or not, was a misdemeanor at common law.”
The practice of pharmacy, or conducting the business of a
drug-store, is regulated by statute on the same principle as the
practice of medicine’ Itinerant vendors of drugs and patent
'T. 297; nor, if it exempts from its
regulations those who have been five
years in practice, is it invalid for
lack of uniformity: S. v. Hathaway,
115 Mo. 36.
1 Nelson v. 8., 97 Ala. 79. Where
the statute defines what shall con-
stitute the crime of practicing medi-
cine without a license, anything
which is not covered by the statute
will not be punishable: S. v. Carey,
4 Wash. 424. In such .a statute
“physician ” and “person practicing
medicine” are synonymous: Harri-
son v. S., 102 Ala. 170. But the reg-
ulations usually extend to those who
profess to heal, by whatever means,
and not merely to those who profess
to practice medicine as the term is
generally used: S. v. Buswell, 40
Neb. 158. As to what is an “emer-
gency” within such a statute, see
P. v. Lee Wah, 71 Cal. 80.
2 Whitlock v. C., 89 Va. 337. But
even without such express provision
it is not necessary to prove the act-
ual receipt of compensation: S. v.
Hale, 15 Mo. 606.
38. v. Mosher, 78 Ia, 321; Ex parte
McNulty, 77 Cal. 164; S. v. Schultz,
11 Mont. 429.
4S. v. Hathaway, 106 Mo. 236; S.C.,
115 Mo. 36; Brooks v. S., 88 Ala. 122;
Stough v. State, 88 Ala, 234. For in-
stance, the fact that defendant had
no license must be expressly alleged:
S. v. Fussell, 45 Ark. 65; Dee v.S.,
68 Miss. 601.
5§, v. Van Doran, 109 N.C. 864; S.
y. Little, 76 Mo. 52.
6 P, v. Brady, 90 Mich. 459.
7 Rice v.S., 8 Mo. 561. As to when
a physician will be liable for murder
or manslaughter in causing the
death of a patient, see infra, § 287,
8S. v. Forcier, 65 N. H. 42; S. v.
Heinemann, 80 Wis. 253; S. v. Jones,
18 Oreg. 256.
85
§§ 37, 88.] NATURE AND SOURCES oF cRIMINAL LAW. ([Pazr I.
medicines are also brought within the provisions of some of
the statutes.! On like principles as those above indicated, the
practice of dentistry may be regulated.’
§ 37. Practice of law.— The right to practice as an attor-
ney at law is within the control of the legislature and the
courts, on other grounds than those applied to the professions’
of medicine and pharmacy. An attorney is a part of the court
‘for the administration of its functions. Thus, public officers
may be prohibited from practicing as attorneys.* But the
business of an attorney is such that it may be regulated apart
from this power to control his conduct as an officer of the
court, and therefore a statute prohibiting attorneys from
“shaving” notes has been upheld.‘
§ 38. Licenses in other callings.—In the exercise of the
general police power to protect the public health, it is compe-
tent for the legislature to require a license upon examination
to carry on the business of plumbing.’ Also for the purpose
of protecting the traveling public, and perhaps railroad em-
ployees as well, from unnecessary danger, it may be required
that locomotive engineers shall have a license procured from
a board created for that purpose, upon proper. examination.
So, in general, licenses may be required for certain trades’?
or for places of common entertainment, such as taverns, res-
taurants, etc. But such a license does not constitute a con-
tract or confer any vested right which the legislature may not
impair or take away even before the expiration of the license®
It is no protection against subsequent police regulation.” In
granting such licenses there must not be discrimination against
citizens of other states."
1P, v. Blue Mountain Joe, 129 Til.
370; S. v. Van Doran, 109 N. C. 864;
S. v. Ragland, 31 W. Va. 453; Love
v. S., 31 Tex. Ap. 469.
28, v. Creditor, 44 Kan. 565; Gos-
nell v. S., 52 Ark. 228; S. v. Vander-
sluis, 42 Minn, 129.
3 McCracken v. 8., 27 Ind. 491.
4P. v. Walbridge, 3 Wend. 120.
5Singer v. S., 72 Md. 464; David-
son v.8., 77 Md. 388; P. v. Warden,
144 N. Y. 529,
6Smith v, Alabama, 124 U.S. 465;
McDonald v. S., 81 Ala, 279. An ex-
amination for color-blindness may
be required: Nashville, C. & St.L.
R. v. Alabama, 128 U. 8. 96.
78tokes v. N. Y. Corp., 14 Wend.
87; S. v. Cummings, 36 Mo. 263.
8S. v. Freeman, 88 N. H. 426; St.
Louis v. Siegrist, 46 Mo. 593.
9S. v. Holmes, 38 N. H. 225; Gutz-
weller v. P., 14 Ill. 142; Hirn v. 8S, 1
Ohio St. 15. Contra, Hannibal v.
Guyott, 18 Mo. 515.
10 Gray v. Connecticut, 159 U. 8.74.
11. v. Lancaster, 63 N. H. 267; S, v.
Wiggin, 64 N. H. 508,
RR
Cu. 3.] OFFENSES UNDER POLICE POWER. [S$ 39, 40.
§ 39. Regulation of business in particular localities.—
A business may be such as is proper and necessary in itself,
and yet improper by reason of danger to other property, or
annoyance to persons within the thickly settled portions of a
city, so as to justify its regulation or even prohibition. It has
‘been so held as to public laundries, wash-houses, etc.;! as to
the business of rendering fat from dead animals,’ and as to
‘slaughter-houses.2 On the same principle, sales of liquor j
within certain limits may be subjected to special regulations +
not imposed on the business as elsewhere conducted.’ So any
business may be regulated and prohibited, even on the prem-
ises of the owner. within a specified distance of a camp meet-
ing so far as such regulation is necessary to protect the
meeting from disturbance.’ The use of shades upon the pub-
lic street may be regulated, although the title to the street is
in the abutting owner subject to the easement.’ A business,
such as operating public vehicles upon the streets of a city,
may be prohibited, except on payment of a license tax.’ The
beating of drums within the compact portions of a city may
be prohibited.*® So express permission of an officer may be re-
quired for operating a bicycle on a certain turnpike.
. §40. Public callings.— Some kinds of business are recog-
nized as public in their nature in such sense as to be subject to
regulation on that ground alone. Thus, it is held that elevator
charges may be regulated by state statute,” and the charges of
grist mills; and the same principle applies to the business of
carriers,” ferrymen," wharfingers, warehousemen, etc. Police
1 Barbier v. Connolly, 118 U. S. 27;
Soon Hing v. Crowley, 113 U. 8. 703.
28. v. Fisher, 52 Mo. 174.
3Slaughter-House Cases, 16 Wall.
36; Taylor v. S., 35 Wis. 298.
48. v. Shroeder, 51 Ia. 197; Heck
v. S., 44 Ohio St. 536; S. v. Chambers,
98 N. C. 600; and see S. v. Partlow,
91 N. C. 550.
_ 5C, v. Bearse, 182 Mass, 542; C. v.
Porter, 1 Gray, 476; Meyers v. Baker,
120 Ill. 567; S. v. Cate, 58 N. H. 240.
6S. v. Merrill, 37 Me. 329.
7Marmet v. S., 45 Ohio St. 63,
8S, v. White, 64 N. H. 48.
, 28. v. Yopp, 97 N. C. 477.
10Munn vy. Illinois, 94 U. S. 113;
Budd v. New York, 148 U. S. 517;
Brass v. Stoeser, 153 U. S. 391.
118, v. Edwards, 86 Me. 102. And
see Head v. Manufacturing Co. 113 .
U. S. 9; Burlington v. Beasley, 94 ,
U.S. 310.
12 Ruggles v. Illinois, 108 U. 8S. 526;
Chicago, B. & Q. R. Co. v. Iowa, 94
U.S. 155; Chicago, M. & St. P. R.
Co. v. Minnesota, 134 U.S. 418. Thus
the sale of passenger tickets may be
regulated: S. v. Corbett, 57 Minn.
345.
13I¢ may be made a public offense
for a ferryman to detain a traveler
at his ferry: &. v. Sewell, 45 Ark. 387.
14The whole subject is fully dis-
37
8§ 41, 42.] NATURE AND SOURCES OF ORIMINAL LAW. [Parr I.
regulations in regard to the operation of railroads are common,
and are upheld without question.! Thus, railroads may be re-
quired to make stops at county seats? A statute forbidding
the running of freight trains on Sunday is not unconstitutional
as an interference with interstate commerce.’ But a regula-
tion of stops which impedes interstate commerce and the trans-
portation of the mails is unconstitutional.*
§ 41. Insurance.— The business of soliciting insurance or act-
ing asan insurance agent may be regulated.’ The company itself
may be required to have a license for the privilege of carrying
on the business,° and foreign insurance companies are specially
subject to regulation, as they may be excluded from doing busi-
ness in the state except on such terms as the state may prescribe.’
Discriminations in insurance rates, not based upon differences.
in risk or expectation of life, may be prohibited.’
§ 42. Bankers; factors; mercantile agencies.— It is often
made criminal for bankers to receive deposits when insolv-
ent,’ or to issue notes to circulate as money.” But it is not
cussed in Munn v. Illinois, 94 U. 8.
118. See Blair v. Cuming County,
111 U.S. 363; Stone v. Trust Co., 116
U.S. 307.
1Fuller v. Chicago & N. W. R. Co.,
81 Ia. 187; S. C., Railroad Co. v. Ful-
ler, 17 Wall. 560; S. v. Railroad, 59
N. H. 85; P. v. Detroit, Grand Haven
& Milwaukee R. Co., 79 Mich. 471;
Davis v. §. 6 Tex. Ap. 166. As to
separate accommodations for col-
ored persons, see infra, § 54. Rail-
roads may be subjected to criminal
liability for death caused by negli-
gence: Boston, C. & M. R. Co. v.&.,
32 N. H. 215. And see infra, § 288.
28. v. Gladson, 57 Minn, 385.
3Hennington v. Georgia, 163 U. S.
299.
4Tllinois Central R. Co. v. Illinois,
168 U. S. 142.
58. v. Farmer, 49 Wis. 459; C. v.
Vrooman, 164 Pa. St. 306; List v. C.,
118 Pa, St. 522; C. v. Wetherbee, 105
Mass. 149; S. v. Hosmer, 81 Me. 506;
8S. v. Johnson, 48 Minn. 350; S. v.
Williams, 46 La. An. 922; Fort v. S.,
92 Ga. 8; S. v. Hover, 58 Vt. 496;
Brown v. S., 26 Tex. Ap. 540; Smith
v. S., 18 Tex. Ap. 69.
SLee Mut. Fire Ins, Co. v. S., 60
Miss. 395; S. v. Case, 53 Mo. 246.
7C. v. Biddle, 189 Pa. St. 605; Moses
v. &., 65 Miss. 56. It may be madea
misdemeanor to procure insurance
to be taken by a resident in a com-
pany not authorized to do business
in the state: Hooper v. California,
155 U. S. 648,
8S. v. Schwarzschild, 83 Me. 261;
C. v. Morningstar, 144 Pa. St. 103.
9S. v. Cadwell, 79 Ia. 432; S. v. Fields
(Ia.), 62 N. W. R. 653; Baker v. 8.,
54 Wis. 368; Koetting v. S., 88 Wis.
502; S. v. Myers, 54 Kan. 206; Collins
v. &, 33 Fla, 429; S. v. Kelsey, 89 Mo.
623; C. v. Junkin, 170 Pa. St. 194, 81
L. R, A. 124 and note; 8. v. Buck, 108
Mo. 622. But such regulations do not
apply to atrust company: S. v. Reid,
125 Mo. 43, A state statute punish-
ing usury as a misdemeanor is ap-
plicable to a national bank: S, v.
First Nat. Bank, 2 S. Dak. 568.
108. v. Watson, 4 Ind. 595; Steed-
man v.S., 11 Ohio St. 82; 8. v. James,
63 Mo. 570.
38
*
Cu. 3.] OFFENSES UNDER POLICE POWER. [§§ 43, 44.
proper to prohibit usual banking operations except as carried
on by a corporation.! Those who receive the property of oth-
ers on trust, as factors, or manufacturers of butter and cheese
who receive milk with the agreement to return the product
made therefrom, may be required to make monthly reports
and give a bond? Mercantile or commercial agencies are not
instruments of commerce in such sense that state regulation
thereof is invalid as interfering with interstate commerce.’
§ 48. Corporate business.— Fraudulent issue of corporate
stock may be punished criminally.* And so may the making
of false entries on the books with intent to defraud.’ Under
penalty, corporations may be required to make annual state-
ments,’ and foreign corporations may be required to secure a
permit before transacting business in the state.’ A proper reg-
ulation of corporate business is applicable to corporations
already created as well as those afterwards chartered.
§ 44. Occupation tax; peddlers, itinerant merchants.—
Some kinds of business are frequently subjected to a tax,
mainly for the purpose of raising revenue, though other ob-
jects may also be involved. Thus, the regulation of the sale
of intoxicating liquors may be by means of a license, though
the object is the regulation of the business as well as the rais-
ing of revenue.? So a tax on the business of packing oysters
has been upheld.” Peddlers, or hawkers as they were some-
times called, are usually required to pay some form of tax,
which is said to be not merely a revenue provision, though at
present that is probably its principal purpose, but also a means
of keeping under control a class of persons who, in past times,
were looked upon with distrust as possible perpetrators of
fraud;" and the exposing for sale as well as the sale of goods
18. v. Scougal, 38. Dak. 55. moral publications: Thompson v. §.,
2 Hawthorn v. P., 109 Ill. 302. 17 Tex. Ap. 253.
38. v. Morgan, 28. Dak. 32, 10S. v. Applegarth, 81 Md. 293.
4 West v. P., 137 Ill. 189. 11Emert v. Missouri, 156 U. S, 296;
5P, v. Leonard, 103 Cal. 200. 8. C., S. v. Emert, 103 Mo. 241; S. v.
6S, v. Hanna, 84 Ind. 183, Parsons, 124 Mo. 486; C. v. Ober, 12
7List v. C., 118 Pa. St. 8322; Paul Cush. 493; C. v. Brinton, 132 Pa. St.
v. Virginia, 8 Wall. 168. 69; C. v. Harmel, 166 Pa. St. 89;
8S. v. Mathews, 44 Mo. 523. Cherokee v. Fox, 34 Kan. 16; Mor-
9S, v. Green, 27 Neb. 64. Soali. rillv.S. 88 Wis. 428; Shiff v. S., 84
eense tax may be required to be Ala, 454; S, v. Gorham, 115 N. C. 721.
paid for the privilege of selling im- Peddlers may be required to pay a
39
NATURE AND SOURCES OF CRIMINAL LAW.
§ 44.] [Parr I.
‘by such itinerants without a license may be punished.! But
_ one who goes about with samples taking orders to be subse-
quently filled is not a peddler.? Itinerant vendors or mer-
chants, not coming strictly within the definition of a peddler,
may also be subjected to a license tax.2 So brokers may
be required to pay a license tax.t So may itinerant musi-
cians.’ As to the constitutionality of these statutes, it has
been held that, if the license is imposed only on those who are
non-residents of the state, or only on those who sell goods
manufactured outside of the state, they are unconstitutional; in
the one case, because interfering with the privileges and im-
munities of citizens of another state;* and in the other because
interfering with interstate commerce.’ Even if there is no dis-
crimination a statute is unconstitutional which imposes a tax
on the privilege of selling within the state the products or
manufactures of another state; for even this is an interference
with interstate commerce.’ But so far as such statutes apply
municipal as well as a state license:
C. v. Ellis, 158 Mass. 555,
1Morrill v. S., 88 Wis, 428.
2Ballou v. S., 87 Ala. 144; S. v.
Fetterer, 65 Conn. 287; C. v. Eichen-
burg, 140 Pa. St. 158; S. v. Lee, 118
N. C. 681; S. v. Gibbs, 115 N. C. 700.
And it is immaterial that he makes
occasional sales and deliveries, that
not being the general method of
conducting his business: C. v. Ober,
12 Cush. 493; C. v. Farnum, 114 Mass.
267; but see S. v. Snoddy, 128 Mo. 523,
3C. v. Crowell, 156 Mass, 215;
Weaver v.&., 89 Ga. 639. One who
travels merely as agent for a manu-
facturer in the sale and delivery of
small articles may still be a peddler:
C. v. Gardner, 183 Pa. St. 284. Deal-
ing in railroad tickets may be re-
quired to be by a duly authorized
agent: S. v. Ray, 109 N. C. 736. Those
who sell goods at auction may be
required to pay a license tax for the
privilege: C. v. Harnden, 19 Pick.
482; Crandall v. S., 28 Ohio St. 479.
Such a license is not transferable:
Stone v. S&S, 12 Mo. 400. Dealers
in pistols may be required to pay
a privilege tax: Graham v. §., Tt
Miss, 208,
4 Henderson v. S., 50 Ind. 284,
50. v. Plaisted, 148 Mass. 375.
6U. S. Const., art. IV, sec. 2; Ward
v. Maryland, 12 Wall. 418; Guy v.
Baltimore, 100 U. 8. 484; Marshall-
town v. Blum, 58 Ia. 184; Pacific
Junction v. Dyer, 64 Ia. 38; 8% v.
Lancaster, 63 N. H. 267.
7 Welton v. Missouri, 91 U.S. 275:
Walling v. Michigan, 116 U. 8. 446;
Webber v. Virginia, 103 U.S. 344;
S. v. Furbush, 72 Me. 498; 9S. v.
North, 27 Mo. 464. Views to the con-
trary are found in S, v. Welton, 55
Mo. 288; Morrill v. S., 88 Wis. 428;
Fry v. 8., 63 Ind. 552. The state can-
not require the filing of a bond by
sellers of fruit trees grown out of
the state: In re Schechter, 63 Fed.
R. 695.
5 Asher v. Texas, 128 U. 8. 129;
Brennan v. Titusville, 153 U. S, 289:
Robbins v. Shelby County Taxing
Dist., 120 U. S. 489; In re Houston,
47 Fed. R. 539; In re Nichols, 48. Fed.
R. 164; In re Rozelle, 57 Fed. R, 159;
In re Flinn, 57 Fed. R, 496; S, v. Agee,
40
OFFENSES UNDER POLICE POWER.
Cat] [9$ 45, 46.
to peddlers, without regard to whether or not they are resi-
dents of the state, or are selling goods produced or manufact-
ured in the state, they are constitutional! But a heavier bur-
den cannot be imposed on account of the sale of patented
articles? A license in the nature of a monopoly cannot be
justified as to a business merely because it is transient.*
§ 45. Protection of public interests.— The use of private
property in such way as to bean injury to the public may be
prohibited, as where such use would injure public property.
Thus, the removal of sand from a beach, where such act would
injure a harbor and prejudice public shipping, may be pre-
vented as a public nuisance.’ The removal of landmarks which
determine boundaries may be prohibited.’ So it may be made
criminal to inclose public land. It may be made criminal to
deface or obliterate a public notice.’ The return of an untrue
list of property for taxation may be punished.’ Failure to
work out a road tax may be made criminal.? It may be made
criminal in a county officer to buy warrants at a discount.”
§ 46. Protection of game and fish.— The preservation of
game and fish is within the proper domain of the state’s police
83 Ala. 110; Hurford v. S., 91 Tenn.
669. To the contrary: Ex parte
Asher, 23 Tex. Ap. 662; T. v. Farns-
worth, 5 Mont. 303. The producer
or manufacturer of goods or his
agent may sell them without the
payment of a privilege tax: Folkes
v. 8. 63 Miss. 81; S. v. Bracco, 103
N. C. 349. But, contra, see Beall v.
S., 4 Blackf. 107. So an agent fora
foreign transportation company can-
not be required to pay a license tax:
McCall v. California, 186 U. S. 104.
Nor can a foreign railway company
be required to pay a tax for the
privilege of maintaining an office
for the transaction of its business:
Norfolk & W. R. Co. v, Pennsyl-
vania, 186 U. S. 114. Nor can an
express company engaged in inter-
state commerce be required to pay
a license tax: Crutcher v. Kentucky,
141 U.S. 47. Nor can a license be
imposed on a telegraph company
doing both state and interstate busi-
ness: Leloup v. Mobile, 127 U.S. 240.
But a license fee on a local business
of telegraph companies is valid:
Postal Tel. Cable Co. v. Charleston,
153 U. S. 692.
1Emert v. Missouri, 156 U. S. 296;
S. C., S. v. Emert, 103 Mo. 241; Fick-
lin v. Taxing Dist., 145 U.S. 1; Sv.
Richards, 32 W. Va. 348.
2In re Sheffield, 64 Fed. Rep. 833.
3S. v. Conlon, 65 Conn. 478.
4C. v. Tewksbury, 11 Met. 55. ‘
58, v. Bryant, 111 N. C. 693; 8. v. !
Beckman, 58 N. H. 399; Stratton v. |
S., 45 Ind. 468. And see infra, § 819.
6U. S. v. Buford, 8 Utah, 173.
77. vy. Lannon, 9 Mont. 1; T. v.
Mackey, 8 Mont. 168; infra, § 819.
8Lose v. S., 72 Ind. 285; Burns v.
S., 5 Ind. Ap. 385; S. v. Welch, 28 Mo.
600.
98, v. Gillikin, 114 N. C. 832; S. v.
Wainright, 60 Ark. 280.
10 Marks v. S., 71 Miss. 206.
41
NATURE AND SOUROES OF CRIMINAL LAW. [Parr I.
§ 46.]
power.' Wild game running at large and fish in the public
waters are deemed the property of the state in a peculiar sense,
and it is usual to regulate by somewhat elaborate provisions the
taking of such game or fish, and the having possession, trans-
portation and sale of the same. Thus, as to the right of hunting
and fishing, a statute may discriminate between residents and
non-residents without interfering with any of the privileges
and immunities of citizens of another state.? And the having in
possession or selling game or fish contrary to the requirements
of the statute may be punished, even though it is not taken con-
trary to the law of the state, or is brought in from other states ;°
so it may be made illegal to transport game without regard
to whether it was killed in violation of the game laws; and
this is not unconstitutional as affecting interstate commerce;*
so the having in possession may be criminal without regard to
the killing.» An exception to the game law may be made in
behalf of the owner of the land, but such exception is not a
transferable right, and he cannot give to another permission to
1Lawton v. Steele, 152 U. S, 133.
The power of the legislature in this
respect is derived from the common
Jaw: Parker v. P., 111 Ill. 581.
2McCready v. Virginia, 94 U. 8.
391; Manchester v. Massachusetts,
189 U. S. 240; S. v. Medbury, 3 R. I.
188; Crandall v. 8S. 10 Conn. 339;
Slaughter v. C., 13 Gratt. 767; P. v.
Coleman, 4 Cal. 46; Allen v. Wyckoff,
48 N. J. 90; S. v. Tower, 84 Me. 444;
P. v. Lowndes, 180 N. Y. 455; S. v.
‘Conner, 107 N. C. 981. Contra, In re
Ah Chong, 6 Sawyer, 451.
3Roth v. 8., 51 Ohio St. 209; Ex
parte Maier, 103 Cal. 476; In re As-
bill, 104 Cal. 205; Magner v. P., 97
TIL. 820; S. v. Craig, 80 Me. 85; 8S. v.
Beal, 75 Me. 289; S. v. Rodman, 58
Minn. 393. Thus, it may be unlawful
during the close season to sell fish
artificially propagated, even though
the right of private ownership in
such fish is fully recognized: C. v.
Gilbert, 160 Mass. 157. But such
statutes will be construed in the
light of the intent and object of the
law: C, v. Hall, 128 Mass. 410. And
under such construction it may be
found that the prohibition relates
only to game killed in the state:
C. v. Wilkinson, 139 Pa. St. 298; 8S, v.
Barnes, 24 Oreg. 366; Guyer v. Reg.,
23 Q. B. D. 100.
4Geer v. Connecticut, 161 U.S. 519;
8. C., S. v. Geer, 61 Conn. 144; Organ
v. State, 56 Ark. 267. As to prohibi-
tion of shipping, see, also, American
Express Co. v. P., 183 Ill. 649; S, v.
Northern Pacific Express Co. 58
Minn. 403; S. v. Swett, 87 Me. 99.
Selling may be made illegal, even
though the game is brought from
another state: 8. v. Randolph, 1 Mo.
Ap. 15. But in some cases statutes
as to transportation have been
thought unconstitutional: S. v.
Saunders, 19 Kan. 127; T. v. Evans,
2 Idaho, 684,
5S. v. Rodman, 58 Me, 893; Phelps
v. Racey, 60 N. Y. 10. As to the
validity of the game laws in general,
see, also, Organ v. S., 66 Ark. 267;
Gentile v. S., 29 Ind. 409; S, v. Far-
rell, 23 Mo. Ap. 176,
42
Cn. 3.] OFFENSES UNDER POLICE POWER.
[§ 46.
-do that which he is himself, by the law, permitted todo.! Some-
‘times it is provided that hunting on private premises may be
rendered criminal by notice posted forbidding it2 The regu-
lation of the method in which fish may be captured is within
the police power, even as applicable to waters within private
boundaries.? No individual right attaches to fish in public
waters, and the legislature has exclusive control over the man-
ner of capture;* especially as to migratory fish is it proper
that the taking of them should be under the control of the
state, regardless of the locality in which they may happen to
be found.’ Indeed, at common law an obstruction to the pas-
sage of migratory fish, by which they were prevented from
going into the public waters, was a nuisance.® A statute may,
however, exempt from its regulations the taking of fish in pri-
vate ponds,’ or fish artificially propagated. So, while the
method of taking oysters by dredging, etc., may be regulated,®
such regulations may be restricted in their application to nat-
ural oyster-beds, as distinct from private beds. The exclusive
fishing rights in a public pond may be granted on such condi-
tions as the state may specify." For the purpose of making the
restrictions as to the method of fishing effectual, it may be made
a misdemeanor for any one to have in his possession such a net
or seine as is forbidden to be used, and the confiscation thereof
will not be unconstitutional.”
1 Hart v. S., 29 Ohio St. 666.
28, v. Shannon, 36 Ohio St. 423.
3Gentile v. S., 29 Ind. 409; S. v.
Blount, 85 Mo. 543; P. v. Bridges,
142 Ill. 30; P. v. Miller, 88 Mich. 383;
8. v. Houghten, 65 Vt. 328; S. v.
Roberts, 59 N. H. 256, 484; C. v. Look,
108 Mass. 452.
49, v. Lewis, 184 Ind. 250; C. v.
‘Cavey, 97 Mass. 541; S. v. Dunning,
83 Me. 178; S. v. Smith, 61 Vt. 346;
P. v. Brooks, 101 Mich. 98.
5P. v. Collison, 85 Mich. 105; Parker
v. P., 111 Ill. 581; 8. v. Roberts, 59
N. H. 236, and 484. Where the catch-
ing of certain fish only is forbidden,
the accidental taking of such fish
while in good faith fishing for those
which may lawfully be caught will
not be criminal: C. v. Look, 108
Mass. 452.
68. v. Franklin, etc. Co. 49 N. H. 240.
TReynolds v. C., 938 Pa. St. 458;
S, v. Welch, 66 N. H. 178.
8C. v. Gilbert, 160 Mass. 157.
98. v. Conner, 107 N. C. 931; Smith
v. Maryland, 18 How. 71. j
10P, v. Hazen, 121 N. Y. 313; S. v.
Willis, 104 N. C. 764.
11C, v. Wetherhead, 110 Mass. 175.
Lawton v. Steele, 152 U. S. 183;
S. v. Lewis, 134 Ind. 250. So the
forfeiture of a vessel for illegal fish-
ing may be provided for; but to au-
thorize such forfeiture where there
is no fault on the part of the owner,
there must be a proceeding against
the vessel: Boggs v. C., 76 Vu. 989.
48
§§ 47, 48.] NATURE AND SOURCES OF ORIMINAL Law. [Parr I.
§ 47. Protection of brands.— By way of protecting prop-
erty it is common to provide for the punishment of falsely
branding or changing brands, where branding is a means of
identifying property for the purpose of proving the ownership.
Thus, it is criminal to falsely brand, or alter the brand, of
horses, cattle, or sheep, with the purpose of thereby destroying
the evidence of another’s ownership of them.’ So it is crim-
inal to destroy the brand on logs, provision being made by
statute for recording such brands as evidence of ownership.’
So it may be provided that stamps on bottles may be regis-
tered, and the possession by second-hand dealers of such bottles
without the written consent of the owner of the stamp may be
made prima facie evidence of unlawful use or traffic Brands.
are also authorized in some cases as a means of determining
the quality or value of an article sold, or offered for sale, and
the false branding for the purpose of deception would be crim-
inal.!
§ 48. False weights and measures; frauds.— The states
regulate to some extent the weights and measures which are
authorized to be used in business transactions, and make it
criminal to use false weights and measures.’ So the states
usually provide a weight for various articles which shall con-
stitute a bushel, for purposes of sale, and make it criminal to
sell except at the weight and measure prescribed by law.’ The
weighing of coal at coal mines as the basis on which to pay
the miners has been made a subject of legislation.’ So the
weight of loaves of bread offered for sale may be regulated.*
Fraud, constituting cheating by false pretenses, is hereafter
considered in a separate chapter, but it may be suggested here
1Murrah v. S., 51 Miss. 652; P. v.
Swasey, 6 Utah, 93: S. v. Haws, 41
Tex. 161; Alford v. §., 31 Tex. Ap.
299. So it is made criminal for a
butcher to slaughter an unbranded
animal: Hunt v. S., 33 Tex. Ap. 93.
2C. v. Puckett, 92 Ky. 206.
3P, v. Cannon, 189 N. Y. 32.
48. v. Burge, 7 Ia. 255.
58. v. Kellner, 22 Neb. 668. And
see Reg. v. Justices, 24 Q. B. D. 181.
®Blanchard v. 8, 3 Ind. Ap. 895,
In this case it is said that if the pur-
chaser had knowledge of the fact
that the sale was at a less number
of pounds per bushel than that re-
quired by statute, and was not de-
ceived, there could be no conviction.
7Smith v. S&S, 90 Tenn. 575; S. v. ,
Jenkins, 90 Tenn. 580. As to whether
statutes requiring such weighing,
for the protection of employees, not-
withstanding contracts of parties to
the contrary, are constitutional, see
infra, § 55.
sP, v. Wagner, 86 Mich, 594,
44
Cx, 3.] OFFENSES UNDER POLICE POWER. [§§ 49-53.
‘
that in some states fraud on hotel-keepers is made a special
subject of statutory punishment.!
§ 49. Regulation of warehousemen.— For the protection
of those who purchase property by means of,the transfer of
warehouse receipts, it is sometimes made criminal for the ware-
houseman to sell or remove goods for which a receipt has been
given by him without the written assent of the holder thereof.’
§ 50. Regulation of sales.—To prevent the fraud which
may be perpetrated in the selling or buying of the property
belonging to another, it is provided in Texas that it shall be
criminal to buy cattle without taking a bill of sale.’ In other
states, the sale of cotton or other farm produce after sunset
or at night iscriminal.! For a similar reason it is provided that
‘seed cotton shall not be sold in less than the usual quantity for
baling, and without reducing the sale to writing and deliver-
ing the receipt to the nearest justice of the peace to be dock-
ted, and such a statute is held constitutional.’ Notes given
for patent rights may be required to show the consideration.
§ 51. Enticing away servants.—In some of the southern
states it is made criminal to induce a servant to leave the serv-
ices of his employer, with whom he has a written contract, be-
fore the expiration of the time contracted for.’ So it may be
made criminal to entice a minor from the employ of a person
to whom the parent has hired him.®
§ 52. Rescue of distrained property.— When cattle run-
ning at large are lawfully taken up, which fact must appear,
the act of rescuing them from distraint may be criminal.®
§ 53. Usury.— The usury laws generally affect the valid-
ity of the contract or attach a penalty by way of forfeiture
1Such a statute is not unconstitu-
tional as providing for imprisonment
for debt: See infra, § 668a.
28, v. Kirby, 115 Mo. 440; S. v.
Miller, 140 Ind. 168; S. v. Koshland,
25 Or. 178; S. v. Stevenson, 52 Ta. 701;
Sykes v. P., 127 Ill. 117; Bucher v. C.,
103 Pa. St. 528.
3Long v. §., 6. Tex. Ap. 643; Hus-
ton v. S., 138 Tex. Ap. 595.
48, v. Padgett, 18 S. C. 317; Reese
vv. S., 78 Ala. 18; Gilliam v. S., 71 Ala.
10; Mangan v. 8. 76 Ala. 60; Davis v.
$. 68 Ala. 58.
45
5S. v. Moore, 104 N, C. 714.
6S, v. Peck, 25 Ohio St. 26.
7Tarpley v.S., 79 Ala. 271; Tartt v.
S., 86 Ala. 26; Prestwood v. S., 87 Ala.
147; Ward v. S., 70 Miss. 245; S. v.
Harwood, 104 N, C. 724; S. v. Ander-
son, 104 N. C. 771; S. v. Hoover, 107
N. C. 795. And see, as to indentured
servants, S. v. Owens, 1 Houst. Cr. C.
72; 8. v, Hooper, 1 Houst. Cr. C. 17.
8 Winslow v. §., 92 Ala. 78.
98. v. Barrett, 42 N. H. 466; infra,
§ 932,
—
§§ 54,55.] NATURE AND SOURCES OF CRIMINAL Law. [Parr I.
of interest, but a criminal punishment is also sometimes im-.
posed.!
§ 54. Civil rights.— In the protection of all persons in equal--
ity of rights, it is common to prohibit the owners or managers:
of places of amusement or entertainment from excluding any
person on account of race or color.? But even since the abolition
of slavery it has been held constitutional to impose a severer
penalty for adultery or fornication between persons of different.
races than between persons of the same race.2 The statutes of
the United States, which attempted to prevent discrimination
against the colored race in their enjoyment of equal civil rights,
was held unconstitutional as beyond the power of congress, such
rights being within the protection of the states.‘ A state regu-
lation requiring carriers within the state to furnish separate
accommodations for white and colored passengers is not invalid
as a regulation of interstate commerce;° otherwise if it applies
to the carrying of passengers beyond the state limits.®
§ 55. Regulation of employment.— It is undoubtedly com-
petent for the legislature to specially protect the interests of
employees who, by reason of their lack of maturity, are not in
a situation to make a valid contract.’ But special restrictions.
1C. v. Frost, 5 Mass. 58; Groves v.
S., 6 Blackf. 489; Merriman v. S., 6
Blackf. 449; Crawford v. S., 2 Ind.
112; Wilkerson v. S, 2 Ind. 546;
S. v. Williams, 4 Ind. 234; Marble
v. S., 13 Ind. 862; Malone v. S., 14
Ind. 219; Swinney v. S., 14 Ind. 315;
Block v. S., 14 Ind. 425; Sumner
v. P., 29 N. Y. 837; Kenyon v. S., 31
Tex. Ap. 13. Such statutes are not
unconstitutional as applied to na-
tional banks: S. v. First Nat. Bank,
28. Dak. 568,
2P. v. King, 110 N. Y. 418; C. v.
Colton, 8 Gray, 488; C. v. Sylvester,
18 Allen, 247; Messenger v. 8, 25
Neb. 674; 8. v. Hall, 72 Ia. 525; U.S.
v. Taylor, 8 Fed. R. 563. Discrim- -
inative statutes based on race dis-
tinctions were recognized before the
abolition of slavery: S. v. Manuel, 4
Dev. & B. 20; S. v. Cooper, 5 Blackf.
258; Baptiste v. S., 5 Blackf, 283;
Hatwood v.S., 18 Ind. 492; Pendle-
ton v.8., 6 Ark. 509; Hickland v.S., 8
Ark. 365: 8. v. Claiborne, 1 Meigs, 331.
Green v. S., 58 Ala. 190; Pace v.
S., 69 Ala. 231; S. C., Pace v. Ala-
bama, 106 U. S. 583,
4Civil Rights Cases, 109 U. S. 3.
But the right of a citizen of the.
United States in the custody of a
marshal under lawful commitment,.
to be secure against lawless vio-
lence, is a right under the constitu-.
tion and laws of the United States:
Logan v. U.S., 144 U. S. 263. The
right of suffrage is not guarantied
by the Fifteenth Amendment to the
Federal Constitution, but only the
right to freedom from discrimina-
tion therein on account of race:
U.S. v. Amsden, 6 Fed. R. 819,
5 Louisville, etc. R. Co. v. Missis-
sippi, 188 U. 8. 587,
6 Hall v. De Cuir, 95 U. 8, 485.
7C. v. Hamilton Mfg. Co., 120 Mass..
383,
46
Cu. 3.]
OFFENSES UNDER POLICE POWER.
[§ 55.
as to female labor are not constitutional! Recently, statutes
have been passed in many of the states intended to protect em-
ployees in general against their own contracts, which have
been contested on the ground that such legislation interferes
with that freedom of contract and right to the management
of one’s own services and property which the constitutions
protect in general terms, if not in express provisions. In many
instances these regulations have been held unconstitutional,
but in some cases they have been sustained. The illustrations
which are here given will furnish as definite a guide as is now
practicable as to the scope of this legislative power. A re-
striction of the number of hours of labor which may be con-
tracted for, or performed by an employee, per day or per
week, is unconstitutional;* so is a contract requiring weekly
payment of employees;* so is a statute prohibiting the pay-
ment of employees in orders or evidences of indebtedness, and
not in lawful money;‘ so is a statute requiring the weighing
of coal at mines;* so is a statute prohibiting an arrangement
by which damages for bad work shall not be deducted from
the pay of the employee;® so is a statute requiring payment
for services to be made at the
1In re Maguire, 57 Cal. 604; Ritchie
v. P., 155 I. 98. But sale of liquor
in dance-houses where there are fe-
male waitresses may be prohibited:
Ex parte Hayes, 98 Cal. 555. And
as to uniform operation of laws, see
infra, § 77.
2 Low v. Rees Ptg. Co., 41 Neb. 127;
In re Eight Hour Law, — Colo. —,
89 Pac. R. 828; Ritchie v. P., 155
Til, 98; Ex parte Kuback, 85 Cal.
274. As to the eight-hour law ap-
plicable to United States officers,
contractors, etc., see U. 8. v. Ollin-
ger, 55 Fed. R. 959. It is applicable
to seamen on a government vessel:
U.S. v. Jefferson, 60 Fed. R. 736.
3Braceville Coal Co. v. P., 147 IIL
66. The contrary decision in 8. v.
Brown, etc. Mfg. Co., 18 R. I. 16, is
based to some extent on the fact that
the statute in that case was applica-
ble to corporations only,as to which
see subsequent note to this section.
completion of the work;7 so is
4S. v. Loomis, 115 Mo. 307; 8S. v.
Peel Splint Coal Co., 36 W. Va. 802;
S. v. Goodwill, 33 W. Va. 179. A
similar provision that mining and
manufacturing companies should
not sell merchandise or supplies to.
their employees at a greater profit
than to others not employed, was
held unconstitutional: S. v. Fire
Creek Coal & Coke Co., 83 W. Va.
188. The so-called “truck-store” stat-
utes are unconstitutional: Frorer v.
P., 141 IM. 171.
5 Millett v. P., 117 Tl. 294: Ramsey
v. P., 142 Ill. 380; In re House Bill,
— Colo. —, 39 Pac. R. 481. Such
a statute is not constitutional, even
though for the avowed purpose of
securing statistics: Millett v. P., 117
TL 294.
6C. v. Perry, 155 Mass. 117.
TLeep v. St. Louis, etc. R. Co., 58
Ark, 407.
47
8§ 56,57.] NATURE AND SOURCES oF onrMINAL LAW. [Parr I.
a statute requiring employers to give to employees a written
statement of the reasons for their discharge;' so is a statute
prohibiting employers from requiring laborers not to belong to
labor organizations.” It has been suggested that such statutes
may be valid as to corporations whose charters are subject to
legislative regulation, even though unconstitutional as to nat-
ural persons. Prohibition of labor and business on Sunday,
works of necessity and charity excepted, is constitutional; ‘ but
a prohibition of a particular employment being exercised on
that day, such as barbering, which is not specially objection-
able, is unconstitutional, on the ground that it unjustly dis-
criminates between classes.*
§ 56. Sale of diseased animals.— The right of the state to
protect the owners of animals from the risk of contagion com-
municated by the animals of other owners known to be dis-
eased, even to the extent of causing the destruction of the
diseased animals, is not questioned.® Such legislation is not
unconstitutional, either as an invasion of the privileges and im-
munities of citizens of another state, or as an interference with
interstate commerce.’
§ 57. Regulation of marriage.—The state may properly
require a record to be preserved of the solemnization of mar-
riages, and punish those charged with the duty of having that
fact recorded for failure to do so;® and it is competent to pro-
hibit intermarriage between whites and blacks, there being in
such a regulation no interference with the equality of rights
guarantied by the Fourteenth Amendment of the Federal Con-
stitution.
1Wallace v. Georgia, etc. R. Co.,
94 Ga. 782.
784, Contra, P. v. Havnor, 149 N. Y.
195.
28. v. Julow, 129 Mo. 163.
3 Leep v. St. Louis, etc. R. Co., 58
Ark, 407, And see 8. v. Brown, etc.
Mfg. Co., 18 R. I. 16, where a statute
applicable to corporations was up-
held. The argument of the court,
however, is in behalf of the consti-
tutionality of such legislation, even
as applied to natural persons.
4See Sunpay Laws, infra, ch. 66.
5 Eden v. P., 161 Ill. 206; Ex parte
Jentzsch (Cal.), 44 Pac. R. 803;
8. v. Granneman (Mo.), 33 5. W. R.
6Tnus, a statute making it crim-
inal to bring into the state, or to
suffer to run at large, or to sell dis-
eased sheep or to contract for the sale
of such sheep, will be valid: Cald-
well v. Bridal, 48 Ia. 15; and as to
such statutes see S. v. Sterritt, 19
Oreg. 352.
7Kimmish v. Ball, 129 U. S, 217.
88. v. Madden, 81 Mo. 421; S. v.
Walker, 36 Kan, 297.
9S. v. Gibson, 36 Ind. 389; S. v.
Jackson, 80 Mo, 175,
4g
[§ 58.
§ 58. Abandonment of wife or child; neglect of children.
Under homicide it will appear that, for one charged with the
support of a child to fail to furnish such support, so that the
child dies, is manslaughter.!_ But even if death does not result,
the failure to support a child is usually made criminal by stat-
ute.” Such offense may be committed by the head of a chari-
table institution which assumes the care and custody of poor
children, if he knowingly allows a child in such institution to
be without proper food, clothing and medical attendance.
The elements of the offense are that the child is of tender age
or unable to take care of itself; that defendant is under obli-
gations to support it, or at least that it is in his care or keep-
ing, and that the defendant did not do what he could in fur-
nishing the necessary support to the child so that it suffered
injury.’ If defendant voluntarily assumes the care and sup-
port he is not excusable on account of not having the means,
unless, when such incapacity has arisen, he does what he can to
resign such care and applies to the public authorities for relief.
In some states the offense is described as the abandonment by
parents of their children. In some states, as also in England,
the offense of exposing children is made punishable by statute."
There are also statutory provisions requiring one who receives
a child of tender age with the agreement to care for it, taking
compensation therefor, to notify a state board of charity.’
Some statutes with reference to abandonment or failure to
support, make it criminal for a husband to abandon his wife,
or wife and children. In charging such offense the words of
the statute may be followed, without setting out the facts con-
linfra, § 286.
2Cowley v. P., 83 N. Y. 464; C. v.
Ca. 3.]
OFFENSES UNDER POLICE POWER.
wards in destitute circumstances in
the latter: Jemmersonv.S., 80 Ga. 111.
Burlington, 136 Mass. 435; C. v. Ellis,
160 Mass. 165.
3 Cowley v. P., 83 N.Y. 464.
4C, v. Stoddard, 9 Allen, 280; Reg.
v. Hogan, 2 Den. 277.
5 Cowley v. P., 83 N. Y. 464.
6 Bull v. 8., 80 Ga. 704; Bennefield
v. S. 80 Ga. 107%. By early English
statute such person was punishable
as disorderly: Duffy v. P., 6 Hill, 75.
A parent who thus abandons a child
in one state is not punishable therefor
in another, though the child is after-
4 49
78. v. Smith, 46 Ia. 670; Reg. v.
Cooper, 1 Den. 459; Reg. v. White,
L. R.1C. C, 311; Reg. v. Falkigham,
L, R.1C. C. 222; Reg. v. Renshaw, 2
Cox, 385.
8C, v. Johnson, 162 Mass. 596.
°C, v. Baldwin, 149 Pa. St. 305; S.
v. Witham, 70 Wis. 473; Carney v.5.,
84 Ala. 7. Under such a statute the
husband may be punished for failing
to provide for the child alone with-
out regard to the wife: 8. v. Kerby,
110 N. C. 558,
NATURE AND SOURCES OF CRIMINAL Law. [Part IL.
8 59.]
stituting the abandonment,! and the wife is competent to make
the complaint, the crime being one against her.? Misconduct
on the part of the wife is a defense to such a charge so far as
she is concerned. The inability to support which will usually
constitute a defense under the statute does not mean simply
the lack of such accumulated property as would enable the
husband to furnish such support, but mental and physical in-
ability to earn support for the wife! If the husband has
earnings which he spends otherwise, though for a lawful pur-
pose, he may be punished for the omission of duty.°
§ 59. Protection of minors.— The care of the state with
reference to minors is sometimes exercised by providing that
they shall not be allowed to remain in billiard halls or saloons,®
or to play games in such places, at least without the consent of
their parents.’ And it is immaterial whether the minor bet
on the game so that it should constitute the offense of gam-
bling.’ In an indictment charging this offense itis necessary to-
allege that the minor played as prohibited by statute, and the
name of the person with whom he played.® The fact that the
person charged with the offense in good faith believed the
minor to be of age has been held to constitute a defense.” Stat-
utes regulating the numbers of hours per day for which they
may be employed in manufacturing, etc., have been upheld."
18, v. Davis, 70 Mo. 467.
28, v. Newberry, 43 Mo. 429.
88, v. Schweitzer, 57 Conn. 582;
Cc. v. Ham, 156 Mass. 485. But mis-
conduct before marriage, of which
the husband had knowledge, is no
excuse: S. v. Ransell, 41 Conn. 483,
Nor is misconduct after abandon-
ment any defense: Hall v. S., 100
Ala, 86.
48. v. Witham, 70 Wis. 478; C. v.
Baldwin, 149 Pa, St.305. To sustain
a charge against a minor husband it
is necessary to prove his emancipa-
tion and that he owns property: P.
vy. Todd, 61 Mich. 234,
58. v. Ransell, 41 Conn. 433,
68S. v. Probasco, 62 Ia. 400,
7Kiley v. 8. 120 Ind. 65; Conyers
v. 8. 50 Ga. 108. See infra, § 1814.
8Green v. C., 5 Bush, 827; S. v.
Ward, 57 Ind. 537; Bond v.S., 52 Ind.
457; Ready v. S., 62 Ind. 1.
3Donniger v, S., 52 Ind. 326; Alex-
ander v. S., 48 Ind. 394; Zook v. S.,.
47 Ind. 463. And it must be alleged
that the act was unlawful, or the
facts must be stated showing that it
was so; for instance, to show that
it was a public table as provided by
statute: S. v. Dupies, 91 Ind. 233.
Stern v. S&S, 53 Ga. 229. But it
has been otherwise held as to the
offense of selling liquor to minors:
See infra, § 128,
1C, v. Hamilton Mfg. Co., 120 Mass.
383. So in New York it is made
criminal for the parent to consent
to the employment or exhibition of
a female child, under fourteen years
of age, as a dancer, in violation of
police regulations with reference
50
Cu. 3.] OFFENSES UNDER POLICE POWER. [$§ 60-62,
§ 60. Indecency and profanity.— The offense of making ob-
scene publications, blaspheming, etc., will be elsewhere discussed,
but it may be suggested here that it is competent for the legis-
lature to suppress newspaper publications which are devoted
largely to scandals, lecheries, assignations, etc.,! and that the
use of profane and indecent language may be made punishable
as a nuisance.
§ 61. Vagrants.— In some states vagrancy is made a crime
in itself, and punishment therefor is provided where the case
is brought within the particular description of the offense in.
the statute? The usual method of dealing with vagrants, how-
ever, is to require them to give security for good behavior, or
to commit them to compulsory labor. A statute which pro-
vides for binding them out to labor is not unconstitutional, as
imposing slavery or involuntary servitude.!
§62. Municipal regulations.— A municipal corporation may
be given authority to make police regulations in the discharge
of the powers conferred upon it by law and to punish the vio-
lation of such regulations, and such a grant of authority is not
an unconstitutional delegation of legislative power.> But the
authority of the municipality in this respect is closely re-
stricted to the express powers given in the charter, or con-
tained in the general laws defining the rights, duties and pow-
ers of such corporations, or such powers as are necessarily
implied therefrom or involved therein. In passing ordinances
a municipality must comply with the provisions of the general
statutes,’ and exercise them within the limits imposed by the
58. v. Tryon, 39 Conn. 183; 8S. v.
Carpenter, 60 Conn. 97; S. v. Noyes,
thereto; and such a statute is not
unconstitutional: P. v. Ewer, 141 N.
Y. 129. 80 N. H. 279; S. v. King, 87 Ia. 462;
lIn re Banks (Kan.), 42 Pac. R. Des Moines v. Hillis, 55 Ia. 648; St.
694, Louis v. McCoy, 18 Mo. 238; St.
29. v. Warren, 113 N. C. 683. Louis v. Boffinger, 19 Mo. 13; S. v.
3Ex parte McCarthy, 72 Cal. 384;
Price v. S., 67 Ga. 723; Allen v. S.,
51 Ga. 264; Walters v. S., 52 Ga. 574;
Taylor v. S., 59 Ala. 19; Boulo v.&.,
49 Ala. 22; Taylor v. §., 100 Ala. 68;
S. v. Custer, 65 N. C. 339; Brown v.
S., 2 Lea, 158; In re Smith, 54 Kan.
702; Walton v. S., 12 Tex. Ap. 117. -
4In re Thompson, 117 Mo. 83.
Garibaldi, 44 La, An. 809.
6S, v. Hunter, 106 N. C. 796; S. v.
Horne, 115 N. C. 739; S. v. Zeigler,
82 N. J. 262; Keokuk v. Scroggs, 39
Ta. 447; C. v. Wilkins, 121 Mass, 356;
S. v. Miller, 41 La. An. 58; S. v. Gari-
baldi, 44 La. An. 809,
7C, v. Young, 185 Mass. 526,
51
NATURE AND SOURCES OF ORIMINAL Law. [Parr I.
§ 63.]
constitution on legislative action,! and an ordinance in excess
of the power vested in the city is void The authority to
make ordinances involves also the power to repeal them; ? and
also to delegate to an officer a discretion which the council
might exercise, for instance, as to granting licenses for the sale
of liquors,‘ or permitting the repair of wooden buildings within
the fire limits,» or authorizing the beating of drums on the
streets which is prohibited without such authority.6 The mu-
nicipal authority to maintain peace and good order is nota
constitutional privilege, but may be taken away by legislative
action and vested in a general board having control of all such
municipalities.’
§ 63. Ordinances and statutes on same subject.— As a gen-
eral rule the municipality is not given authority to pass ordi-
nances as to subjects which are fully covered by the general
Jaws of the state,’ but an ordinance to regulate matters which
‘are within the general power of the city is not invalid because
‘such matters are also regulated in a different way by statute,
if there is no necessary repugnance between the ordinance and
‘the statute. Thus, a city may be authorized to regulate as a
nuisance things which would not be nuisances under the state
statute, although statutory punishment for nuisances is pro-
vided for; and may, for instance, regulate and prohibit the
sale of liquors, although its action goes beyond the regulations
1§. v. Hunter, 106 N. C. 796. For
instance, a city cannot prescribe a
penalty for failing to perform a
duty, when there is no ordinance
commanding such duty: City of
Kansas v. Corrigan, 86 Mo. 67. It
cannot make that unlawful which is
within the scope of proper personal
liberty, for instance, visiting for a
lawful purpose a place where opium
is sold: In re Ah Jow, 29 Fed. R.
181. , =
23. v. Hammond, 40 Minn. 48;
Fayette v. Shafroth, 25 Mo, 445.
3 City of Kansas v. White, 69 Mo.
26.
4Swarth v. P., 109 Ill. 621.
5Ex parte Fiske, 72 Cal. 125.
6In re Flaherty, 105 Cal. 558.
7C. v. Plaisted, 148 Mass. 375,
8C. v. Turner, 1 Cush. 493; S. v.
Lindsay, 34 Ark, 872; S. v. McCoy,
115 N. C. 1059.
9C. v. Goodnow, 117 Mass. 114; S.
v. Plunkett, 18N. J. 5; S. v. Zeigler,
46 N. J. 307; S. v. King, 37 Ia. 462;
St. Louis v. Cafferata, 24 Mo. 94; S.
v. Binder, 88 Mo. 450; Ex parte
Hayes, 98 Cal, 555; Ex parte Bos-
well, 86 Cal. 232; S. v. Priester, 43
Minn. 373; Paton v. P., 1 Colo. 77.
108. v. Wilson, 106 N. C. 718; P. v.
Detroit Lead Works, 82 Mich. 471;
8. v. Flint, 63 Conn, 248, Although
there is a statute regulating the sale
of poisons, a city may by ordinance
make special regulations as to sell-
ing opium: Ex parte Hong Shen,
98 Cal, 681,
52
Cau. 3.] OFFENSES UNDER POLICE POWER. [$§ 64, 65.
made by general statute.’ An ordinance providing punishment.
for what is also punishable under state statute is therefore not
necessarily void;? and even if an ordinance and a statute are
in conflict, the repeal of the statute may leave the ordinance
in force? If both the ordinance and the statute can be given
effect, each will be valid. The city cannot, however, interfere
with a right or privilege derived by license from the state
under a statute. In general it is said that the power to en-
force police regulations by the city does not extend to creating
crimes and fixing punishment therefor.®
§ 64. Impose punishments.— The power given to a city to.
suppress and prohibit a class of acts implies a power to inflict
punishment therefor.’ If the city is authorized to enforce its
ordinances by fine only, it cannot provide a criminal punish-
ment thereunder by way of imprisonment ;* but it may be given
authority to impose imprisonment as a punishment,’ even as a
means of enforcing a regulation requiring citizens to work
upon the streets.”
§ 65. Reasonableness of ordinances.—An ordinance which
the city passes in the exercise of the powers given it must be:
reasonable, and the courts have authority to inquire into that.
question to a greater extent than they have with reference to
state statutes."
1g, v. Clark, 28 N. H. 176; Hanni-
bal v. Guyott, 18 Mo. 515; Independ-
ence v. Noland, 21 Mo. 394; St. Louis
v. Caffarata, 24 Mo. 94; In re Thomas,
53 Kan. 659; Deitz v. Central City, 1
Colo. 828; Rogers v. P.,9 Colo. 450;
Heinssen v. 8., 14 Colo. 228; Ex parte
Taylor, 87 Cal. 91. But if the mat-
ter is one requiring general regula-
tion throughout the state, a general
statute on the subject will prevail
over a city ordinance. In re Sic,
73 Cal. 142.
2 Bloomfield v. Trimble, 54 Ia. 399.
38, v. Zeigler, 46 N. J. 307.
48, v. Welch, 36 Conn. 215; 8. v.
Brady, 41 Conn. 588,
5Hannibal v. Guyott, 18 Mo. 515;
S. v. Ferguson, 33 N. H. 424; Ex parte
Keeney, 84 Cal. 304. Buta city or-
dinance will not’be rendered invalid
by a statute in conflict therewith
until it goes into effect, although the
statute is already passed when the
ordinance is enacted: Swarth v. P.,
109 Ill. 621.
6Slaughter v. P., 2 Doug. (Mich.)
334; 8. v. Bright, 38 La. An. 1.
7Rogers v. P., 9 Colo. 450. But no
punishment can be provided for ex-
cept as authorized by law: S. v.
Lochte, 45 La, An. 1405.
8S. v. Earnhardt, 107 N. C. 789; S.
v. Mannessier, 32 La. An. 1308,
9S. v. Mack, 41 La. An, 1079; P. v.
Hanrahan, 75 Mich, 611. :
108, v. Smith, 103 N. C. 403; Tipton
v. Norman, 72 Mo. 380.
uP, vy. Armstrong, 73 Mich. 288;
8. v. Dering, 84 Wis. 585; Ex parte
Hodges, 87 Cal. 162; Ex parte Robin-
son, 80 Tex. Ap. 493; Ex parte Bell,
53
§ 66.) [Parr I.
§ 66. Suppression of nuisances.— The power granted to
municipalities usually involves the authority to determine what
are nuisances in a city and to suppress them, even though the
matters referred to may not be nuisances under the general
state law;! and they may make municipal regulations for the
suppression of nuisances which are also within state control.?
But the city cannot, under the power to suppress nuisances,
make that a nuisance which is not such in fact. The general
power given to cities is broad enough to authorize the prohibi-
tion of the sale of lottery tickets,‘ or the sale of adulterated
milk,' or the operation of a carpct-beating machine near a resi-
dence Minors may be prohibited from entering bar-rooms.’
NATURE AND SOURCES OF CRIMINAL LAW.
*
82 Tex. Ap. 808; Ex parte Neill, 32
Tex. Ap. 275; S. v. Dubarry, 44 La.
An. 1117; S. v. Garibaldi, 44 La, An.
809.
1So held as to an ordinance im-
posing a fine for abusive or indecent
language, swearing, loud talking and
other disorderly conduct: 8. v. Earn-
hardt, 107 N. C. 789. So held also
as to smoking in street cars: S. v.
Heidenhain, 42 La. An. 488; and as
to delivering addresses in public
grounds without permission: C. v.
Davis, 140 Mass. 485; C. v. Abrahams,
156 Mass. 57; and as to street parades;
but such an ordinance was held in-
valid which made unreasonable dis-
criminationsand conferred arbitrary
power upon the mayor: S. v. Der-
ing, 84 Wis. 585; and as to placing
placards on sidewalks or carrying
them displayed: C. v. McCafferty,
145 Mass. 384; P. v. Armstrong, 73
Mich. 288; and as to keeping swine
in populous parts of the city: C. v.
Patch, 97 Mass. 221; S. v. Holcomb,
68 Ia. 107; or allowing such animals
to be at large: 8. v. Tweedy, 115
N. C. 704; and as to driving cattle
through the streets: C. v. Curtis, 9
Allen, 266; and as to removing gar-
bage in closed carts: P. v. Gordon, 81
Mich. 806; and as to restaurants and
eating-houses: S. v. Clark, 28 N. H.
176; and as to garbage or filth on
land adjoining private way: C. v.
Cutter, 156 Mass. 52. While alicense
may be required for dogs (C. v. Pal-
mer, 184 Mass. 587; S. v. Topeka, 36
Kan. 76), yet where deemed prop-
erty, policemen cannot be author-
ized to shoot them because unmuz-
zled. Such killing is destruction of
property without due process of law;
Lynn v. §., 338 Tex. Ap. 153.
2So held as to houses of ill fame:
P. v. Hanrahan, 75 Mich. 611; S. v.
Mack, 41 La. An. 1079; S. v. Webber,
107 N. C, 962. So as to slaughter-
-houses: Cronin v. P., 82 N. Y. 318;
and bowling alleys: S. v. Hay, 29
Me. 457; S. v. Noyes, 30 N. H. 279;
and billiard and gaming rooms: §.
v. Pamperin, 42 Minn. 320; 8. v. Car-
penter, 60 Conn. 97.
3Ex parte Robinson, 30 Tex. Ap.
493; Ex parte Bell, 82 Tex. Ap. 308;
Ex parte Neill, 82 Tex. Ap. 275; P.
v. Armstrong, 73 Mich, 288; Poyer v.
Desplaines, 22 Ill. Ap. 30. But the
city may punish persons whose
modes of life and practices are in-
imical to the public: Morgan v.
Nolte, 87 Ohio St, 28.
48, v. Dobard, 45 La. An. 1412,
58. v. Stone, 46 La. An. 147.
6 Ex parte Lacey, 108 Cal. 826,
78, v. Austin, 114 N, C, 855.
54
Cu. 3.] OFFENSES UNDER POLICE POWER. [§§ 67-70.
§ 67. Quarantine.— The enforcement of a reasonable quar-
antine is within the police power usually delegated to cities.
§ 68. Sale of liquors.— Under the same general police power
the city may regulate the sale of liquors, and in this direction
it may, in promoting the general welfare or morals of the peo-
ple, go beyond the state legislation on the same subject.”
§ 69. Power to regulate does not include power to pro-
hibit.— Under a statute authorizing a city to regulate, or to
regulate, license and tax the sale of intoxicating liquors, the
city has no authority to prohibit the sale of liquors.’ Simi-
larly it has been held that the power to suppress and restrain
disorderly houses does not authorize an ordinance making
the keeping of such houses a misdemeanor, imposing punish-
ment therefor. The power to regulate implies the power to
impose a license® and exact a fee for such license sufficient to
meet. the expense of enforcing it,’ but it does not authorize the
levying of a tax for revenue.’ However, a license, if exacted
for a privilege or franchise, may lawfully be collected as rev-
enue.® On the other hand, the power to prohibit does not in-
clude the power to regulate by license,® nor does the power to
suppress imply the power to punish as a crime an, act con-
nected with the business to be suppressed.”
§ 70. Regulation of streets and public places.— The city
may make regulations as to the use of omnibuses and stage-
coaches upon its streets, with the view of promoting the safety
and convenience’ of travelers;" and it may regulate the speed
1St. Louis v. McCoy, 18 Mo. 288;
St. Louis v. Boffinger, 19 Mo. 13.
2 Deitz v.‘Central City, 1 Colo. 323;
S. v. Clark, 28 N. H. 176.
3Miller v. Jones, 80 Ala. 89; Ex
parte Reynolds, 87 Ala. 1388; Ex parte
Mayor of Anniston, 90 Ala. 516; S. v.
Pamperin, 42 Minn. 320.
4Chariton v. Barber, 54 Ia. 360.
5Huntington v. Cheesbro, 57 Ind.
74; §. v. Stone, 46 La. An. 147.
6C. v. Plaisted, 148 Mass. 375; Ash
v. P., 11 Mich. 347.
7C. v. Stodder, 2 Cush. 562; Bur-
lington v. Bumgardner, 42 Ia. 673.
8 Chilvers v. P., 11 Mich. 43.
5S. v. Fay, 44N. J. 474
10 Mt. Pleasant v. Breeze, 11 Ia, 899:
New Hampton v. Conroy, 56 Ia. 498;
Chariton v. Barber, 54 Ia. 3860;
Nevada v. Hutchins, 59 Ta. 506;
Slaughter v. P., 2 Doug. (Mich.) 334,
But held that under the power to
prevent disturbances, etc., the city
might provide a punishment for
keeping a place where persons are
permitted to engage in loud and
profane language to the disturbance
of others: Centerville v. Miller, 57
Ta. 56, 225. So under the general
authority to provide for preserving
order, the city may punish intoxica-
tion: Bloomfield v. Trimble, 54 Ia, 399,
1c, v. Stodder, 2 Cush, 562. But
55
§ 71.] NATURE AND SOURCES OF CRIMINAL Law. [Part I,
of vehicles driven through the streets,! and prohibit the stop-
ping of vehicles for more than a certain time,’ or fix the place
at which hackney coaches may stand to solicit hire,’ and regu-
late the fate to be charged by hackney coaches and other pub-
lic conveyances. It may regulate the use by railways of the
city streets,> and the speed of railway cars on the streets. In
the exercise of the police power with reference to the streets,
a city may require a license for the use of bicycles." The power
to establish wharves and fix the rate of wharfage includes the
power to punish for using other places for landing.®
§71. Regulation of markets and market-places.— The
power usually given to cities with reference to markets, as well
as the power to regulate the use of streets, involves the au-
thority to regulate the time at which market carts may stand
in a market which is also a public thoroughfare,® and to deter-
mine at what places, or within what limits in the streets, vehi-
cles and carts containing produce for sale shall be allowed to
stand.” So the exposing of merchandise, provisions, vegetables,
etc., in front of stores, and the use of the sidewalk therefor,
may be regulated ;" and the offering of meats for sale at places
other than those designated by ordinance may be punished.”
the power to regulate, license and
tax vehicles used within the city
does not authorize the imposing of
a license on wagons hauling goods
into and out of the city: St. Charles
v. Nolle, 51 Mo. 122; Wells v. Weston,
22 Mo. 384. But the power of’the
state to impose such tax is hot thus
restricted: Langhorne v. Robinson,
20 Grat. 661.
1C, v. Worcester, 3 Pick. 462; C. v.
Roy, 140 Mass, 482. The city may
be authorized to regulate the use of
public parks: C. v. Davis, 162 Mass,
510. :
2C. v. Fenton, 189 Mass. 195. But
a licensed push-cart peddler is not
subject to punishment for allowing
his cart to stand in the street: §, v.
Rayantis, 55 Minn. 126.
3C, v. Matthews, 122 Mass. 60.
4C, v. Duane, 98 Mass. 1,
58. v. Cozzens, 42 La, An. 1069,
6 Whitson v. Franklin, 34 Ind. 392,
Under the power given to police
juries in Louisiana, it is held that
the regulation of the speed of rail-
way trains is not included: S, v.
Miller, 41 La. An. 58, But in the
same state it is said that much dis-
cretion is left to municipal corpora-
tions, and that they may make
smoking in street cars a punishable
nuisance: §. v. Heidenhain, 42 La.
An. 483,
7§t. Louis v. Green, 70 Mo. 562,
8 Dubuque v. Stout, 32 Ia. 80,
5C. v. Brooks, 109 Mass. 355,
10P, v. Keir, 78 Mich. 98,
1g. v. Summerfield, 107 N. C. 895.
12Davenport v. Kelley, 7 Ia. 102;
St. Louis v. Jackson, 25 Mo. 87%.
Sales within the designated limits
in violation of the ordinance, even
by producers or dealers from outside
the limits, are subject to the city
56
Cu. 3.] OFFENSES UNDER POLICE POWER. [§ 72.
The use of public markets may be restricted to those living be-
yond a distance named from the city.1 The right to establish
and regulate markets and prescribe at what places within the
city limits marketable things may be sold covers the right to
provide for the election of a cotton weigher and his compensa-
tion, and require that all persons selling cotton within the city
limits shall have their cotton weighed by such officer? The
setting up of a private market within a stipulated distance
from the public market may be prohibited. But the require-
ment that no private market shall be set up without the per-
mission of the council is not valid, as it does not constitute a
‘regulation or prescribe the aontlitians on which such privilege
shall be granted.* So it is not proper to make the right to con-
duct a private market dependent upon the consent of neighbor-
ing property owners, all the police and sanitary regulations of
the city being complied with.
§ 72. Regulations as to fire.—Under the usual powers
given to cities, fire limits may be established and the erection
of wooden buildings within them prohibited.6 But this is not
one of the incidental or implied powers which may be exer-
cised in the absence of express legislative authority.’ The
alteration and repairing of an old building for the purpose of
converting it into a dwelling-house is not the offense of erect-
ing a wooden dwelling-house within said limits;* but the con-
struction of a material addition to a building is within a statute
prohibiting the building or erection of a wooden house In
general, the police powers extend to the regulation of build-
ings dangerous to life, or in case of fire!° Under the police
power, also, it may be made a crime to give a false alarm of
regulations: 8. v. Wernwag, 116 N. Ifsuch regulations are intended as
C. 1061; S. v. Sarradat, 46 La. An. a discrimination against a class, as
700. the Chinese, they are invalid: Yick
1C, v. Rice, 9 Met. 253. Wo v. Hopkins, 118 U. S. 356,
28. v. Tyson, 111 N. C. 687. 78. v. Schuchardt, 42 La. An. 49,
38. v. Natal, 41 La, An. 887. § Booth v. S., 4 Conn, 65.
48. v. Dubarry, 44 La. An. 1117, 9 Douglas v. C., 2 Rawle, 262.
58. v. Garibaldi, 44 La. An. 809. 10St. Paul v. Hennessy, 38 Minn,
6 Booth v. 8., 4 Conn. 65; Tuttle v. 94, Rebuilding of a partly-burned
S., 4 Conn. 68. Discretion as to al- wooden building may be within the
lowing repairs on wooden buildings prohibition: S. v. Johnson, 114 N, C.
within fire limits may be left to an 846,
officer: Ex parte Fiske, 72 Cal. 125.
av
'
§ 73.] NATURE AND SOURCES OF ORIMINAL LAW. [Parr I.
fire by the fire-alarm telegraph.1 Smoking in the streets may
be made criminal?
§ 73. Regulation of employments.— The powers conferred
upon cities are usually broad enough to authorize regulations
as to the number of hours during which a person may be em-
ployed in a particular business;* to require physicians to report
cases of infectious diseases;‘ to, require attorneys to procure
licenses for conducting their business,> and to require licenses
of undertakers. But a license and bond cannot be required
for the conducting of a legitimate business.’
1 Koppersmith v. §., 51 Ala. 6. 48. v. Wordin, 56 Conn. 216.
2C. v. Thompson, 12 Met. 231. 5St. Louis v. Sternberg, 69 Mo. 289,
8C. v. Hamilton Mfg. Co., 120 Mass. 6C. v. Goodrich, 13 Allen, 546,
883, 78. v. Von Sachs, 45 La, An. 1416,
58
CHAPTER 4.
CONSTITUTIONAL LIMITATIONS.
§ 74. Applicable to criminal statutes.— The power of
congress, or of a state legislature, to make acts criminal is sub-
ject to the general constitutional limitations upon legislative
power, applicable in civil as well as criminal matters,! and also
to certain special constitutional limitations having direct refer-
ence to the legislative power to define and punish crimes, and
the procedure with reference thereto. The constitutionality
of various statutes relating to particular crimes is discussed
in connection with those crimes specifically, and it is only
necessary in this chapter to notice some of the constitutional
provisions which are likely to be involved in different classes
of cases. But it may be said generally that the unreasonable-
ness of a statute will not render it invalid, and that it can be
unconstitutional (in the case of state legislation) only where it
is in violation of some constitutional restriction.’
§ 75. Interference with obligation of contracts and other
vested rights.— The legislative power cannot make acts crim-
inal in such a way as to impair the obligations of a contract,
but a privilege or franchise granted to individuals or corpora-
tions to carry on a particular business does not put such busi-
ness beyond the police control of the state, which may, at any
time, by general law regulate
1For instance, a statute making it
criminal for judges and state school
officers to electioneer is unconstitu-
tional as interfering with civil equal-
ity and freedom of speech and the
press: Louthan v. ©. 79 Va. 196.
But a statute forbidding the levying
and collection of political assess-
ments on government officers and
employees is not unconstitutional:
Ex parte Curtis, 106 U. S 371.
2Giozza v. Tiernan, 148 U.S. 657;
Hedderich v. S., 101 Ind. 564; 5S. v.
or prohibit the carrying on of
Clottu, 33 Ind. 409; Wynehamer v.
P., 18 N. Y. 378, 390.
31It was so held with reference to
charters or licenses for the conduct
of lotteries: S. v. Hawthorn, 9 Mo.
385; S. v. Morrow, 26 Mo. 181; S. v.
Miller, 50 Mo. 129; Kellum v.5S., 66
Ind. 588. Butit has since been held
that the police power extends even
to the regulation of lotteries under
charters or licenses already granted:
See cases in a subsequent note under
this section, :
59
NATURE AND SOURCES OF ORIMINAL LAW. [Part IL.
§ 76.]
the business which has been authorized by such grant. It is
so held with reference to the business of manufacturing or
selling intoxicating liquors under a charter or privilege granted
by the state, such business being unquestionably subject to
‘police regulation.! Soa state may annul the charter of a cor-
poration authorized to carry on a lottery, and make it criminal
to transact the business authorized by such charter.’ So the
granting of letters patent by the United States, under which
property has been acquired, does not prevent the regulation
of such property by the states in the exercise of their police
power.’ Unnecessary interference with business or the use of
property, will be unconstitutional as depriving of liberty and
property without due process of law.*
§ 76. Interference with interstate commerce.— In a pre-
vious section the limitation of the power to regulate and tax
occupations, such as that of itinerant vendors and agents, re-
sulting from the investment of the United States government
with the power to regulate foreign commerce and commerce
among the states, has been already discussed.5 It is proper
here, however, to suggest the additional proposition that a
state cannot, in the exercise of its police power, interfere with
the bringing into the state,® or
1C. v. Intoxicating Liquors, 115
Mass. 158; Beer Co. v. Massachusetts,
97 U.S. 25. A license is not a con-
tract though granted upon consider-
ation paid by the licensee; he takes
it on the implied understanding that
it may be revoked: C. v. Kinsley,
183 Mass. 578; S. v. Fairfield, 37 Me.
517; Columbus City v. Cutcomp, 61
Ta. 672. But a statute will not be
construed as revoking existing li-
censes, where such construction is
not necessary: Hirn v. S., 1 Ohio St.
15; S. v. Andrews, 28 Mo. 14,
2Stone v. Mississippi, 101 U. 8. 814;
Boyd v. Alabama, 94 U. 8. 645; S. v.
Woodward, 89 Ind. 110; S. v. Morris,
77 N. C. 512; Moore v. S., 48 Miss.
147; Freleigh v. S., 8 Mo. 606.
3 Patterson v. Kentucky, 97 U.S.
501.
4See the discussion under various
with the sale within the state,
sections of the preveding chapter on
Police Power, especially § 55,
5 Supra, § 44.
6So held as to intoxicating liquors:
Bowman v. Chicago & N. W. R. Co.,
125 U.S. 465; and as to garden seeds:
In re Sanders, 52 Fed. R. 802; and
as to baking powder: In re Ware, 53
Fed. R. 783, The act of congress re-
ferred to in the next note, which sub-
jects intoxicating liquors brought
into the state to the regulations of
the state law as to the sale does not
apply to the bringing into the state,.
and therefore the South Carolina
Dispensary Act, which vests the
traffic in intoxicating liquors exclu-
sively in the state, is unconstitu-
tional so far as it attempts to pro-
hibit the bringing of such liquor into
the state: Ex parte Edgerton, 59 Fed.
R. 115. See infra, §§ 1205, 1214.
60
Cu. 4.] CONSTITUTIONAL LIMITATIONS. [§ 77.
by the importer in the original package, of goods thus brought
in, as such interference is a restriction of the freedom of inter-
state commerce.! But the exercise of the police power of the
state to exclude from the state articles which are not a legiti-
mate subject of commerce, but are generally recognized as in-
jurious to the public, such as cattle infected with a contagious
disease, is not interfered with by the rule as to freedom of in-
terstate commerce, and such property may be excluded? Nor
does the power of congress to regulate commerce preclude the
existence in the state of a power to make local regulations, as
to matters which could not be the subject of general regulation,
such as the operation of bridges, which interfere with com-
merce, over a particular navigable stream.’
§ 77. Uniformity of operation; equality of protection.—
Most state constitutions require in some form that legislation
shall be of uniform operation, and therefore a statute punish-
ing acts which are in effect injurious to the public must be ap-
plicable to all acts of the same character; but a statute may
1Brown v. Maryland, 12 Wheat.
419; Waring v. Mayor, 8 Wall. 110;
Leisy v. Hardin, 135 U. 8. 100;
Lyng v. Michigan, 185 U.S. 161; 8S.
v. Shapleigh, 27 Mo. 344; P. v. Mar-
ing, 8 Keyes, 874; C. v. Paul, 148
Pa, St. 559; In re Worthen, 58 Fed.
R. 467; In re McAllister, 51 Fed.
R. 282; Ex parte Loeb, 72 Fed. R.
657. Contra, Pierce v. S., 18 N. H.
536. Sale of cigarettes in original
packages by the agent of the im-
porter cannot be regulated by state
statute: In re Minor, 69 Fed. R.
233. So far as state statutes regu-
lating the sale of intoxicating liq-
uors were interfered with by the
announcement of this doctrine by
the supreme court of the United
States in the case of Leisy v. Har-
din, supra, the obstacle to the en-
forcement of the statute is removed
by an act of congress subjecting in-
toxicating liquors taken into a state
to the regulations imposed by the
state law: Wilkerson v. Rahrer, 140
U.S. 545. By this act the original
package, when it reaches its destina-
tion, is subject to the state law: In re
Langford, 57 Fed. R. 570, As to what
constitutes an original package, see
the chapter on intoxicating liquors,
infra, § 1204. The South Carolina
Dispensary Act, vesting the exclu-
sive right to sell intoxicating liquors
in the state, is not a police regula-
tion, and is therefore invalid as an
interference with interstate com-
merce: In re Langford, 57 Fed. R.
570; Ex parte Jervey, 66 Fed. R.
957; Ex parte Edgerton, 59 Fed. R.
115. The last decision in the state
court, however, upholds the law:
S. v. City Council, 42 8. C. 222 (over-
ruling S. v. Jacobs, 41 S. C. 220),
2Kimmish v. Ball, 129 U. S. 217.
Transportation of game may be pro-
hibited: See supra, § 46.
3 Escanaba Co. v. Chicago, 107 U. 8.
678; and see Barnaby v.S., 21 Ind.
450. Buta city ordinance requiring
a license fee for tugs used in inter-
state commerce is unconstitutional;
Harman v. Chicago, 147 U. S. 396.
61
[Part I.
§ 77.) NATURE AND SOURCES OF CRIMINAL LAW.
be passed to meet special local requirements and be limited in
its operation without being objectionable.!_ Thus, police regula-
tions as to selling intoxicating liquors, gambling, etc., may be
applicable only within certain localities? The requirement of
uniformity of operation has been held sufficient to render in-
valid a statute making it a misdemeanor on the part of an offi-
cer of a railroad company that stock is killed in the operation of
the road, and providing that the fact of killing shall be prima
facie evidence of negligence? But in another state, a statute
somewhat similar in its purpose has been held constitutional.*
A statute providing a heavier punishment for adultery between
a white person and a negro, than that provided for a similar
offense between those of the same race, is not unconstitutional,
as it provides merely a penalty for an offense which can only
exist when the parties are of different races. So a statute
requiring licenses to be procured by physicians, but exempting
from its operation physicians who had been already in practice
for a specified period, was held not unconstitutional as class
legislation. It is not constitutional to discriminate against
any particular class of persons in the matter of employment.
Thus, an act prohibiting a special calling, such as that of barber-
ing, which is not particularly objectionable, being exercised on
Sunday, is unconstitutional.’ So is an act restricting the hours
of labor of women, when no such regulation is applicable in
case of men;* but an ordinance prohibiting the sale of liquors
1Marmet v.58., 45 Ohio St. 63. It
is not necessary that the regulation
affect the whole community if it is
applicable to all of a class: Haw-
thorn v. P.,109 Il. 802. Local option
liquor laws are constitutional: 8. v.
Noyes, 30 N. H. 279,
2See supra, § 89. Thus, a statute
prohibiting gambling or the sale of
intoxicating liquors within a certain
distance of a particular lake has
been held unconstitutional: S. v.
Winch, 45 Ohio St. 668. An act cur-
ing a defect in prosecutions, not ap-
plying generally to all such cases,
nor to all localities, is unconstitu-
tional: 8. v. Flemming, 66 Me. 142,
A constitutional provision requiring
that laws shall be of uniform opera-
tion is not retroactive so as to affect
laws passed prior to its adoption:
8. v. Thompson, 2 Kan. 482.
38. v. Divine, 98 N. C. 778.
4 Bannon v. §., 49 Ark. 167,
5 Pace v. Alabama, 106 U. S. 583;
8. C., 69 Ala. 231. As to protection
of civil rights, see supra, § 54,
6S. v. Hathaway, 115 Mo. 36,
7Eden vy. P.,161 Ill. 296, 48 N. E. R.
1108; S. v. Granneman, —- Mo. —,
83 8. W. R. 784; Ex parte Jentzsch,
-— Cal. —, 44 Pac. R. 808. Contra,
P. v. Havnor, 149 N, Y. 195, 48 N. E.
R. 541.
8 Ritchie v. P., 155 Ill. 98; Ex parte
Kuback, 85 Cal. 274; In re Maguire,
57 Cal. 604
62
CONSTITUTIONAL LIMITATIONS,
in dance-houses, or other places where females attend as wait-
resses, or in places where women and minors are employed, is
not such a discrimination on account of sex as to be invalid.}
So sales of liquors to Indians may be prohibited.?, An ordinance
which gives to a mayor of a city the absolute power to decide
what particular parades may, and what may not, march on the
_ city streets, is invalid as authorizing unreasonable discrimina-
tions and depriving citizens of the equal protection of the
laws.? While it is unconstitutional to discriminate against resi-
dents of other states so as to deprive them of the privileges
and immunities enjoyed by citizens of the same state, yet some
privileges may be allowed to citizens of a state which are re-
fused to non-residents; such as the right to hunt and fish
within the state limits.’ The privileges and immunities of citi-
zens of the United States which are protected by the Four-
teenth Amendment to the Federal Constitution are those
granted or secured by that constitution, or arising out of
the nature and essential character of the federal government.’
Special legislation does not deprive any person of the equal
protection of the laws guarantied by that amendment if all
persons coming within the class affected thereby are treated
alike.’
§ 78. Ex post facto laws.— Both federal and state constitu-
tions contain provisions that no ex post facto laws shall be
passed.2 An ex post facto law, as the term is thus used, is a
law which makes an act criminal which was not criminal when
done, or which, with reference to a crime already committed,
Cu. 4.] [§ 78.
1Ex parte Hayes, 98 Cal. 555; 8.
ex rel. v. Reynolds, 14 Mont. 383.
2P. v. Bray, 105 Cal. 344,
39, v. Dering, 84 Wis. 585. But
the mayor of a city may be given
authority to determine whether a
liquor license shall be granted:
Swarth v. P., 109 Ill. 621. And dis-
cretion to allow repairs on wooden
buildings within fire limits may be
given to an officer: Ex parte Fiske,
72 Cal. 125.
48. v. Wiggin, 64 N. H. 508; S. v.
Lancaster, 638 N. H. 267; Ward v.
Maryland, 12 Wall. 418; Guy v. Balti-
more, 100 U.S. 484; Marshalltown v.
Blum, 58 Ia. 184; Pacific Junction v.
Dyer, 64 Ia. 38.
5See supra, § 46.
6 Duncan v. Missouri, 152 U. 8. 377;
Giozza v. Tiernan, 148 U.S. 67; Mug-
ler v. Kansas, 123 U.S. 628; Miller v.
Texas, 1538 U. S. 585; Kimmish v.
Ball, 129 U. S. 217; McEHlvaine v.
Brush, 142 U. 8.155; Davis v. Texas,
189 U. S. 651.
7Duncan v. Missouri, 152 U.S. 377;
Hayes v. Missouri, 120 U. 8S. 68;
Fielden v. Illinois, 143 U. 8. 452.
8U. S. Const., art. I, secs, 9 and 10.
63
§ 78.] [Parr I.
increases the punishment, or makes it harder for the accused
to defend himself against the charge.! With reference to mak-
ing acts criminal which were not criminal when done, it simply
means that an act imposing a criminal punishment shall not
have retroactive effect.? If a statute imposes a severer penalty
for an offense than was imposed by the law in force when the act
was committed, it cannot be applicable to acts committed be-
fore its passage.’ If the manner of punishment is changed the
act is ex post facto, whether-the new punishment may be gen-
erally considered lighter or not, as, for instance, where the
punishment is changed from the death penalty to imprisonment
for life But if a statute manifestly mitigates the punishment
NATURE AND SOURCES OF ORIMINAL LAW.
1Calder v. Bull, 3 Dall. 386; Wat-
son v. Mercer, 8 Pet. 88; Fletcher v.
Peck, 6 Cranch, 87, 138; Locke v.
New Orleans, 4 Wall. 172; Carpenter
yv. Pennsylvania, 17 How. 456; Bur-
gess v. Salmon, 97 U.S. 381; Kring
v. Missouri, 107 U. S. 221; Hopt v.
Utah, 110 U.S. 574; In re Sawyer,
124 U.S. 200; Strong v. S., 1 Blackf.
193, 196; Ex parte Bethurum, 66 Mo.
545; S. v. Squires, 26 Ia. 340; Byrne
v. Stewart, 3 Desau. 466; Perry v.
C., 3 Grat. 632; Municipality v.
Wheeler, 10 La. An. 745; Article in
5 Cr. L, Mag. 325. Thus, a statute
inflicting solitary confinement on
ene sentenced to death, until the
execution of the sentence, or which
makes the time of the execution of
the death penalty indefinite as to the
particular date, by reposing a discre-
tion in the warden, is void as to
an offense already committed: In
re Medley, 184 U.S. 160. But a mere
regulation as to the time and man-
ner of inflicting the death penalty,
as, for instance, that it shall be
before sunrise, etc., is not objection-
able on that ground: Holden v. Min-
nesota, 187 U. 8S. 483. A statute providing for the
infliction of the death penalty by electricity doesnot impose a
cruel and unusual punishment,’ nor is a sentence to death by
being shot void on that ground, if it is valid otherwise;’ nor
is a statute objectionable on this ground which provides for
solitary confinement prior to the execution of the death pen-
alty.2 It has been held, however, that the cutting off of the
hair as part of a punishment may be cruel as to persons en-
tertaining peculiar religious and social views as to the effect of
such infliction.’ The fact that a punishment is severe by rea-
son of a long term of imprisonment being possible for a slight ,
e
1Cummings v. Missouri, 4 Wall. Wyatt, 6 Rand. 694; Garcia v. T., 1
277, 825. N. M., 415.
2In re Yung Sing Hee, 36 Fed. R. 6P, v. Kemmler, 119 N. Y. 580;
437, In re Kemmler, 186 U. 8S. 436.
3Act of May 5, 1892, ch. 60; 27 7 Wilkerson v. Utah, 99 U. S. 130.
Stat. at Large, 25. 8McElvaine v. Brush, 142 U.S.
4Fong Yue Ting v. U.S.,149U. 8. 155.
698. 9 Ho Ah Kow v. Nunan, 5 Sawyer,
5Foote v. S., 59 Md. 264; C. v. 552,
67
§ 80.] NATURE AND SOURCES OF CRIMINAL LAW. [Parr L.
offense will not make the statute imposing such punishment
unconstitutional! The provision of the amendment to the fed-
eral constitution prohibiting the infliction of cruel and unusual
punishments applies only to the federal courts.?
1Pervear v. Massachusetts,5 Wall. Bedell, 20 Mo. Ap. 125. A heavy
475; O’Neil v. Vermont, 144 U. S. punishment imposed on the second
323; 8S. C, S. v. O’Neil, 58 Vt. 140; conviction for the same offense is
S. v. Williams, 77 Mo. 310. An or- not objectionable: Sturtevant v. C,,
dinance imposing labor on the pub- 158 Mass. 598, :
lic streets in case of default of pay- 2 Pervear v. Massachusetts, 5 Wall.
ing a fine is not invalid: Ex parte 475,
68
i
CHAPTER 5.
PENAL STATUTES; CONSTRUCTION; REPEAL
§ 81. Construction.— It is not proposed to here discuss the
principles of construction and interpretation of statutes, so far
as they are applicable to both civil and criminal cases; but
there are some rules peculiar to penal statutes which need to be
discussed, and there are also applications of the general rules
specially pertinent in criminal cases, and illustrated thereby,
that may properly be given here.
. §82. Reason of the statute.— The old law, the mischief and
the remedy are to be taken into account in construing the pro-
visions of a statute, and it is to be so construed as to suppress
the mischief, advance the remedy and suppress all evasions for
& continuance of the mischief. The reason of the act, in view
of the evil to be remedied, will prevail over the literal terms
used.2 Thus, the reason of the statute will be taken into ac-
count to limit its general terms.‘ The construction which best
comports with the reason and the general purview of the statute
18, v. Smith, 13 Kan, 274,
28. v. Clarke, 38 N. H. 829; Mag-
dalene College Cases, 11 Co. 66.
3 Smith v. S., 28 Ind. 321; S. v. Rob-
inson, 33 Me. 564; Rice v. S., 3 Kan.
141. And this will be true even
though the construction, which is in
accordance with reason, may be less
favorable to the prisoner than the
literal terms of the statute: S. v.
Thomas, 29 Ind. 109.
4Alcott v. S., 8 Blackf. 6; 8. v.
Benton, 18 N. H. 47; S. v. Clark,
29 N. J. 96. The statute will not
be construed so as to multiply
offenses, nor enlarge by mere im-
plication a class of offenses: C. v.
Wyman, 8 Met. 247. Where the
complete act is not punishable the
statute will not be held to apply to
attempts to effect such act, unless
plainly expressed: C. v. Homer, 5
Met. 555. An intention to abrogate
the general law as respects a partic-
ular locality should be very appar-
ent to justify a construction of a
special act so as to lead to that re-
sult: 8S. v. Nolan, 87 Minn. 16. Where
a statute, out of abundant caution,
enumerates a great variety of possi- |
ble places within which crimes com-
mitted are punishable, it should not
be regarded as an assertion that
there are such places within juris-
diction: P. v. Tyler, 17 Mich. 161.
For the purpose of avoiding giving
an absurd meaning to parts of a
statute, the whole will be construed
together and the meaning of partic-
ular words departed from: Arbuckle
v. §., 32 Ind. 34,
69
NATURE AND SOURCES OF CRIMINAL LAW. [Parr I.
§ 83.]
will be adopted when the terms are ambiguous,’ and the letter
of the statute will not be strictly followed when it would ren-
der the law unreasonable or iniquitous in its construction,” or
unconstitutional? Indeed, the reason and plain intention of the
statute will be followed even to the extent of correcting a mis-
taken reference to another statute,‘ or omitting the word “not”
where the sense requires it. The whole statute should be so
construed as that it may have effect, and not be found vain and
illusive® or absurd.?’ But the language used is the first guide,
and if that be plain and unambiguous and leads in its applica-
tion to no absurd or improbable results, there is no room for
construction.$
§ 83. Strict construction.— If a penal statute is susceptible
of two constructions the court will give to it that which is the
more favorable to the defendant;® in other words, penal stat-
utes are to be taken strictly and literally and cannot be ex-
tended by construction.”
1¥Foster v. P., 1 Colo. 293.
2The judiciary should not, except
where the intent is too palpable to
admit of doubt, adjudge an unnat-
ural and unjust consequence as in
contemplation of the law: Bradley
v. P., & Colo. 599. But the fact that
the punishment provided by the leg-
islature for a statutory offense is
apparently incommensurably excess-
ive will not take the case out of'
the statute which evidently covers
it: Griffin v. S&S, 34 Ohio St. 299.
That a statute will be construed as
not retrospective, if such a result
can possibly be reached, see supra,
§ 78.
3 Pierce v. §., 13 N. H. 536.
4P, v. Hill, 3 Utah, 384; Chambers
v. S., 25 Tex. 307; Hearn v.S., 25
Tex. 336. And see Thurston v. §., 3
Coldw. 115, in which “following
causes” was made to read “ follow-
ing clauses.”
5Chapman v. §., 16 Tex. Ap. 76.
6 Bailey v. C., 11 Bush, 688.
7P, v. Tanner, 128 N. Y. 416.
8S, v. Long, 48 Ohio St. 509.
® Kent v.S., 8 Blackf. 163; Brooks v.
Otherwise stated, the rule is that
P.,14 Colo. 413. “Tenderness ought al-
ways to prevail, so far at least as to
take care that a man may not suffer
otherwise than by due course of law
or for any hardship done him, or
severity exercised upon him, where
the construction may admit of a rea-
sonable doubt or difficulty.” (Lord
Mansfield, J., in Rex v. Royce, 4
Burr. 2078, 2082; but this was a case
of the construction of a special ver-
dict.) Resp. v. Newell, 3 Yeates, 407,
411. The statute will not be ex-
tended beyond its terms to include
an act not within the language used.
This is what is meant by construing
penal statutes in favor of the defend-
ant: C. v. Macomber, 3 Mass. 254;
C. v. Boston & A. R. Co., 121 Mass.
36; Fagan v. S., 47 N. J. 175.
10 Rawson v. S., 19 Conn, 292; S. v.
Crowley, 60 Me. 108; Hall v. S., 20
Ohio, 7; Warner v. C., 1 Pa. St. 154;
Ferrett v. Atwill, 1 Blatch. 151;
Steel v. S., 26 Ind. 82; Horner v. S.,
1 Oreg. 268; Remmington v. S, 1
Oreg. 281; S. v. Solomons, 3 Hill
(8. C.), 96; Bettis v. Taylor, 8 Port.
564; Williams v. S., 91 Ala. 14; Lair
70
On. 5.] [§ 83.
criminal statutes are inelastic and cannot be extended to cover
cases not within the letter, though they may be within the
reason and policy of the law.1 There can be no constructive
violations of a penal statute.? It is said, however, in some
cases that this strictness of construction was adopted at the
common law in favor of life,’ or the liberty of the citizen,* and
has never been observed in the construction of statutes enacted
for the punishment of mere misdemeanors.> So statutes for
the prevention of fraud and suppression of public wrong, or to
effect a public good by prohibiting the doing of an act without
certain prerequisite conditions being complied with, although
a penalty is imposed for violating them, are often remedial,
rather than penal, and are to be construed liberally so as to
effect the remedy contemplated by their passage;*® and in gen-
eral, strict construction is not required in a statute relating to
PENAL STATUTES; CONSTRUCTION; REPEAL.
procedure.’
v. Killmer, 25 N. J. 522; Simms v.
Bean, 10 La, An. 346; Andrews v.
U.S., 2 Story, 202; The Enterprise, 1
Paine, 32; U. S. v. Starr, 1 Hempst.
469; U.S. v. Ramsay, id. 481; U.S. v.
Beaty, id. 487; U.S. v. Ragsdale, id.
497; U. S. v. Mitchell, 36 Fed. R.
492; U. S. v. Huggett, 40 Fed. R.
636; U. S. v. Garretson, 42 Fed. R.
22, A statute which awards a pen-
alty not known to the common law
and is in a high degree penal will be
jimited to such cases as are clearly
within its terms: C. v. Phillips, 11
Pick. 27; C. v. Martin, 1380 Mass. 465.
Where a statute does not indicate
whether a term of imprisonment
provided for shall bein a county jail
or in the penitentiary, it will be con-
strued to be in the county jail:
Brooks v. P., 14 Colo. 418. Under a
statute providing for punishments
by imprisonment for breaking out
of a place of confinement, the term
to commence at the expiration of
the term for which the prisoner was
confined, it was held that it could
mot be extended to a case of im-
prisonment to enforce a fine: S. v.
1
Chapman, 33 Kan. 134. An ordi-
nance punishing the erection of a
frame or wooden building will not
be extended to cover the erection
of a building partly of wood and
partly of brick: Stewart v. C., 10
Watts, 306.
1§. v. Lovell, 23 Ia. 304; Cearfoss
v. 8.,42 Md. 403; S. v. Bruner, 135
Ind. 419; Johnson v. S., 63 Miss, 228;
S. v. Peters, 37 La, An. 730; U.S. v.
Lacher, 134 U. S. 624; Todd v. U.S.,
158 U. 8. 278. Before a man can be
punished his case must be plainly
and unmistakably within the stat-
ute: U.S. v. Brewer, 189 U. S. 278.
Doubtful words are not to be ex-
tended beyond their natural mean-
ing: Baldwin v. Franks, 120 U. 8.
678,
2Todd v. U. S., 158 U.S. 278,
3 Gibson v. S., 38 Ga. 571.
4Pierce’s Case, 16 Me. 255; Elam
v. Rawson, 21 Ga. 139; Ramsey v.
Foy, 10 Ind. 493.
5 Randolph v. §., 9 Tex. 521.
6 Taylor v. U.S.,3 How. 197; Hard-
ing v. P., 10 Colo. 387.
78, v. Chadbourne, 74 Me. 506,
8§ 84, 85.] NATURE AND SOURCES OF CRIMINAL LAW. [Part I.
§ 84. Not so as to defeat intent.— The rule of strict con-
struction is not to be so applied as to defeat the obvious inten-
tion of the legislature, which will govern so far as the terms of
the statute will reasonably allow.! The rule is not to be so
_ applied as to exclude the application of common sense to the
language used, nor the giving of words their ordinary accept-
ance or their obvious meaning, so as to defeat the legislative
intent.2 In some states the rule of strict construction is abol-
ished, either by statute or by decision of the courts.’
§ 85. Letter and spirit.—As just stated, the act must be
within the strict terms of the statute as well as within its.
spirit and intention.t It is not enough that the act comes
within the reason and mischief of the statute, if it is not strictly
within the enumeration and terms thereof, although it is of
equal atrocity or of kindred character with acts enumerated.’
The words creating an offense will not be construed beyond
their plain letter.
1 Douglas v. C., 2 Rawle, 262; 8. v.
Crowley, 39 N. J. 264; C. v. Loring,
8 Pick. 369; Brown v. C., 8 Mass. 59;
C. v. Martin, 17 Mass. 359; Wood-
worth v. S., 26 Ohio St. 196; Butler
v. Ricker, 6 Me. 268; Fairbanks v.
Antrim, 2 N. H. 105; Crosby v.
Hawthorne, 25 Ala. 221; Crawford
v. S., Minor, 143; Doe v. Avaline, 8
Ind. 6; Parkinson v. S., 14 Md. 184;
Broadwell v. Conger, 2 N. J. 210;
Jones v. Estis, 2 Johns. 375; Sprague
v. Birdsal, 2 Cow. 419; Daggett v. S.,
4 Conn. 60; State v. McCrystol, 43
La. An. 907; U. S. v. Wiltberger, 5
Wheat. 76. The strictness required
is not such as would exclude an
act plainly intended to be included,
but where the meaning is ambigu-
ous the doubt should be in favor of
the accused: §. v. Wilson, 47 N. H.
101. The kindred rule must not be
disregarded that the intention of the
law-maker, to be gathered from the
words employed, governs in the con-
struction of all statutes: In re Coy,
81 Fed. R. 794. Unless the terms
are ambiguous the full effect of the
On the other hand, a penal statute is not
statute should be given: S. v. Bar-
ter, 58 N. H. 604.
2 Rawson v. S., 19 Conn. 292; S. v.
Lovell, 23 Ia. 304; Walton v. S., 62
Ala. 197: Huffman v. S., 29 Ala. 40;
U.S. v. Wilson, Baldw. 78; U. S. v.
Ellis, 51 Fed. R. 808; U. S. v. Ath-
ens Armory, 2 Abb. C. C. 129. The
rule of strict construction is not vio-
lated by giving the words in some
cases their full meaning, or the
more extended of two meanings; for
instance, a wider popular, instead
of a narrower technical one: S. v..
Thatcher, 35 N. J. 445.
3P, v. Fowler, 88 Cal. 136; P. v.
Soto, 49 Cal. 67; C. v. Davis, 12 Bush,
240.
4Daggett v. S., 4 Conn. 60; Davis
v. S., 19 Ohio St. 270. Thus, a stat-
ute referring to logs taken from the
river was held not applicable to logs.
on the bank: S. v. Adams, 16 Me. 67.
58. v. Brewer, 8 Mo. 378; P. v..
Reiley, 50 Mich. 384.
6 Warner v. C., 1 Pa. St. 154; Brab-
ham v. §., 18 Ohio St. 485; Ex parte
McNulty, 77 Cal. 164. Thus, a statute
72
Cu. 5.] [$§ 86, 87.
PENAL STATUTES, CONSTRUCTION; REPEAL.
to be extended to any act not within the spirit and intention
thereof, although it may be within its strict terms.! General
terms will be limited by the obvious meaning and spirit,’ so that
even when the language is unambiguous and fairly covers the
case, the literal meaning will be limited by the intent and spirit
of the law.’
§ 86. Legislative intent.— It has already been stated that
the legislative intent is to govern. This is the first of all
rules of construction, and is applicable in criminal as well as in
civil cases. To reach this meaning the court may consider
the statements of those who had charge of the passage of the
act in the legislature.’ Thus, the statements of members of
the legislature in debate may be adverted to as part of the his-
tory of the times,’ and contemporaneous and uniform construc-
tion given to the statute by those charged with its execution is
entitled to weight;’ but the court cannot take into view the
motives of the legislators further than they are expressed in
the statute, and evidence to establish bribery and corruption
in securing its passage is not admissible.
§ 87. Statutes in pari materia.— When the statute is am-
biguous and susceptible of more than one construction, the
prohibiting sales of liquor within
two miles of the premises of a mili-
tary academy was held not to in-
clude sales within such premises:
P. v. Gadway, 61 Mich. 285. So also
a statute requiring licenses on the
part of certain classes of liquor-sell-
ers will not be extended beyond the
classes plainly referred to: Jaeger
v. S., 63 Mo. 403, The legislative in-
tent is to be found, if possible, in the
enactment itself, and statutes are
not to be extended by construction
to cases not fairly and clearly em-
braced within their terms. Of course,
a statute is not to be frittered away |
by forced construction, by metaphys-
ical niceties, or by mere verbal or
sharp criticism; nevertheless, the
doctrine is fundamental that there
can be no constructive offenses; that
before a man can be punished his
case must be plainly and unmistak-
ably within the statute, and if there
be any fair doubt whether the stat-
ute embraces it, that doubt is to be
resolved in favor of the accused:
U.S. v. Clayton, 2 Dill. 219.
18, v. McMahon, 53 Conn. 407.
28. v. Craig, 80 Me. 85.
88, v. Wacker, 71 Wis. 672. This
will, of course, be especially true
where the words are susceptible of .
two meanings: 8. v. Howard, 72 Me. }
459. {
4Eix parte Evers, 29 Tex. Ap. 539;
Murray v. S., 21 Tex. Ap. 620; Cain
v. S., 20 Tex. 355.
5Ex parte Farley, 40 Fed. R. 66,
6U. S. v. Wilson, 58 Fed. R. 768.
7Brown v. U. S., 113 U. S. 568;
U.S. v. Johnston, 124 U.S. 286; U.S.
v. Hill, 120 U. S. 169; U.S. v. Phil-
brick, 120 U. S. 52.
89, v. King, 12 La. An. 593.
98. v. Fagan, 22 La. An. 545,
73
§§ 88, 89.] NATURE AND SOURCES OF CRIMINAL Law. [Parr I.
court may, for the purpose of arriving at the legislative intent,
as in civil cases, consider together the provisions of the statute
in question and other statutes relating to the same subject-
matter.!
§ 88. Civil code.— The provisions of the civil code will not
be construed as applicable to criminal cases unless it plainly
appears that such was the legislative intent.? Whether pro-
visions as to practice and evidence, general in their terms, will
be applicable in criminal as well as civil cases, will be deter-
mined by the context, the relative positions of the chapters,
and surrounding circumstances.’ In general, the civil code
will be resorted to for the purpose of supplying an omission in
the criminal code only in a case totally unprovided for in the
latter.
§ 89. General and special provisions.— In thus construing
together the general provisions of one statute on the subject,
and the special provisions of another as to the same subject,
the particular intent will override a general intent incompat-
ible therewith.’ This doctrine is to be applied, not only where
1§. v. Robinson, 33 Me. 564; C. v.
Wyman, 8 Met. 247; Smith v. P., 47
N. Y. 308; S. v. Stimson, 24 N. J.
478; Farrell v. S., 54 N. J. 421; Rice
v. &., 3 Kan. 141; S. v. Smith, 13 Kan.
274; U.S. v. Benson, 31 Fed. R.
896. The meaning of terms used in
one statute not there defined may
be determined by reference to other
statutes on the same subject, and
for this an amendment to the stat-
ute may be considered, being applied
only to cases arising after its pas-
sage: S. v. Hughes, 16 R. I. 403.
After amendment an act is gener-
ally to be interpreted as though the
amended section had originally read
as it does after the amendment is
made. But if a part of the statute
cannot be accommodated by con-
struction to the new reading, then
it is to be regarded as retaining its
original sense: Kiser v. S., &9 Ga.
421. So an amendment to a section
of a statute which would render
the section referred to by the amend-
ment senseless and nugatory, while
in connection with another section
it would be sensible and consistent
with previous law, will be construed
asa part of the latter section and
not the former: Bledsoe v. S., 10
Mo. 388.
2 Williams v. P., 33 N. Y. 688,
38. v. Moulton, 48 N. H. 485.
4 Hackney v. S., 8 Ind. 494,
5 Resp. v. Richards, 1 Yeates, 480;
O’Connell v. S., 6 Minn. 279. Thus,
a provision in a state charter per-
mitting a city to regulate houses of
ill-fame will control a general law
prohibiting such houses: 8. v. Clarke,
54 Mo. 17. Anda statute as to the
entering of any building, with or
without breaking, will not apply to
dwelling-houses, the breaking and
entering of which is otherwise made
punishable: Rolland v. C., 82 Pa. St.
306. So a statute directing the
mode of prosecution and manner
of punishment of an offense is not
controlled by general statute so as
74
Ca. 5.] PENAL STATUTES; CONSTRUCTION; REPEAL.
[$$ 90, 91.
a later special statute conflicts with a prior general one,! but
also where a later general statute conflicts with an earlier
special one, and in such cases there is not an implied repeal.’
$90. General clause; particular enumeration.— A general
clause at the end of a special enumeration of particulars will
be limited to things analogous to those in such special enu-
meration,? But where the terms used are unequivocal, and
the legislative intent evidently does not require a limited mean-
ing to be applied, the general terms used will be given their
full effect. On the other hand, where a general term is made
to include a certain class in some provisions of the statute, it
will be considered to include that class in the other provisions
thereof.’ But in general, a specific enumeration will exclude
cases not enumerated.’ If one seeks to bring himself within a
special exemption, he must show himself to be clearly within
the terms and conditions of such exemption.’
§ 91. Implied repeal.—It is a principle of universal appli-
cation in the construction of statutes, that, if two legislative
provisions are found to be inconsistent, the court in construing
them will give effect to the later expression of the legislative will.
‘Therefore, if two statutes make inconsistent provisions for the
punishment of the same act, the later repeals the earlier; * but
to impose a different penalty: S. v.
Henley, 30 Mo. 509; S. v. Green, 87
Mo. 583; S. v. Wingo, 89 Ind. 204,
But a statute for the punishment of
lighter forms of an offense will be
exclusive of the provisions of a gen-
eral statute covering the same acts,
as wellas others defined as a general
offense: Bork v. P., 91 N. Y. 5;
Johnson v. P., 123 Ill. 624. The pro-
visions of a statute as to murder
will prevail, in reference to that
crime, over those found in a chapter
relating to petit treason: 8. v. Bi-
lansky, 3 Minn. 246.
18. v. Hope, 15 Ind. 474; C. v. Rail-
ing, 118 Pa. St. 37.
2Mobile, etc. R. Co. v.S., 29 Ala.
573; S. v. Falkenham, 73 Md. 463;
McCracken v. S., 71 Md. 150; T. v.
McPherson, 6 Dak. 27. But a statute
which is broader and more exact in
its\terms will repeal a prior statute
more limited in its application: S.
v. Giles, 125 Ind. 124.
3S. v. Bryant, 90 Mo. 534; S. v.
Grisham, 90 Mo. 163; S. v. Black, 75
Wis. 490: Jensen v.8., 60 Wis, 582;
Shirk v. P., 121 Ill. 61.
48. v. Stimson, 24 N. J. 9; S. v.
Cleveland, 80 Mo. 108; S. v. Hays, 78
Mo. 600; Rau v. P., 638 N. Y. 277;
O’Keefe v. S., 24 Ohio St. 175; S. v. |
Holman, 3 McCord, 306.
58. v. Kelsey, 89 Mo. 628.
6S. v. Grant, 76 Mo. 236. But this
maxim, inclusio unius exclusio alte-
rius est, is too general to govern in
the construction of criminal stat-
utes: S. v. Connor, 7 La. An. 379.
78. v. Intoxicating Liquors, 68 Me.
187.
8C. v. Kimball, 21 Pick. 373; C. v.
Davis, 11 Gray, 48; Huber v. S., 25
75
§§ 92,93.] NATURE AND SOURCES OF CRIMINAL LAW. [Parr I.
if a subsequent statute simply reduces the penalty, or allows
discretion to the court to assess a lower degree of punishment,
the former statute is not thereby repealed ;! in order, however,
that the later statute shall repeal the former, the two must be
repugnant or inconsistent. Even a general repealing clause as
to all previous inconsistent statutes must be construed as re-
pealing only those which are plainly repugnant.’
§ 92. Implied repeals not favored.— Repeals by implica-
tion are not favored by the law; and when two statutes on the
same subject can both stand and be effective, no repeal will be
implied. In the absence of an express repealing clause, a sub-
sequent statute repeals a former one only so far as the two are
inconsistent; ‘ and if it is possible to construe the later statute
as cumulative, such construction will be given to it, although
its provisions differ from those found in the earlier statute.’ In
determining whether there is a repeal by implication, the in-
tention of the legislature is the prime object of inquiry.
§ 93. What amounts to a repeal.— A statute which assumes
to cover the whole subject-matter embraced in a former stat-
ute, re-enacting it with changes, will operate as a repeal of the
former, even though there is no expressed repeal.’ But a stat-
Ind. 175; Hayes v.S., 55 Ind. 99; Wall
v. §., 23 Ind. 150; S. v. Craig, 23 Ind.
185; U. S. v. Irwin, 5 McLean, 178.
1C, v. Gardner, 11 Gray, 488; C. v.
Evans, 16 Pick. 448; C. v. Wyman,
12 Cush. 237; Allen v. S., 5 Wis. 329.
But the imposition of a further pen-
alty does not operate to repeal a
former act as to the same crime, the
provisions not being necessarily re-
pugnant: 8. v. Shoemaker, 20N. J. 153.
Where the punishment which may
be inflicted by a justice is reduced,
such provision will operate as a re-
duction of the punishment for of-
fenses exclusively punishable by a
justice: Gordon v. P., 44 Mich. 485.
28. v. Anderson, 40 N. J. 224,
3 Shepherd v. P., 25 N. Y. 406; Hart-
ung v. P., 28 N. Y. 400; Homer v. C.,
106 Pa. St. 221; C. v. Cromley, 1 Ash-
mead, 179; P. v. Hanrahan, 75 Mich,
611; P. v. Gustin, 57 Mich. 407; Gor-
don v. P., 44 Mich. 485; C. v. Duff, 87
Ky. 586; Sosat v. S.,2 Ind. Ap. 586.
48. v. Tibbetts, 36 Me. 553; C. v. Mc-
Guirk, 78 Pa. St. 298.
5 Myers v. S., 92 Ind. 390; Coghill
v. S&S, 37 Ind. 111; P. v. Smith, 69
N. Y. 175; P. v. Krank, 110 N. Y..
488; Sifred v. C., 104 Pa. St. 179;
Prohibitory Amendment Cases, 24
Kan. 700; S. v. Green, 87 Mo. 583;
Cate v. S., 3 Sneed, 120; P. v. Gustin,
57 Mich. 407; P. v. Bussell, 59 Mich.
104; S. v. Van Vliet, — Ia. —, 61
N. W. R. 241.
6P. vy, Hanrahan, 75 Mich. 611.
70. v. Kelliher, 12 Allen, 480;
Hirschburg v. P., 6 Colo. 145; Cullen
v. S., 42 Conn. 55; S. v. Roller, 77
Mo. 120; S. v. Christman, 67 Ind. 328;
Douglass v. 8., 72 Ind. 385: Wagoner
v. S. 90 Ind. 504; P. v. Bussell, 59-
Mich. 104; C. v. Cromley, 1 Ash-
mead, 179; Stirman v. S., 21 Tex. 734. :
76
Ox. 5.] PENAL STATUTES} CONSTRUCTION; REPEAL. [&§ 94, 95.
ute or amendment which enlarges the class of cases made pun-
ishable by a former statute, but leaves the punishment the same,
does not operate as a repeal;! so a revision of the statutes or
of the ordinances of a city is not to be deemed’a repeal, but so
far as not changed they remain in full force as if no revision
had been made;? and in general a mere modification of a stat-
ute, or amendment of it, by additions, will not be construed as
the repeal of the portions not affected, even though the change
is made by way of repeal and re-enactment.? A subsequent .
‘statute in aid of an existing statute will not operate to repeal it.‘
§ 94. As between general and special provisions.— Itis an
‘application of a rule already stated ® that a special statute will
not be deemed to be repealed by implication by a subsequent
‘general statute on the subject. The special provision will be
deemed still in force unless it is plainly evident that the gen-
eral statute was intended to supersede the special one, or the
two are plainly irreconcilable.
§ 95. Effect of statute upon pre-existing common law.—
A statute revising an entire subject-matter repeals the common
law as to that matter;? but a statute only repeals the common
law as to a particular crime when it covers the whole ground.
If both the statute and common law can consistently take ef-
fect together, they are to be construed as concurrent, and the
statute is cumulative®
5 Supra, § 89.
6 Seifried v. C., 101 Pa. St. 200; P. v.
So held where an act declared that
a former act “is hereby amended
so as to read as follows:” S. v. Inger-
soll, 17 Wis. 631.
1p, v. Safford, 5 Denio, 112; C. v.
Herrick, 6 Cush. 465; S. v. Herzog,
25 Minn. 490. That in such cases an
offense committed prior to the re-
peal and re-enactment may still be
‘prosecuted, see infra,§ 96.
2U. & v. Le Bris, 121 U. 8. 278;
U.S. v. Lacher, 184 U. S. 624; St.
Louis v. Foster, 52 Mo. 513.
3Gordon v. P., 44 Mich. 485; 8. v.
‘Gumber, 37 Wis. 298; C. v. Phillips,
11 Pick. 27; 8S. v. Van Vliet, — Ia.
—, 61 N. W. R. 241.
49, v. Taylor, 2 McCord, 483; 8. v.
Cole, 2 McCord, 1.
Jaehne, 103 N. Y. 182; P. v. Quigg, 59
N. Y. 83; Sykes v. P., 127 Il. 117;
Ochs v. P., 124 Ill. 399; Kollenberger
v. P., 9 Colo. 238; C. v. Ballou, 124
Mass. 26; Keiser v. S., 78 Ind. 430;
Ex parte Van Hagan, 25 Ohio St.
426; P. v. Hanrahan, 75 Mich. 611;
P. v. Furman, 85 Mich. 110.
7C. v. Cooley, 10 Pick. 37.
8S. v. Wilson, 43 N. H. 415; S. v.
Burnham, 9 N. H. 34; C. v. Ayer, 3
Cush. 150; Jennings v. C.,17 Pick.
80; C. v. King, 18 Met. 115; 8. v.
Norton, 28 N. J. 33; Kelly v. C., 11
Serg. & R. 345; Wood v. C., 12 Serg.
& R. 218; Beard v. S., 74 Md. 130;
Lewis v. S., 3 Head, 127.
7%
NATURE AND SOURCES OF ORIMINAL LAW. [Parr I.
§ 96.]
§ 96. Effect of repeals as to offenses already committed.
No conviction can take place for an offense after the statute
creating it has been repealed! Therefore, if the prior law is
superseded by a statute inconsistent therewith, offenses already
committed under the prior law cannot be punished unless there
is a saving clause, for the prior law is no longer in force and
the subsequent statute is not applicable to the offense already
committed, because as to such offense it is ex post facto. There
can be no legal conviction for an offense unless the act com-
plained of be contrary to law at the time it is committed, ner
can there be a judgment unless the law be in force at the time:
the indictment is found and judgment rendered thereunder.”
And the repeal of the repealing act will not restore the orig-
inal law in such way that offenses committed under it will be
punishable, for the reason that the last repealing act will itself
be ex post facto;® but a mere amendment, or repeal and re-
enactment, substantially without change, will not defeat a
prosecution under the previous statute. It is not necessary to-
1Taylor v. S, 7 Blackf. 93; 5S. v.
Loyd, 2 Ind. 659; Howard v. S., 5
Ind. 183; Lunning v.8., 9 Ind. 309;
Calkins v. 8.,14 Ohio St. 222; S. v.
Fletcher, 1 R. I. 198; S. v. Ingersoll,
17 Wis. 631; S. v. Meader, 62 Vt. 458;
S. v. Cross, 4 Jones, 421; S. v.O’Connor,
13 La. An. 486; S. v. Henderson, 13
La. An. 489; Wall v. S., 18 Tex. 682;
Greer v. S., 22 Tex. 588; Hubbard v.
S.,2 Tex. Ap. 506; Montgomery v.
S., 2 Tex. Ap. 618; Tuton v.S., 4 Tex.
Ap. 472; Wheeler v. S., 64 Miss. 462;
C. v. Leftwich, 5 Rand. 657; Scutt v.
C., 2 Va. Cas. 54; Attoo v. C., 2 Va.
Cas. 882; S. v. Cole, 2 McCord, 1;
Griffin v. S., 39 Ala. 541; S. v. Allaire,
14 Ala, 435; S. v. Tombeckbee Bank,
1 Stew. 347; C. v. Welch, 2 Dana,
330; Genkinger v. C., 82 Pa. St. 99;
S. v. Oliver, 12 Wash. 547; U. S. v.
Passmore, 4 Dall. 872.
2C. v. Marshall, 11 Pick. 350; C. v.
Kimball, 21 Pick. 378; Heald v. §8., 36
Me. 62; C. v. McDonough. 18 Allen,
581; S. v. Ingersoll, 17 Wis. 681; 8.
v. Stone, 43 Wis, 481; 8S. v. McDonald,
20 Minn. 186; S. v. Daley, 29 Conn.
272; C. v. Duane, 1 Binn. 601; The
Irresistible, 7 Wheat. 551; 5. v. King,
12 La. An. 593; S. v. Bank, 12 Rich.
609; Keller v. S., 12 Md. 322; Smith
v. S., 45 Md. 49; Whitehurst v. §., 43.
Ind. 473. This is true also as to re-
_pealing ordinances: Kansas City v.
Clark, 68 Mo. 588.
3 Hartung v. P., 26 N. Y. 167; 5. C.,.
28 N. Y. 400; S. C, 22 N.Y. 95; S.
v. Van Stralen, 45 Wis. 487.
48. v. Miller, 58 Ind. 399; Sage v.
S., 127 Ind. 15; Cheezem v. S., 2 Ind.
149; Beard v. S., 74 Md. 180; S. v.
Wish, 15 Neb. 448; C. v. Sullivan, 150
Mass. 315; S. v. Sutton, 100 N. C. 474;
S. v. Massey, 103 N. C. 356; S. v. Bald-
win, 45 Conn. 184; S. v. Gumber, 37
Wis, 298; S. v. Kibling, 63 Vt. 636;
P. v. Sloan, 2 Utah, 326; 8. v. King,
12 La. An. 593. Ifa statute specially
repeals one portion only of a prior
act, the other portions will be deemed
to be continued in force: 8. v. Mor-
row, 26 Mo. 181.
78
Cx. 5.] PENAL STATUTES; CONSTRUCTION; REPEAL. [§§ 97-101.
negative in the indictment the possible commission of the
crime before the statute under which it is prosecuted went into
effect!
§ 97. Effect on pending prosecutions.— A prosecution be-
gun under one statute cannot be continued under a subsequent
statute which supersedes or repeals it, unless there is a saving
clause.?
§ 98. Repeal after conviction.— The time of conviction
fixes the liability of the defendant to punishment, and a subse-
quent change of the statute will not affect the case. But even
after a verdict, a repeal before rendition of judgment will de-
feat the prosecution.*
§ 99. Repeal after judgment pending an appeal.— It is said
that the repeal of the statute after judgment in the inferior
court, and pending appeal, discharges the defendant on the pre-
sumption of legislative pardon.’ If a judgment is reviewed by
certiorart instead of by appeal, and is affirmed, the repeal of
the statute between the rendition of judgment and affirmance
will not render the sentence invalid.®
§ 100. Effect of partial repeal or partial invalidity.
Where a later statute only repeals a former one so far as the
provisions of the two are inconsistent, prosecutions under the
former statute are not affected so far as such statute is not re-
pealed.?’ The portion of the statute not repealed continues in
force.’ If the provisions of the repealing act are in any way
inoperative, the former statute or the common law will con-
tinue in force.®
§ 101. Saving clause.— To obviate the result which a re-
pealing statute may have by way of preventing prosecutions
18, v. Halford, 104 N. C. 874; S. v. 3C. v. McDonough, 13 Allen, 581;
Fleming, 107 N. C. 905; Wilder v. 8. Aaron v. S., 40 Ala. 307.
3 Mo. 291. 4C. v. Pattee, 12 Cush. 501; S. v..
2 Hartung v. P., 22 N. ¥.95; Abbott Williams, 97 N. C. 455.
v. C., 8 Watts, 517; Hale v. S15 5S. v. Brewer, 22 La, An. 273,
Conn, 242; Mullinix v.8.,43Ind. 511; | &P. v. Hobson, 48 Mich. 27.
S. v. Trimble, 2 Ind. 655; S.v. Lackey, 78. v. Grady, 34 Conn. 118; Packer
2 Ind. 285;-Sprigs v. S., 2 Ind. 75; v. P., 8 Colo. 361.
Laughlin v. C., 18 Bush, 261; Keller 8S. v. Andrews, 28 Mo. 14; C. v..
v. S., 12 Md. 322; 8, v. King, 12 La. Dow, 10 Met. 382; P, v. Whiting, 64
An. 593; Hubbard v. S&S. 2 Tex. Ap. Cal. 67.
506; Montgomery v. S., 2 Tex. Ap. °S. v. Newton, 59 Ind. 178; S. v.
618, Hallock, 14 Nev. 202; Jim v. S, 3
Mo. 108.
79
§ 101.] NATURE AND SOURCES OF CRIMINAL LAW. [Parr I’
for offenses committed under the prior statute, it is usual to
insert a saving clause providing that the statute is to operate
only prospectively and not to affect any prosecutions pending,
or the punishment of any offenses already committed;! and a
general saving clause, by which it is declared that the repeal
of a previous statute, whether express or implied, shall in all
cases be prospective only, unless the contrary intent is ex-
pressly declared, and shall not affect crimes already commit-
ted, or prosecutions pending under the act repealed, is effectual
for the same purpose.’ A special saving clause in the statute
will, however, prevent the application of the general saving
clause. A general saving provision applicable to actions, not
in terms, however, embracing criminal prosecutions, will not be
construed as applicable to such prosecutions for offenses com-
mitted before the repeal of the statute;! nor will a saving
clause as to prosecutions apply to preliminary proceedings
pending before a committing magistrate;> nor will such a
clause preserve the common law as previously existing, and a
common-law punishment cannot be inflicted after the passage
of a statute in abrogation thereof.6 But a saving clause pro-
viding that crimes committed before the passage of the re-
pealing statute may still be prosecuted does not imply that
the procedure shall be in accordance with the previous statute;
and such procedure may be required to be in accordance with
the new statute.”
Gv. Marshall, 11 Pick. 350; C. v. 353; Volmer v. 8., 34 Ark. 487; Mc-
Grover, 16 Gray, 602; Ratzky v. P.,
29 N. Y. 124; McKee v. P., 32 N. Y.
239; Sanders v. C., 117 Pa. St. 293;
P. v. Gill, 7 Cal. 356; Packer v. P., 8
‘Colo. 361; U. 8S. v. Kohnstamm, 5
Blatchf, 222,
2C. v. Desmond, 128 Mass. 407; C.
v. Grover, 16 Gray, 602; P. v. Mc-
Nulty, 93 Cal. 427; P. v. Quinn, 18 Cal.
122; Bergin v. S., 81 Ohio St. 111;
Richardson v. S., 3 Coldw. 122; 8. v.
Shaffer, 21 Ia. 486; Sanders v. S., 77
Ind. 227; McCalmen v. 8, '77 Ind.
250; S. v. Mathews, 14 Mo. 138; 8. v.
Ross, 49 Mo. 416; 8S. v. Proctor, 90
Mo. 334; 8. v. Crawford, 11 Kan. 32;
8. v. Boyle, 10 Kan. 118; S. v. Show-
ers, 34 Kan. 269; Acree v, C., 18 Bush,
Cuen v. S., 19 Ark, 630; Jordan v. S.,
88 Ga. 585; Gibson v. S., 85 Ga. 224;
Tempe v. 8, 40 Ala. 350; U.S. v.
Barr, 4 Sawyer, 254; U.S. v. Reisin-
ger, 128 U.S. 398.
38. v. Showers, 34 Kan. 269; S. v.
Schmidt, 34 Kan. 399.
4Calkins v. S., 14 Ohio St. 222,
5S, v. Arlin, 39 N. H. 179.
68. v. Boogher, 71 Mo. 631.
TPowers v. S., 87 Ind. 144; 8. v.
Phillips, 24 Mo. 475. A statute in-
creasing the punishment will leave
the old law in effect as to offenses
already committed: Miles v. S., 40
Ala. 39; Moore v. S., 40 Ala. 49;
Stephen v. S., 40 Ala. 67; Wade v.
S., 40 Ala, 74, :
80
Cu. 5.] PENAL STATUTES; CONSTRUCTION; REPEAL. [§§ 102, 103.
§ 102. Repeal of repealing statute.— The repeal of a stat-
ute which repealed a prior statute will reinstate the statute re-
pealed thereby, and will revive any liability which existed at
the time of the former repeal.! The repeal of an amendatory
act leaves the act which it amends in full force and effect, as
if the amendatory act had never been passed.? In some states
there are statutory provisions preventing the revival of a for-
mer statute by the repeal of the repealing statute. The repeal
of a statute which supersedes the common law with reference
to an offense is in some cases said to revive the common law
as to such offenses. But in other cases it is said that the re-
peal of a statute in derogation of the common law does not
revive the common law.5
§ 103. Statutes construed prospectively.
While a statute
will be construed with reference to the state of facts existing
at the time of its passage,° yet
1C, v. Getchell, 16 Pick. 452; C. v.
Mott, 21 Pick. 492; C. v. Churchill, 2
Met. 118; P. v. Wintermute, 1 Dak.
60; S. v. Chadbourne, 74 Me. 506;
Campbell v. S., 35 Ohio St. 70; U.S.
v. Philbrick, 120 U. S. 52. A legisla-
tive declaration that a statute al-
ready passed shall not repeal a prior
statute does not operate as a revivor
or re-enactment of such prior statute:
8. v. Conkling, 19 Cal. 501. So the
correction of a statute already re-
pealed does not revive it: U. S. v.
Auffmordt, 122 U. 8.197. A statute
creating an offense and fixing the
penalty by reference to another stat-
ute so incorporates the statute thus
referred to that the implied repeal
of the later statute by another stat-
ute on the subject dogs not revive
the statute thus incorporated: C. v.
Kendall, 144 Mass. 357. The repeal
of a statute defining a term does not
prevent such statute being still used
to show the meaning of the term as
employed elsewhere: U.S. v. Le Bris,
121 U.S. 278 So the adoption ina
local statute of the provisions of a
general statute does not imply the
adoption of changes afterwards
6 81
a statute punishing acts under
made in the general law: In re
Heath, 144 U. S. 92.
28, v. Thornton, 63 N. H. 114; Han-
nibal v. Guyott, 18 Mo. 515. After a
statute is repealed as applicable to
certain cases, it is not revived as to
such cases by a subsequent amend-
ment of it: P. v. Tyler, 36 Cal. 522.
Where an act was amended in a par-
ticular section and thereafter that
section of the original act was re-
pealed, held, that the repeal applied
to the section as amended: Greer v.
S., 22 Tex. 588.
38, v. Huffschmidt, 47 Mo. 73.
Even under such a provision, how-
ever, the repeal of an ordinance
which has superseded the general
law does not prevent the revival of
the general law upon such repeal:
Heinssen v. S., 14 Colo. 228,
4S. v. Rollins, 8 N. H. 550; S. v.
Franklin Falls Co., 49 N. H. 240.
5S, v. Loney, 82 Mo. 82; S. v.
Slaughter, 70 Mo. 484.
6 An act forbidding the sale of in-
toxicants on a legal holiday will
not render illegal a sale made ona
holiday created by subsequent en-
actment: Ruge v. S. 62 Ind. 388
§ 104.] NATURE AND SOURCES OF CRIMINAL Law. [Parr I.
circumstances depending upon legislative action for their ex-
istence will be construed as applicable to subsequent as well as
preceding legislative action, so that a penalty provided for acts
committed on election day is applicable to election days pro-
vided for by subsequent statutes;! and a statute providing a
punishment for embezzlement by public officers will be appli-
cable to an officer whose office is afterwards created, as well as
where the office exists at the time of the passage of the stat-
ute? A statute prescribing requirements for a valid indict-
ment will not affect pending indictments.*
§ 104. Effect of invalidity of statute.— Even though a stat-
ute be declared invalid and unconstitutional, yet such part of
it as expressly repeals prior inconsistent statutes will be effect-
ual to prevent a punishment under the former statute of offenses
committed after the repeal.‘ Ifa statute which is indivisible
is unconstitutional with reference to some acts covered by it,
the whole must fall, since the court cannot say that it would
‘have been passed if it had been deemed applicable only to the
acts to which it is constitutionally applicable.’ But plainly,
the fact that the statute is unconstitutional as to offenses already
committed will not make it invalid as to subsequent offenses; *
nor will the fact that it is not applicable to articles of inter-
state commerce make it unconstitutional as to property within
the state." The invalidity of one part will not render the other
part invalid, unless the two parts are so mutually connected
with and dependent on each other as to warrant a belief that
the legislature intended them as a whole, and that if all could
not be carried into effect they would not have passed the resi-
due. Thus, if it is claimed that a proviso is invalid, the party
Where the sale of liquor within 7In re Rahrer, 140 U.S. 545. Soif
three miles of a factory is prohibited, a statute is invalid with reference
the prohibition will not be appli- to acts punishable only in the federal
cable to a factory not then existing: courts, it remains valid as to other
Hall v. S., 20 Ohio, 8. acts: S. v. Tuller, 84 Conn. 280. A
1§. v. Kidd, 74 Ind. 554. state bankruptcy statute suspended
28, v. Hays, 78 Mo. 600; 8. v. Cleve- by the passage of a federal bankrupt
land, 80 Mo. 108. law revives without re-enactment on
38. v. Smith, 38 Conn. 397. the repeal of the federal law: Butler
4Ingersoll v. 8., 11 Ind. 464; Mesh- v. Goreley, 146 U. 8. 803.
meier y. §., 11 Ind. 482. 8S, v. Wheeler, 25 Conn. 290; 8. v.
5 Wynehamer v. P., 18 N. Y. 878, Newton, 59 Ind. 173,
6 Supra, § 78. :
82
Cu. 5.] PENAL STATUTES; CONSTRUCTION; REPEAL. [§§ 105-107.
making such claim must show that his case is one affected by
the proviso."
§ 105. Construction of terms.— A statute is to be con-
strued in the ordinary popular meaning of its terms, thus giv-
ing it the effect which the legislature obviously intended.
Terms of art, trade, or science will be construed in accordance
with the interpretation of those learned in the particular art,
trade, or science.’ If a word used in a statute has attained a
meaning at common law, the same meaning will be applied to
it in the statute. Where a term or phrase has been used with
a certain meaning in one statute, it will be given the same
meaning in a later statute, unless there is something to show
that a different meaning was intended.’ In determining what
acts are included, the description of the same offense in other
sections of the same statute, or statutes on the same subject,
will be considered.$
§ 106. Grammar and punctuation.— Neither the ungram-
matical and inaccurate structure of the statute, nor the fact
that a sentence is wrongly pointed, will be allowed to inter-
fere with giving it a construction in accordance with its plain
intent and meaning.’ Typographical errors and clerical mis-
takes will be disregarded, and the meaning which the legisla-
ture intended will be applied.®
§ 107. Singular for plural.— A plural word may be con-
strued as singular or to include the singular when common
sense and the plain intention of the legislature require it.
1McGuire v. S., 42 Ohio St. 530. 78. v. Murphy, 27 N. J. 112. The
2Hedderich v. S., 101 Ind. 564.
38. v. Farrand, 8 N. J. 333.
49, v. Farrand, 8 N. J. 383; Turner
v.S., 1 Ohio St. 422; Mayo v. Wil-
son, 1 N.H. 58; Bradley v. P., 8 Colo.
599. But if an offense is defined in
the statute such definition controls:
Benson v. S&S, 5 Minn. 19. As to
common-law crimes in states hav-
ing a criminal code, see supra, § 13.
58. v. Stimson, 24 N. J. 9; Norris
v. S., 25 Ohio St. 217; Bradley v. P.,
8 Colo. 599.
6 Hallett v. S., 29 Ohio St. 168; S. v.
Kelsey, 89 Mo. 623.
83
court will read the statute with
such stops as are manifestly re-
quired for the purpose of arriving
at the true meaning: U.S. v. Lacher,
134 U. 8. 624,
88, v. Beasley, 5 Mo. 91; S. v. Acuff,
6 Mo. 54.
9S. v. Main, 31 Conn. 572. Thus,
astatute providing punishment for
stealing obligations or bonds in-
cludes the stealing of one such in-
strument: C. v. Messinger, i Binn.
278; Resp. v. Cleaver, 4 Yeates, 69.
§§ 108-110.] NATURE AND SOURCES oF oRIMINAL Law. [Parr I.
§ 108. “And,” “or.”*—In construing a statute the word
“and” may be substituted for “ or,” even as against the defend-
ant, when the context and the analogy of the other statutes
on the same subject require it;! but if a statute directs fine
or imprisonment, the court is not authorized to inflict both,?
nor vice versa.*
§ 109. “‘ May.’? — The word “may” is construed as impera-
tive when the circumstances show that such was the intention.‘
Thus, “may be punished” will be mandatory when the offense
is not otherwise provided for; but if provided for by other
statutes, and an aggravating cirgamstance is referred to, the
provision will be deemed discretionary.®
§ 110. Definition of terms.— It would not be practicable to
give here a list of the words and phrases which have received
construction in criminal cases. Some of them are construed
in civil cases as well, and others will be considered in connec-
tion with particular crimes. But some which are of special
significance in the criminal law, and of application in consid-
ering different offenses, may properly be mentioned. A mu-
nicipal or guvasi-corporation is not included in the term “ body
corporate” or “public company,” but must be expressly in-
cluded. The word “ person,” when used to designate the party
defrauded, or whose property is injured, may include the
United States,’ or a state;* and the words “person or persons”
may, in the same way, extend to corporations.® The term
“state” may mean one of the United States.” “ Punishable”
must be construed to mean that which may be punished.”
“Wilfully” may mean corruptly and unlawfully, or simply
intentionally, according to the context, and if the statute re-
quires knowledge as well as wilfulness, the word “ wilfully”
means only intentionally,” but it may mean more than volun-
tarily and knowingly; * in other connections it may mean that
the act is done without reasonable ground to believe it to be
1§, v. Brandt, 41 Ia. 593; Rolland 78, v. Herold, 9 Kan. 194,
v. C., 82 Pa. St. 306. § Martin v. S., 24 Tex. 62.
28. v. Walters, 97 N. C. 489. 9U.S. v. Amedy, 11 Wheat. 392.
3U.8. v. Vickery, 1 Har. & J. 427. 10U.S5S. v. Pirates, 5 Wheat. 184,
40, v. Gable, 7 Serg. & R. 423. 118, v. Neuner, 49 Conn. 282,
5 Williams v. P., 24 N. Y. 405. 12C, v. Bradford, 9 Met. 268,
6C. v. Beamish, 81 Pa. St, 889; S. Rose v.S, 19 Tex. Ap. 470.
v. Bancroft, 22 Kan. 170. 84
Cu. 5.] PENAL STATUTES; CONSTRUCTION; REPEAL. [§ 110.
lawful! “Maliciously” usually implies an unlawful, wilful
act without excuse, and does not require specific malice against
the injured party.2, The term “indictment,” as well as “com- :
plaint,” may be construed as applicable to all forms of accusa-
tion? “Conviction,” as a ground of disqualification or impeach-
ment of a witness, implies a judgment,‘ but the general meaning
of the term is a plea or verdict of guilty.
1Owens v. S., 19 Tex. Ap. 242; 3C. v. Gillon, 2 Allen, 502; Cv.
Loyd v. 8., 19 Tex. Ap. 321. Haynes, 107 Mass, 194.
2C. v. Goodwin, 122 Mass. 19; C.v. 4C. v. Gorham, 99 Mass, 420.
Hicks, 7 Allen, 573. See,also, infra, 5C. v. Lockwood, 109 Mass, 323,
§ 121; P. v. Petheram, 64 Mich. 252.
85
PART IT.
CRIMINAL INTENT AND CAPACITY.
CHAPTER 6.
THE CRIMINAL INTENT.
§ 111. Tort and crime distinct as to intent.— There is a
marked distinction between the civil and the criminal law in
regard to the importance of the intent with which an act is
done. In an action for tort, or for breach of contract, the in-
tent with which the wrong was done is usually immaterial. It
is reasonable that the one doing the wrongful act shall reim-
burse the one suffering injury therefrom, even though the act
was not the result of a wrongful intent, provided it was unlaw-
ful.’ But the basis on which criminal punishment is inflicted is
wholly different from that upon which civil liability is founded,
the object of the criminal law being preventive rather than
compensative, and the intent with which the act is done will
be of great importance in determining whether it shall be crim-
inally punished.
§ 112. Intent, essential element in crime.— In determin-
ing whether criminal punishment shall be inflicted, the intent
with which the act is done is material; and it is true as a gen-
11 Hale, P.C.,ch. II. It isthus in
a case of tort committed by an in-
sane person: Morain v. Devlin, 132
Mass. 87; Dickinson v. Barber, 9
Mass. 225. So it was held that a
soldier who, ina sham fight, injured
a comrade by the discharge of his
gun, was liable in damagesin a civil.
action, although he was guilty of no
intentional wrong: Weaver v. Ward,
Hobart, 134. So one may be civilly
liable for the acts of his agent, al-
though thereis no criminal liability:
Rex v. Fell, 1 Salk. 272; S. v. Berk-
shire, 2 Ind. 207; Campbell v. Phelps,
17 Mass. 244. And in general as to
criminal liability for acts of agents,
see infra, § 187. In cases of slander
and libel, lack of wrongful intent is
no defense in a civil action for dam-
ages: Barr v. Moore, 87 Pa. St. 385;
Wilson v. Noonan, 35 Wis. 321, 353;
Rodgers v. Kline, 56 Miss. 808; Shep-
heard v, Whitaker, L, R. 10 C, P.
502,
87
8§ 113, 114.] INTENT AND OAPACITY. [Parr II.
eral proposition that such punishment should not be imposed
where criminal intent, or, as it is sometimes called, mens rea, is
absent.!_ Thus, ina prosecution for unlawfully engraving a por-
tion of a bank note, it was held that evidence that such engraving
was not made with the intention of reproducing the note for un-
lawful purposes, but only for the purpose of furnishing a speci-
men of skill in that kind of work, was admissible as a defense.”
So it has been held that in cases of misfeasance in office, it is
necessary that the unlawful act shall have been done know-
ingly or with an improper motive.’
§ 113. Acting under claim of right.— The fact that defend-
ant in doing a wrongful act believed that he had a right to do
so, such belief being founded on a mistake as to title to prop-
erty, or the like, will constitute a defense.‘
§ 114. Legal advice.— It will hereafter appear’ that igno-
rance of the law is no defense.
Therefore, one who does a
criminal act will not be excused by the fact that he had legal
advice that the act would not be criminal.®
1McCourt v. P., 64 N. Y. 583; Wag-
staff v. Schippel, 27 Kan. 450; 1
Bish. Cr. L., ch. XVIIT; 2 Steph. Hist.
Cr. L., ch. XVIII; 3 Coke’s Inst. 6.
As pointed out in 2 Pollock & Mait-
land’s Hist. Eng. L. 474, the maxim
“actus non facit reum nist mens sit
rea,” as found in Coke and alsoin the
laws of Henry I, is borrowed from
St. Augustine, and does not at all
represent the early English concep-
tion under which crimes were pun-
ished.
2Rex v. Harris, 7 C. & P. 428
But as will be seen further on, the
act may be by statute made crim-
inal, regardless of the intent, and in
such case the doing of the act with-
out any purpose to commit an of-
fense will not be excused; and it
was so held as to the statutory crime
of making and circulating due-bills
to be used as money: Norvell v. S.,
50 Ala, 174.
38. v. Kite, 81 Mo. 97; S. v. Gard-
ner, 5 Nev. 377. But where a public
officer is indicted for failure to per-
Thus, the official
form a duty required by law, there
is a presumption, in the absence of
evidence to the contrary, that such
failure was wilful: S. v. Heaton, 77
N.C. 505. But here again it is to be
noticed that the intent may be ren-
dered immaterial by the statute:
See infra, § 128.
48. v. Crosset, 81 N. C. 579; S. v.
Deal, 64 N. C. 270; Newton Mfg. Co.
v. White, 63 Ga. 697; U. S. v. Rail-
road Cars, 1 Abbott, C. C. 196; Reg. v.
Twose, 14 Cox, 327. But in case of
trespass, mere belief of a right to
enter, after being forbidden, is not
a sufficient excuse: 8. v. Bryson, 81
N.C, 595. And as to claim of right
in larceny, see infra, § 563.
5 Infra, § 182.
6 Barnett v. S. 89 Ala. 165; S. v.
Goodenow, 65 Me. 30; S. v. Marsh,
386 N. H. 196; Weston v. C., 111 Pa.
St. 251; S. v. Sheeley, 15 Ia, 404; S.
v. Downs, 116 N. C. 1064. But if the
criminality depends on knowledge
of the fact that the act is illegal,
defendant may show that he took
88
Cu. 6.] THE CRIMINAL INTENT.
[§§ 115-117.
opinion of a public officer, such as the attorney-general, as to
the proper construction of a particular statute, even with refer-
ence to the duties of public officers thereunder, will not con-
stitute a protection to one acting in reliance thereon.!
§ 115, Acting under legal or other authority.— No one
has authority to set aside the law. Therefore, it is no defense
to one who has done a criminal act that he was directed to do
so by an officer who had no power to permit or command the
act done.2 So the command of a principal will not be a de-
fense in the prosecution of an agent for doing an unlawful
act.’
§ 116. Compulsion.— The fact that an act is done under
compulsion may, under some circumstances, constitute a de-
fense, as will be hereafter shown.!
§ 117. Acting as detective.— Another illustration of the
doctrine that the intent determines criminality is found in,
the rule that a detective who joins with persons in the com-
mission of a crime for the purpose of securing their arrest
and conviction is not punishable, although he so far co-oper-
ates as to be guilty if his intention had been the same as
theirs. Thus, a detective who has co-operated with a criminal
in committing an offense is not to be deemed an accomplice
whose evidence must be corroborated.
advice of counsel for the purpose of
proving bona fides: C. v. Bradford,
9 Met. 268. One who claims good
faith by reason of acting on advice
of counsel must show that he fol-
lowed such advice: P. v. Long, 50
Mich. 249.
1 Dodd v. S., 18 Ind. 56.
2Nichols v. S., 89 Ind. 298; C. v.
Blodgett, 12 Met. 56; P. v. McLeod,
1 Hill, 377; Cox v.58. 3 Blackf. 198.
And see infra, § 29%a. License to
carry on a business which is only
lawful to persons having such li-
cense will not authorize the busi-
ness to be done in an unlawful man-
ner: Garrett v. 8.49 N. J. 94 But
the authority of the United States
to do an act within the scope of
federal regulation will be a defense in
a prosecution for violation of state
law in doing such act: C. v. Knox,
6 Mass. 76. When a statute makes
knowledge essential to the crime, it
may be a defense to show that it
was done under authority of the
officers having control of such mat-
ter: Hess v. S., 45 N. J. 445.
3 Infra, §§ 136, 190.
4Infra, § 186. As to coverture
“being a defense in the prosecution
of the wife for a wrongful act done
in the presence of her husband, see
infra, § 145.
5 Price v. P., 109 Ill. 109; S. v. Me-
Kean, 36 Ia. 343; Campbell v. C., 84
Pa. St. 187; C. v. Hollister, 157 Pa.
St. 13.
6 Campbell v. C., 84 Pa. St. 187; P.
v. Farrell, 30 Cal 316; P. v. Barric,
49 Cal. 342; P. v. Bolanger, 71 Cal.
17; Wright v. &, 7 Tex. Ap. 574;
89
§ 118.] [Parr II.
INTENT AND CAPACITY.
§ 118. Decoying to crime.—A question analogous to that dis-
cussed in the preceding section, and yet depending for its solu-
tion on somewhat different principles, is as to whether one who
has been decoyed into the commission of a criminal act for the
purpose of securing his detection and punishment is relieved
from criminal liability by that fact. It is sometimes suggested
that it is very improper and unworthy conduct on the part of
prosecuting officers to induce men to be criminals for the pur-
pose of securing their conviction, and such conduct has been crit-
icised.! But it isa well-settled principle that the wrongful acts of
the officers of the state in connection with a prosecution will not
be imputed to the state so as to excuse the defendant from crim-
inal liability for what he actually does. Thus, although the
officers for the prosecution secure the bringing of the defendant
within the jurisdiction of the court without right, and unlaw-
fully, nevertheless the jurisdiction of the court to try the offense
is not thereby defeated.2, Therefore it is immaterial that an
officer had knowledge of the threatened offense and allowed it
to be committed with the intention of arresting the criminal.’
The only question in the case of decoys is as to whether de-
fendant has committed a criminal act; of course, if he has
joined with one who pretends to be a confederate, but in real-
ity is acting as a detective, and therefore has no criminal
intent, he will not be criminally liable for acts done by the de-
tective, although present to aid and assist; for while such pres-
ence and aid would make him a confederate in the case of a
real crime, it cannot render him guilty where no real crime is
committed. Thus, it is held that if in burglary an officer or a
servant, under the instructions of the owner, admits the in-
tended burglar to the house, pretending to be in collusion with
Reg. v. Bernard, 1 F. & F. 240, So held
where the detective was a purchaser
of intoxicating liquors sold con-
trary to law: C. v. Downing, 4
Gray, 29; C. v. Graves, 97 Mass. 114,
- Also where he engaged in gambling
for the express purpose of detecting
that crime: C. v. Baker, 155 Mass.
287. Also where he was a purchaser
of a lottery ticket: P. v. Noelke, 94
N. Y. 187. As to whether the sub-
ject of the offense in abortion, or
the purchaser of intoxicating liq-
uors sold criminally, is to be deemed
an accomplice, see infra, § 199.
1Saunders v. P., 88 Mich. 218; P. v.
McCord, 76 Mich. 200, 8 Am. Cr. R. 117,
and note; Love v. P., 160 Ill. 501;
U.S. v. Whittier, 5 Dill. 35.
2Ker v. Illinois, 119 U. S. 436;
Mahon v. Justice, 127 U. 8. 700; Cook
v. Hart, 146 U. S. 183; S. v. Ross, 21
Ta. 467. See also infra, § 405 n,
3P. v. Greening, 102 Cal. 884,
90
Cu. 6.] THE CRIMINAL INTENT. [§ 119.
him, there is no burglary committed! And so in larceny,
if the property is delivered to the intending thief by the
owner, the element of want of consent would be absent and
the offense would not be committed.? Thus, if one consents
to be robbed so that a reward may be secured, there can be
no conviction for such robbery.’ But the fact that the owner
of property puts it where he expects it will be stolen, marking
it so that the thief may be detected, does not so far constitute
consent as to prevent the conviction of the one who wrong-
fully takes the property. The rule may be said to be that
the fact that the owner, or servant or detective acting for him,
puts himself or his property in the way of one who, it is sup-
posed, will commit a crime with reference thereto, does not
prevent the conviction of the person who commits such crime,
provided he actually does the criminal act, and the opportu-
nity or inducement held out to him will constitute no defense.
In general, then, it is no defense that accused was decoyed
into committing the particular offense charged. Accordingly
it is held criminal for one to sell libelous publications, although
the purchase was made for the purpose of exposure and pros-
ecution.® So in regard to offenses consisting in the improper
use of the mails, or larceny of letters, it is held to be no ex-
cuse that the crime was committed in response to inquiries or
suggestions, or in consequence of the sending of fictitious or
decoy letters for the purpose of detection.’
§ 119. Other illustrations.— The doctrine that the crim-
inal intent is essential is better illustrated, however, by rules
1Reg. v. Johnson, Car. & M. 218; 53 Kan. 308; Dodge v. Brittain, Meigs,
Allen v. S., 40 Ala. 334; Speiden v.
8,3 Tex. Ap. 156; Johnson v. S., 3
Tex. Ap. 590. And see infra, § 501.
2Kemp v. S., 11 Humph. 320; Will-
iams v. S., 55 Ga. 891; Connor v. P., 18
Colo. 378, 25 L. R. A. 341, and note.
3Rex v. McDaniel, Foster, 121.
#Reg. v. Williams, 1 C. & K. 95;
Rex v. Egginton, 2 Bos. & P. 508;
Reg. v. Bannen, 1 C. & K. 295; S. v.
Covington, 2 Bailey, 569.
5P, v. Hanselman, 76 Cal. 460,
Thompson v. S., 18 Ind. 386; 8. v.
Jansen, 22 Kan. 498; S. v. Stickney,
84; Harrington v. S., 36 Ala. 236; 8.
v. Anone, 2 Nott & M. 27; infra, § 557.
6Rex v. Burdett, 4 B. & Ald.
95; Rex v. Wegener, 2 Stark. 245;
C. v. Blanding, 3 Pick. 304; S. v.
Avery, 7 Conn. 266; Swindle v. S.,
2 Yerg.-581,
7Grimm v. U. S., 156 U. S. 604;
Goode v. U. S., 159 U. S. 663; An-
drews v. U. 8, 162 U.S. 420; Mont-
gomery v. U. S&., 162 U. S. 410, And
further as to improper use of the
mails, see infra, ch. 67.
91
8§ 120, 121.] [Parr II.
INTENT AND CAPACITY.
hereafter to be discussed as to the liability of infants, insane
persons, persons acting under compulsion or mistake of fact,
etc., each of which cases furnishes an illustration of the doc-
trine that the intent is an essential element of criminality.
§ 120. Motive and intent distinguished.— The fact that
the criminal act is done with an innocent or laudable motive
will not, however, furnish an excuse. The distinction between
intent and motive seems to be, that intent relates to the doing of
the act, while motive relates to the object sought to be accom-
plished thereby. The question involved in determining crimi-
nality of intent depends upon the intent accompanying the act
and not upon the motive actuating such act. In this sense
good motives do not constitute a defense.!
§ 121. Malice.— By the term “malice,” as commonly used in
criminal law, is meant in general simply the intention of doing
a criminal act without justification or excuse, and it is for
most purposes synonymous with criminal intent. It does not
imply bad feeling toward, or desire to injure, any particular
person.? The term as used in the definition of murder will be
l1In re Bininger, 7 Blatchf. 262,
277; C. v. Waterman, 122 Mass. 43;
Guiteau Case, 10 Fed. R. 161, 175.
Thus, the circulation of an obscene
book is not excused by the fact that
its intent is to expose improper
practices. Reg. v. Hicklin, L. R. 3
Q. B. 360. Nor is polygamy excused
by religious belief as to its being ob-
ligatory: Reynolds v. U. 8., 98 U.S.
145. So violations of Sunday laws
are punishable without regard to
the conscientious convictions of the
person charged: C. v. Has, 122 Mass.
40; Specht v. C, 8 Pa. St. 312.
Motive is that which excites and
stimulates to action; intent is the
purpose or fixed direction of the
mind to the accomplishment of
some particular act. “The intent
to do the act exists for all criminal
purposes when it is wilfully done,
although the act itself was merely
intended as a means of obtaining
some ulterior object: ” Broom’s Com.
870, quoting from Eng. Cr. L. Com.,
4 Rep., p. 15. “When any act is de-
fined by law to be illegal and crim-
inal, every one is punishable who
does the prohibited act without some
legal justification or excuse fur-
nished by the action and the cir-
cumstances, and without regard to
his real motive and intention. To
hold that a man should be absolved
from penal responsibility, merely be-
cause his motives were benevolent,
would be to set private opinion
above the law:” Broom’s Com. 866,
quoting from Eng. Cr. L. Com., 6
Rep., p. 52. There can be nothing
more dangerous than to allow the
obligation to obey the law to depend
upon the opinion entertained by in-
dividuals of its propriety, that opin-
ion being so liable to be influenced
by interest, prejudice, or passion:
Per Lord Campbell in Ferguson v.
Earl of Kinnoull, 9 Cl. & Fin. 251.
2C. v. Goodwin, 122 Mass. 19; C.
v. Hicks, 7 Allen, 573; C. v. York, 9
Met. 98; ©. v. Temple, 14 Gray, 69;
92
Cn. 6.] THE CRIMINAL INTENT. [§ 122.
more fully discussed in that connection.’ It is also sometimes
used in the statutory definitions of offenses, such as malicious
trespass, and the like, in which cases it means more than the
mere intentional doing of an act which is wrongful? Where
wilfulness is the essence of the crime, evidence tending to
show that the crime was not wilful is admissible.’
§ 122. Specific criminal intent.— In some cases an act is
made punishable, or more severely punishable, by reason of the
specific intent with which it is done; that is, by reason of an
intent to do something more than is involved in the act itself.
For instance, some acts which would otherwise be innocent
are criminal if done with wrongful intent, and such intent
must therefore be alleged and proved.t Thus, the offense of
administering a drug to a pregnant woman with intent to pro-
cure an abortion may be committed, although the drug admin-
istered is not harmful.’ On the other hand, some acts which
; are in themselves criminal, ‘such as assault, may be criminal in
a higher degree by reason of the ultimate intent with which
‘the assault is made, although such intent is not accomplished;
as, for instance, assault with intent to commit murder, or rape,
"or great bodily injury, or any felony. Burglary is a perti-
nent example of a case where the gist of the offense is the in-
tent with which the act is committed; the act of breaking and
entering alone, without intent to commit any other wrong,
would be an offense of a low grade, if criminal at all, but if
committed with intent to effect a felony (or in some states any
public offense) it is a crime severely punished.’ There may be
S. v. Malloy, 34 N. J. 410; S. v.
Hambleton, 22 Mo. 452;S. v. Schoen-
wald, 31 Mo. 147; Davison v. P., 90
Ill 221; In re Murphy, 109 TIL 31;
Spies v. P., 122 Il. 1.
1See infra, §§ 319-821.
2C. v. Williams, 110 Mass. 401.
3 Potter v. U. S., 155 U. S. 438.
48. v. Weller, 20 N. J. 521; S. v.
Norton, 76 Mo. 180. By statute in
_ some states it is sufficient to allege
generally the intent to defraud with-
out naming the person intended to
be defrauded: S. v. Scott, 48 Mo. 422.
But even in such case, if the intent
to defraud a specified person is al-
leged, it must be proved: C. v. Har-
ley, 7 Met. 506. If the act itself is
by statute made criminal, intent to
defraud is not material: S. v. Czizek,
88 Minn. 192, In larceny the specific
intent to convert is essential: S. v.
Gresser, 19 Mo. 247. And as to lar-
ceny, see infra, § 564.
5C. v. Morrison, 16 Gray, 224.
6 Infra, § 264. See, also, the dis-
cussion under the head of attempts:
Infra, § 222. Intent is essential in
a prosecution for simple assault:
S. v. Sears, 86 Mo. 169.
7 Infra, § 505.
93
[Parr II.
§ 123.] INTENT AND OAPACITY.
a double intent, so that the same act would constitute two dif-
ferent crimes.!
§ 123. Intent presumed.— Although intent is thus found
to be an essential element in crime, without which the crim-
inal act is in general not punishable, yet it is not required
of the prosecution that it shall accomplish the impossible by
proving the actual intent which existed in the mind of the ac-
cused when the act was done. It is according to the ordinary
course of human affairs that men intend the acts which they
voluntarily do, and, upon proof of doing a criminal act, the
criminal intent is in general presumed.? It has sometimes
been stated to be the rule that a criminal intent will be con-
clusively presumed from the doing of a criminal act, as in the
case of publication of a libel,’ or improper use of funds by the
cashier of a bank,‘ or homicide. But the statement of the rule
now generally accepted is that the intent is a question for the
jury, they being justified, however, in inferring the existence
of criminal intent from the doing of a criminal act where no
justification or excuse appears. Where a specific intent, as
1p, v. Carmichael, 5 Mich. 10. But
contra, see S. v. Chinault, 55 Kan. 326.
2C. v. Mash, 7 Met. 472; Olive v.
C., 5 Bush, 376; S. v. Heaton, 77 N.C.
505; S. v. King, 86 N. C. 603; S. v.
Voight, 90 N. C. 741; S. v. Smith, 93
N. C. 516; S. v. Patterson, 116 Mo.
505; Lane v.S., 16 Tex. Ap. 172; Hill
v. S., 68 Ga. 578; S. v. Milholland, 89
Ia. 5; Rosin v. U. S., 161 U.S. 29; U.S.
v. McFarland, 1 Cranch, C. C. 140;
U.S. v. Baldridge, 11 Fed. Rep. 552;
Ambrose Light, 25 Fed. R. 408, 422;
Rex v. Moore, 3 B. & Ad. 184, 188.
3? Rex v. Woodfall, 5 Burr. 2661.
4U. S. v. Taintor, 11 Blatchf. 374.
5C. v. Webster, 5 Cush. 295.
6P. v. D’Argencour, 95 N. Y. 624;
“P, v. Conroy, 97 N. Y. 62; ,P. v. Her-
rick, 18 Wend, 87; C. v. Randall, 4
Gray, 86; C. v. Reynolds, 120 Mass.
190; S. v. Knight, 43 Me. 11; 8S. v.
Malloy, 34 N. J. 410; 8. v. Patterson,
45 Vt. 308; S. v. Evans, 65 Mo. 574;
S. v. Hays, 23 Mo. 287; Hopkins v.
C., 50 Pa. St. 9; S. v. Lautenschlager,
22 Minn. 514; Ridenour v. S., 38 Ohio
St. 272; Reg. v. Farnborough, 2 Q. B.
D, (1895) 484; Clark v. Reg., 14 Q. B.
D. 92. The court should not instruct
as to intent unless there is some evi-
dence furnishing a basis for such in-
struction: P. v. Bennett, 49 N. Y.
137. Ctiminal intent may be im-
plied from the fact that defendant
was engaged in some other unlaw-
ful act at the time the act charged
was committed, but any such un-
lawful act thus relied on must be
unlawful in itself, and not a mere
breach of police regulations: C. v.
Adams, 114 Mass, 323. It will not be
implied from a subsequent unlaw-
ful act; for instance, to commit a
crime while trespassing does not
necessarily make the trespass crim-
inal from the beginning: 8. v. Moore,
12.N. H. 42, In homicide cases the
rule that the act of killing gives
rise to the presumption of malice,
which must be rebutted by evidence,
applies only where there is the en-
94
Cu. 6.] THE CRIMINAL INTENT. [§ 124.
above explained, is necessary to constitute the crime, such
intent is not to be inferred from acts alone, which, without
such specific intent, would not constitute the crime charged."
Nevertheless, specific intent also, as well as the general intent,.
may be inferred from defendant’s acts.? In cases of assault
with intent to kill, a specific intent may be inferred from the
nature of the weapon used or the injury inflicted;* but in
such cases, unless the specific intent is proved, the offense is not
made out.*
§ 124. Allegation and proof of intent.— The general crim-
inal intent presumed from the doing of the wrongful act is at
common law sufficiently alleged by charging the act as hav-
ing been done maliciously, or wilfully, or feloniously, accord-
ing to the approved forms of indictment for each particular
crime. No general rule on the subject can be stated, but it.
will be found that as to almost every crime there is some form
of allegation directly or indirectly imputing intentional wrong
to defendant. In statutory crimes the intent will be alleged,
or not, in accordance with the language of the statute; ° if that
describes the act as criminal when knowingly, or intentionally,
or maliciously, or wilfully done, the indictment must contain
such an allegation.® But even where the statute does not
specifically use these terms, the nature of the act may be such
as to make a particular allegation of the intent necessary to
show a crime.’ Where knowledge is essential it must be
tire absence of qualifying orexplan- 48 Mo.~422; C. v. Tuckerman, 10
atory evidence: P. v. Potter, 5 Mich. 1.
As to the presumption in cases of
homicide, see infra, §§ 332, 333.
1Simpson v.8., 59 Ala. 1; Patterson
v. S., 85 Ga. 181; Roberts v. P., 19
Mich. 401; Maher v. P., 10 Mich. 212.
2 Weaver v. P., 132 Ill 536; Van
Houten v. 8., 46 N. J.16. Soin cases
of burglary, the fact that the break-
ing and entering is with intent to
commit a felony may be inferred
from defendant's acts: S. v. Teeter,
69 Ia. 717; S. v. McBryde, 97 N. C.
393. and that one who is
sober enough to intend to take the life of another and actually
18. v. Carter, 98 Mo. 176.
2 Reg. v. Moore, 3 C. & K. 319; Reg.
v. Doody, 6 Cox, 463.
§Kenny v. P., 31 N. Y. 380; P. v.
Rogers, 18 N. Y. 9; Pennsylvania v.
McFall, Addison, 255; S. v. John-
son, 40 Conn. 136; S..C., 41 Conn.
584; Wilkerson v. C., 88 Ky. 29;
Morrison v. §., 84 Ala. 405; Davis v.
&, 25 Ohio St. 369; Cartwright v.
S., 8 Lea, 376; U.S. v. King, 34 Fed.
R. 302; Rex v. Thomas, 7 C. & P.
817. So the fact that the deceased -
was intoxicated is admissible as
bearing on the question as to
whether his language constituted a
sufficient provocation for an as-
* sault by the accused: Harris v. &.,
34 Ark. 469. So where declarations
and previous acts of accused are re-
lied on to show malice aforethought,
intoxication may be proved to neg-
ative such malice: Bolzer v. P., 129
Ill. 112; Jones v. S, 29 Ga. 594;
Curry v. C.,, 2 Bush, 67: 8S. v. Me-
Cants, 1 Spears, 384; Pirtle v. S.,
9 Humph. 663; Rex v. Thomas, 7 C.
& P. 817. But the whole doctrine
that intoxication may be considered
in determining the provocation is
repudiated in C. v. Hawkins, 3 Gray,
463; Keenan v. C., 44 Pa. St. 55.
Unjustifiable belief as to the neces-
sity of taking life in self-defense,
due to intoxication, will be no ex-
cuse: Springfield v. S., 96 Ala. 81.
4King v. S., 90 Ala. 612; Smith v.
C.,1 Duv. 224; Buckhannon v. C.,
86 Ky. 110; Wilkerson v. C., 88 Ky.
29; Burkhard v. S., 18 Tex. Ap. 599;
Reg. v. Doherty, 16 Cox, 306. é
5 Upstone v. P., 109 Ill. 169; S, v.
Morgan, 40 8. C. 345; Warner v. §.,
56 N. J. 686; S. v. Johnson, 41 Conn.
584,
9 129
§ 162]
INTENT AND CAPACITY.
[Parr II.
does so is sober enough to form the specific intent to murder.
And in several cases it has been said generally that intoxica-
tion is not material in determining whether the offense is mur-
der in the second degree or manslaughter.? As bearing on the
question whether the homicide is murder in the first degree or
in the second degree, the authorities almost unanimously agree
that intoxication is admissible for the purpose of disproving
wilfulness, deliberation and premeditation essential to consti-
tute the first degree of the crime.’ But even though there is
intoxication, there may be deliberation and premeditation,
and if the evidence shows those elements of murder in the
first degree to have been present, the intoxication will not re-
duce the degree.‘
And certainly one who while sober delib-
erately resolves to kill another, and makes himself drunk for
that purpose, will be guilty of murder in the first degree®
Great caution is to be observed in admitting evidence of intoxi-
cation, even to reduce the offense below the first degree, be-
cause intoxication may have thus been resorted to as the very
1 Estes v. S., 55 Ga. 81: Marshall v.
S., 59 Ga. 154; P. v. Leonardi, 148
N. Y. 360; S. v. Gut, 18 Minn. 341;
Shannahan v. C., 8 Bush, 463; 8. v.
Willis, 48 La. An. 407.
28. v. Smith, 49 Conn. 376; P. v.
Langton, 67 Cal. 427; P. v. Moan, 65
Cal. 5382; S. v. Tatro, 50 Vt. 483.
3 Hopt v. P., 104 U.S. 631; Jones
v. C., 75 Pa. St. 403; Meyers v. C., 83
Pa. St. 131; Kelly v. C., 1 Grant,
484; C. v. Hart, 2 Brews. 546; P. v.
Balencia, 21 Cal. 544; P. v. King, 27
Cal. 507; P. v. Williams, 43 Cal. 344;
S. v. Johnson, 41 Conn. 584; Willis
v. C., 82 Grat. 929; Smith v. S, 4
Neb. 277; Schlencker v. S., 9 Neb.
241; S. v. Mowry, 87 Kan. 369; Kriel
v.C.,5 Bush, 362; Walker v. S., 91
| Ala. 76; 8. v. Shores, 31 W. Va. 491;
Swan v. S., 4 Humph. 136; Huile
v. &, 11 Humph. 154; Wilcox v. S.,
94 Tenn. 106; Colbath v. S., 2 Tex.
Ap. 391. But mere evidence of in-
temperate habits is not admissible
where it does not tend to show act-
ual drunkenness to such extent that
a deliberate design was impossible:
Warren v. C., 37 Pa. St. 45. Bya
statute in Texas intoxication is not
to be considered to mitigate the de-
gree of crime, and therefore it will
not reduce murder from the first to
the second degree: Ex parte Evers,
29 Tex. Ap. 539; Clore v. S., 26 Tex.
Ap. 624 (but this view is disapproved
in Lyle v. State, 31 Tex. Ap. 103,
which is not, however, a case of
homicide),
4P.v. Rogers, 18 N. Y. 9; Flani-
gan v. P., 86 N. Y. 554; P.v. Mills,
98 N. Y. 176; Nevling v. C., 98 Pa.
St. 322; S. v. Cross, 27 Mo. 332; S. v.
McDaniel, 115 N. C. 807. Indeed in
a late case it is said that voluntary
intoxication should not be taken
into account in determining whether
defendant acted wilfully, deliber-
ately and premeditatedly: State v.
O'Reilly, 126 Mo. 597% But this is
contrary to the weight of authority
as indicated above.
58. v. Robinson, 20 W. Va. 713.
180
Cx. 12.] INSANITY AND INTOXICATION. [$$ 1638, 164.
‘means of providing a mitigation for the offense.! Of course,
neither as reducing homicide from murder to manslaughter,
nor as mitigating the offense from the first to the second de-
:gree of murder, does evidence of intoxication constitute an ex-
‘euse for a homicide.? Where evidence of intoxication is admis-
‘sible, the burden of proof is determined by the same principles
as those which govern in cases of insanity.?
§ 163. Voluntary intoxication.— In cases in which it is said
that intoxication is not a defense the courts frequently speak
of it as voluntary intoxication. It is thus sometimes assumed,
rather than stated, that the rule would be different in cases of
involuntary intoxication.! While drunkenness occasioned by
fraud, artifice, or contrivance of another for the purpose of
having a crime perpetrated might furnish an excuse, yet if
one gives liquor to another in a social way, with no view or
purpose at the time of inducing him to commit a crime, and
afterwards, while he is so drunk that he does not know what
he is doing, procures a crime to be committed by him, the in-
toxicated person is legally responsible for his own acts.°
§ 164. Defense of insanity; how raised.— The fact of in-
sanity should not be considered by the grand jury as a reason
for not finding an indictment; they should bring in a bill and
let the question be determined on the trial. The question is
one of defense, to be tried as a part of the case, and if, on being
raised, the prosecution is dismissed and the jury discharged, the
accused cannot be again put on trial.’ It is sometimes expressly
provided by statute that defendant.shall interpose insanity by
a special plea, if at all;* and under such a statute it is not
proper, where the special plea is interposed, to authorize the
jury to return a simple verdict of guilty or not guilty, because
a verdict of not guilty on the ground of insanity involves,
1S. vy. Welch, 36 W. Va. 690; P. v. P.C.32. A statute making ita pub-
Ferris, 55 Cal. 588. Little effect can lic offense to be drunk is not appli-
be given to intoxication where the cabie to intoxicating liquors drank
homicide is with a deadly weapon in ignorance of their effect: S. v.
procured for the occasion: Golden Brown, 38 Kan. 390; 8 Am. Cr. R. 165.
v. S., 25 Ga. 527. 5 McCook v. 8., 91 Ga. 740.
2Cleveland v. S., 86 Ala. 1; Will- 6 Reg. v. Hodges, 8 C. & P. 195.
iams v. S., 81 Ala. 1. 7 Gruber v. S., 3 W. Va. 699,
3See infra, §§ 175, 178. 8 Perry v.S., 87 Ala. 30; Anderson
4 Upstone v. P., 109 IL 169;-1 Hale, v.S., 42 Ga. 9,
181
§ 165.] INTENT AND CAPACITY. [Paxr II.
under such statutes, a committal to an insane asylum.’ But the
general plea of not guilty may be interposed in addition to the
special plea of insanity ;? and under such statute, unless the spe-
cial plea is interposed, evidence of defendant’s mental condition
at the time of the commission of the crime should be rejected.’
In most states there are no provisions for raising a special issue
as to insanity, and evidence thereof as a defense may be intro-
duced on the general issue of not guilty.‘ It is therefore erro-
neous to speak of the issue of insanity in a criminal case, or of
the defendant pleading insanity. This point is, however, dis-
cussed under a succeeding section of this chapter relating to
the burden of proof. To raise the question there must be some
evidence, and the court is not bound to instruct as to insanity
where no evidence definitely pointing to insanity is before the
jury.
§ 165. Question for the jury.— The question whether the
defendant was insane at the time of the commission of the
offense, and the crime was induced thereby, is to be left to
the jury as one of fact. In a late case it is said that the in-
quiries to be submitted to the jury in a criminal trial in which
insanity is relied on as a defense are: First. Was the defend-
ant, at the time of the commission of the alleged crime, as
matter of fact, afflicted with a disease of the mind so as to be
either idiotic or otherwise insane? Second. If such be the case,
did he know right from wrong as applied to the particular act
in question? If he did not have such knowledge, he is not
legally responsible. Third. If he did have such knowledge, he
1 Maxwell v. S., 89 Ala. 150.
2Long v. S., 88 Ga. 491; Perry v.
S., 87 Ala. 30. /
3 Ward v. S., 96 Ala. 100. Contra,
P. v. Olwell, 28 Cal. 456.
4Where, on arraignment, defend-
ant admitted the killing, but claimed
that he was insane and therefore
pleaded not guilty, it was held that
this amounted simply to a general
plea of not guilty: S. v. Potts, 100
N. C. 457.
58. v. Ward, 74 Mo, 258, Evidence
that defendant has been subject to
epilepsy, which is conducive to in-
sanity, will not, alone, require in-
structions as to insanity asa defense:
S. v. Worrell, 25 Mo. 205; Guetig v.
S., 63 Ind. 278. Instructions on the
forms of insanity are not necessary
where there is no evidence as to any
particular form; S. v. Lawrence, 57
Me. 574, Where general instructions
as to insanity are given, it is not
necessary to instruct as to insanity
produced by any special drug or
liquor: S. v. Mahn, 25 Kan. 182,
6S. v. Jones, 50 N. H. 869; 8, v.
Pike, 49 N. H. 399; S. v. Smith, 58
Mo. 267,
182
’
Cu. 12.] INSANITY AND INTOXICATION. [§ 166.
may, nevertheless, not be legally responsible if the two follow-
ing conditions concurred: (1) If, by reason of the duress of such
mental disease, he had so far lost the power to choose between
the right and wrong and to avoid doing the act in question
as that his free agency was at the time destroyed; (2) and
whether at the time the alleged crime was so connected with
such mental disease in the relation of cause and effect as to
have been the product of it solely.!
§ 166. Preliminary investigation.— Entirely apart from
the question whether the defendant was insane at the time of
the commission of the crime is that of the present existence of
insanity, which may be raised at any stage of the proceeding
from the arrest to the final completion of the imprisonment
under the sentence; for if he is insane he ought not, accord-
ing to modern humanitarian views, to be subjected to a trial
or imprisoned by way of punishment, but should be kept in
custody only as an insane person. Statutes usually make some
provision for an investigation of this kind in the case of a pris-
oner under arrest before trial, and also in regard to prisoners
in the penitentiary, but this matter is of no consequence here.
The question, however, whether defendant is insane when ar-
raigned and put on trial is a much more important one; for as
he has a constitutional right to be present, and as presence in
felonies is essential to the jurisdiction of the court, it is evident
that the law contemplates that he shall be in a condition to
make his defense. If, by reason of insanity, he is not in such
condition, he should not be put on trial, and this question is the
subject of a preliminary investigation,’ which should be awarded
by the court on the suggestion of the prisoner or his attorney,
or upon the affidavit of even a disinterested person,’ or upon
the court’s own motion.‘ But the court is not required to
order such an examination unless reasonable ground to doubt
the sanity of the prisoner is made to appear. In the deter-
mination of the question the court may examine and inspect
the prisoner, consider his actions and demeanor, read affidavits,
and inquire of physicians and others touching his condition.°
1 Parsons v. S., 81 Ala. 577. 48, v. Reed, 41 La. An. 581.
2 Freeman v. P., 4 Denio, 9. 58, v. Harrison, 36 W. Va. 729,
3Guagando v. S., 41 Tex. 626; Reg.
v. Dwerryhouse, 2 Cox, 446.
133
§ 166.] [Parr II.
INTENT AND CAPACITY.
The question is to be tried by a jury specially summoned for
that purpose,! the evidence of insanity being first introduced
in behalf of the defendant.2 The jury are to act, however, on
the demeanor of the accused before them, as well as on the evi-
dence presented.? The question may be raised at any stage of
the proceeding down to the time of sentence,‘ but, if raised
pending trial, it seems that the issue may be submitted to the
trial jury in connection with the issue arising on the plea of not
guilty It is sometimes provided by statute that if the jury
impaneled to try the preliminary question should disagree, the
question shall be submitted to the jury impaneled to try the
issue in the case.’ If the suggestion is made after conviction,
judgment should be suspended until the fact can be tried;* but
after conviction the court may refuse to allow the inquiry to
be made if, on its inspection, it is satisfied that the claim is false;
if there is any doubt, however, a venire should be awarded re-
turnable instanter to ascertain the facts.2 Where the fact of
present insanity did not appear until on the hearing of the
appeal, the supreme court recommended commutation by the
government of capital sentence to imprisonment for life, after
which the’ prisoner could be transferred to the hospital for the
insane in accordance with statutory regulations.2 Jurors who
have passed on the question of the prisoner’s sanity at the
time of the trial are not competent to serve on the trial of the
offense which may involve the same issue. The finding on
the preliminary investigation that the prisoner is not insane
will of course not preclude his proving on the trial that he
was insane at the time of the commission of the crime." A
1p, v. Farrell, 31 Cal. 576. And
the investigation may be repeated
as often as the occasion may require:
Ibid.
2Reg. v. Turton, 6 Cox, 385. But
it seems that if the inquiry is at
the suggestion of the prosecution,
it should first call its witnesses to
prove the prisoner’s sanity: Reg. v.
Davis, 3 C. & K. 828.
3 Reg. v. Goode, 7 A. & E. 586.
4In re Chandler, 45 La, An. 696,
58. v. Reed, 41 La, An. 581; Reg. v.
Southey, 4 F. & F. 864
6 French v. S., 85 Wis. 400.
78. v. Vann, 84 N. C. 722, Even
after judgment the execution should
be stayed on such suggestion: Ibid.
8Bonds v. &, Mart. & Y. 148.
Under the Texas statute, providing
for an inquiry as to insanity after
conviction, the judgment of the trial
court upon said inquiry is conclusive
and no appeal lies: Darnell v. S., 24
Tex. Ap. 6.
®Green v. S., 88 Tenn. 634,
10 French v. S., 85 Wis. 400.
11 Inskeep v. §., 35 Ohio St. 482.
184
Cu. 12.) INSANITY AND INTOXICATION. [$$ 167, 168.
preliminary investigation similar to that as to the prisoner’s
sanity may be had, where it is claimed that he is by reason of
being deaf and dumb incapable of understanding the nature
of the trial and its incidents, and his rights under it.!
§ 167. Evidence of insanity From the preceding discus-
sion as to what is sufficient insanity to constitute an excuse for
crime, it is plain that the evidence must go beyond proof
of a mere state of mental excitement or passion;? nor will
mere absence of motive,’ or absurd and eccentric behavior,
coupled with excessive intemperance,! or a tendency to com-
mit suicide,> or the unnatural atrocity of the crime,’ or the
fact of a homicide unexplained,’ be sufficient; but the lack of
motive, the attempt at suicide, and preceding fits of madness,
or other physical conditions tending to loss of mental control,
may be shown in connection with other facts as indicating in-
sanity.2 An attempt to commit suicide does not, however, of
itself show such mental impairment as to render the person
irresponsible.°
§ 168. Acts and declarations of accused.— Acts, declara-
tions, conversations and exclamations by the accused, shortly
“before, at the time of, or after the commission of the offense,
may be shown.” And to rebut such evidence the prosecation
may introduce evidence of other acts and declarations within
the same period." For instance, in rebuttal, the prosecution
may prove intoxication as tending to account for strange words
and actions attributed to insanity.” And so where the accused
19, v. Harris, 8 Jones, 186; Reg. v. 9%P. v. Taylor, 138 N. Y. 398.
Berry, 1 Q. B. D. 447. l0Bolling v. State, 54 Ark. 588.
2P, vy. Hurley, 8 Cal. 390; Williams Subsequent acts and conduct are
-v. S50 Ark. 511; S. v. Ward, 74 Mo. often competent but not admissible
253; Montag v. P., 141 Ill. 75; S.v. asof course: S.v. Leehman, 28. Dak.
Graviotte, 22 La. An. 587; Fisher v. 171. Mere narration or statement
8., 80 Tex. Ap. 502. by accused should be excluded, but
3 Reg. v. Dixon, 11 Cox, 341. testimony of deportment, com-
4 Spence v. S., 15 Lea, 539; Reg. v. plaints, etc, such as usually and
Leigh, 4 F. & F. 915. naturally accompany and furnish
5P. v. Messersmith, 61 Cal. 246. proof of an existing malady, ought
6S, v. Coleman, 20 8. C. 441. to be freely admitted: 8. v. Hays, 22
7 Williams v. §., 50 Ark, 511. ‘La. An. 39.
8P, y, Messersmith, 61 Cal. 246; U.S. v. Holmes, 1 Cliff. 98,
Reg. v. Vyse, 3 F. & F. 247; Reg. v. 1 P. v. Miles, 148 N. Y. 383.
Law, 2 F. & F. 836; Reg. v. Richards,
1F. & F. 87.
135
INTENT AND CAPACITY. [Parr IT.
§ 169.]
relies on strange actions as accounted for only by insanity, the
prosecution may show in rebuttal particular acts, and conduct.
contemporaneous with the conduct referred to, tending to show
that they were consistent with his sanity.! While the state-
ment of the accused as to his sanity may be admissible, his
declarations that he was not insane will not preclude such de-
fense,? and insane statements made by him should be disre-
garded so far as it is sought to bind him thereby.’
§ 169. Mental condition before and after the erime.— As
a general proposition, evidence of mental condition before and
after the commission of the offense is admissible, for it would
be practically impossible to limit the evidence to such condi-
tion at the exact time. Evidence of mental condition of the
accused before the commission of the crime is admissible on
the theory that, at least where the insanity is of a permanent
type or continuing nature, or possesses all the characteristics
of a confirmed disorder, such a condition proved to have once
existed is presumed to have continued until the time of the
commission of the criminal act.’ In some cases this presump-
tion is limited to a state of insanity shown to have existed
shortly before the crime was committed. But even when pre-
vious insanity has been established, it may still be a question
whether it did in fact continue until the time of the commission
of the act, and of this the jury should be satisfied in order to
warrant an acquittal.’ Moreover, the presumption of continu-
ance is applicable only to habitual insanity, and not to a spas-
modic or temporary mania. Thus, where delirium tremens is
relied on, the accused must show that he was under a delirium
6P, v. Smith, 57 Cal. 180. But evi-
dence of insanity existing several
1U. S. v. Guiteau, 1 Mackey, 498
(10 Fed. R. 161).
2 Reg. v. Pearce, 9 C. & P. 667.
3P. v. Wreden, 59 Cal. 392.
4P. v. March, 6 Cal. 543; Gardner
v.S., 96 Ala. 12; Montgomery v. C.,
88 Ky. 509.
5 Armstrong v. S., 30 Fla. 170; P. v.
Francis, 38 Cal. 183; Vance v. C., 2
Va. Cas. 132. Previous conviction
of insanity raises no presumption of
continuance, but is simply evidence
for the jury: Hunt v. S., 33 Tex. Ap.
252.
months before the criminal act has
been admitted: S. v. Harrigan, 9
Houst. 369.
78. v. Vann, 82 N. C. 631. As to
whether a defendant must make out
insanity to the satisfaction of the
jury, see infra, § 178.
8P, v. Francis, 38 Cal. 183; P. v.
Lane, 101 Cal, 513; S. v. Spencer, 21
N. J. 196.
186
Cu. 12.] INSANITY AND INTOXICATION. [§ 170.
at the time the act was perpetrated, and there is no presump-
tion of continuance on proof of an insane fit from which he
had recovered.' In Texas, the presumption of continuance of
insanity is entirely discarded.2, The same presumption as to con-
tinuance of mental condition operates to render admissible
; evidence of insanity subsequent to the commission of the of-
‘. fense;* thus, the testimony of a physician as to the mental
condition of accused a day or two after the commission of the
crime is competent.* But this rule is even more strictly guarded
than that with reference to proof of insanity before the com-
mission of the offense, and the evidence of subsequent insanity
must be so connected with the criminal act as to warrant an
inference that the insanity existed when the act was committed.*
In some cases the mental condition at the time of trial has been
admitted for the purpose of indicating that the accused was in-
sane at the time of committing the criminal act.6 In other
cases, such evidence has been refused on the theory that it is
too remote.’
§ 170. Hereditary.— Where there is evidence of want of
motive or other evidence furnishing a basis for inquiry as to
the sanity of the accused at the time of committing the crim-
inal act, evidence of hereditary insanity may be introduced by
proving the insanity of a parent® or a brother or sister,’ or
perhaps of more distant blood relations. But it must appear
that the kind of insanity proposed to be proven is not a tem-
porary malady, but notorious and of the same species as that
1Real v. P., 42 N. Y. 270; S. v.
Sewell, 3 Jones, 245. But it is said
that where intoxication is relied on,
it is competent to prove that ac-
cused was, a short time previous to
the commission of the offense, in an
intoxicated condition, provided the
testimony makes it probable that
the intoxication still existed when
the act was done: Pierce v. S., 53
Ga. 365.
2Leache v. S., 22 Tex. Ap. 279;
Smith v. S., 22 Tex. Ap. 316.
3 Moore v. C., 92 Ky. 630; Bolling
v. S., 54 Ark. 588,
4 Murphy v. C., 92 Ky. 485.
5C, v. Pomeroy, 117 Mass. 148.
Where a prisoner committed homi-
cide in the evening, evidence as to
what he said the next morning was
held not admissible to show derange-
ment at the time the crime was
committed: S. v. Scott, 1 Hawks, 24.
6McAllister v. S., 17 Ala. 484;
Freeman v. P., 4 Denio, 9.
TJones v. S., 138 Ala. 153; P. v.
Ward, 105 Cal. 335; Shultz v. S., 13
Tex. 401.
8P, v. Smith, 81 Cal. 466; Murphy
v. C., 92 Ky. 485; Lovegrove v. &., 31
Tex. Ap. 491.
9Hagan v.S., 5 Baxter, 615; S. v.
Hoyt, 47 Conn. 518,
137
88 171, 172] [Parr II.
INTENT AND CAPACITY.
with which other members of the family have been afflicted.’
Where evidence of the insanity of a sister was relied on, it was
held proper for the state to inquire into the cause of such in-
sanity in order to show that it was not hereditary.? Mere
proof of insanity in a parent will not be sufficient to constitute
a defense, if the other evidence negatives the presence of in-
sanity in the accused.’
§ 171. Other evidence.— As insanity is a subject of investi-
gation in various classes of civil cases as well as in criminal
prosecutions, it is not proper here to go into the entire subject,
but further illustrations of what has been decided in criminal
cases may perhaps be proper. For instance, insanity is not to
be proved by reputation,‘ nor by hearsay testimony.°
§ 172. Opinions of experts.— Experts may, of course, in
answer to hypothetical questions, give their opinions as to the
sanity of the accused as indicated by the evidence bearing upon
his sanity.© Thus it was held that defendant’s family physi-
cian might testify as to his being weak-minded.’ Likewise, de-
fendant’s physician may be called to testify in behalf of the
state on that question, the rule making such relations privi-
leged not being applicable in criminal cases.? But the expert
should not give his opinion as to whether the accused is re-
sponsible or capable of judging between right and wrong, but
as to the state of mind, whether sane or insane. The respon-
sibility of the accused is for the jury.® The testimony of the
expert is for the purpose of enlightening the jury and not of
controlling their judgment. They are not bound to accept
his conclusions as their own.” The defendant may read ex-
18, v. Christmas, 6 Jones, 471.
28. v. Hoyt, 47 Conn. 518,
3Lovegrove v. S. 31 Tex. Ap.
491,
48. v. Hoyt, 47 Conn. 518; Brink-
ley v. S., 58 Ga. 296; Ellis v. S., 33
Tex. Ap. 86.
5P. v. Pico, 62 Cal. 50.
6 Reg. v. Frances, 4 Cox, 57. In
some cases it has even been held ad-
missible to have an expert, who has
been present in court and heard the
evidence, testify as to whether the
evidence stated by the witness, sup-
posing it to be true, showed a state
of mind incapable of distinguishing
between right and wrong: S. v. Hay-
den, 51 Vt. 296; McNaghten’s Case,
10 Cl. & Fin. 200. And see Rex v.
Wright, Russ. & Ry. 456.
7P, v. Worthington, 105 Cal. 166.
8P. v. Lane, 101 Cal. 513.
9Reg. v. Richards, 1 F. & F. 87;
Reg. v. Layton, 4 Cox, 149. Contra,
U. S. v. Guiteau, 1 Mackey, 498 (10
Fed. R. 161).
10 Williams v. State, 50 Ark, 511.
188
Ox. 12.] INSANITY AND INTOXICATION.
[$$ 173-175.
tracts from books of high medical authority,! but scientific
works are not legal authorities, except so far as the facts ex-
pressed are supported by judicial decisions.’
§ 173. Opinions of those not experts.— As a general rule
persons who are not experts are not competent to give an
opinion as to the sanity of the accused.’ But it is now well
established that witnesses who are not experts may give an
opinion as to the sanity of accused.in connection with a state-
ment of the particular conduct and expressions which form the
basis of such opinion; such conduct and expressions being tes-
tified to as of the witness’ knowledge.*
§ 174. Presumption.— As bearing on the question of prov-
ing insanity it is important to state that every person is pre-
sumed to be sane and possessed of a sufficient degree of reason
to be responsible for his crimes until the contrary appears.’
This rule relieves the prosecution from any obligation to intro-
duce in the first instance proof of the sanity of the accused.
§ 175. Burden of proof.— It is usually assumed as following
from the proposition that sanity is presumed until evidence is
introduced to the contrary, that therefore the burden of proof
is on the defendant to show his insanity, and not on the prose-
cution to show sanity. The correctness of this assumption will
depend entirely on the sense in which the term “burden of
proof” is used. If it refers to the issue in the case, then it is
erroneous; for in a criminal case there is, as a rule, but one
1 Bales v. State, 63 Ala. 30.
2State v. West, 1 Houst. Cr. C. 371.
3 Choice v. S., 81 Ga. 424; Gehrke
v. S., 18 Tex. 568; Ellis v. S., 33 Tex.
Ap. 86; S. v. Coleman, 27 La. An.
691; S. v. Crisp, 126 Mo. 605.
48, v. Maier, 36 W. Va. 757; Shults
v. 8. 87 Neb. 481; Brown v. C., 14
Bush, 398; Jamison v. P., 145 Ill. 357;
8. v. Hayden, 51 Vt. 296; P. v. Bor-
getto, 99 Mich. 336; Armstrong v. 6.,
30 Fla. 170; S. v. Williamson, 106
Mo. 162; Parsons v. S., 81 Ala. 577;
Ford v. S., 71 Ala. 385; Norris v. S.,
16 Ala. 776; 8. v. Potts, 100 N. C.
457; Bolling v. S., 54 Ark. 588; S. v.
Leehman, 2 S. Dak. 171; Holcomb
v. S., 41 Tex. 125. A contrary opinion
expressed in S, v. Pike, 49 N. H. 399,
and S. v. Archer, 54 N. H. 465, is
overruled in Hardy v. Merrill, 56
N. H. 227.
5C. v. Heath, 11 Gray, 303; Walter
v. P., 82 N. Y. 147; Loeffner v. S., 10
Ohio St. 598; Fisher v. P., 23 Ill. 288;
Montag v. P., 141 Ill. 75; McKensie
v. S., 42 Ga. 334; Graham v. C., 16
B. Mon. 587; 8. v. McCoy, 34 Mo. 531;
Newcomb v. S., 37 Miss. 383; S. v.
Starling, 6 Jones, 366; S. v. Cole-
man, 27 La, An. 691; Fisher v. S., 30
Tex. Ap. 502; U. S. v. McGlue, 1
Curt. 1; U. 8. v. Lawrence, 4 Cranch,
C. C. 514; McNaghten’s Case, 10 CL
& Fin. 200.
139
§ 176.] [Part II.
INTENT AND CAPACITY.
issue, and that is as to whether defendant is guilty, and (except
under statutes which require insanity to be specially pleaded)!
evidence of insanity is introduced under this general issue and
does not constitute an issue in itself, but bears simply on the
question of guilt. The whole proposition is obscured by speak-
ing of defendant’s plea of insanity or defense of insanity as
though it were new matter pleaded by way of confession and
avoidance. It is plain that there is no issue, in a strict sense,
as to the defendant’s insanity, any more than there is an issue
of alibi, evidence of insanity being admissible on that element
of crime involved in the general issue which relates to defend-
ant’s accountability, just as evidence of defendant’s presence
at a place other than that where he must have been in order
to be guilty under the evidence for the prosecution is admis-
sible as bearing on another element of the crime involved in
the general plea of not guilty, that is, the connection of the
defendant with the criminal act. If, therefore, the term “burden
of proof” is used with reference to the issue in the case, it is
erroneous to speak of the burden being upon the defendant,
for the weight of authority is that in a criminal case the bur-
den of proof is on the prosecution throughout to establish every
material element of the offense.? But if the term “burden of
proof” is used simply to indicate which party must first intro-
duce evidence upon the particular question of fact, then, inas-
much as the presumption of sanity exists until there is evidence
to the contrary, it may properly be said that the burden of
proving insanity rests upon the defendant, and this is what the
cases usually decide.®
§ 176. Amount of evidence; various rules.— Closely con-
nected with the rule as to burden of proof is the question. as
to how much proof will be sufficient to entitle the defendant
1 Supra, § 164; P.v. Dillon,8 Utah,92. L. Rev. 125, and by the author in 17
2Brotherton v. P., 75 N. Y. 159; Amer. L. Rev. 892.
O’Connell v. P., 87 N. Y. 877; C. v. 3Moore v. C., 92 Ky. 630; Ball v.
Heath, 11 Gray, 303; Central Bridge
Co. v. Butler, 2 Gray, 180; C. v. Pome-
roy, 117 Mass. 143; 8. v. Flye, 26 Me.
312; S. v. Bartlett, 48 N. H. 224;
Davis v. U. S., 160 U. S. 469. And
see as to the term “burden of proof,”
articles by Dr. Thayer in 4 Harv.
L. Rev. 45, by Dr. Abbott in 6 Harv.
C., 81 Ky. 662; McKensie v. S, 42
Ga, 334; S. v. Potts, 100 N. C. 457;
Leache v. S., 22 Tex. Ap. 279; Men-
diola v. 8., 18 Tex. Ap. 462; Williams
v. S, 50 Ark. 511; P. v. Walter, 1
Idaho (N. S.), 286; U.S, v. Ridgeway,.
31 Fed. R. 144; Reg. v. Layton, 4
Cox, 149.
140
Cn. 12.] INSANITY AND INTOXICATION. [§§ 177, 178.
to an acquittal. Three distinctly different rules have been
laid down on this question, which will be stated in separate
paragraphs.
§ 177. Beyond a reasonable doubt.—In a few cases, evi-
dently decided by courts actuated by the early hostility that
prevailed in regard to the excuse of insanity at a time when
the nature of the disease was but little understood, it has been
held that, to be entitled to an acquittal on that ground, the ac-
cused must establish his insanity beyond a reasonable doubt; !
but this rule has been expressly repudiated in some cases,” and
is entirely inconsistent with the cases which support either of
the other rules.
§ 178. By preponderance of evidence.— The statement of
the second rule is not uniform in the cases which support it.
It is sometimes said that the defendant, having the burden of
proof, must clearly establish his insanity,’ or that he must es-
tablish it to the satisfaction of the jury.*| These statements
are probably simply different forms of expression for the rule
that insanity must be made out by a preponderance of evi-
dence’ The great weight of authority is in favor of the
proposition that the defendant, relying upon insanity as an
excuse for his criminal act, must establish such insanity by
a preponderance of evidence;* that is, by such weight of evi-
457; S. v. Coleman, 20S. C. 441; Gra-
ham v. C., 16 B. Mon. 587; S. v. Cole-
18, v. Pratt, 1 Houst. Cr. C. 249;
8. v. Danby, 1 Houst.' Cr. C. 166; S,
v. Spencer, 21 N. J. 196; S. v. Brin-
yea, 5 Ala. 241; S. v. De Rance, 34
La. An. 186; S. v. Hansen, 25 Oreg.
271. In this last case, which is re-
cent, the point is not directly raised,
but an instruction to that effect is
held good as against a different ob-
jection, and there is no intimation
that it does not correctly state the
rule,
2 Hodge v. S., 26 Fla. 11; P. v. Coff-
man, 24 Cal. 230; P. v. Wilson, 49
Cal. 13; S. v. Paulk, 18 S. C. 514,
3P. v. McDonnell, 47 Cal. 184; Smith
v. S, 19 Tex. Ap. 95; McNaghten’s
Case, 10 CL & Fin. 200.
4 Boswell v. C., 20 Grat. 860; Bac-
cigalupo v. C., 83 Grat. 807; Parsons
v.S., 81 Ala. 577; S. v. Potts, 100 N. C.
man, 27 La. An. 691; P. v. Hamilton,
62 Cal. 377; Ortwein v. C., 76 Pa, St.
414, 424; Meyers v. C., 83 Pa. St. 131,
141; Loeffner v. S., 10 Ohio St. 598;
8. v. Klinger, 43 Mo. 127; Johnson
v. S. 10 Tex. Ap. 571; Reg. v. Lay-
ton, 4 Cox, 149.
5In one case, however, it is said
that while it would be erroneous to
charge that the burden is on defend-
ant to prove insanity by preponder-
ance of evidence, yet a charge that
insanity must be established to the
satisfaction of the jury was proper:
S. v. Payne, 86 N. C. 609.
68. v. Lawrence, 57 Me. 574; 8. v.
Hoyt, 46 Conn. 330; Ortwein v. C.,
76 Pa. St. 414; Lynch v. C., 77 Pa. St.
“205; C. v. Bezek, 168 Pa. St. 603; S. v.
141 ;
§ 179.] INTENT AND OAPAOITY. [Parr II.
dence as would entitle him to succeed on an issue in a civil case
as to which he has the burden of proof.) In harmony with this
rule it has been held that where the accused attempts to show
irresponsibility by reason of intoxication, he must do so by a
preponderance of evidence.”
§ 179. Reasonable doubt sufficient.— The reasoning on
which the cases cited in the preceding section are decided is
based, as has been indicated, on assumptions with reference to
the connection between the presumption of sanity and the bur-
den of proof of insanity which are more specious than sound.
The fact that a state of sanity is presumed until evidence of
insanity is introduced does not at all necessitate the conclusion
that the presumption exists until overcome by a preponderance
of evidence. It is more in accordance with the correct use of
terms to say that the presumption simply supplies the place of
direct evidence until evidence is introduced, and that then the
burden of proof is on the prosecution to establish defendant’s
guilt, as well with reference to his capacity to entertain a crim-
inal intent as to the fact of his having committed a criminal
act. Andas the prosecution can sustain the burden which
rests upon it only by evidence which establishes the guilt of
defendant beyond a reasonable doubt, if, on the entire evidence
relating to the insanity of the acoused, there is left a reasonable
doubt as to whether he was sufficiently sane to be criminally
accountable for his act, he should be acquitted. This course of
reasoning has been followed in a number of well-considered
cases,’ and has received the strong indorsement of the supreme
Gut, 13 Minn. 341; Bonfanti v. S., 2 s. C. 514; 8S. v. Alexander, 30 S. C.
Minn, 123; P. v. Coffman, 24 Cal. 230;
P. v. Myers, 20 Cal. 518; P. v. McDon-
nell, 47 Cal. 134; P. v. Bell, 49 Cal.
485; P. v. Wilson, 49 Cal. 18; P. v.
Messersmith, 61 Cal. 246; P. v. Trav-
ers, 88 Cal. 233; P. v. Bemmerly, 98 .
Cal. 299; P. v. Ward, 105 Cal. 335;
S. v. Hansen, 25 Oreg. 391; Bond v.
S., 23 Ohio St. 349; P. v. Walter, 1
Idaho (N. 8.), 886; State v. Felter, 32
Ia. 49; P. v. Redemeier, 71 Mo. 178;
Dove v. §., 3 Heisk. 348; S. v. Lewis,
20 Nev. 333; Boswell v. S., 63 Ala.
307; Parsons v. 8., 81 Ala. 490; Max-
well v. S., 89 Ala, 150; S. v. Paulk, 18
_ 74; Casat v. S., 40 Ark. 511; Coates
v.&., 50 Ark. 380; Williams v. S., 50
Ark, 511; Bolling v. S., 54 Ark. 588;
Fisher v. §., 830 Tex. Ap. 502; Love-
grove v.S., 81 Tex. Ap. 491; Webb
v. 8, 9 Tex. Ap. 490.
1P. v. Messersmith, 61 Cal. 246.
28. v. Grear, 29 Minn. 221; S. v.
Hill, 46 La. An. 27.
3P. v. Garbutt, 17 Mich. 9; Brother-
ton v. P., 75 N. Y. 159; O’Connell
v. P., 87 N. Y. 877; Walker v. P., 88
N. Y. 81; P. v. McCann, 16 N. Y. 58;
C. v. Heath, 11 Gray, 308; C. v. Mc-
Kie, 1 Gray, 61; C. v. Pomeroy, 117
142
Cu. 12.] INSANITY AND INTOXICATION. [§ 179.
court of the United States in a recent decision.’ In some of
the cases just cited, the courts, without holding that the bur-
den of proof is on the prosecution, or even while maintaining
directly that the burden is on the defendant as to proof of in-
sanity, nevertheless say that if on the whole evidence, includ-.
ing the evidence relating to insanity, there is a reasonable doubt
of defendant’s guilt, he should be acquitted. This is, of course,
practically the same thing as saying that to warrant conviction,
where there is evidence of insanity, the prosecution must estab--
lish the sanity beyond a reasonable doubt. Some cases which
are noticeable for putting the question in this rather inconsistent
form are cited in the note;? but as a rule the courts holding.
defendant to have the burden of proof as to insanity consist-
ently adhere to the doctrine as stated in the preceding section,.
and require the evidence to establish insanity to preponderate,.
and authorize the jury to disregard defendant’s insanity unless
it is thus established; and the proposition that a reasonable:
doubt of sanity will entitle to acquittal is in many of those
cases expressly repudiated.’
Mass. 148; S. v. Bartlett, 483 N. H.
224; Cunningham v. S., 56 Miss. 269;
Polk v. 8., 19 Ind. 170; Guetig v. S.,
66 Ind. 94; Plake v. S., 121 Ind. 483;
Chase v. P., 40 Ill. 352; Montag v.
P., 141 Ill. 75; S. v. Crawford, 11
Kan. 32; S. v. Nixon, 32 Kan. 205;
Ballard v. S., 19 Neb. 609; Dove v.S.,
3 Heisk. 348; Hodge v. S., 26 Fla. 11;
Armstrong v. 8., 27 Fla. 366; Arm-
strong v. S&S, 30 Fla. 170; U.S. v.
Faulkner, 35 Fed. R. 780; Guiteau’s
Case, 10 Fed. R. 161.
1Davis v. U. S. 160 U. S. 469.
The author of this work does not
claim to be a prophet as to future
‘decisions of courts, but some years
ago he ventured to predict that
courts not already committed by
precedent in their respective states
on this question would, in the future,
recognize the soundness of the posi-
tion stated in this paragraph; and:
the prediction seems to be in a
measure, at least, justified by the-
view which the supreme court of
the United States-has now taken..
See the author’s article on Burden
‘of Proof in Criminal Prosecutions,
17 Amer. L. Rev. 892.
2 Westmoreland v. S., 45 Ga. 2255.
King v. S., 91 Tenn. 617; Stuart v..
S., 1 Baxter, 178; S. v. Paulk, 18 S. C..
514.
3 Maxwell v. S., 89 Ala. 150; Bos-
well v. S., 63 Ala. 307; Ford v. 8., 71
Ala. 385; Parsons v.S., 81 Ala. 577;
Gunter v.S., 83 Ala. 96; Baccigalupo
v. C., 83 Grat. 807; Boswell v. C., 20
Grat. 860; P. v. Myers, 20 Cal. 518;
Kriel v. C.. 5 Bush, 362; S. v. Strauder,.
11 W. Va. 745, 823; S. v. Stark, 1
Strob, 479; S. v. Hurley, 1 Houst. Cr.
C. 28; Reg. v. Stokes, 3 C. & K. 185.
148
CHAPTER 13.
CORPORATIONS.
§ 180.
There was formerly some
question as to whether a corporation, being a purely artificial
person, was within the reach of the criminal law, it being sug-
gested that the liability, if any, must be that of the members
and not of the corporation as such;! but it seems now to be
well settled that a corporation is at common law subject to in-
dictment.? The difficulty has been in determining the method
of securing jurisdiction of the defendant, inasmuch as a cor-
poral arrest is not practicable; but in England before the pas-
sage of any statute on the subject, it was suggested that the
corporation might be brought into court by a distress infinite.’
Any difficulty as to procedure has been removed, both in Eng-
land and the various states of this Union, by statutory provis-
ions.* The officers or agents of the corporation being crimi-
nally liable are of course also punishable under the general
principles of liability of agents and officers, discussed elsewhere.>
§ 181. Whether deemed “ person.’’? — Another difficulty
which sometimes arises as to the criminal liability of a corpo-
ration is based on the language of the statutes defining crimes,
and declaring that any “person” guilty of the prohibited acts
shall be punished. And it has been said that in such case the
1 Anon., 12 Mod. 559; S. v. Great
Works, etc. Co., 20 Me. 41; C. v.
Swift Run Gap Turnpike Co., 2 Va.
Cas. 361; Fertilizer Co. v. S.,24 Ohio
St. 611.
2Reg. v. Birmingham, etc. R. Co.,
9C. & P. 469; C. v. Lehigh Valley R.
Co., 165 Pa, St. 162; Boston, etc. R.
Co. v. S., 82 N. H. 215; S. v. Balti-
‘more, etc. R. Co., 15 W. Va. 362; S. v.
Security Bank, 28. Dak. 538. A na-
tional bank may thus be indicted
for usury under a state statute:
S. v. First Nat. Bank, 2 S. Dak. 568,
3 Reg. v. Birmingham, etc. R. Co,
9C. & P. 469; or, as more fully ex-
plained in a recent case where the
subject is discussed, by a venire
facias and a distringas: C. v. Lebigh
Valley R. Co., 165 Pa. St. 162.
48, v. West. N.C. R. Co., 89 N. C. 584,
5 Infra, § 190. And see Kane v.
P., 8 Wend. 208; S. v. Morris & E. R.
Co., 28 N. J. 860; Cowley v. P., 88
N. Y. 464, But if a penalty is im-
posed by statute upon the president,
144
Cx. 13.]
CORPORATIONS.
[$$ 182, 183.
word “ person” does not embrace a corporation;! but this rule
of construction has not been elsewhere followed and is un-
sound.?
§ 182. Liable for non-feasance.— Where a duty is specially
imposed by law, which is such that it covers acts which a cor-
poration may do, it is now well settled that a corporation may
be criminally liable for its breach.? Thus, corporations have
been criminally punished for failing to maintain a bridge in a
safe condition,‘ or for not reconstructing a highway or bridge
as required by the corporate charter.
§183. Also for misfeasance.— It was maintained in some
of the early cases that a corporation was indictable only for
breach of duty, that is, for non-feasance, and not for wrongful
acts or misfeasance;® but this supposed distinction between
non-feasance and misfeasance has been entirely discarded,’ and
this applies to municipal as well as private corporations.® Thus,
a corporation is indictable for nuisance,’ or for keeping a dis-
directors and company, the president
and directors are not individually
indictable: C. v. Demuth, 12 Serg.
& R. 389.
1 Fertilizer Co. v. S., 24 Ohio St. 611.
And even where a general statute
declares that the word “person”
shall be construed to include corpo-
rations, it has been said that such
provision is applicable only in civil
cases: S. v. Pres. of O. & M. R. Co.,
28 Ind. 862. Where the statute re-
quired persons or companies engaged
in the business of money brokers
and exchange dealers to take out a
license, it was held that such provis-
ion was not applicable to corpora-
tions but only to moral agents ca-
pable of taking an oath: S. v. Field,
49 Mo. 270.
28, v. Baltimore, etc. R. Co., 15 W.
Va. 362; C. v. Boston, etc. R. Co., 11
Cush. 512. A state or other munici-
pal corporation is a “person” ca-
pable of being defrauded or injured:
Stewart v. S., 4 Blackf. 171,
38, v. Cox, 88 Ind. 254.
4C. v. Central Bridge Corp., 12
Cush. 242; Reg. v. Birmingham, etc,
R. Co, 9 C. & P. 469.
5C, v. Penn. R. Co, 117 Pa. St. 637;
S. v. Inhabitants of Madison, 63 Me.
546. But if a duty is imposed upon
a board of a municipal corporation,
the inhabitants collectively are re-
lieved from their common-law lia-
bility: S. v. Inhabitants of Hudson
County, 30 N. J. 187.
6S. v. Great Works, etc. Co., 20
Me. 41.
7C. v. Proprietor, etc., 2 Gray, 339;
Reg. v. Great N. of E. Ry.,9 Q. B.
815; Pittsburg, etc. R. Co. v. C., 101
Pa. St. 192; S. v. Vermont Central
R. Co., 27 Vt. 108; S. v. Morris & E.
R. Co., 23 N. J. 360.
8C. v. Bredin, 165 Pa. St. 224; Dil-
lon, Mun. Corp., § 982.
9P, v. Albany, 11 Wend. 539; C. v.
Proprietors, etc., 2 Gray, 339; C. v.
Gloucester, 110 Mass. 491; Delaware,
etc. Canal Co. v. C., 60 Pa. St. 367; =
C. v. Bredin, 165 Pa. St. 224; S.v.
Portland, 74 Me. 268; S. v. Louis-
ville, N. A. & C. BR. Co., 86 Ind. 114;
P. v. Detroit, etc. Works, 82 Mich, 471,
10 145
‘
[Parr IT.
§ 184.] INTENT AND CAPACITY.
orderly house,! or for obstructing a public highway? or a navi-
gable river.’ So, a corporation may be criminally punished
for libel,‘ or for violating the Sunday laws,’ or the statute as
to the sale of intoxicating liquors.* So, a corporation may be
punished for contempt."
§ 184, Criminal intent.— The numerous cases in which
corporations have been held criminally liable show that such
liability arises either from not doing that which it is made the
duty of the corporation to do, or from doing that which it is
authorized to do, but doing it in such manner as to constitute
a violation of law. As a corporation can only act through its
directors, officers, and agents, whose authority is limited to acts
within the scope of the charter, and as a charter could not au-
thorize directly the doing of an unlawful act, it is evident that
there is a large class of crimes, including perhaps all the com-
mon-law felonies, that cannot be committed by a corporation
because criminality is dependent upon the intent with which
the criminal act is done. If murder, larceny, or assault and
battery are committed by the officers or agents of a corpora-
tion, even though in the prosecution of the corporate business,
such acts are the individual acts of the officers or agents and
not the acts of the corporation, it being impossible that such
acts could have been authorized, being necessarily wltra vires.*
Thus, to render a corporation criminally liable, it must appear
that the act was one authorized by the company and not the
mere unauthorized act of the officer or agent.? If a statute
imposes a penalty for knowingly and wilfully doing an act.
which the statute declares wrongful, as, for instance, wilfully
1§. v. Passaic County Agl. Soc’y,
54 N. J. 260.
2Northern Cent. R. Co. v. C., 90
Pa. St. 300; Susquehanna, etc. Turn-
pike Co. v. P., 15 Wend. 267; C. v.
Vermont, etc. R. Co., 4 Gray, 22; C.
v. Boston, etc. R. Co., 97 Mass. 555;
S. v. Morris & E. R. Co., 23 N. J. 360;
S. v. Western, etc. R. Co, 96 N. C.
602; Reg. v. Great N. of E. Ry., 9 Q.
B. 315.
38. v. Freeport, 48 Me, 198,
48, v. Atchison, etc. R. Co, 3 Lea,
729,
5S. v. Baltimore, etc. R. Co. 15
W. Va. 362,
6 Stewart v. Waterloo Turn Verein,
71 Ta. 226,
7U.S. ex rel. v. Memphis, etc. R.
Co., 6 Fed. R. 287.
8 Cumberland, etc. Canal Corp. v.
Portland, 56 Me. 77; C. v. Proprie-
tors, etc. Co., 2 Gray, 339, 345.
98. v.. Baltimore, etc. R. Co, 15
W. Va. 362. So an indictment must
show the duty on the part of the
corporation which is violated: 8, v.
Patton, 4 Ired. 16,
146
Cu. 13.] CORPORATIONS. [§ 185.
converting the property of another or knowingly employing
children under a certain age in manufacturing establishments,
it is not to be deemed directed against corporations, but against
their officers or agents, who alone can knowingly and wilfully
do the prohibited act.! But by statute in some states railroad
_corporations are made liable to fines for the benefit of the rep-
resentatives of any person whose death is caused by the care-
lessness or negligence of their servants, and in such cases the
proceeding is against the corporation.’
§ 185. Allegation and proof of corporate existence.— An
indictment must, of course, aver the legal existence of the cor-
poration;* but the want of corporate existence, if properly
averred, must be raised by special plea. A plea of not guilty
is an admission of the existence of the corporation.*
1Benson v. Manufacturing. Co., 9 28. v. Maine Central R. Co., 81 Me.
Met. 562; Cumberland, etc. Canal 84; C. v. Boston, etc. R, Co, 184
Corp. v. Portland, 56 Me. 79; An- Mass. 211.
droscoggin Water-power Co. v. #8. v. Vermont Central R. Co., 28
Bethel Steam Mill Co., 64 Me, 441; Vt. 583.
C. v. Swift Run Gap Turnpike Co.,2 ‘48. v. Western, etc. R, Co., 96 N.C.
Va. Cas. 361, 602.
147
PART III.
CONNECTION WITH THE ACT.
———
CHAPTER 14.
AGENCY.
§ 186. As affecting criminal liability. The general doc-
trine as to the liability of those who combine in the commis-
sion of crime is discussed elsewhere.! This chapter is limited
to the consideration of the liability of principal and agent re-
spectively for criminal acts done by the agent as such.
§ 187. Principal’s liability.— The general maxim “Qué
facit per alium facit per se” is applicable in criminal law to
make one accountable for.acts done for him by an agent under
his instruction or by his consent.2- And in regard to the liabil-
ity of the principal it is wholly immaterial whether the act is
procured to be done through a guilty or an innocent agent.®
If the act is done through an innocent agent, the one who pro-
cures it to be done is guilty as principal, as though he had done
the act himself.‘ Butif the agent or servant through whom
the act is done is guilty, the principal or master is deemed an
accessory before the fact only, unless present.> But in misde-
meanors there are no accessories, and one who procures the
commission of such an offense through an agent is guilty
thereof as though he had himself done the act.’ In such cases
the offense may be alleged as committed by the principal or
lInfra, § 195.
2Carey v. S., 83 Ind. 597; S. v.
Wagster, 75 Mo. 107; S. v. Lichliter,
95 Mo. 402; S. v. Scoggins, 107 N. C.
959; Reg. v. Clifford, 2 C. & K. 202.
The act of an innocent agent, for
instance an irresponsible child, is
not necessarily to be referred to a
responsible person who is present
rather than to one who is absent
but has procured the doing of the
act: S. v. Learnard, 41 Vt. 585.
3S, v. Basserman, 54 Conn. 88,
4C. v. Hill, 11 Mass, 136; Reg. v.
Michael, 9 C. & P. 356; Rex v. Giles,
1 Moody, 166; Reg. v. Bannen, 1 C.
& K. 295; Reg. v. Butcher, Bell, 6;
Reg. v. Clifford, 2 C. & K. 202; Reg.
v. Bleasdale, 2 C. & K. 765; Reg. v.
Dowey, 11 Cox, 115.
5P. v. Lyon, 99 N. Y. 210. And see
infra, § 207.
6C. v. Stevens, 10 Mass. 181; S. v.
Fox, 16 N. J. 152; S. v. Morris, ete
149
§ 188.] CONNECTION WITH THE ACT. [Part Til.
master and established by proof of the committing of the act
through an agent or servant.' Thus, by means of an agent
one may commit crime in another state or county than that in-
which he is at the time of its commission.’
§ 188. Whether authority presumed.— As a general prop-
osition the principal or master is not criminally liable for acts
of his agent or servant even though done in the general course
of the employment, unless authorized or consented to by him,
for authority to do a criminal act will not be presumed.* There
are cases where the essence of the crime seems to be the un-
lawful carrying on of a business, in which the principal is held
liable for the acts of his agent though done without his knowl-
edge and consent. It is so held in regard to the sale of a libel-
ous publication.‘ And in other cases the master has been held
liable for his servant’s improper acts in the conduct of the busi-
ness, on the same principle;* for instance, where the business is
so conducted as to create a nuisance.® In such cases direct
proof of authority is not necessary, but it may be inferred by
R. Co., 23 N. J. 860: S. v. Brown, 31
Me. 520. And see infra, § 210.
1C, v. Hill, 11 Mass. 136; S. v.
Hinckley, 38 Me. 21; C. v. Park, 1
Gray, 553; C. v. Gray, 150 Mass. 327.
So held even where the statute made
the sale of intoxicating liquors by
any person or servant or agent pun-
ishable: S. v. Stewart, 31 Me. 515.
And see infra, § 218.
2C, v. Gillespie, 7 Serg. & R. 469;
C. v. Eggleston, 128 Mass. 408; Rex
v. Brisac, 4 East, 164. And see infra,
§ 211,
3C, v. Stevens, 153 Mass. 421; Hipp
v.8.,5 Blackf. 149; Sloan v.S., 8 Ind.
312; S. v. James, 63 Mo. 570; S. v.
Smith, 10 R. I. 258; Rex v. Huggins,
2 Ld. Raym. 1574; Reg. v. Bennett,
Bell, 1; Reg. v. Hutchinson, 9 Cox,
555. So held where, without knowl-
edge of the proprietor, an employee
in a drug store made an illegal sale,
not being a registered pharmacist:
8. v. Robinson, 55 Minn, 169. Even,
knowledge of the act will not
render the principal liable if it was
done without his consent: C. v. Put-
nam, 4 Gray, 16.
4C. v. Morgan, 107 Mass. 199; S. v.
Mason, 26 Oreg. 278, 26 L. R. A. 779,
and note; Rex v. Almon, 5 Burr. 2686;
8.C.,1 Ben. & H. Lead. Cr. Cas, 145,and
note; Rex v. Gutch, Moody & M. 433;
Reg. v. Holbrook, 3 Q. B. D. 60, 4 id. 42.
5C. v. Gray, 150 Mass. 327; C. v.
King, 1 Whart. 448; Hipes v. S., 73
Ind. 39; S. v. Dawson, 2 Bay, 360;
Redgate v. Haynes, 1 Q. B. D. 89. So
in cases of sale of adulterated milk:
C. v. Vieth, 155 Mass. 442. If the
servant in making bread use an im-
proper amount of alum, so as to
render the product unwholesome
within statutory prohibition, the
master is liable: Rex v. Dixon, 3 M.
& S11. A penalty for smuggling
may be enforced against the master
although the act is done without his
authority by the servant in prose-
cuting the master’s business; At-
torney-General v. Siddon, 1 Cromp.
& J. 220,
6 Reg. v. Stephens, L. R. 1 Q. B. 702.
150
On. 14.] AGENOY. [§ 189,
the jury from the acts of the parties.!_ But the presumption is
prima facie only, and may be rebutted by showing that the
act of the agent or servant was contrary to his employer’s di-
rections.”
§189. Illegal sales of liquor by servant.— There has been dif-
ficulty in applying the principles of the preceding section in case
of violation by a servant of the statutory regulations in regard
to the sale of liquors. In general, if the business is being law-
fully conducted, but the particular sale is contrary to the master’s
instruction and without his knowledge, the master will not be
liable, although such sale was in violation of statutory regula-
tions.’ And it has been said in some of the cases that the bur-
den of showing that the illegal sales were made by the servant
with the authority or consent of the master is upon the prose-
cution.* In other cases it is said that there is a prima facie
liability of the master for illegal sales by the servant.’ But,
even then, evidence that the act was forbidden by the master
should be admitted.6 The Massachusetts courts have held that
proof of the illegal sales by the servant does not furnish even
prima facie evidence of the sale by the master, but that it is
simply a matter for the jury to consider in determining whether
the sale was with the master’s knowledge and consent.’ Some
cases, however, hold the master absolutely liable for an im-
proper sale made by the servant in the conduct of the business,
it being deemed the duty of the master to see that the business
is lawfully conducted.* Of course, if the sale is made by the
servant in the master’s presence, the master is liable.®
18. v. Foster, 23 N. H. 348.
2C. v. Nichols, 10 Met. 259; C. v.
And as to sales after hours: C. v.
Wachendorf, 141 Mass. 270.
Park, 1 Gray, 553; P. v. Parks, 49
Mich. 333; Barnes v. §., 19 Conn. 398.
3C. v. Stevens, 153 Mass. 421; S. v.
McGrath, 73 Mo. 181; S. v. Mahoney,
23 Minn. 181, 2 Am. Cr. R. 408; Lauer
v. &., 24 Ind. 131; Stevenson v. S., 65
Ind. 409: S. v. Hays, 67 Ia. 27; New-
man v. Jones, 17 Q. B. D. 182. So held
ag to illegal sales on Sunday: S. v.
Burke, 15 R. I. 324. And as to allow-
ing a minor in a room where liquors
are sold: P. v. Hughes, 86 Mich. 180.
4C. v. Hayes, 145 Mass. 289; Parker
v. S., 4 Ohio St. 563.
58, v. Wentworth, 65 Me. 284; S. v.
Reiley, 75 Mo. 521; 8. v. O’Connor,
58 Minn. 193.
6S. v. Baker, 71 Mo. 475; Anderson
v. S., 22 Ohio St. 8305; Barnes v.S., 19
Conn, 398.
7C.'v. Briant, 142 Mass, 468; C. v.
Stevenson, 142 Mass. 466; C. v. Hayes,
145 Mass. 289.
8Carroll v. S., 63 Md. 551; 8. v.
9Schmidt v. 8. 14 Mo. 187; Hofner v. S., 94 Ind. 84; 8. v. Scoggins, 107
NN. C. 959.
151
CONNECTION WITH THE ACT. [Parr III.
§ 190.]
§ 190. Liability of agent or servant.— One who, though
acting as the agent or servant of another, professes to act for
‘himself, will be held criminally accountable for his acts without
regard to his agency.! But even if the agent or servant pur-
ports to act only for his principal or master, yet if he know-
ingly commits an offense, even by the direction of his superior,
he is liable? Indeed, in prosecutions for selling liquor with-
out a license, it is said that the servant may be convicted if the
master has not a license, without regard to whether the servant
had knowledge of that fact or not.’ And even where the stat-
ute makes clerks, servants, and agents equally liable with their
principals, the agent need not be indicted as such bat simply as
principal.* So, an insurance agent may be criminally liable for
soliciting insurance for a company not authorized as required
by statute.® So, a deputy sheriff may be liable to indictment
for neglect in the discharge of the duties of his office.® In gen-
eral, the agent cannot be held to a higher degree of guilt than
the principal who procured the act to be done would have in-
curred if the principal himself had committed the act.’ Where
the principal may lawfully do an act he may usually do it
through an agent, and the agent will not be held criminally re-
sponsible for such act, though it would be criminal in him if
he were doing it in his own right.2 Where the manner of con-
ducting a business is the offense, and the agent or servant con-
Denoon, 81 W. Va. 122; S. v. Kit-
telle, 110 N. C. 560; Martin v. S., 30
Neb. 507; Mullins v. Collins, L. R.
9 Q. B. 292. As to whether knowl-
edge is necessary to warrant a con-
viction for illegal sales, see supra,
§ 128.
1C, v. Frost, 5 Mass, 53,
2C, v. Drew, 3 Cush. 279; C. v. Sin-
clair, 1388 Mass. 493; C. v. Fisher, 188
Mass. 504; C. v. Burke, 114 Mass.
261; C. v. Dowling, 114 Mass. 259;
S. v. Hoxsie, 15 R. IL 1; S. v. Mar-
chant, 15 R. I. 539; S. v. Walker, 16
Me, 241; S. v. Sullivan, 83 Me. 417;
S.. v. McGuire, 64 N. H. 529; Dela-
ware Div. Canal Co. v. C., 60 Pa. St.
' 867; Hays v. S., 18 Mo. 246; Elsberry
v. 8, 52 Ala. 8; P. v. Ackerman, 80
Mich. 588,
38. v. Chastain, 19 Oreg. 176; C. v.
Nickerson, 5 Allen, 518. But it is.
not correct to say as an absolute
rule that one acting under author-
ity from another must know that
the other has the right to give it.
So held in regard to violation by a
servant of the owner as to handling
stock of more than one brand: Wills
v. S., 40 Tex. 69.
4P. v. Price, 74 Mich. 37.
5P. v. Howard, 50 Mich. 289,
6S. v. Berkshire, 2 Ind. 207.
78. v. Haynes, 66 Me. 307.
8So held in regard to the taking
of oysters by non-residents acting as.
servants for a resident, the law not
allowing non-residents to take oys-
ters: S, v. Conner, 107 N, C, 981.
152
Ox. 14.] AGENCY. [$§ 191, 199.
trols or aids and assists in the regulation of the business, he
may be liable as well as the principal! But if the offense con-
sists in maintaining a nuisance or otherwise using premises in
an unlawful manner, one unlawful act of the kind done on the
premises by a servant will not render him guilty, the offense
of maintaining being that of the principal. |
§ 191. Liability of partners.— There can be no partnership
in crime; but if the members of a partnership are connected in
one joint criminal act, as keeping a gaming-house, making a
joint assault, or the like, they may be indicted jointly or sev-
erally,’ but they cannot both be convicted upon proof that one
alone committed the offense, even though the partnership is
shown.‘ If one partner, as agent for the firm and by agree-
ment with the other members, does an act the fruits of which
are shared by all, the other members become criminally liable
therefor. Indeed, where the business is one subject to regu-
lation, and one partner conducts it unlawfully, all the partners
may be rendered liable. As the partners are joint owners of
partnership property, there cannot be embezzlement thereof
committed by one partner.’
§ 192. Management of property.— Cases somewhat anal-
ogous to those of agency, arising out of the management of the
property of one by another, are to be determined on analogous
principles. The lessor is not criminally liable for the acts of
the lessee in managing the leased property, unless the statute es-
pecially so provides. Nor is the lessee responsible for the acts
of a contractor carrying on business on the premises without
the lessee’s control.? Where the general title to real property
is in a trustee, the cestut que trust is not answerable for a nui-
sance, unless he is in some way directly connected therewith." :
1C, v. Mann, 4 Gray, 218; C. v. as the offense of betting under a |
Drew, 3 Cush. 279; C. v. Brady, 147 statute: O’Blennis v. S., 12 Mo, 311.
Mass. 583; Stout v. S., 93 Ind. 150. Further as to joinder of partners as
2C, v. Churchill, 136 Mass. 148; defendants, see Barada v. 8. 13 Mo.
C. v. Galligan, 144 Mass. 171; C.v. 94; S. v. Presbury, 13 Mo. 342,
Murphy, 145 Mass. 250; S.v. Grave- 5S. v. Neal, 27 N. H. 181.
lin, 16 R. I. 407, 6S, v. Wiggin, 20 N. H. 449,
~ 38, v. Gay, 10 Mo. 440;S.v. Brown, 78. v. Kusnick, 45 Ohio St. 535.
49 Vt. 487. 8S. v. Coe, 72 Me. 456.
4Stevens v. S. 14 Ohio, 386.. The 9S. v. Emerson, 72 Me. 455,
advancing of money by partners 10P. v. Townsend, 3 Hill, 479,
in a faro table is not indictable
; 158
CHAPTER 15.
COMBINATIONS; PRINCIPAL AND ACCESSORY.
I. In GENERAL. | III. PROCEDURE IN CASE OF ACCES-
II, PRINCIPAL AND ACCESSORY. SORIES, ‘
I. In Generar.
§ 193. Act, as well as intent, essential.— Although, as
pointed out in a previous chapter, the criminal intent is an es-
sential element in crime, yet it is the criminal act which fur-
nishes the foundation for criminal liability. Intent alone does
not subject to criminal punishment. But one who procures an
act to be done, or assists in doing it, may be properly punished
therefor; and it is the purpose of this chapter to discuss the
various ways in which one may become criminally liable by
being connected more or less directly with the commission of
an offense. Several distinct propositions are involved: First,
the joint liability of all who participate in any way in doing
the criminal act; second, the liability of those encouraging the
crime, although not actually participating in the act; and third,
the liability of those who assist the criminal in his attempts to
evade the law after the crime has been committed. But some
technical distinctions have, for historical reasons, found a place
in this branch of the law which must be recognized and ex-
plained, although they interfere with the orderly presentation
and logical treatment of the subject.
§ 194. Participation necessary.— Some degree of participa-
tion in the criminal act must be shown in order to establish
any criminal liability. Proof that one has stood by at the
commission of a crime, without taking any steps to prevent it,
does not alone indicate such participation or combination in
the wrong done as to show criminal liability,? although he ap-
1 Supra, § 186. Hilmes v. Stroebel, 59 Wis. 74;.
2Connaughty v. S., 1 Wis. 159; Brown v. Perkins, 1 Allen, 89; P. v.
154
On. 15.] COMBINATIONS. [§ 194.
proves of the act.!| Even the fact of previous knowledge that
a felony was intended will not render one who has concealed
such knowledge, and is present at the commission of the offense,
a party thereto.” But it may be inferred that one who is pres-
ent and assents in the doing of an act from which he derives
a benefit has procured it to be done;* and mere presence is a
fact to go to the jury in connection with the other facts in the
case as tending to show participation. On the other hand, the
fact that some benefit may have accrued to the accused from
the doing of the wrongful act will not establish his liability, if
he was absent at the time of the commission of the act. Thus,
a sale of liquor in the prosecution of the business of the hus-
band, made -by the wife in his absence, will not establish the
husband’s criminal liability.’ But the circumstances may show
that in such case the wife was acting as the husband’s agent
and under his authority so as to render him liable.’ The gen-
eral doctrine as to liability of the principal for criminal acts of
his agent has been already considered.’ As presence with
knowledge is not enough to show criminal liability, so previous
knowledge without presence or encouragement will not be
sufficient.2 But here again evidence of privity in the plot to
commit a crime may go to the jury as tending to show crim-
inal participation? As will be seen in subsequent sections, par-
ticipation in the crime may be
into a combination to do the
Woodward, 45 Cal. 298; P. v. Ah
Ping, 27 Cal. 489; S. v. Farr, 33 Ia.
553; S. v. Cox, 65 Mo. 29; Butler v.
C., 2 Duv. 435; Kemp v. C., 80 Va.
443; 8. v. Hildreth, 9Ired. 440; Wicks:
v.S., 44 Ala. 398; U. S. v. Jones, 3
Wash. C. C. 220; Burrell v. S., 18 Tex.
713; Jackson v.S., 20 Tex. Ap. 190;
Floyd v.S8., 29 id. 245; Sharp v.&.,
29 id. 211; Rountree v. S., 10 id. 110;
Foster, 350.
1 Cabbell v. S., 46 Ala. 195; True v.
C., 90 Ky. 651; Cooper v. Johnson,
81 Mo. 483.
2Noftsinger v. 8.7 Tex. Ap. 301;
Rucker v. S., 7 Tex. Ap. 549; Smith
v. &, 283 Tex. Ap. 357. So one who
is present without approving, and
shown by evidence of entering
wrongful act, even though the
subsequently assists in concealing
the fact of the commission of the
crime, is not a principal: White v.
P., 81 Ill. 383.
3C. v. Stevens, 10 Mass. 181.
4Brown v. Perkins, 1 Allen, 89;
Burrell v. S., 18 Tex. 718; Foster,
390.
5Pennybaker v. S., 2 Blackf. 484.
6C. v. Lafayette, 148 Mass. 180.
And for asimilar case as to violation
of the revenue laws, see Attorney-
General v. Riddle, 2 Cr. & J. 493.
7 Supra, § 187.
8 Melton v. S., 48 Ark. 367; Reg. v.
Talfourd, 6 Cox, 333.
9Reg. v. Bernard, 1 F. & F. 240.
155
§ 195.]
CONNECTION WITH THE ACT.
[Parr {II.
accused took no actual part, but without some evidence of such
combination the accused can be held liable only for acts done
or procured by him;? so if the evidence tends to show that one
or the other of two persons committed the offense without any
agreement or concert of action, but does not fasten the crime
on either one beyond a reasonable doubt, neither can properly ,
be convicted.
§ 195. Persons acting together.— Two or more persons may
combine to commit one criminal act, and each may be punished
therefor as though the act were his alone.? Thus, all who par-
ticipate in a criminal enterprise are equally guilty of the crime
committed by one of their number in which the others, being
present, either participate or are ready to assist.‘ And where
there is a common enterprise, the presence of the accused at
the actual commission of the offense which is contemplated is
immaterial.
All who take part in the enterprise are equally
guilty, though the part which they take involves their absence
from the place of actual commission of the offense with which
they are charged;*° and one who executes a distinct part of
18. v. Westfall, 49 Ia. 328; Rex v.
Isaacs, 1 Russ., C. & M. 63; Reg. v.
Luck, 3 F. & F. 483. Evidence of
motive and opportunity to commit
the crime will not be sufficient in
the absence of evidence connecting
the accused personally with the act:
Johnson v. C., 29 Grat. 796.
2P, v. Woody, 45 Cal. 289; Wash-
ington v. S., 16 Tex. Ap. 376; Reg. v.
Turner, 4 F. & F. 339. But some-
what contra, see T, v. Yarberry, 2
N. Mex. 391. If two persons, with-
out concert, inflict wounds consec-
utively, the last of which is fatal,
the one inflicting the first wound is
not guilty of murder: Jordan v.&.,
79 Ala. 9.
3Dumas v. S., 62 Ga. 58; S. v.
Brown, 49 Vt. 437; P. v. Weber, 66
Cal. 391; Jordan v. 8., 82 Ala. 1; May-
hew v. Wardly, 14 C. B. (N. S.) 550.
49. v. Gooch, 105 Mo, 392; 8. v. Nel-
son, 98 Mo. 414; S. v. Murray, 126
Mo. 526; P. v. Cotta, 49 Cal. 166; P.
v. Geiger, 49 Cal. 648; S. v. Rawles,
65 N. C. 334; S.-v. Lucy, 41 Minn. 60;
Holtz v. S., 76 Wis. 99; Smith v. P.,
1 Colo. 121; T. v. Olsen, 6 Utah,
284: S. v. O’Neal, 1 Houst. Cr. C.
58; Dunman y. S, 1 Tex. Ap. 593;
Sharp v. 8.,6 Tex. Ap. 650; Reed v,
S.,11 Tex. Ap. 587; Kirby v. S., 23
Tex. Ap. 13; Reg. v. Bird, 2C. & K.
817; Reg. v. Bowen, Car. & M. 149;
Reg. v. Sheppard, 9C. & P. 121; Reg.
v. Thompson, 11 Cox, 362;, Reg. v.
Whithorne, 3 C. & P. 394; Reg. v.
Nezzell, 3 C. & K. 150.
5 Mitchell v. C., 33 Grat. 845; C. v.
Ahearn, 160 Mass. 300; Blaine v. S.,
24 Tex. Ap. 626; Rex v. Skerritt, 2
C. & P. 427; Reg. v. Hornby, 1 C. &.
K. 305; Rex v. County, 2 Russ., C. &
M. 230, 329; Reg. v. Greenwood, %
Den. 453; Reg. v. Hurse, 2 M. & R.
360; Rex v. Standley, Russ. & Ry.
305; Reg. v. Kelly, 2 Cox, 171. Thus,
in poaching, those who do not enter
the premises are equally guilty with
those who do, if they were engaged
in the common enterprise: Rex v-
156
Ox. 15.] COMBINATIONS, [§ 196.
the criminal act, as the execution of part of a forged instru-
ment, is chargeable with the entire crime, even though he does
not know who does the other part.! This subject is further
discussed in a subsequent section in regard to constructive pres-
ence of those charged as principals.? The rule does not depend
in any way on the technical distinction between principal and
accessory, but is a proposition founded on its own sound reason
and the general principles involving the joint liability of all
whose acts have a direct connection with the commission of .
the offense.’ It is evident, however, that the liability in these
cases depends on the combination or conspiracy to do the crim-
inal act, and that, unless such connection with it can be shown,
one of the parties is not responsible for acts done by the oth-
ers! Thus, though one person engages in a fight in which
another commits murder, the one participating but not inflict-
ing the fatal injury is not criminally responsible for the murder,
if there is no prior conspiracy between the parties, or any in-
citement or encouragement of the overt act on his part.’
§ 196. Whether or not act contemplated in the original
design.— It results from the principle stated in the preceding
section that every one connected with carrying out a common
design to commit a criminal act is concluded and bound by the
act of any member of the combination perpetrated in the prose-
cution of the common design.’ But it is not necessary that the
crime committed shall have been originally intended. Each is
accountable for all the acts of the others done in carrying out
the common purpose, whether such acts were originally con-
templated or not, if they were the natural and proximate re-
sult of carrying out such purpose;’ and the question whether
Dowsell, 6 C. & P. 398; Rex v. Pas-
sey, 7C. & P. 282; Rez. v. Whitta-
ker, 2C. & K. 636; Reg. v. Eaton, 2
Den. 274,
1Rex v. Dade, 1 Moody, 307; Rex
v. Kirkwood, 1 Moody, 304; Rex v.
Bingley, Russ. & Ry. 446; S. v. Stut-
son, Kirby, 52; Sasser v. S., 13 Ohio,
453; S. v. Mix, 15 Mo. 153.
2 Infra, § 206.
3 As to the causal connection in
cases of joint crime, see article by
Dr. Wharton, 20 Cent. L. J. 3.
. Wright v. S., 48 Tex. 170; S. v.
Brewer, 109 Mo. 648; Reg. v. Cruse,
8C. & P. 541; Reg. v. Lee, 4 F. & F. 63.
5 Woolweaver v. S., 50 Ohio St. 277;
Goins v. S., 46 Ohio St. 457; P. v.
Elder, 100 Mich. 515; S. v. White, 10
Wash. 611; S. v. Howard, 112 N.C.
859; S. v. Carson, 36 S. C. 524.
6 P. v. Olsen, 80 Cal. 122,
7 Pierson v. S., 99 Ala. 148; Turner
v. 8. 97 Ala. 57; Jolly v. S., 94 Ala.
19; Tanner v, S., 92 Ala. 1; Williams:
v. S., 81 Ala: 1; Martin v. S., 89 Ala.
157
§ 196.] CONNECTION WITH THE AOT. [Parr IIT.
the result is the natural and probable effect of the wrongful
act intended is for the jury.1 Thus, if several persons agree
to commit and enter upon the commission of a crime involving
danger to human life, such as robbery,’ or assault and battery,*
or resisting an officer,! or resisting arrest,’ all are criminally
accountable for death caused in the common enterprise. Thus,
also, if the unlawful enterprise is likely to meet violent re-
sistance, all will be liable for a felonious assault committed by
one of their number in consequence of such resistance; ° and if
the common design in general involves acts of violence, all who-
participate in the common plan are equally answerable for acts.
of others done in pursuance thereof, although the result was
not specially intended by them all.’’ If a conspiracy contem-
plates the destruction of human life and that result follows,
all who are connected with the conspiracy, or any of the steps
taken in carrying it out, will be responsible for the result, even.
though the object may not be effected in exactly the manner
contemplated.2 Even where the result is wholly unexpected,
as, for instance, if there is a plot to murder one person by
means of an explosive machine, and another person is acci-
dentally killed by the explosion, all participating in the orig-
inal conspiracy are accountable for the result.° The mere fact
that by mistake injury falls on one not intended to be injured:
S. v. Maloy, 44 Ia. 104; S. v. Herdina,
25 Minn. 161.
115; Gibson v. S., 89 Ala. 121; Smith
v. &, 88 Ala. 23; C. v. Glover, 111
Mass. 395; C. v. Campbell, 7 Allen,
541; S. v. Beebe, 17 Minn. 241; S. v.
David, 4 Jones, 353; S. v. Johnson, 7
Oreg. 210; Green v. S., 51 Ark. 189;
U.S. v. Boyd, 45 Fed. R. 851; Reg. v.
Swindall, 2 C. & K. 230; 1 Hale, P.C.
441.
1Spies v. P., 122 Ill. 1; Bowers v.
S., 24 Tex. Ap. 542.
2 Boyd v. U.S., 142 U.S. 450; S, v.
Barrett, 40 Minn. 77; Stephens v. S.,
42 Ohio St. 150; Reg. v. Jackson, 7
Cox, 357, Even though the accused
did not himself intend to take life
and prohibited others from doing
so: P. v. Vasquez, 49 Cal. 560.
3 Williams v. S., 81 Ala. 1; Peden
v. S., 61 Miss. 267; Brennan v. P., 15
Ml. 511; 8S. v. Simmons, 6 Jones, 21;
48. v. Zeibart, 40 Ia. 169.
5 Moody v. S., 6 Coldw. 299; Huling
v. S, 17 Ohio St. 583; Reg. v. Mc-
Naughten, 14 Cox, 576.
6 Hamilton v. P., 118 Ill, 34,
7 Williams v. S., 47 Ind. 568; Weston
v. C, 111 Pa. St. 251; U.S. v. Ross, 1
Gall. 624; Reg. v. Harrington, 5 Cox,.
231.
8Spies v. P., 122 Tl. 1._
®Reg. v. Bernard, 1 F. & F. 240.
But the result may be so far discon-
nected from the act that those en-
gaged in the original wrong will
not be accountable. Thus, where
accused engaged in a riot, and the
death of an innocent person was
caused by the firing of a pistol by
the police engaged in the suppres-
158
COMBINATIONS.
Cu. 15.] [§ 196.
by the wrong-doers will not excuse them from liability for the
act done.! And even though the participation consists only in
distributing inflammatory circulars, or publishing newspaper
articles of that character, inciting others to a course of action
the result of which would be homicide, such person is guilty
of a homicide committed in consequence thereof.’ In the cases.
cited in this section there has been either such a previous agree-
ment or such combination in the acts done as to indicate on
the part of the accused the intention that violence shall be
used involving danger to life. And if there is such intention
it is immaterial how trivial the wrong originally intended.*
And probably if a felony is contemplated, a criminal homicide
resulting in connection with the commission thereof is charge-
able to all who conspire to commit the felony.‘ But if the un-
lawful act intended was a mere trespass or misdemeanor, the
parties will not all be responsible for an unintended homicide
committed by one of them in connection with the carrying out
of the wrong intended.’ In cases of prize-fighting it has been
said that all who are present as spectators are indictable for
an assault committed in the fight,’ or even for death resulting
to one of the combatants.? But the court of Queen’s Bench
was afterwards divided as to whether mere spectators.were
liable for an assault thus committed in a prize-fight, the
majority holding that they could not be deemed to be aiding
and abetting in the assault.6 Certainly a mere stake-holder,
having nothing to do with the fight, and having no reason
to suppose that the life of a combatant would be imperiled,
would not be liable for manslaughter on account of death having
unexpectedly resulted from injuries received by such combat-
sion of the riot, it was held that the
accused was not liable for the homi-
cide: Butler v. P., 125 Tl. 641.
1 Wynn v.,S., 63 Miss. 260; S. v.
Greenwade, 72 Mo. 298.
2Spies v. P., 122 Tl. 1. So the ed-
itor of a newspaper may be guilty of
the statutory crime of encouraging
or endeavoring to persuade persons
to commit murder by reason of in-
flammatory articles published by
him, although they are not addressed
to any one in particular: Reg. v.
Most, 7 Q. B. D. 244.
3 Ritzman v. P., 110 Ill. 362; Ruloff
v. P., 45 N. Y. 218; Washington v. S.,
86 Ga, 222.
4Miller v. S., 25 Wis. 384; S. v.
Beebe, 17 Minn. 241; S. v. Shelledy, 8
Ta. 477; Reg. v. Howell, 9 C. & P. 487.
5 Reg. v. Skeet, 4 F. & F. 931.
6Rex v. Perkins, 4 C. & P. 538%
7 Rex v. Murphy, 6 C. & P. 103.
5 Reg. v. Coney, 8 Q. B. D. 534.
159
§ 197.] [Parr III.
CONNECTION WITH THE AOT.
ant.’ As indicated in a preceding section, there must be some
evidence or combination or conspiracy to render one of the.
parties liable for acts of the others.2 But the evidence of com-
bination need not be direct and positive. Such combination
may be shown from the circumstances connected with the
transaction.’ If, however, the injury is done by a person who
is not co-operating with the accused, the accused will not be
liable, although he was present at the time and engaged in the
unlawful act.*
§ 197. Acts outside of original design.— Those who par-
ticipate in the original unlawful combination or conspiracy are
not, however, liable for the acts of one of their number, who,
independently and not in pursuance of the original plan, com-
mits acrime.® Thus, all are not liable for unlawful acts done
by one of the number after the purpose of the combination
has been completed, or when he departs from the common
plan to do a wrongful act of his own intention.’ So, those
who engage in a conspiracy to beat another will not be guilty
of murder in a homicide committed by one of their number
without the knowledge of the others and not in pursuance of
the common plan, as, for instance, by the use of a deadly weapon
when the use of a deadly weapon was not intended by the
others.’ So, if the combination is to commit burglary, one of
the conspirators is not guilty of murder committed by another
not contemplated in the plan nor committed in his presence.’
1 Reg. v. Taylor, L. R. 2 C. C. 147.
2 Supra,§194. AndseeP. v. Leith,
52 Cal. 251; Rex v. Mastin, 6 C. & P.
396. Where a particular intent is
essential to the crime, the one who
cassists must have knowledge of such
intent to render him liable therefor:
Wagner v. S., 43 Neb. 1.
3 Miller v. Dayton, 57 Ia. 423; S. v.
Lucas, 57 Ia. 501; S. v. Squaires, 2
Nev. 226; S. v. Mix, 15 Mo. 1538;
Tanner v. S., 92 Ala. 1; Pierson v.
$.,99 Ala, 148; Taylor v. S., 9 Tex.
Ap. 100; Blain v. 8., 33 Tex. Ap. 236.
4Tharpe v. §., 13 Lea, 138; Brab-
ston v. S., 68 Miss. 208 (disapproving
Beets v. S., Meigs, 106); Rex v.
Murphy, 6 C. & P. 103,
5P, v. Olsen, 80 Cal. 122; Watts v.
8., 5 W. Va. 532; C. v. Drew, 4 Mass.
391; C. v. Nickerson, 5 Allen, 518;
S. v. Lucas, 55 Ia. 821; P.v. Hoogh-
kerk, 96 N. Y. 149; Rex v. Collison,
4C. & P. 565,
6P. v. Knapp, 26 Mich. 112; Reg. v.
Nickless, 8 C. & P. 757; Rex v. Hawk-
ins, 3 C. & P. 392; Rex v. White,
Russ. & Ry. 99.
78. v. Hickam, 95 Mo. 822; Nye v.
P., 35 Mich. 16; Brown v.S., 28 Ga.
199; Blain v. S, 30 Tex. Ap. 702;
Turner v. 8., 20 Tex. Ap. 56; Mercer-
smith v. 8. 8 Tex. Ap. 211; Reg. v.
Caton, 12 Cox, 624,
8 Lamb v. P., 96 IL 73,
160
Ca. 15.] COMBINATIONS. [$$ 198, 199.
So, if the combination is to commit personal injury, one of the
conspirators will not be liable for property wrongfully taken
by another from the person of the party injured!
§ 198. Abandonment of original design.— One of the par-
ties to a combination to do an unlawful act may abandon the
common purpose so as to relieve himself from liability for the
acts subsequently done in pursuance thereof.2. But such aban-
donment must be evidenced by some act or word calculated to
apprise the other confederates of such intention.’
§ 199. Accomplices; aiders and abettors.— These terms
are used in a loose way to indicate those who are not the prin-
cipal. actors in or instigators of the commission of the crime,
but who, to some extent, assist in its commission, or encourage
it beforeuand.* The term “accomplice” is sometimes used as
equivalent to accessory before the fact, hereafter to be consid-
ered.® An aider and abettor may be one who so far partici-
pates as to be present for the purpose of assisting if necessary,
and in such case he will be liable as principal, as will hereafter
appear The relation of aider and abettor does not refer espe-
cially, however, to the distinction hereafter made between prin-
cipal and accessory.’ Either an accomplice or an aider and
abettor will in general be principal or accessory, depending
upon whether he is present or absent when the crime is com-
mitted® As already indicated, something more than mere
presence, even accompanied with approval of the act done, is
necessary to make one an aider and abettor. There must be
some participation, either in the plan or its execution.® As is
1 Duffy v. P., 26 N. Y. 588; Reg. v. 5 Smith v.S., 13 Tex. Ap. 507; Cook
Barnett, 2 C. & K. 594, v. 8., 14 Tex. Ap. 96; Allison v. S., 14
28. v. Allen, 47 Conn. 121; Harris
v. S., 15 Tex. Ap. 629.
38. v. Allen, 47 Conn. 121; S. v.
Gray, 55 Kan. 135; Phillips v. S., 26
Tex. Ap. 228; Rex v. Edmeads, 3 C.
& P. 390.
4Thus, an indictment for mali-
ciously shooting, and aiding and
abetting therein, is defective: C. v.
Patrick, 80 Ky. 605. So under a stat-
ute providing for the punishment of
the principal only, an accomplice is
not punishable: Stamper v. C.,, 7
Bush, 612.
Tex. Ap. 122; O’Neal v.S., 14 Tex.
Ap. 582; Ogle v. S., 16 Tex. Ap. 361.
6 Jordan v. S., 81 Ala. 20; Raiford
v. S., 59 Ala. 106; S. ex rel. v. Tally,
102 Ala. 25; McCarty v. S., 26 Miss.
299; U. S. v. Henry, 4 Wash. C. C.
428; Green v. S., 13 Mo. 382. As to
the whole subject of principal and
accessory, see the subsequent sec-
tions of this chapter.
7U.S. v. Gooding, 12 Wheat. 460.
8 Johnson v. S., 2 Ind. 652; Cross
v. P., 47 Ill. 152.
§ Supra, § 194,
11 161
[Parr III.
§ 200.] CONNECTION WITH THE .ACT.
‘
suggested in a subsequent section,! consent to the crime on the
part of the person injured sometimes prevents any criminal lia-
bility for the act. At any rate, the person upon whom the
wrong is done cannot be deemed an accomplice. Thus, the
woman upon whom an abortion is procured, or attempted, is
not an accomplice in the crime.2 So a person to whom liquor
is illegally sold is not guilty of any offense.’ These conclusions
are not easily fitted into a general rule, but perhaps it may be
safely said that where a penal statute is intended for the pro-
tection of a particular class of persons, one of that class does
not become an accomplice by submitting to the injury, while
another person, not of that class, by encouraging the wrong,
may be guilty as an accomplice. Thus, where it was made
criminal for slaves to sell liquor, a white person purchasing
from a slave was held an accomplice in the crime.‘
§ 200. What is sufficient procurement or participation.
One who procures the crime to be committed is, of course,
criminally liable therefor, though his liability may be termed
that of an accessory rather than of a principal, as will hereafter
be shown.’ But direct procurement, in the sense of originat-
ing the design, is not essential. One who encourages the carry-
ing out of the criminal plan is equally guilty with the one who
plans and procures its execution;® and where one advises the
1 Infra, § 202.
2C. v. Wood, 11 Gray, 85; C. v.
Boynton, 116 Mass. 343; C. v. Drake,
124 Mass. 21; Dunn v. P., 29 N. Y.
523; S. v. Owens, 22 Minn. 288;
8. v. Pearce, 56 Minn. 226. And see
Ash v. S.,81 Ala. 76; 8S. v. Quinlan, 40
Minn, 55; Rex v. Jellyman, 8 C. & P,
604. As to corroboration of accom-
plice as witness, see infra, § 208.
38. v. Cullins, 53 Kan. 100; Harney
v. 8., 8 Lea, 118. Therefore the pur-
chaser may be compelled to testify
as to such purchases: C. v. Willard,
22 Pick. 476; S. v. Rand, 51 N. H. 361;
Wakeman v. Chambers, 69 Ia. 169,
48. v. Bonner, 2 Head, 135 (distin-
guished in Harney v. S., 8 Lea, 113,
cited above).
5U.5S. v. Sykes, 58 Fed. R. 1000; P.
v. Ryland, 97 N. Y. 126; §. v. Rucker,
93 Mo. 88; P. v. Ward, 85 Cal. 585;
Rex v. Sawyer, 1 Russ., C. & M. 670;
Rex v. Soares, 2 East, P. C. 974; Reg.
v. Gaylor, Dears. & B. 288. Thus,
the lessor of a house to be used for
purposes of prostitution is guilty of
keeping a disorderly house: P. v.
Erwin, 4 Denio, 129; Troutman v.S.,
49 N. J. 33. One who procures an-
other to be inveigled out of the state
is equally guilty with those who do
the act: Hadden v. P., 26 N. Y. 873.
6 Keithler v.S.,10 Sm. & M. 192;
Reg. v. Manning, 2 C. & K. 887; Reg.
v. Clayton, 1 C. & K. 128; Reg. v.
Hollis, 28 L. T. 455. But to render
one guilty by reason of acts or words
of encouragement they must have
been done or used with the intention
of encouraging or abetting: Hicks
v. U.S., 150 U.S. 442,
162
Ox. 15] | COMBINATIONS. [§ 200.
commission of a crime, the presumption is that the advising
had the etfect intended by the adviser, if the crime is committed
accordingly, unless the contrary isshown.' Indeed, it is not es-
sential that there should have been any direct communication
between the adviser and principal criminal. It is enough if,
through an intermediate agent, the commission of the crime is
procured.’ Nor is it essential that the aid or encouragement
given was a necessary factor in the result, without which it
would not have followed. It is enough if it facilitates the re-
sult, which might have been otherwise attained.’ There may
be criminal liability for inciting generally to the commission
of the particular crime or crimes of that character, though no
particular person is thus incited.‘ One who beforehand does
some act intended to assist in the subsequent commission of a
crime is liable therefor, though he was not present when the
crime was committed,’ and though no particular method of exe-
cution was agreed upon.’ One who, after the commission of a
crime, takes advantage thereof, or assists in disposing of the pro-
ceeds, may be an accessory after the fact, as will hereafter ap-
pear.’ Ifa statute defining the offense is silent in regard to crim-
inality for aiding or assisting therein, there may be liability on
the part of the one who thus aids and assists, though he does
not participate in the act itself.* Although manslaughter con-
sists of a homicide not purposely or maliciously caused, yet
1C. v. Bowen, 13 Mags. 356; Thomp-
son v. C., 1 Met. (Ky.) 13.
2 Rex v. Cooper, 5 C. & P. 535.
38. ex rel. v. Tally, 102 Ala. 25.
4 Reg. v. Most, 7 Q. B. D. 244; Spies
v. P., 122 TIL 1.
5 Reg. v. Tuckwell, Car. & M. 215.
As, for instance, where one furnishes
tools to a confederate with which
to commit burglary, even though
the tools are not actually used, pro-
vided the burglary is committed:
S. v. Tazwell, 30 La. An., pt. IT, 884.
But where tools were conveyed into
a jail to assist prisoners to escape, it
was held that one who made use of
such tools was not an accomplice in
the crime of conveying the tools
into the jail: Peeler v.S., 3 Tex. Ap.
. 538; Ash v. S., 81 Ala. 76,
6Griffith v. S, 90 Ala, 583; Ex
parte Willoughby, 14 Nev. 451.
TNorton v. P., 8 Cow. 137; Minor
v. S., 58 Ga. 551; House v. S., 16 Tex.,
Ap. 25; Rex v. King, Russ. & Ry.
332; Reg. v. Manning, Dears. 21. But
the fact that the participation was
only in disposing of the property
does not prove that the accused was
only an accessory after the fact. He
may beforehand have procured or
encouraged the commission of the
crime, and in that way may be ac-
cessory before the fact, or even prin-
cipal if, though not present, he did
some act in the general plan of com-
mitting the crime: Conner v. &., 25
Ga. 515.
8U.S. v. Mills, 7 Pet. 188; U.S. v.
Sykes, 58 Fed. R. 1000; C. v. Carter,
163
§§ 201, 202.] CONNECTION WITH THE ACT. [Parr ITT.
there may be an aider and abettor therein;! but not if the
aider and abettor in the act which results, but was not intended
to result, in a homicide, did not participate in any way in the
use of a deadly weapon, and therefore had no knowledge of
any intended wrong which would result in killing.’ To incite
to the commission of a crime may be in itself a crime, distinct
from the crime committed.’ Thus it is a misdemeanor to in-
cite to the commission of a misdemeanor.‘
§ 201. Detectives.— One whose participation in the crime
only as a detective, for the purpose of discovering and bringing
to punishment the criminal, is not an accomplice, nor an aider
and abettor, as he has not the criminal intent.’ This subject
has, however, been already discussed in the chapter relating to
intent.®
§ 202. Consent to crime; particeps criminis.— In discuss-
ing the subject of intent it has already appeared that, where
the offense is against property, consent of the owner will pre-
vent the injury thereto being criminal.’ It will hereafter ap-
pear, in discussing homicide, mayhem, assault and other crimes
that consent to serious physical injury cannot be given so as
.to deprive it of its criminal character. Where fraud is per-
petrated, the fact that the person injured is a party to the
fraud will deprive the transaction of its criminal character ;°
but where a fictitious check was given in payment of an illegal
and immoral debt, it was held that the wrong on the part of
the person defrauded would not prevent the punishment of
the fraud. This question must be discussed with reference to
each crime as to which it may arise, and any general discussion
would be superficial and inadequate.”
94 Ky. 527 (overruling Stamper v.C.,
7 Bush, 612); Baker v. S., 12 Ohio St.
214; Rex v. Potts, Russ. & Ry. 353,
Contra, 8. v. Hendry, 10 La. An. 207.
1 Hagan v.S., 10 Ohio St. 459, And
see infra, § 208.
2 Adams v. S., 65 Ind. 565.
3 Reg. v. Brawn, 1 C. & K. 144; Reg.
v. Quail, 4 F. & F. 1076,
4C. v. Hurley, 99 Mass. 433; Baker
v. 8., 12 Ohio St. 214 And as to in-
citement or solicitation as an at-
tempt, see infra, § 220.
5C. v. Hollister, 157 Pa. St. 18;
Harrington v. S., 36 Ala. 286; Will-
iams v. S., 55 Ga. 391; S. v. Brown-
lee, 84 Ia. 473; Reg. v. Bannen, 1 C.
& K. 295; Reg. v. Johnson, Car. &
M. 218,
6 Supra, § 117.
7 Supra, § 118,
8 McCord v. P., 46 N. Y. 470.
9 Dunn v. P., 4 Colo. 126.
0A general discussion may be
found in 1 Whart. Cr. L., §§ 141-150:
1 Bish, Cr. L., $§ 258-263.
164
Cu. 15.] PRINCIPAL AND ACCESSORY. [§§ 203, 204.
§ 203. Acts or declarations of accomplices or confeder-
ates.— Under the principle that all who participate in the
commission of an offense, either by way of procurement or
encouragement, or by doing acts in carrying out the criminal
purpose, are accountable therefor, it is held that the acts or
declarations of one of the parties combining to commit the
offense may be shown as against the others so far as such
acts or declarations were done or made in the prosecution of
the common plan.? But this is a matter of evidence rather
than of substantive law. On the other hand, it is a general
rule of evidence that the testimony of an accomplice will not
warrant conviction without corroboration.’
II. Principat anp Accessory.
§ 204. Distinetion.— There isa technical distinction between
different methods of participation in crime which depends on
historical rather than on logical reasons, and therefore is diffi-
cult to explain as conformable to any rational analysis of the
subject. The early idea of classification was to designate those
as principals in a felony who committed the overt act, while
those who were present aiding and abetting were deemed ac-
cessories at the fact, and those who, not being present, had
advised or encouraged the perpetration of the crime, were
deemed accessories before the fact. There was also the rela-
tion to the crime of accessory after the fact, which will be ex-
plained hereafter. But the accessory at the fact was deemed
equally guilty with the principal, and came to be called a prin-
cipal in the second degree; so that the relations to be here
1 Supra, § 195.
28, v. Soper, 16 Me. 293; S. v.
Myers, 19 Ia. 517; S. v. Phillips, 117
Mo. 389; Smith v. S., 46 Ga. 298; P.
v. Stanley, 47 Cal. 113; P. v. Lane,
101 Cal. 518; S. v. Thaden, 43 Minn.
253; Baker v. S., 7 Tex. Ap. 612;
Heard v. S., 9 Tex. Ap. 1; Post v. 8.,
10 Tex. Ap. 598.
3 An accessory after the fact isnot
an accomplice in such sense as to re-
quire corroboration: Lowery v. S.,
72 Ga. 649; Allen v. S., 74 Ga. 769;
S. v. Umble, 115 Mo. 452; P. v. Chad-
wick, 7 Utah, 1384. Contra, Chum-
ley v. S., 28 Tex. Ap. 87; Polk v.S.,
386 Ark. 117. Where the witness’ re-
lation to the crime constitutes a sub-
stantive offense and not merely the
relation of accessory after the fact,
corroboration is not required: Har-
ris v. S., 7 Lea, 124. The woman
upon whom an abortion is procured
or attempted is not an accomplice
in such sense as to require corrobo-
ration: Supra, § 199.
4Usselton v. P.,.149 Il. 612.
5 Accessories at the fact in murder
165
§ 205.] CONNECTION WITH THE ACT. [Parr III.
discussed are those of principal in the first and second degree,
accessory before the fact, and accessory after the fact. But it
must be carefully noticed in the first place that these terms do
not necessarily indicate differing degrees of criminality. The
principal in the first degree and in the second degree are guilty
of the same crime and subject to the same punishment;' and
this is also true as to accessory before the fact and principal.?
The distinction is based entirely upon technical reasons, and
not upon any inherent difference in moral accountability.? In
the second place, this distinction is not based on the difference
between simply procuring another to commit a felony and act-
ually doing the criminal act; for one who not only procures
but assists in the preliminary preparations does not thereby
become principal, while one who only advises or encourages
will be a principal in the second degree if present. The dis-
tinction between principal and accessory before the fact is this:
The principal is the one who actually does the criminal act or
participates in the doing of it, whether actually or only con-
structively present, or who is actually present at the doing of
it, aiding and abetting; while the accessory is one who has such
connection with the crime, by reason of preparation, procure-
ment, advice, or encouragement, as to be deemed criminally
liable therefor, but does not participate in the final commission
of the crime and is not present thereat.!
§ 205. Principals in first and second degree.— No further
description of the principal in the first degree, being the per-
son who directly commits the criminal act, is necessary, but it
is important to consider some questions with reference to who
is principal in the second degree. To constitute this form of
connection with the offense, the accused must have been pres-
ent when the offense was committed,’ although, as will be seen
are principals: S. v. Arden, 1 Bay, 698; Albritton v. S, 32 Fla. 358;
487. Hately v.S., 15 Ga. 346; S. v. Maxent,
1 Brown v. S., 28 Ga. 199. 10 La. An. 748; Bean v. S., 17 Tex.
2 Nuthill v.S., 11 Humph. 247; Freel Ap. 60; Reg. v. Jeffries, 3 Cox, 85;
v. S., 21 Ark, 212, Rex v. Stewart, Russ. & Ry. 363;
3 Usselton v. P., 149 Ill. 612, Rex v. Davis, Russ, & Ry. 113; Rex
4 Warden v. S., 24 Ohio St. 148; S. v. Kelly, Russ. & Ry. 421; Rex v.
v. Larkin, 49 N. H. 39; S. v. Clarke, Badcock, Russ. & Ry. 249; Rex v.
83 N. H. 829; P. v. Trim, 39 Cal. 75; Soares, 2 East, P. C. 974.
P. v. Gassaway, 23 Cal. 404; Wicks 5U.S. v. Holland, 3 Cranch, C. C.
v. S., 44 Ala, 398; Able v.C.,5 Bush, 254; U. S. v. Wilson, Bald. 78, 103;
166
Cu, 15.] PRINCIPAL AND ACCESSORY. [§ 206.
‘in the next paragraph, this presence may be constructive. Mere
presence, however, is not enough without some form of par-
ticipation.1 But those who, being present, aid and abet, or are
present for that purpose, although they actually do no wrong-
ful act whatever, are principals in the second degree.” It
seems not to be very well settled just, what amount of partici-
pation will make the person who is present principal in the
first degree, rather than in the second degree, and the point is
not of importance, inasmuch as there is no distinction what-
ever, either in the guilt or in the method of procedure, between
the two? As will be seen in a subsequent section, an indict-
ment of a principal in the second degree as principal simply is
sufficient, and will authorize his conviction. But certainly one
who is present and actually renders assistance in the commis-
sion of the crime is principal in the first degree.®
§ 206. Constructive presence.— It has already been stated
in this chapter ® that one who participates in the crime, by way
of preparation, is guilty thereof even though not present at its
commission. But if he~does not participate in the final crim-
inal act, he is deemed accessory rather than principal. If, how-
ever, he takes some part in the criminal act itself, then, though
he is not personally present, he is said to be constructively
present and a principal in the first degree; and it is not neces-
sary that the part he thus takes be an active one, if in the
carrying out of the final criminal act he is participating in the
common plan by doing something, or being ready to do some-
thing, in furtherance thereof, at a place other than that where
the act is consummated.’ Itis not necessary that accused shall
Rex v. Manners, 7 C. & P. 801; Reg.
v. Hurse, 2 M. & Rob. 360; Reg. v.
Jones, 9 C. & P. 761.
1Clem v. S., 38 Ind. 418; Wade v.
8. 71 Ind. 535. And see supra, § 194,
2C. v. Stevens, 10 Mass. 181; C. v.
Chapman, 11 Cush. 422; C. v. Rob-
erts, 108 Mass. 296; Blackburn v. S.,
23 Ohio St. 146; State v. Gorham, 55
N. H. 152; S. v. McGregor, 41 N. H.
407; S. v. Valwell, 66 Vt. 558; Wash-
ington v. S., 68 Ga. 570; C. v. Carter,
94 Ky. 527; S. v. Putnam, 18 8. C.
175; Alterberry v. S., 56 Ark. 515;
Thomas v. S., 43 Ark. 149; S. v. Ellis,
12 La. An. 390; Rex v. Royce, 4 Burr.
2073; Reg. v. Cuddy, 1 C. & K. 210;
Reg. v. Young, 8 C. & P. 644; Reg:
v. McPhane, Car. & M. 212; Rex v.
Dyson, Russ. & Ry. 523; Rex v. Potts,
Russ. & Ry. 353.
38. v. Davis, 29 Mo. 391.
4 Infra, § 213.
5§. v. Hollenscheit, 61 Mo. 302,
6 Supra, §§ 195, 200.
7Tate v. S., 6 Blackf. 110; Stipp v.
S. 11 Ind. 62; Green v. S, 13 Mo.:
882; C. v. Harley, 7 Met. 462; Trim
167
[Parr III.
207. CONNECTION WITH THE ACT. ,
‘ \
have been in sight or hearing of those who committed the
crime, in order to render him a principal, if he participated in
the common design! For instance, one who keeps surveillance
over the owner of the property, and endeavors to keep him °
away from the place of the crime, is constructively present; ?
or one who in robbery stays outside of the building on guard;*
or one who is near by for the purpose of assisting in carrying
away the property stolen.« Where the agent of a railroad
company stayed away from his post of duty in order to facili-
tate the stealing of property from the company, he was held
to be a principal.
§ 207. Accessory before the fact.— The preceding discus-
sion as to what is such instigation or procurement as to render
one punishable for an act which he does not directly commit,
and as to the distinction between principal and accessory,’ has
substantially covered the ground as to who are to be deemed
accessories before the fact. But some questions still remain
for elucidation. It will be apparent from the preceding dis-
cussion that guilt as an accessory presupposes the existence of
a guilty principal, and this furnishes the reason for the rule to
be hereafter stated, that one charged as accessory cannot be
convicted until the conviction of the principal. If one pro-
cures the doing of a criminal act through an innocent agent,
though he may not be present at the time the act is done, he
v. C.,18 Grat. 983; S. v. Hamilton, 13
Nev. 386; 8. ex rel. v. Tally, 102 Ala.
25; S. v. Douglass, 34 La. An. 523;
Berry v.5.,4 Tex. Ap. 492; Phillips
v. S., 26 Tex. Ap. 228; Truitt v. S., 8
Tex. Ap. 148; Welsh v. S., 3 Tex. Ap.
413; U. S. v. Boyd, 45 Fed. R. 851;
Reg. v. Kelly, 2 C. & K. 379; Rex v.
Jordan, 7 C. & P, 482; Rex v. Gog-
erly, Russ. & Ry. 343; Reg. v. Mo-
land, 2 Moody, 276; Reg. v. Murphy,
6 Cox, 340; Rex v. Passey, 7 C. & P.
282,
1McCarney v. P., 88 N. Y. 408;
Williams v. P., 54 IIL 422; Spies v.
P., 122 Ih. 1.
2 Breese v. 8., 12 Ohio St. 146.
" 88tephens v. S., 42 Ohio St, 150.
4C. v. Lucas, 2 Allen, 170: Selvidge
v. S., 30 Tex. 60; Rex v. Owen, 1
Moody, 96. In Texas it has even
been held that one who participated
in the original plan, and afterwards
assisted in another state or county
in disposing of the property, was
principal: Sutton v. S., 16 Tex. Ap.
490; Scales v. S.,7 Tex. Ap. 361; Mc-
Keen v. S, 7 Tex. Ap. 681. But
subsequent assistance without any
participation in the intent to com-
mit the crime itself will not render
one a principal: Walker v. S8., 29
Tex. Ap. 621.
5S. v. Poynier, 36 La. An, 572,
6 Supra, § 200.
TSupra, § 204.
8 Infra, §§ 215, 216.
168
Cu. 15.] PRINCIPAL AND ACCESSORY. [§ 208.
is principal and not accessory ;' while if a felony is committed
through a guilty agent, the one who causes it to be committed
is accessory only, and must be indicted as such.2 Moreover, if
the principal in a transaction is not criminally liable under the
laws of the jurisdiction where the act is done, another person
* cannot be guilty of crime in aiding and abetting the doing of
such act, unless he has himself done an act rendering him
criminally liable as principal. In general, one cannot be in-
dicted for counseling another to commit a felony, unless the
felony is actually committed* So in cases of suicide, the one
who incites another to the commission of a suicide is not guilty
in the suicide committed in pursuance of such instigation, for
there is no guilty principal, and there cannot, therefore, be an
accessory.®
§ 208. Accessory in manslaughter.— Although manslaughter
is a form of homicide in which the killing is usually not in-
tended, yet it is held in some cases that there may be such con-
nection, on the part of an accessory before the fact, with the
wrongful act which is intended and which causes death in its
perpetration, that the accessory, as well as the principal, will
be guilty.6 There is venerable authority, however, for the
proposition that there can be no accessories in manslaughter ; *
and while it has been attempted to limit these statements to.
manslaughter of the character generally known as involuntary,
and to argue that there may be an accessory before the fact to
some forms of homicide committed without malice afore-
thought — for instance, where death results, unintended, from a
criminal act not amounting to a felony, which act defendant
procured or encouraged the commission of, not being present,’—.
18, v. Wyckoff, 31 N. J. 65. Thus,
a person in one jurisdiction may, by
means of an innocent agent, be prin-
cipal in the commission of a crime
in another jurisdiction, and may be
there punished if his presence can
be secured: P. v. Adams, 3 Denio,
190; C. v. Hill, 11 Mass. 136. Further
as to liability for crime committed
in another jurisdiction, see infra,
§ 211. ;
2P, v. Lyon, 99 N. Y. 210,
3U. 8. v. Libby, 1 Woodb.'& M. 221.
4Reg. v. Gregory, L. R. 1 ©. C. 77.
5 Reg. v. Leddington,9 C. & P.79;
Rex v. Russell, 1 Moody, 356; Reg.
y. Fretwell, 9 Cox, 152,
6 Hagan v. S., 10 Ohio St. 459; P. v.
Newberry, 20 Cal. 439; Brown v.S.,
28 Ga. 199; Freel v. S., 21 Ark. 212;
8S. v. Coleman, 5 Port. 32; S. v. Rob-
inson, 12 Wash. 349.
TBibithe’s Case, 4 Coke, 48, b; 1
Hale, P. C. 437.
8Reg. v. Gaylor, Dears. & B. 288;
S. v. Hermann, 117 Mo. 629 (over-
169
oe
|
§ 209.] CONNECTION ‘WITH THE ACT. [Parr IIL.
yet it is doubtful if there is any case directly holding that there
can be a conviction of manslaughter under such circumstances.
Of course one who is present, aiding and abetting, though with-
out participation in the act, may be guilty of the manslaughter,'
and that seems to be practically all that is decided in the cases
cited to the first note under this section. Perhaps under stat-
utes making accessories guilty as principals the result might be
different? If the person charged as accessory did not aid and
abet in any act tending to imperil life, it would seem that he
should not be held guilty of the homicide?
§ 209. Accessory after the fact.— One who is not con-
nected with the crime until after its commission cannot in
general be punished as principal.‘ But the common law recog-
nizes guilt on the part of one who, after the commission of the
felony, assists the felon to escape punishment, and the person
occupying this relation to the crime is called an accessory after
the fact to that crime; but the wife of the felon is said not to
be guilty in rendering such assistance to her husband.’ The
theory of liability of accessory after the fact is undoubtedly
that he is guilty of the crime committed by the felon, and
punishable therefor. But the principal cannot at the same
time be deemed an accessory after the fact; if he is present at
the commission of the crime he would at least be principal in
the second degree and not an accessory.’ To render one an
accessory after the fact it must appear a felony had been com-
ruling S. v. Phillips, 117 Mo. 389,
where there is a dictum the other
way. But the statement in the
Hermann case is also dictum, for
the accused was present, and was
therefore principal and not acces-
sory). A question somewhat anal-
ogous arises as to assaults with
intent to commit manslaughter
(infra, § 278), but the absence of the
accessory makes a manifest distinc-
tion.
1Stipp v. S, 11 Ind. 62; Goff v.
Prime, 26 Ind. 196; Rex v. Murphy,
6C. & P. 103.
28, v. Hermann, 117 Mo. 629.
3 Adams v.S., 65 Ind. 565; Reg. v.
Caton, 12 Cox, 624,
4P. v. Sligh, 48 Mich. 54; Rex v.
McMakin, Russ. & Ry. 333, n.; Rex
v. Dyer, 2 East, P. C. 767..
51 Hawk. P. C, ch. 1,810. By
Texas statute relatives in the direct
line of consanguinity or affinity can-
not be accessories: Gray v. S, 24
Tex. Ap. 611.
6Long v. S&S, 1 Swan, 287; S. v.
Payne, 1 Swan, 3838; S. v. Reed, 85
Mo. 194; Reg. v. Richards, 2 Q. B. D.
311; Rex v. Greenacre, 8 C. & P. 35;
Reg. v. Munday, 2 F. & F. 170; Rex
v. Morris, 2 East, P. C. 748,
7P, v. Chadwick,7 Utah, 184; Reg.
v. Perkins, 2 Den. 459,
170
Ox. 15.] PRINCIPAL AND ACCESSORY. [§, 209.
pleted, that the accused had knowledge of the guilt of the
felon, and that he received, relieved, comforted, or assisted
him.’ Thus, if it appears that no felony was actually com-
mitted, or that it was not completed at the time the assistance
was rendered, the accused is not punishable as accessory after
the fact to such felony.? The mere concealment of the crime,
or failure to take any steps to apprehend the 'felon, will not
constitute one an accessory after the fact. There must be a
harboring of the criminal, or aid and assistance furnished to
him with a view to assist him in escaping from justice’ But
the rendering of assistance of that kind, either by accused or
by another through his procurement, will be sufficient to con-
stitute guilt. Such assistance must be rendered, however,
with knowledge of the commission of the crime.’ As to whether
at common law the receiving and aiding in concealing or dispos-
ing of property procured by larceny or robbery would render
the one thus assisting an accessory after the fact to the felony
seems not to have been well settled under the common-law
authorities, but there are some cases which indicate that this
was deemed a sufficient connection with the crime to establish
the common-law liability;* there are, however, cases to the
contrary.’ But receiving stolen goods is generally punishable
as a substantive offense.° There cannot, of course, be an ac-
cessory after the fact unless there is a guilty principal." The
1Wren v. C., 26 Grat. 952; Tully ‘Blakely v. S, 24 Tex. Ap. 616;
v. ©, 11 Bush, 154.
2 Poston v. S., 12 Tex. Ap. 408.
3 Harrel v. S., 89 Miss. 702. In this
case accused was charged as acces-
sory after the fact to murder, but it
appearing that the supposed de-
ceased had not yet died from the in-
juries received at the time the assist-
ance was rendered to the assailant,
it was held that accused was not
guilty as accessory after the fact to
the murder, though he might have
been guilty in occupying that rela-
tion to the crime of assault with in-
tent to kill.
4S. v. Hann, 40 N. J. 228; Carroll
v. S, 45 Ark. 539; Green v. S, 51
Ark, 189,
5 Reg. v. Chapple, 9 C. & P. 355.
Rex v. Jarvis, 2 M. & Rob. 40; Rex
v. Lee, 6 C. & P. 536; Reg. v. Smith,
L, R.1C. C. 266.
78. v. Davis, 14 R. I, 281; Robbins
v. 8. 33 Tex. Ap. 573; Rex v. Green-
acre, 8 C. & P. 35; Reg. v. Butter-
field, 1 Cox, 89.
8 Reg, v. Butterfield, 1 Cox, 39. At
least this was made so by English
statute (8 W. & M., ch. 9, §§ 4 and 5;
Ann, ch. 31, § 5): 1 Hawk. P. C. 232,
9P. v. Shepardson, 48 Cal. 189; S.
v. Calvin, 22 N. J. 207; Rex v. Morris,
2 East, P. C. 748.
10 Infra, § 218. And in general as
to receiving stolen goods, see infra,
§ 713.
11 Edwards v. S., 80 Ga, 127.
171
§ 210.] CONNECTION WITH THE ACT. [Parr III.
general rules hereafter stated as to the necessity of a convic-
tion of the principal before the trial or conviction of the ac-
cessory, are applicable to accessories after the fact as well as
to accessories before the fact. The indefiniteness of the law
as to accessory after the fact is largely due to the interference
of legislation, which has made substantive crimes out of the
receiving of stolen goods, the assisting of felons to escape, etc.,
which may at common law have been deemed sufficient to
justify a conviction for the felony of one related thereto as ac-
cessory after the fact. Moreover, English statutes took away
benefit of clergy in many cases from principals and accessories
before the fact, and left accessories after the fact entitled to
this privilege, which amounted substantially to an exemption
from punishment; and finally the whole theory on which an
accessory after the fact was deemed guilty of the felony com-
mitted is repugnant to enlightened views of criminal liability
and has fallen into disuse; and it may be stated as the present
law, both in England and the United States, that one who
harbors or assists the felon, or aids him in disposing of the
fruits of the crime, is punishable only as his case comes within
the description of some substantive offense created by statute.!
§ 210. Crimes in which accessories not recognized.— The
distinction between principal and accessory is peculiar to fel-
onies. In misdemeanors, those who, if the offense had been a
felony, would be deemed accessories before the fact, are consid-
ered simply as principals, presence or absence at the time of
the commission of the offense being immaterial.2 And it seems
that this is also true in petit larceny, though at common Jaw
it was a felony.’ It is important to notice that the doctrine
that there are no accessories before the fact in misdemeanors
11 Bish. Cr. L., § 692 et seq.
2C. v. Harrington, 3 Pick. 26; C.
v. Ray, 3 Gray, 441; C. v. Brockway,
150 Mass. 822; C. v. Ahearn, 160
Mass. 300; S. v. Murdoch, 71 Me, 454;
P. v. Erwin, 4 Denio, 129; Stratton
v. S., 45 Ind. 468; 8S. v. Gurnee, 14
Kan. 111; Wagner v. S., 43 Neb. 1;
Williams v. S., 20 Miss. 58; S. v.
Westfield, 1 Bailey, 182; Whitaker
v. English, 1 Bay, 15; Curlin v. 8, 4
Yerg. 143; Atkins v. S., 95 Tenn.
474; U. 8. v. Gooding, 12 Wheat.
460; U.S. v. Sykes, 58 Fed. R. 1000;
U.S. v. Snyder, 14 Fed. R. 554; U.S.
v. Williams, 1 Cranch, C. C. 174;
Reg. v. Waudby, 2 Q. B. D. (1895)
482; Reg. v. Greenwood, 2 Den. 453;
Reg. v. Clayton, 1C. & K. 128; Reg.
v. Whittaker, 1 Den. 310.
3'Ward v. P., 6 Hill, 144; S. v, Fox,
94 N. C. 928; U. S. v. Holland, 3
Cranch, C, C, 254; 12 Coke R, 81; 2
Inst. 183.
172
Cu. 15.] PROCEDURE AS TO ACCESSORIES. (§ 211.
does not mean that there is no criminal liability for procuring
or instigating the commission of the offense, but that on the
other hand there is such liability wherever the procurement or
instigation has a causal connection with the commission of the
crime under the principles heretofore discussed ;! the only dif-
ference, so far as it appears, between a felony and misde-
meanor in this respect, being that the technical distinction
recognized in felonies between the presence and the absence of
the accused at the commission of the act is not noticed in cases
of misdemeanor.? It is also said that there can be no acces-
sories after the fact in a misdemeanor;? but this does not mean
that accessories after the fact to a misdemeanor are deemed
principals, but on the contrary they are not guilty of any of-
fense,‘ unless, of course, of some substantive crime described
by statute. The text-books also say that no accessories are
recognized in treason,’ thus coupling the highest and the lowest
grades of offenses, and this statement is repeated in some of
the cases,® but there do not seem to be direct adjudications illus-
trative of the doctrine.
III. Procepure as To AccESssoRIES.
§ 211. Jurisdiction and venue.— The general proposition
that one who commits a crime is amenable therefor in the juris-
diction where it is committed disposes of most of the cases in
which the question of jurisdiction hasarisen. Thus, if a person
in one state or country, by means of an innocent agent, causes
a crime to be committed in another state or country, he thereby
violates the law of the jurisdiction where the act is done by
1 Supra, § 200.
21t is said in C. v. Ahearn, 160
Mass. 300, that there may be excep-
tions to this rule, and reference is
made to 1 Bish. Cr. L., § 657, and 1
Whart. Cr. L., § 225. But no adju-
dications have been found which
justify the statement of any distinc-
tion. It is doubtless true, however,
as suggested in the authorities cited,
that the instigation or procurement
deemed sufficient to constitute guilt
must be more closely related to the
commission of the act in case of
petty misdemeanors than where the
crime is one of greater magnitude.
3C. v. Macomber, 3 Mass, 254; C.
v. Barlow, 4 Mass. 439.
412 Coke R. 81; Ward v. P., 6 Hill,
144,
51 Hale, P. C. 188; 1 Hawk. P. C.,
ch. 17, § 39; Foster, 213; 4 Bl. Com.
85; 1 Bish. Cr. L., § 681; 12 Coke R.
81; 2 Inst. 183; 3 id. 188.
6 Whitaker v. English, 1 Bay, 15;
Chanet v. Parker, 1 Mill, Const. 333;
C. v. Ahearn, 160 Mass, 300.
173
§ 211.]. CONNECTION WITH THE ACT. .[Pagr III:
the innocent agent, and may be tried and punished there if the
court can acquire jurisdiction of his person, just as he would be
amenable to punishment if the crime had been accomplished by
putting in motion some material force not involving the inter-
vention of any independent human agency.' In cases of mis-
demeanor all the participants in the crime being deemed
principal whether present or absent,’ those who take part in
the common enterprise resulting in the commission of a misde-
meanor are guilty thereof in the jurisdiction where the mis-
demeanor is committed.’ In cases of conspiracy, conspirators
who are absent from the state are guilty of the conspiracy with
those who carry it out in the jurisdiction where it is executed ; *
and, in general, all who may be charged as principals in the
offense are punishable for the crime in the jurisdiction where
it is committed.’ But where the relation to the crime is that
of accessory and not of principal, some courts hold that the
jurisdiction is in the state or county where the acts were done,
constituting the accused an accessory, and not where the crime
was committed with which he is charged as being accessory.°
It is insisted, however, that this doctrine is founded on an im-
proper conception or application of the common-law rule as to
.venue in cases of accessories, to be explained in the latter part
of this section, and should not be followed in determining the
question of jurisdiction; but that all who are guilty of the crime,
whether in the relation of principal or accessory, are amenable.
to punishment where the crime is committed.?’ As the English
cases usually referred to in this connection are nearly all cases
in which the question is between different counties in England,
they bear on the question of venue rather than that of jurisdic-
1p, vy. Adams, 3 Denio, 190; P.v.' C. v. Gillespie, 7 Serg. & R. 469;
Rathbun, 21 Wend. 509; Noyes v. Noyes v.S., 41 N. J. 418,
S., 41 N. J. 418; 8. v. Chapin, 17 Ark. 58. v. Hamilton, 138 Nev. 386; Sut-
561; C. v. Pettes, 114 Mass. 807; C.v. ton v.S., 16 Tex. Ap. 490; Scales v.
Hill, 11 Mass. 136; Rex v. Brisac,4 S.,7 Tex. Ap. 861; Berry v.S., 4 Tex.
East, 164; Reg. v. Garret, Dears. 232; Ap. 492; Bybee v. S., 4 Tex. Ap. 505;
Foster, 349; 1 Chitty, Cr. L. 191. ' Carlisle v. 8, 31 Tex. Ap. 587; Rex
2 Supra, § 210. v. Andrews, 2 M. & Rob. 87.
3C, v. Eggleston, 128 Mass. 408; C. &Noyes v. S., 41 N. J. 418; S. v.
v. Gillespie, 7 Serg. & R. 469; Bark- Chapin, 17 Ark. 561; 8. v. Moore, 26
hamsted v. Parsons, 8 Conn. 1; N. H. 448,
Duckett v. 8., 98 Ga. 415, 78. v. Grady, 34 Conn. 118; 1 Bish.
Cr. L.,§ 111.
174
Cu. 15.] PROCEDURE AS TO; ACCESSORIES. L§ 212.
tion between independent sovereignties, and throw but little
light on the question; and the position taken in the note last
above seems to,be reasonable and essential to the administra-
tion of justice, for clearly there can be no adequate prosecution
of the accessory in the foreign jurisdiction i in which his acces-
sorial acts are done. Ifthe crime is in the same jurisdiction as
that in which the accused became accessory, though in another
county, the situation is quite different. The question is then
one of venue only, which may be settled by statute. It is true
that in England it. was thought at one time that if the accused
became accessory to a crime in a different county from that in
which the crime was committed, he could be indicted in neither.!
But there seems to; have been a difference of opinion on this
question;? at any rate the difficulty was settled by statute,*
which provided that the crime of the accessory might be in-
quired into in the county where his acts as accessory were done;
and there are statutes. in the various states making the accessory
punishable in accordance with the English statute, in the county
where he acts, or in accordance with a more liberal and effect-
ual policy, either in the county where the accessorial act is done,
-or in the county where the crime itself is committed.
§ 212. Indictment; joinder.— The general rules of proced-
ure in criminal cases authorize joinder i in one indictment of alk
who are criminally liable for the crime charged. As appli-
cable to principals there is no question as to the correctness.
of such practice, the rule being the general one of procedure.*
So an accessory before the fact may be charged in the same
count with the principal, the facts making him an accessory
being alleged in addition to the facts showing the commission
of the crime by the principal;* and where the accessory is
11 Hale, P. C. 623. under a statute declaring that aiders
21 Kast, P. C. 362.
32 & 3 Edward 6, ch, 24; 1 Hale,
P. C. 628.
4P. v. Hodges, 27 Cal. 340; Tully
v. C., 18 Bush, 142; S. v. Moore, 26
N. H. 448; Baron v. P., 1 Parker, Cr.
R. 246; P. v. Mather, 4 Wend. 229;
Carlisle v. §., 81 Tex. Ap. 587; S. v.
Hamilton, 13 Nev. 386.
51 Bish. Cr. Pr., § 463; Reg. v. Cas-
par, 9C. & P. 289, And this is true
and abettors may be charged as prin-
cipals: 8. v. King, 9 Mont. 445; or
where the statute makes the aiding,
abetting or procuring, and the com-
mission of the crime, distinct of-
fenses: Hartshorn v. S., 29 Ohio St.
635.
6C. v. Glover, 111 Mass. 395; Pettes
v. C., 126 Mass. 242; S. v. Atkinson,
40S. C. 868; Loyd v. S&., 45 Ga. 57;
Rex v. Morris, 2 Leach, 1096.
175
§ 213.] [Parr III.
CONNECTION WITH THE ACT.
charged in the same count with the principal, it is not neces-
sary to repeat in the portion thereof referring to the accessory
the allegations already made in the same count as to the com-
mission of the offense by the principal, if such allegations are
properly referred to.!_ Principal and accessory may, however,
be charged in separate counts,’ and if there is any doubt as to
whether a particular defendant was principal or accessory, the
indictment should charge both forms of guilt in separate counts.*
So in different counts the same defendant may be charged with
being an accessory before the fact and an accessory after the
fact. The count charging one or more of the defendants as
aceessories may be rejected as-surplusage, if the evidence shows
all to have been principals.’ It seems that the prosecution
cannot be compelled to elect between counts charging as prin-
cipal and as accessory. The right of separate trials where
principal and accessory are jointly indicted is usually regulated
by statute and left within the discretion of the court.’ If the
principal and accessory are jointly indicted, they may be tried
together.®
§ 213. Charging principals.— The accused may be charged
as principal, although he procured a crime to be committed by
another, if he was so related to the crime as to be deemed in
law the principal in its commission. Thus, a charge as princi-
pal is supported by proof of the doing of the act by an agent.®
And so in misdemeanors, all the participants being principals
may be charged as such whether present or not.” It is imma-
1C. v. Cohen, 120 Mass. 198; C. v.
Adams, 127 Mass. 15; 8. v. Ruby, 68
Me, 548; Everett v. S., 33 Fla. 661.
But where the accessory is charged
in a separate count it should be com-
plete in itself: T. v. Conley, 2 Wyo.
324,
2Miller v. 8. 25 Wis. 384; C. v.
Chiovaro, 129 Mass. 489.
3C. v. Knapp, 10 Pick. 477; S. v.
Testerman, 68 Mo. 408; P. v. Valen-
cia, 43 Cal. 552, ‘
4Rex v. Blackson, 8 C. & P. 43.
5P.v. Ah Hop, 1 Idaho (N. S.), 698,
6S, v. Sawtelle, 66 N. H. 488; Rex
v. Blackson, 8 C. & P. 48. But after
the evidence for the prosecution is
in, an election may perhaps be re-
quired: Simms v. S., 10 Tex. Ap. 181.
This question, however, is one of
procedure and need not be further
discussed here.
7 Loyd v. S., 45 Ga. 57; S. v. Yancy,
1 Treadw. Const. 241; S. v. Washing-
ton, 83 La. An. 1473; Reg. v. Fisher,
3 Cox, 68,
8Sampson v. C., 5 Watts & S. 385;
S. v. York, 87 N. H. 175.
® Parker v. S., 4 Ohio St. 563; Col-
lins v. S., 88 Ga. 347.
10C, v, Harrington, 3 Pick. 26; C. v.
Wallace, 108 Mass. 12; Stratton v.S., ~
45 Ind. 468. And in such cases it is
immaterial that the charge is of aid-
176
Cu. 15.] PROCEDURE AS TO ACOESSORIES,
[§ 214.
terial as to one who is properly charged as principal that he
is said to have acted with another.! No distinction in the form
of the charge is necessary between principals in the first and in
the second degree. Those charged as principals in the crime,
without designation of the degree, and therefore as principals
in the first degree, may be convicted on proof of being present,
aiding and abetting.’ So, if the indictment charges one of the
defendants with aiding and abetting, he may be convicted on
proof of his being the actual perpetrators Even where the
indictment charges the aiding and abetting on the part of the
accused, it is not necessary to state the particulars of the aid
or assistance rendered by him.‘
§ 214. Charging accessories.— Under the common-law dis-
tinction between principal and accessory, one indicted as prin-
cipal cannot be convicted as an accessory.’ So, on the other
hand, one who is charged as accessory cannot be convicted if the
evidence shows him to have been principal. The indictment
maust be specific as to whether the charge is as principal or as
accessory ;7 and in charging one as accessory it must allege the
facts showing the commission of the crime.’ So under a charge
as principal one cannot be convicted as accessory after the
fact.2 If the indictment in charging the accessory erroneously
3Benge v. C, 92 Ky. 1; S. v. Lit-
tell, 45 La. An. 655.
ing and abetting: S. v. Nowell, 60
N. H. 199.
1 Watson v. S., 28 Tex. Ap. 34; S. v.
Davis, 29 Mo. 391.
2C. v. Chapman, 11 Cush. 422; S. v.
Ross, 29 Mo. 82; 8. v. Dalton, 27 Mo.
13; S. v. Blan, 69 Mo. 317; Warden
v. S., 24 Ohio St. 143; Doan v. S., 26
Ind. 495; Williams v. S., 47 Ind. 568;
Hill v. 8., 42 Neb. 503; S. v. Kirk, 10
Oreg. 505; Young v. C., 8 Bush, 366;
Collins v. S., 88 Ga. 347; U.S. v. Doug:
lass, 2 Blatch. 207. But it seems to
have been held, contrary to the
weight of authority, that where the
accused is charged as an actor or
absolute perpetrator he cannot be
convicted on evidence of aiding and
abetting: Washington v. S., 36 Ga.
222; Shaw v. S., 40 Ga. 120; S. v.
White, 7 La. An. 531; 8. v. Black-
man, 35 La. An. 483; Davis v. 8, 3
Tex, Ap. 91.
12
4Coffin v. U. S., 156 U.S. 482; S.v.
Buzzell, 59 N. H. 65; S. v. Wyckoff,
31 N. J. 65; Wade v. S., 71 Ind. 535.
5Philipps v. S., 26 Tex. Ap. 228;
Rix v. S., 83 Tex. Ap. 353; Smith v.
S., 37 Ark, 274; Hughes v.S., 12 Ala.
458,
6 Rex v. Gordon, 1 East, P. C. 352,
TP. v. Schwartz, 32 Cal. 160.
8P. v. Crenshaw, 46 Cal. 65. In
murder, if the indictment charges
the principal offense as with malice
aforethought, etc., it is sufficient as
to the accessory to charge that he
advised and encouraged the princi-
pal to commit the crime “in manner
and form as aforesaid: ” Jones v. S.,
58 Ark. 390.
3P. v. Keefer, 65 Cal. 282; McCoy
v. 8., 52 Ga. 287; Jordan v.S., 56 Ga.
177
[Parr IIL
§ 215.] CONNECTION WITH THE ACT.
names the principal offender, the mistake will be fatal;! but it
may in different counts name different persons as principal, or
may allege the principals to be unknown.? But it seems that
if the charge is that the principal is unknown, it cannot be sup-
ported should it appear that the name of the principal offender
was known to the grand jury.’ By statute it is sometimes
made sufficient to charge the accessory simply as principal,*
and it is not necessary in such cases to allege the particular
facts showing the connection of the accused with the offense.’
§ 215. Accessory not tried before principal. At common
law the accessory can be tried either with the principal or
after the conviction of the principal, but not before the prin-
cipal Therefore, if for any reason such as the escape of the
principal, or his death before conviction, or on account of his
being insane, the conviction of the principal is not secured, the
accessory cannot be tried.”. And this rule is applicable also to.
accessories after the fact. But itis not applied as between
principals in the first and second degree,’ nor in misdemeanors
where all are principals.” It is not necessary, however, that
the principal be tried before the indictment of the accessory,
nor that the fact of previous trial of the principal be alleged
in the indictment. All that is necessary is that the accessory
be not put on trial before the trial and conviction of the prin-
cipal." If the accessory is charged with an offense committed
92; S. v. Allen, 37 La. An. 685; Reg.
v. Fallon, L. & C. 217.
18. v. Houston, 19 Mo. 211.
2Spies v. P., 122 IIL 1.
3 Rex v. Walker, 3 Camp. 264. But
see Rex v. Bush, Russ. & Ry. 372.
4 Baxter v. P., 8 Ill. 368; S. v. Zei-
bart, 40 Ia. 169; Bonsell v. U.S., 1
Greene (la.), 111; P. v. Ah Fat, 48
Cal. 61; P. v. Davidson, 5 Cal. 133;
Doan v. S., 26 Ind. 495.
5Campbell v. C., 84 Pa. St. 187; P.
v. Bigler, 5 Cal. 23; S. v. Duncan, 7
Wash. 336; S. v. Golden, 11 Wash.
422; S. v. White, 10 Wash. 611; 8S. v.
Cassady, 12 Kan. 550. And further
as to statutory provisions, see infra,
§ 217,
®Ex parte Hays, 25 Fla. 279; 8S. v.
Pybass, 4 Humph. 441; S. v. Groff, 1
Murph. 270; U. S. v. Crane, 4 Mc--
Lean, 317. But conviction of the
principal without judgment is sufti-
cient to warrant the trial of the ac-
cessory: C. v. Williamson, 2 Va. Cas..
211.
7C, v. Phillips, 16 Mass, 423; Harty
v. 8. 3 Blackf. 386; 8. v. McDaniel,
41 Tex. 229; U. S. v. Crane, 4 Mc-
Lean, 317; Reg. v. Tyler,8 C. & P..
616.
8C, v. Andrews, 8 Mass. 126.
9 Boyd v. S., 17 Ga, 194,
U.S. v. Gooding, 12 Wheat. 460;:
C. v. Brockway, 150 Mass. 822.
1 Holmes v. C., 25 Pa, St. 221; Harty
v. &,3 Blackf. 386; S. v. Crank, 2
Bailey, 66; S. v. Sims, 2 Bailey, 29.
178
Cu. 15.] PROCEDURE AS TO ACCESSORIES. [§ 216.
by several principals, he may be tried as accessory to those
who have been convicted, but if he is tried as accessory to any
who are not yet convicted it is error.! The objection that the
principal has not been put on trial and convicted may be made
before or after the impaneling of the jury.? It may be waived
by the accessory,’ but the mere fact of going to trial without
raising the objection does not constitute a waiver. Even in
case of waiver the accessory will not be sentenced until convic-
tion of the principal.’ It seems, however, that the accessory
is not necessarily to be discharged on a showing of the mere
fact that the principal has not been convicted. He may either
be held to await the conviction of the principal, or may be dis-
charged in the discretion of the court. But of course on the
acquittal of the principal the accessory is entitled to his dis--
charge? These requirements in regard to the previous trial
or conviction of the principal are relaxed by statute in many
states;® but even under such a statute, without more, the ac-
cessory should not be sentenced if the principal is acquitted
before sentence is passed.? Where a crime, which is accessorial
in its nature, is by statute made a substantive offense, the rule
requiring the previous trial and conviction of the principal no
longer applies.”
§ 216. Guilt of principal must be shown.— The reason for
the doctrine stated in the preceding section seems to be that
if there is no principal guilty of the offense the accessory can-
not be convicted therefor;" so that even though the technical
rule requiring the previous trial and conviction of the prin-
cipal before the trial of the accessory is removed by statute,
nevertheless proof of the guilt of the principal is still essen-
1 Stoops v. C., 7 Serg. & R. 491. as to statutory regulations in regard
2Starin v. P., 45 N.Y. 333. to trial of accessories, infra, § 217.
31 Hale, P. C. 623; C. v. Andrews, ®9McCarty v. S., 44 Ind. 214.
3 Mass. 126. 10x parte Bowen, 25 Fla. 214; 8. v.
4Ex parte Hayes, 25 Fla. 214; Ricker, 29 Me. 84; Reg. v. Pulham, 9
Stoops v. C., 7 Serg. & R. 491. C. & P.' 280; Reg. v. Hughes, Bell,
5C. v. Andrews, 3 Mass. 126. 242; Holloway v. Reg., 17 Q. B. 317;
6C, v. Sheriff, 16 Serg. & R. 304; Reg. v. Hansell, 3 Cox, 597.
S. v. Pybass, 4 Humph. 441. 1l1Bowen v. S., 25 Fla. 645; T. v.
7U. 8. v. Crane, 4 McLean, 317. Dwenger, 2 N. Mex. 73; Simmons v.
8P, v. Bearss, 10 Cal. 68. And see S, 4 Ga. 465; Ogden v. S., 12 Wis.
532; Whitehead v. S., 4 Humph. 278
179
conviction of accessories.
[Parr IIL
§ 217.] CONNECTION WITH THE AOT.
tial But this rule has no application as between principals in
the first and second degree, and one may be convicted as prin-
cipal in the second degree without the guilt of the principal in
the first degree being shown, or of a higher degree of the of-
fense than that of which the principal in the first degree has
been convicted? Proof that the principal has been tried and
convicted is made by introducing the record of such convic-
tion, and this is also prima facie evidence of his guilt,5 and it
is immaterial whether the judgment is erroneous or not; and
parol evidence is not sufficient;* nor is the conviction of the
principal admissible in evidence until judgment on such con-
viction has been rendered. But notwithstanding the convic-
tion of the principal the accessory may controvert the fact. of
his guilt by parol evidence;' so, on the other hand, the state
may introduce on its part other evidence of the principal’s
guilt than the record of his conviction.’
§ 217. Statutory provisions— In both England and the
United States statutes have been passed to obviate the diffi-
culty arising out of the technical rules as to prosecution and
Some of these statutes are narrow
in their application, and simply remove the obstacle due to the
requirement that the accessory can only be put on trial in con-
‘nection with, or after the conviction of, the principal, and leave
1Hatchett v. C., 75 Va. 925; Tully
v. C., 11 Bush, 154.
2P.-v. Bearss, 10 Cal. 68; Goins v.
S., 46 Ohio St. 457; Weston v. C., 111
Pa. St. 251; S. v. Lee, 91 Ia. 499; S. v.
Whitt, 113 N. C. 716; Rex v. Tag-
gart, 1 C. & P. 201; Shaw’s Case, 1
East, P. C. 351. If, however, the
guilt of the principal in the second
degree necessarily depends on evi-
dence of the guilt of some one else
as principal in the first degree, of
course the principal in the second de-
gree should not be convicted without
such evidence: Jones v. S., 64 Ga. 697.
38. v. Chittem, 2 Dev. 49; Ander-
son v. S., 63 Ga. 675; S. v. Sims, 2
Bailey, 29; S. v. Crank, 2 Bailey, 66;
West v. 8., 27 Tex. Ap. 472. Ona trial
of principal in the second degree, the
record of the conviction of the prin-
cipal in the first degree is prima
facie evidence of that fact: Studstill
v. 8., 7 Ga, 2.
4Rex v. Baldwin, 8 Camp. 265; &
v. Duncan, 6 Ired. 236.
5 Rex v. Turner, 1 Moody, 347. But
if the accessory is charged with
being present aiding and abetting
(and therefore as principal), parol
evidence of the conviction of the
one who actually committed the
crime is admissible: S. v. Crank, 2
Bailey, 66. In Texas the guilt of the
principal may be shown by any evi-
dence which would be competent as
against him: Armstrong v. S, 33
Tex. Ap. 417.
6S. v. Duncan, 6 Ired. 98,
7C, v. Knapp, 10 Pick. 477; Rex v.
Smith, 1 Leach, 288.
8Levy v. P., 80 N. Y. 327,
180
Ca. 15.] PROCEDURE AS TO ACOESSORIES. [§ 217.
it still necessary that the accessory shall be indicted and tried
as such and not as principal.! Such a provision does not au-
thorize the conviction of the accessory after the acquittal of
the principal.? But the statutory provision which has gener-
ally been adopted is one declaring that the accessory may be
tried and convicted as principal, and this obviates the distinc-
tion, not only as to trial, but as to method of indictment; so
that where these provisions are found, one who at common
law would be only an accessory in felony may be directly «
charged as principal with its commission, just as has been done
at common law in cases of misdemeanor, and it is not neces-
“sary to describe his connection with the offense as being that’
of accessory ;* and it is not necessary that the statute specially
authorize the indictment of the accessory as principal if it de-
clares that the accessory shall be deemed guilty as principal.‘
It is not improper, even where the statute broadly declares
that all who encourage, advise, aid, etc., shall be guilty as
principals, to charge such persons directly as principals.» There
may be crimes, however, which can only be committed by per-
sons of a certain class, and it seems that a person not of such
a class cannot be charged as principal in such a crime.6 Where
18. v. Ricker, 29 Me. 84; S. v. York.
37 N. H. 175. And see supra, § 215.
Such a statute does not change the
rules of evidence, but the actual
commission of the principal offense
xaust be shown as before: 8. v. Rand,
33 N, H. 216,
2McCarty v. S., 44 Ind. 214.
88. v. Hamlin, 47 Conn. 95; P. v.
Valencia, 43 Cal. 552; P. v. Oute-
veras, 48 Cal. 19; P. v. Shepardson,
48 Cal. 189; Spies v. P., 122 Ill. 1;
Usselton v. P., 149 Ill. 612; Dempsey
v. P., 47 Ill. 823; Baxter v. P., 8 Tl.
368; S. v. Kent, 4.N. Dak. 577; Han-
off v. 8.,37 Ohio St. 178; 8. v. Brown,
21 Kan. 38; S. v. Bogue, 52 Kan. 79;
S. v. Beebe, 17 Minn. 241; Campbell
v. C., 84 Pa. St. 187; Brandt v. C., 94
Pa. St. 200; S. v. Frederick, 85 “Mo.
145; S. v. Payton, 90 Mo. 220; 8. v.
Stacy, 103 Mo. 11; Doan v.5., 26 Ind.
495; Harty v. S.,3 Blackf. 386; S. v.
Chapman, 6 Nev. 320; Griffith v. S.,
90 Ala, 583; Raiford v. S., 59 Ala.
106; S. v. Littell, 45 La. An, 655;
Reg. v. Manning, 2 C. & K. 887.
Under such a statute all persons
concerned in the commission of a
felony, including aiders and abet-
tors, may be indicted and convicted
as principals: S. v. Brown, 25 Ia. 561;
S. v. Thornton, 26 Ia. 79; S. v. Stan-
Jey, 48 Ia. 221; S. v. Hessian, 58 Ia.
68; S. v. Pugsley, 75 Ia, 742. And j
two or more may be jointly indicted
for'a criminal act which is of such
nature that it can be actually com-
mitted by but one person: 8, v.
Comstock, 46 Ia. 265. As to charg-'
ing accessory as principal, under
statute, see, also, supra, § 214.
4P, v. Bliven, 112 N. Y. 79.
5P. v. Rozelle, 78 Cal. 84, explain-
ing P. v. Schwartz, 32 Cal. 160.
6Shannon v. P., 5 Mich. 71; al-
181
'
+
§ 218.] CONNECTION WITH THE AOT. [Parr IIT.
the statute makes the aecessory guilty as principal, he may be
punished without regard to the punishment of the principal,
and therefore may be punished for a higher degree of crime
than that of which the one who commits the crime is actually
convicted,! and of course may be convicted whether the prin-
cipal is convicted or not.2 Under such a statute the accessory
_ should be charged as principal with the commission of the
| erime and not as accessory to the commission of the crime.
Such a statute applies to statutory felonies as well as to felo-
nies at common law.*
§ 218. Statutes making accessory guilty of substantive
offense.— There is still another form of statutory provision
found in some states, which, instead of making the accessory
guilty as priccipal, makes him guilty of a substantive offense
in procuring the commission of the crime;* and under such
statute the accessory may be charged either with this substan-
tive offense or as a common-law accessory.’ Thus in every assault there must be the in-
tent to injure, coupled with an act which must at least be the:
beginning of an attempt to injure, and not merely an act of
preparation for such contemplated injury. Ina recent case
the court endeavors to cover the whole ground by saying that
“an act must reach far enough towards the accomplishment of
the desired result to amount to the commencement of the con-
summation, and must not be merely preparatory.” In other
words, while it need not be the last proximate act to the con-
summation of the offense attempted to be perpetrated, it must
approach sufficiently near to it to stand either as the first or
some subsequent step in the direct movement towards the com-
mission of the offense after the preparations are made.’ As.
said in another case, “it need not be the last proximate act to
the consummation of the crime in contemplation, but is suffi-
cient if it be an act apparently adapted to produce the result
intended. It must be something more than mere preparation.”
Mere preparation to commit a violent injury upon the person.
liberate crime: 8. v. Brown, 95 N.C.
685.
1Randolph v. C., 6 Serg. & R. 398.
One who stands by when an attempt
is made to commita crime, but gives
no assistance therein, is ‘not guilty
of the attempt: P. v. Woodward, 45
Cal. 293.
21 Whart. Cr. L. 181; Patrick v. P.,
182 Ill. 529; Hicks v. C., 86 Va. 223,
3Shannon v C.,14 Pa, St. 226; P.v.
Lilley, 43 Mich. 521; Pinkard v. S.,
80 Ga. 757; S. v. McDaniel, Winst.
249. But where the wrongful intent
is coupled with an overt act, the
criminal attempt is completed, al-
though the crime intended does not
result: S. v. Hayes, 78 Mo. 307. And
see cases cited in subsequent notes.
to this section.
48. v. Craft, 72 Mo. 456.
52 Bish. Cr. L., § 52. And see infra,.
§ 231.
6 Johnson v. 8., 43 Tex. 576.
7Hicks v. C., 86 Va. 223. And see:
Uhl v. C., 6 Grat. 706.
8 Glover v. C., 86 Va. 382,
190
Cu. 16.] ATTEMPTS. [§ 225.
of another, unaccompanied by a physical offer to commit such
injury, will not justify a conviction for an assault.!
§ 225. Hlustrations.— The general statements of the pre-
ceding section may be rendered more intelligible by further
illustration. Thus, it has been said (by way of illustration
only) that the purchase or loading of a gun with intent to com- .
mit murder does not constitute an indictable offense, being only
in the nature of a preliminary preparation;? and so the act of
picking up a stone with the intention of throwing it to injure
another is not an assault.’ Where one person sent to another
a box containing gunpowder and appliances to cause its ex-
plosion when the box should be opened, it was held that this.
was not an attempt to discharge loaded arms at such other per-
son, within an English statute. Delivering poison to another
to be administered to a third person, the one to whom it is de-
livered not agreeing or combining to carry out such intent,
does not constitute an attempt to administer poison.’ An at-
tempt to contract an incestuous marriage is not proven by evi-
dence of an elopement and sending for a magistrate to perform
the ceremony, such acts being preparatory only;® nor isa.
solicitation to commit fornication or adultery a criminal at-
tempt.’ The act of procuring tools and implements, and de-
livering them to another to be given to one who is confined in
jail to be used in making his escape, is not an attempt to com-
mit the offense of rescue, even though an intermediate party
actually attempts to convey them into the jail; it is prepara-
tion only. The attempt to introduce spirituous liquors into:
Alaska in violation of United States statutes is not committed
by ordering liquor of a dealer with the intention of taking it to:
Alaska.? The crime of attempting to burn a building does not
include the act of attempting to induce another to fire the
building, and of providing such other person with material for
1Brown v. S., 95 Ga. 481. Cc. & K. 589. But that such a solici-
2 Hicks v. C., 86 Va. 223; P. v.Mur- tation may constitute an attempt,
ray, 14 Cal. 159; Johnson v. S., 27 see infra, § 227.
Neb. 687. 6P, v. Murray, 14 Cal. 159,
3 Brown v. S., 95 Ga. 481. 7TSmith v. C., 54 Pa. St. 209. And
4Rex v. Mountford, 7 C. & P. 242. see supra, § 220.
5 Stabler v. C.,95 Pa. St.318; Hicks Patrick v. P., 182 IIL 529,
v. C., 86 Va. 223; Reg. v. Williams, 1 9U. S. v. Stephens, 12 Fed. R, 52,
; 191
§ 226.] UNOCOMPLETED ACT. [Parr IV.
the purpose.! One who tries to ascertain whether another's
pocket contains anything to be stolen, but does not insert his
hand into the pocket for the purpose of stealing, is not guilty
of an attempt to commit larceny.”
§ 226. Impossibility— To constitute a criminal attempt
the act attempted must be a possibility. For instance, when
the charge is an attempt to suborn perjury, there must be a
cause or proceeding pending in which the perjury might be
committed.’ So, it has been suggested that if a man should
undertake to ravish, under circumstances making the crime of
ravishment absolutely impossible, such attempt would not be
criminal ;‘ and it has been held that a boy under fourteen, not
being capable of committing rape, cannot be guilty of an as-
sault with intent to commit rape.’ It has been said also that
itis not an assault to point a pistol at another which is not
loaded;* but these cases are overruled or distinguished in re-
cent English cases.?. As will be seen, however, under the head
of Assault, that offense has a dual character, being to some
extent an attempt, but, on the other hand, consisting also in the
act of putting in fear even where the threatened injury could
not be committed,* so that assault cases are not conclusive as to
the present doctrine. But it will be found that if there is an
attempt with present ability to commit the injury, this con-
stitutes an assault;°® also, that in an assault with intent to kill,
it is not necessary that the weapon used should have been
such as to effect the result intended.” And in general, where
there is the intent to commit a crime and an act is done tend-
ing to effect the commission thereof, the attempt is punishable,
although by reason of extraneous circumstances the actual
1McDade v. P., 29 Mich. 50. v. St. George, 9 C. & P. 483; Reg. v.
2 Reg. v. Taylor, 25 L. T. 75, Lewis, 9 C. & P. 523; Reg. v. Gamble,
38. v. Joaquin, 69 Me. 218. 10 Cox, 545,
41 Bish. Cr. L., § 742, TReg. v. Brown, 10 Q. B. D. 381;
5Rex v. Eldershaw, 3 C. & P. 396; Reg. v. Duckworth, 2 Q. B. D. (1892),
Reg. v. Philips, 8 C. & P. 736. On 83.
this question the authorities are not Infra, § 281.
in harmony. See, to the contrary, C. 98. v. Malcolm, 8 Ia, 418; P. v.
v. Green, 2 Pick. 880. This question Lilley, 43 Mich, 521.
is further discussed under the head 1C, v. Creed, 8 Gray, 887; Kunkle
of Assault with Intent to Commit v. S., 82 Ind, 220; 8S. v. Rigg, 10 Nev.
Rape, infra, § 465. 284,
6 Reg. v. James, 1 C, & K. 530; Reg.
192
Cu. 16.] ATTEMPTS.
[§ 227.
commission of the crime is impossible! Thus, where there is
an attempt to commit larceny by picking a pocket, and in the
prosecution of the attempt the hand is thrust into the pocket
of the other person, the attempt is complete, although it turns
out that there is nothing in the pocket to be stolen.? So, in an
assault with intent to rob, it is not necessary that the person
upon whom the crime was attempted shall have had the money
which the assailant: intended to steal.? So, one who opens a
money drawer with the purpose of stealing money therefrom
is guilty of an attempt, although there is no money in the
drawer.’ So, the crime of burglary is committed by breaking
and entering with intent to steal money from a safe, although
the safe is not at the time used as a place for keeping money
and contains none.’ Under an indictment for using an instru-
ment to procure a miscarriage it is immaterial whether the
woman is pregnant.®
§ 227. Attempts to poison.— Some peculiar questions arise
in regard to the attempt to kill by the use of poison. To con-
stitute an administering of poison, the substance must be taken
into the stomach.’ One who puts poison into coffee, intending
that another shall drink it, is guilty of causing poison to be
taken if the coffee is drank.’ So, intentionally placing poison
where it is likely to be found and taken is an attempt to ad-
minister it;® so, if poison is sent to A. with intent that he shall
take it, and it comes into the possession of B., who does take it,
the crime of administering poison to B. is committed.” But it
has been said that giving poison to a guilty agent with the
direction to cause it to be administered is not in itself an at-
tempt to administer." The thing administered must be of a
1P, v. Moran, 123 N. Y. 254, 10L.R. dict. in Reg. v. Brown, 24 Q. B. D. 357.
A. 109, and note; S. v. Beal, 37 Ohio
St. 108; C. v. Jacobs, 9 Allen, 274; P.
v. Lee Kong, 95 Cal. 666; Kunkle v. $.,
32 Ind. 220. See, also, infra, § 234.
2C, v. McDonald, 5 Cush. 365; S. v.
Wilson, 30 Conn. 500; P. v. Jones, 46
Mich, 441; Rogers v. C., 5 Serg. & R.
468; P. v. Moran, 123 N. Y. 254. The
case of Reg. v. Collins, L. & C. 471
(and by inference that of Reg. v.
McPherson, Dears. & B. 197, which
is analogous to it), is overruled by
18
3 Hamilton v. S., 36 Ind. 280.
4Clark v. S., 86 Tenn. 511.
58, v. Beal, 37 Ohio St. 108.
6 Reg. v. Goodchild, 2 C. & K. 293
(s. n. Reg. v. Goodhall, 1 Den. 187);
Reg. v. Goodall, 2 Cox, 41. And see
Pp, v. Gardner, 144 N. Y. 119.
7 Rex v. Cadman, 1 Moody, 114
8 Rex v. Harley, 4 C. & P. 369,
9 Reg. v. Dale, 6 Cox, 14.
10 Rex v. Lewis, 6 C. & P. 161.
11 Reg. v. Williams, 1 C. & K, 589,
198
§ 228.] [Part IV.
UNCOMPLETED ACT.
deleterious nature;! and an indictment for attempting to poi-
son must allege that the substance was a deadly poison.?- An
attempt to poison where no injury is done is not an assault.>
There may be a crime committed in administering a harmful
drug, where the intent is not to kill but to facilitate the com-
mission of some unlawful act, such as robbery or seduction,
and in such cases it is not necessary that the substance should
be calculated to cause any direct physical injury. Any inten-
tion to suspend the natural functions of the body, though the
result would not be painful or permanently harmful, is sufficient
to constitute a crime.t
§ 228. Indictment.— It is evident from the discussion as to
what constitutes an attempt that an indictment therefor must
charge both the intent and the overt act;* but it is not neces-
sary to allege the act attempted with the same particularity as
would be required in charging the attempted act as a com-
pleted crime.® Thus, it is not necessary to use all the qualify-
ing words required in alleging the crime involved in the
completed act.’ In charging the attempt to commit larceny
it is not necessary to specifically describe the article which de-
fendant intended to steal;* but an indictment charging an at-
tempt to poison must specifically allege that the substance
employed was a deadly poison. The particular means used
Certainly not if the person solicited
does not promise to administer it
and does not do so: Hicks v. C., 86
Va. 223. And see supra, § 225.
1Rex v. Powels, 4 C. & P. 571;
Reg. v. Cluderoy, 2 C. & K. 907.
2 Anthony v. S., 29 Ala. 27.
3 Garnet v. S., 1 Tex. Ap. 605; Col-
lins v. S.. 8 Heisk. 14. But, for a
further discussion of this point, see
Assault, infra, § 236, n.
4P,. v. Carmichael, 5 Mich. 10; P.
v. Adwards, 5 Mich. 22.
58. v. Wilson, 30 Conn. 500; C. v.
Clark, 6 Grat. 675.
6 Coffin v. U. S., 156 U. 8. 482; C. v.
Doherty, 10 Cush. 52. To similar
effect, see cases with reference to
assault with intent, infra, § 269, and
burglary, infra, § 509,
7C. v. McLaughlin, 105 Mass. 460.
88.-v. Hughes, 76 Mo. 323; Buntin
v. S., 68 Ind. 88; Dickinson v. 8., 70-
Ind. 247; Hayes v. S., 15 Lea, 64;.
Reg. v. Johnson, L. & C, 489. But
where the indictment described the
goods which defendant was indicted
for breaking and entering a dwell-
ing-house with intent to steal, held,
that a conviction could not be sus-
tained, it appearing that the goods.
described were not in the house at
the time: Reg. v. McPherson, Dears.
& B, 197.
9 Anthony v. S&S, 29 Ala. 27. To
merely describe the drug as a poison-
ous drug is not sufficient: Shackle-
ford v. §., 79 Ala. 26. But an indict-
ment charging defendant with an
attempt to poison A., and that in
such attempt he delivered know-
ingly and unlawfully to A. a pill
194
Cua. 16.] ATTEMPTS. [§ 228a.
towards committing the attempted crime need not be alleged,!
but the acts constituting the alleged attempt should be set
forth;? and an indictment merely stating that defendant “did
attempt to take, steal and carry away” certain chattels, etc.,
without setting out the acts done or the mode and manner of
the attempt, was held insufficient to charge the attempt to
commit larceny.’ The allegation of the attempt implies the
intent to do the act attempted.* In fact, the allegation of at-
tempt implies both the intent and an actual offer. to consum-
mate the intent, and therefore such an allegation has been held
in itself sufficient.’ It is not necessary to allege a present abil-
ity to accomplish the act intended, or the possibility of the
commission of the crime.®
§ 228a. Forms.—
method of charging attempts:
A few forms will sufficiently illustrate the
ATTEMPT TO STEAL FROM DWELLING-HOUSE.
That E. J., in , on the
day of ——, A. D. ——,, the
goods and chattels of T. R., in the dwelling-house of T. R.,
situate in the county of
take and carry away."
containing a large quantity of deadly
poison, and solicited A. to swallow
it, with intent to murder A., was
held sufficient to charge an attempt
to murder by poisoii: Bittle v. S., 78
Md. 526.
1p, v. Bush, 4 Hill, 133.
28. v. Brown, 95 N.C. 685; S. v.
Frazier, 53 Kan. 87.
39. v. Brannan, 3 Nev. 238.
4Felker v.S., 54 Ark. 489.
5The indictment in question
charged that defendant “did at-
tempt to feloniously take and carry
away,” etc., and was held to charge
an attempt to commit larceny, the
court refusing to follow the views
of Dr. Wharton (1 Whart. Cr. L.,
§§ 190-2): Jackson v. S., 91 Ala. 55.
But where the indictment merely
charged defendant with attempting,
, did attempt feloniously to steal,
fraudulently, etc., to obtain from A.
a large sum of money, with intent to
cheat and defraud him, it was held
insufficient: Reg. v. Marsh, 3 Cox,
571. Where the statute makes it an
offense to provoke, or attempt to
provoke, a person to commit an as-
sault and battery, it is not erroneous
toallege that defendant did provoke
and attempt to provoke: Marshall v.
S., 123 Ind. 128.
6C. v. Creed, 8 Gray, 387; C. v. Mc-
Donald, 5 Cush. 365; Marshall v. S.,
128 Ind. 128, And as to similar ques-
tion, see cases under the chapter on
assaults, infra, §§ 284, 252.
TThis is practically the form ap-
proved in Reg. v. Johnson, L. & C.
489. Substantially the same form
of indictment is upheld in S. v.
Hughes, 76 Mo. 323.
195
vw
§ 229.] [Parr IV.
UNCOMPLETED ACT.
ATTEMPT TO ROB.
That A. H.,in said county, on the —— day of —_, A. D.
, in a rude, insolent and angry manner, did unlawfully
touch one J. M., with intent forcibly and feloniously by vio-
lence and putting in fear to take from his person the goods
and chattels of him, the said J. M.!
ATTEMPT TO STEAL FROM THE PERSON.
That G. W., in said county, on the day of ——, A. D.
—, wilfully and maliciously did make an assault on one X. Y.,
and then and there did thrust his hand into the pocket of the said
X. Y., with intent in so doing the money, goods and chattels
of the said X. Y., if any such should then be found in his per-
sonal possession, feloniously to take, steal and carry away from
his person.?
§ 229. Included offense.— Attempts are generally deemed
to be included in an indictment charging the complete of-
fense.®
1This is held sufficient in Buntin
v. S., 68 Ind. 38 An indictment
more elaborately setting out the as-
sault and battery is found in Dickin-
son v. S., 70 Ind. 247.
2This form is held sufficient in
S. v. Wilson, 30 Conn. 500; but an-
other count charging that defend-
ant did feloniously attempt to steal,
take and carry away from the per-
son of X. Y. the money and personal
property of the said X. Y., then and
there in his possession, was held in-
sufficient as not alleging the overt
act.
38. v. Archer, 54 N. H. 465; S. v.
Frank, 103 Mo. 120; Reg. v. Bain, L.
& C. 129; Reg. v. Hapgood, L, R.1
C. C. 221. And there may be a con-
viction for an attempt without for-
mal acquittal of the commission of
the offense charged: Miller v. §., 58
Ga, 200. But of course if the of-
fense itself is proven it is error to
convict of an attempt only: Reg.
v. Nicholls, 2 Cox, 182.
196
CHAPTER 17.
ASSAULTS.
L Simpte ASSAULT AND AssAULT ( IV. ASSAULT WITH INTENT TO KILL
AND BATTERY. OR MURDER.
II. AGGRAVATED ASSAULTS, V. ASSAULT TO DO GREAT BODILY
III. AsSAULTS WITH FELONIOUS IN- INJURY.
TENT. VL AssauLt with Intent To Rog”
§ 280. How classified. The general subject of assault is
closely connected with that of attempt, which is discussed in
the preceding chapter, but it covers also cases not included in
the doctrine of attempt, such as putting in fear where there
‘is no intent to injure. Although an assault may be committed
without any actual injury, yet it is not practicable to separate
the discussion of the assault alone from that of an assault in
which some injury is inflicted constituting a battery, and there-
fore assault and battery is necessarily included in this chapter.
Moreover, aggravated assaults and assaults with intent to com-
mit a felony, such as murder, robbery, rape, etc., are recognized
as distinct forms of assault, and are by statute usually made
felonies, although at common law an attempt to commit a felony
was, as has already appeared, only a misdemeanor.! Assaults
with intent to commit rape are, however, discussed in connec-
tion with the crime of rape.”
I. Sorete Assavtt AND AssAULT AND Batrery.
§ 231. What constitutes; attempt to commit battery.—
Some authorities treat an assault as a form of attempt, and the
definitions given are based on the idea that the offense consists
in an attempt to commit a battery or other physical injury.’
1 Supra, § 221. P. C., ch. 62, § 1; 1 East, P. C. 406; 1
2 Infra, ch. 21. Russ. Cr. 750. It is an “attempt or
3 An assault is an attempt or offer to beat another without touch-
offer with force and violence todoa ing him:” 3 BL Com. 120; 4 id. 216
corporal hurt to another:” 1 Hawk. “An assault isan apparent attempt
197
[Parr IV.
§ 232.] UNCOMPLETED ACT.
Other authorities, however, recognize the offense as consisting
of putting another in fear of violence.' It is believed that
each of these classes of cases constitutes an assault, and that the
two must be considered as distinct branches of the crime and
discussed separately. The recognition of this distinction will
explain somewhat the confusion among the cases.
§ 232. Cases of attempt; menace not enough.— Where the
offense consists of an attempt to do injury there must be, as in
other cases of attempt, something more than a mere intention.
Some step must be taken toward carrying out the intent.’
Thus, mere preparation is not enough,’ nor mere threats unac-
“companied with any offer of violence,! nor the presentation of
a dangerous weapon without manifestation of intention to use
it,’ or accompanied with language indicating the intention not
to use it. But pointing a loaded weapon with words indicat-
ing the intention to discharge it is enough without an attempt
made to actually discharge it, the further prosecution of the
attempt being prevented by interference.’ Mere words will
not constitute an assault,’ but words may be important as giv-
by violence to do corporal hurt to
another:” 1 Whart. Cr. L., § 603. And
as cases where the notion of attempt
is recognized, see Tarver v.S., 48 Ala.
854; S. v. Davis, 1 Ired. 125: U.S. v.
Hand, 2 Wash. C. C. 485. Under a
statute providing for the punish-
ment of an assault with intent to
commit a crime, it was held that an
attempt to commit larceny was in-
cluded and not assaults on the per-
son only: Hayes v. S., 15 Lea, 64.
1“ An assault is an unlawful phys-
ical force partly or fully put in mo-
tion creating a reasonable apprehen-
sion of immediate physical injury
to a human being:” 2 Bish. Cr. L.,
§ 28. And see §. v. Gorham, 55 N. H.
152. In Rapalje’s Law Dic. under
the word “assault,” both definitions
are recognized.
2 Carter v. S., 87 Ala. 1138. And as
to attempts in ‘general, see supra,
§ 223.
3 Johnson v. §., 43 Tex. 576.
{Smith v. S., 89 Miss. 521; S v.
Mooney, Phil. 484. The use of in-
sulting language and the act of
picking up a stone without offer to
throw it, held not an assault: S. v.
Milsaps, 82 N. C. 549. Violence
must be offered, menaced, or de-
signed. An indignity involving dis-
honor offered to a consenting female
is not an assault: P. v. Bransby, 32
N. Y. 525; Keefe v.S., 19 Ark. 190.
And see infra, § 464.
5 Flournoy v. 8., 25 Tex. Ap. 244;
S. v. Blackwell, 9 Ala. 79; Cutler v.
S., 59 Ind. 300.
6§. v. Crow, 1 Ired. 375; Richels v.
S., 1 Sneed, 606; Warren v. S., 33
Tex. 517; C. v. Eyre, 1 Serg. & R. 347.
And see Tuberville v. Savage, 1
Mod. 3. :
7U.S. v. Kierman, 3 Cranch, C. C.
435; S. v. Reavis, 113 N. C. 677; Reg.
v. Duckworth, 2 Q. B. D. (1892), 83.
8Smith v. S&S, 39 Miss. 521; P. v.
Bransby, 32 N. Y. 525; Warren v. 8.,
33 Tex, 517,
198
Cu. 17.] ASSAULT AND BATTERY. [§ 232.
ing color to acts, and may make that an assault which would
not otherwise be one.! The line of criminality is to be drawn
between menace only and violence begun to be executed.
There must be an act in pursuance of a wrongful intent, and
such act must involve, as is frequently said, the present ability
on the part of the assailant to commit the threatened injury.’
Thus, to constitute an assault with a weapon it is necessary that
the weapon should be presented at the party assaulted within
the distance at which it may do execution. But if there is
intent to injure and the means resorted to is believed to be
adapted to the end, it seems to be immaterial whether such
means could have produced the injury intended.» The ques-
tion whether there is ability on the part of the assailant to in-
flict the threatened injury, as, for instance, in case of a gun
loaded with powder only, whether the assailant is near enough
to the assailed so that the discharge of the weapon thus loaded
would inflict an injury, is for the jury;® but it is not necessary
that assailant, attempting to strike the assailed with a club or
otherwise, be actually within reach of him. It is enough if he
be so near as to cause imminent danger if not stopped that the
1S, v. Rawles, 65 N. C. 334; S. v.
Shipman, 81 N. C. 513; S. v. Martin,
85 N. C. 508; S. v. Horne, 92 N. C.
805; Crow v. S., 41 Tex. 468.
28. v. Myerfield, Phil. 108; S. v.
Davis, 1 Ired. 125; Smith v. S, 39
Miss, 521.
3U. 8. v. Hand, 2 Wash. C. C. 435;
C. v. Hagenlock, 140 Mass. 125; Hig-
ginbotham v. S., 23 Tex. 574; S. v..
Epperson, 27 Mo. 255; S. v. Myerfield,
Phil. 108; S. v. Church, 63 N. C. 15;
Vaughan v. S., 3 Sm. & M. 553.
4Tarver v. S&S. 43 Ala. 354; Chap-
man v. &, 78 Ala. 463; P. v. Dodel,
77 Cal 293; S. v. Godfrey, 17 Oreg.
300; Vaughan v. S.,3 Sm. & M. 553.
And, further, as to intent in feloni-
ous assaults, see infra, § 259. And
the gun must be loaded: Henry v.
S., 18 Ohio, 32; S, v. Godfrey, 17
Oreg. 300; S. v. Sears, 86 Mo. 169;
S. v. Swails, 8 Ind. 524; Pratt v. S.,
49 Ark, 179; McKay v. S., 44 Tex. 48;
Robinson v. S., 31 Tex. 170 (but this
last case is overruled in Bradberry
v. S., 22 Tex. Ap. 273) And see
further as to necessity of ability to
commit: Jarnigan v.S.,6 Tex. Ap.
465; Boles v. S., 18 Tex. Ap, 422.
Where “present ability” is a part
of the statutory definition, it must
be charged and proved: 8. v. Hubbs,
58 Ind. 415; Howard v. S., 67 Ind.
401; Klein v. S, 9 Ind. Ap. 365.
Otherwise such allegation is not
necessary: P. v. Forney, 81 Cal. 118.
Nor is it necessary, in order to war-
rant a conviction for assault under
an indictment for assault with in-
tent to do great bodily harm: Ken-
nedy v. P., 122 Ill. 649.
5S, v. Glover, 27 S. C. 602. See,
also, cases in attempt, supra, § 226;
and assault with intent, infra, § 266.
6Clark v. S., 84 Ga 577; P. v.
Lilley, 43 Mich. 521
199
[Part IV.
§ 233.] UNCOMPLETED ACT.
injury will be immediately inflicted;! and the assault is com-
pleted if the attempt has thus been made, although it has been
interrupted or abandoned before an injury has actually been
committed,? the actual infliction of personal injury not being
necessary to an assault.’ If the threatened injury, coupled
with present ability to inflict it, is conditioned on the party
assailed refusing to do something which the assailant has no
right to require him to do, it will constitute an assault even
though the conditions are complied with and therefore no vio-
lence is used.
§ 233. Putting in fear.— As already indicated, the doctrine
stated in the preceding section, in accordance with which actual
threatened injury is essential to constitute an assault, is not
universally recognized, and indeed the general proposition sup-
ported by the weight of authority is that, if assailant makes
threats to injure, being in apparent position to carry them out,
and does acts with the apparent intention of carrying them
out, thus putting the assailed in fear, an assault is committed
even though by reason of facts not known to the person as-
sailed it would be impossible for assailant to commit the injury
threatened. Thus, to point a gun or pistol at a person who
18. v. Davis, 1 Ired. 125; P. v.
Lilley, 48 Mich. 521; P. v. Yslas, 27
Cal. 630; S. v. Vannoy, 65 N. C. 532;
S. v. Malcolm, 8 Ia. 413; Stephens v.
Myers, 4 C. & P. 349.
2Bishop v. S., 86 Ga. 329; S. v.
Malcolm, 8 Ia. 413; S. v. McAfee, 107
N. C. 812; Cato v.S., 4 Tex. Ap. 87.
So, where defendant was detected .
standing in a state of indecent ex-
posure within a few feet of a female
under the age of consent, he having
induced her to accompany him toa
place of retirement, it was held that
an assault was proven: Hays v. P.,1
Hill, 351.
38. v. Myers, 19 Ta. 517.
4U. S. v. Richardson, 5 Cranch,
C. C. 348; U.S. v. Myers, 1.Cranch,
C. C. 810; S. v. Morgan, 3 Ired. 186;
S. v. Horne, 92 N. C. 805; S. v. Mar-
tin, 85 N. C. 508; S. v. Rawles, 65
N. C. 834; 8S. v. Hampton, 63 N, C.
18; S. v. Church, 63 N.C. 15; Bloomer
v. S., 3 Sneed, 66. But under statu-
tory provisions, held that to point
an unloaded pistol at another within
shooting distance accompanied with
an order to kneel, which was obeyed
through fear, was not a criminal as-
sault: McKay v. S., 44 Tex. 43.
5C. v. White, 110 Mass. 407; S. v.
Gorham, 55 N. H. 152; 8. v. Cherry,
11 Ired. 475; S. v. Benedict, 11 Vt.
236; Atteberry v. S., 33 Tex. Ap, 88;
Reg. v. St. George, 9 C. & P. 483.
Thus, to ride a horse so near another
as to endanger his person and create
a belief in his mind that it is the in-
tention of the rider to ride over him,
constitutes an assault: S. v. Sims, 3
Strobh. 187; or to threaten injury
to another with a knife held in the
hand, causing the other to go away
by fear: S. v. Shipman, 81 N. C. 513.
There seems to be no difference in
200
Cu. 17.] ASSAULT AND BATTERY. [S§ 234, 235. ©
does not know but that it is loaded, and has no reason to be-
lieve that it is not, is an assault. It is therefore unnecessary,
in such cases, that the indictment allege that the weapon was
loaded, or otherwise show present ability to inflict an injury ;?
but on this point authorities to the contrary are cited in the
: preceding section.’
§ 234. Present ability.— It is evident.from the discussion
in the two preceding sections that the question of ability to
commit a threatened injury is of importance for different rea-
sons under different circumstances. In general there must be
something more than mere menace or threat, and unless there
is ability, at least apparent, to carry it out, there is no assault
whatever. If there is apparent ability so as to cause fear on
the part of the person assailed, then under the doctrine of the
preceding section an assault is committed. If there is actual
ability and intention to carry out the threat, then there is an
assault under the doctrine of the second preceding section, in
accordance with the general theory of assaults; and under the
doctrine of attempts there might evidently be an assault where
the assailant should threaten and intend to do an injury believ-
ing himself to be in a position to do it, and attempting to carry
out his purpose, although by reason of some fact not within his
knowledge the act should be really impossible.‘
§ 235. What acts sufficient; battery.— As has already been
said, an attempt to commit an injury to the person of another,
either real or apparent, is an assault, and in so far as an assault
is thus looked upon as an attempt, the thing attempted, unless
this respect between civil and crim-
inal cases; Beach v. Hancock, 27
_N. A. 223,
18, v. Shepard, 10 Ia. 126; Crumb-
ley v. S., 61 Ga. 582; S. v. Triplett, 52
Kan. 678; S. v. Smith, 2 Humph. 457;
Crow v. S., 41 Tex. 468; Kief v. S., 10
Tex. Ap. 286.
28. v. Shepard, 10 Ia. 126; S. v.
Rigg, 10 Nev. 284.
3Some English cases which are
cited in support of this contrary
view are without bearing, for the
reason that they involve construc-
tion of statutes punishing the of-
fense of attempting to discharge a
loaded weapon at another: Reg. v.
Baker, 1 C. & K. 254; Reg. v. James,
1C. & K. 530. The case of Reg. v.
St. George, heretofore cited, is of
the same character, but Parke, B.,
says that the putting in fear would
constitute an assault. In other cases
defendant was held not to have com-
mitted an assault where the weapon
was unloaded, because of variance
from the allegations of the indict-
ment: Blake v. Barnard, 9 C. & P.
626; Reg. v. Oxford, 9 C. & P. 525.
4 Supra, § 226.
201
[Parr IV.
§ 235.] UNCOMPLETED ACT.
it constitutes some other crime, such as murder, robbery, rape,
etc., is a battery, and the two things, the assault and the bat-
tery, must usually be considered together. In this sense it is
properly said that a battery is a completed assault, just as on
the other hand an assault is an attempt to commit a battery,
and a battery, therefore, necessarily includes an assault.’ Leav-
ing out of view for the present, therefore, aggravated assaults
and assaults with intent to commit specific felonies, to be con-
sidered hereafter, it is important now to determine what kind
of an injury it is which attempted is an assault, and completed
is a battery. Such injury must be to the person, rather than
to property, reputation, etc., and yet the offense of battery is
committed not only by striking the person, but by striking or
pulling the clothing, or a cane, or otherwise infringing the per-
sonal immunity from harm. That such act must, however, be
not merely accidental or in sport, or with an innocent purpose,
will hereafter appear in considering the intent as an element
of an assault.2 Thus, it has been held that merely taking hold
of the coat, or laying the hand gently on the person of another,
if done in an angry, insolent, or hostile manner, amounts to an
assault and battery ;* but to strike the horse which another is
driving is not sufficient.4 So spitting or throwing water upon
another or jostling him, or even touching him in a rude, in-
solent, or angry manner,’ or driving against or riding over him,
18. v. Twogood, 7 Ia. 252. But of
course an assault does not neces-
sarily include a battery: Furnish v.
C., 14 Bush, 180. It seems that there
is no such offense by federal statute
as an assault alone, in territory ex-
clusively under federal jurisdiction:
U. 8. v. Barnaby, 51 Fed. R. 20.
2 Infra, § 239.
3U.S. v. Ortega, 4 Wash. C. C. 531;
U. S. v. Hand, 2 Wash. C. C. 485;
Johnson v. 8., 17 Tex. 515; Resp. v.
De Longchamps, 1 Dall. 111; S. v.
Davis, 1 Hill (8. C.), 46. Pushing one
with the open hand, accompanied
with the use of threatening lan-
guage, is an assault and battery: 8.
v. Baker, 65 N. C. 332. So is the act
of cutting off a pauper’s hair against
his will: Forde v. Skinner, 4 C, & P.
289.
4Kirland v. S., 43 Ind. 146.
5 Bonner v. S., 97 Ala. 47. So held
in Indiana under a statute follow-
ing the common-law definition, and
requiring that the manner be rude,
insolent, or angry: McCulley v.S., 62
Ind. 428; S. v. Wright, 52 Ind. 307.
And the indictment must charge
the manner accordingly: Howard v.
S., 67 Ind. 401. But it is sufficient if’
the allegation is of an injury in one
of those three ways: S. v. Philley, 67
Ind. 304. Even without touching, if
there is an intent to injure, the act’
may constitute an assault: Jackson
v. S., 91 Ga, 322,
202
Cu. 17.] ASSAULT AND BATTERY. [§§ 236, 237.
if wilfully done, will be a battery. But as will be seen here-
after, where actual injury is inflicted, the question of whether
the act is criminal will depend on the intent with which it is
done.2 Unlawful arrest or imprisonment includes a battery.?
§ 236. Administering injurious drug.— One who admin-
isters to another deleterious substances without his consent,
and thereby causes an injury, is guilty of assault and battery.
It is not necessary to allege knowledge of the poisonous or in-
jurious nature of the thing administered, if the allegation is
that the act was wilful and malicious or wanton.
§ 237. Wilful or negligent exposure, or improper treat-
ment of another.— Exposing and abandoning a helpless infant
will constitute an assault.6 One who attempts to act as a phy-
11 Hawk. P. C., ch. 62, § 2; 1
Russ. Cr. 751; Reg. v. Cotesworth, 6
Mod. 172. But merely touching the
hand of another in snatching an ar-
ticle therefrom with intent to steal
it, if done without intent to hurt
and without violence, does not con-
stitute an assault with force and
violence with intent to steal: C. v.
Ordway, 12 Cush. 270.
2 Infra, § 239.
3Long v. Rogers, 17 Ala. 540; Bis-
sell v. Gold, 1 Wend. 210; S. v. Par-
ker, 75 N. C. 249; U. S. v. Benner,
Baldw. 234; 1 Russ. Cr. 753.
4C. v. Stratton, 114 Mass. 303; Carr v.
S., 185 Ind. 1; Reg. v. Button, 8 C. & P.
660. Administering poison is an as-
gault: Hall v. §., 132 Ind. 317. Butin
England administering deleterious
substances in food or drink has been
held not indictable as an assault:
Reg. v. Hanson, 2 C. & K. 912; Reg.
v. Dilworth, 2 M. & Rob. 531; but
is made criminal by statute: Reg. v.
Wilkins, L. & C. 89; Reg. v. Hennah,
18 Cox, 547. Attempting to poison
does not involve an assault: Collins
v. 8.,3 Heisk. 14; Garnet v. S., 1 Tex.
Ap. 605. In determining whether a
substance is noxious within a stat-
ute punishing the administration of
noxious substances, the question is
whether the intent in administering
it was to injure. If it is of such
nature that it might properly super-
induce the injury intended, the act
will be criminal, although in other
circumstances and other quantities
it might not be injurious: Dougherty
v. P., 1 Colo. 514, By the California
code the word “ poison ” refers to an
inherent destructive quality and not
toa mechanical action on the sys-
tem, but itis otherwise as to the
words “other noxious substances or
liquors: ” P. v. Van Deleer, 53 Cal. 147.
5C. v. Hobbs, 140 Mass. 4438; C. v.
Stratton, 114 Mass. 303. So, under an
indictment for mixing poison with
food with intent to kill, it is not
necessary to allege that the sub-
stance was known by the defend-
ant to be poisonous: C. v. Galavan, 9
Allen, 271; C. v. Bearse, 108 Mass.
487, The statutory description of
“poisonous substances ” is'sufficient:
P. v. Keeley, 81 Cal. 210.
6C. v. Stoddard, 9 Allen, 280; Reg.
v. March, 1 C. & K. 496. But some-
what contrary as to abandoning an
infant, see Reg. v. Renshaw, 2 Cox,
385; and as to keeping an idiot
brother without supplies or neces-
saries: Rex v. Smith, 2 C. & P. 449.
A master is not bound to provide
medical advice for a servant, but he
is for an apprentice: Reg. v. Smith,
203
§§ 238, 239.] UNCOMPLETED ACT. [Part IV.
sician, and as such prescribes injurious treatment, even with
good intentions, but with gross negligence and ignorance as to
the probable effect, is guilty of an assault."
§ 238. Indecent assault.— It is an assault for an adult male
to touch or handle a female without her consent in an indecent
manner or with undue familiarity,? as by putting his arm
about her neck and kissing her.* So unnecessarily stripping a
female patient naked for the purpose of medical examination
is an assault. Where one justified in administering punish-
ment upon a female does so in an indecent manner it may be
an assault. While, as will hereafter appear, an assault with
an attempt to commit rape is not committed where the at-
tempt to have connection with her is by her consent, yet the
connection may in itself be so brutal as to constitute an as-
sault, even where consent to the act appears.’ So where there
is consent, there may be assault and battery in communicating
to the female a venereal disease, the existence of the disease
in the male not being known to the female.? But this is
doubted and the contrary is held as between husband and wife.®
Attempt to commit an unnatural crime with a boy is an as-
sault upon him even though he submit, if he is too young to
understand the nature of the act.®
» § 239. Intent.— Intent to injure is essential to constitute an
assault;" and a stroke given by inadvertence or for self-pro-
tection is not an assault." Therefore, evidence of other assaults
8 C. & P. 153. An indictment for
assault to kill an adopted daughter
by failing and refusing to nourish
her is insufficient without charging
that defendant had the means and
was pecuniarily able to provide for
her: S. v. Merkley, 74 Ia. 695. Con-
tra, Reg. v. Ryland, L. R.1 C. C. 99.
And see further under homicide,
infra, § 286.
1C v. Pierce, 188 Mass. 165.
*Rex v. Nichol, Russ. & Ry. 130;
Ridout v. 8., 6 Tex. Ap. 249; Veal v.
S.,8 Tex. Ap. 474; Donaldson v. S.,
10 Tex. Ap. 307; Reg. v. McGavaran,
6 Cox, 64.
3Goodrum v. 8., 60 Ga. 509; Reg.
v. Dungey, 4 F. & F. 99.
4 Rex v. Rosinski, 1 Moody, 19.
5 Reg. v. Miles, 6 Jur. 248.
6 Richie v. S., 58 Ind. 355.
7Reg, v. Sinclair, 13 Cox, 28; Reg.
v. Bennett, 4 F. & F. 1105.
8 Reg. v. Clarence, 22 Q. B. D. 28.
®Reg. v. Lock, L. R. 2 C. C. 10.
But where the boy was fourteen
years of age, held, no assault: Reg.
v. Wollaston, 12 Cox, 180. Further
as to consent, see infra, § 249.
10Richels v. S., 1 Sneed, 606; S. v.
Sears, 86 Mo. 169; ‘White v. S., 29
Tex. Ap. 530; Rutherford v. S., 13
Tex. Ap. 92.
uC, v. Ruggles, 6 Allen, 588,
204
Cu. 17.] ASSAULT AND BATTERY. [§§ 240, 241.
and threats by the same person immediately preceding that
complained of is admissible to show with what intent the as-
sault in question was made.! But an assault may be committed
without intending to injure a particular person, as by recklessly
shooting into a crowd,’ or by accidentally injuring another per-
son than the one for whom the injury is intended.? So mere
recklessness without intent to injure any one, but resulting in
injury, may constitute an assault. However, the intent to in-
jure the person assaulted must be alleged; the legal presump-
tion of an intent to injure from the fact of injury does not dis-
pense with the necessity of such an allegation.’ Mistake as to
facts will not excuse if the intent was to do an unlawful act.
§ 240. Unlawfulness.— If the act is unlawful, the intent with
which it is done is immaterial; as where one negligently aims
and discharges a fire-arm toward another, supposing it not to
be loaded ;’ or negligently throws a stone at another in sport,
causing an injury. Unlawful intent will be inferred from an
illegal act.2 One who is engaged in an affray or riot is respon-
sible for committing an assault thereby.” But the mere fact
that one is driving at greater speed than permitted by ordi-
nance in a city will not make the act of unintentionally run-
ning over another in the highway an assault.”
§ 241. Justification Under some circumstances it is law-
ful to use violence towards or commit an injury upon another,
1Ross v. S., 62 Ala. 224. But evi-
dence, disconnected, of previous
threats of personal violence, is inad-
missible: S. v. Skidmore, 87 N. C.
509.
28, v. Myers, 19 Ia. 517; Scott v.S.,
49 Ark. 156. And see the famous
squib case: Scott v. Shepherd, 2
W. BI. 892. An.indiscriminate as-
sault upon several is an assault upon
each: S. v. Merritt, Phil. 134; 8. v.
Nash, 86 N.C. 650. As to the intent,
in case of assault to kill or murder,
see infra, § 274.
3 Hollywood v. P., 3 Keyes (N. Y.),
55; James v. Campbell, 5 C. & P. 372.
Thus, one firing a pistol through the
door of a house commits an assault
upon the inmates, although his in-
tent is to injure not them but some
one else supposed to be therein:
Cowley v. S., 10 Lea, 282, ,
4Smith v. C., 100 Pa. St. 324,
5 Grayson v. S., 37 Tex. 228.
§¥For instance, an indecent assault
upon a woman, mistaking her for
another who is a prostitute, will be
criminal: Carter v. S., 87 Ala. 113.
So one who fired into a crowd in the
mistaken belief that they had com-
mitted an injury to his child was
held guilty of an assault: S. v. Nash,
88 N. C. 618.
7C. v. McLaughlin, 5 Allen, 507.
8 Hill v. S., 63 Ga. 578,
98. v. Allen, 30 Tex. 59; S. v. Boyn-
ton, 75 Ia. 753; Smith v. C., 100 Pa.
St. 324,
10S, v. Dineen, 10 Minn. 407,
11C, v. Adams, 114 Mass, 323,
205
[Part IV.
§ 242.) UNCOMPLETED AOT.
and therefore it is not every attempt to use such violence or
do such injury that will constitute an assault; the act must be
without legal excuse.’ But the provocation of offensive or
threatening language will not justify an assault” In some
states, however, by statute, insulting or opprobrious language
may be shown in mitigation or even in justification.’ Resist-
ance to unlawful arrest will be justified;‘ and so will the act
of an officer in giver une to make a lawful arrest,> or in pre-
serving the peace,® unless the violence used in the resistance to
such unlawful arrest, or in attempting to make a lawful arrest
or preserve the peace, was uncalled for and excessive.’
§ 242. Lawful chastisement.— There are various relations
in life which make some degree of violence or restraint under
proper circumstances lawful. Thus, moderate restraint or cor-
rection may be employed by the parent,’ or by one in loco
parentis.® But if such correction or restraint is unreasonable
it constitutes an assault. In the relation between teacher and
pupil the teacher stands 7m loco parentis, and may enforce obe-
dience to reasonable demands by corporal punishment admin-
istered with proper motives and within reasonable limits." But
1§, v. Wyatt, 76 Ia. 328; S. v. Bates-
well, 105 Mo. 609; Rex v. Osmer, 5
Fast, 304; Rex v. Cheere, 4 B. & C.
902; Reg. v. Mer¢dith, 8 C. & P. 589.
28. v. Herrin , 21 Ark, 195, S.
vy. Gamble, 119 Mo. 427; S. v. Wood,
1 Bay, 851; Coleman v. S., 28 Ga. 78;
Boon v. S., 31 Tex. 557; Nash v. S.,
2 Tex. Ap. 362. Evidence of provo-
cation may be introduced by the
state to explain and show a motive
of resentment for defendant’s act:
S. v. Griffis, 3 Ired. 504. But see S.
v. Jowers, 11 Ired. 555.
3Spigner v. S., 103 Ala. 30; Riddle
v. S., 49 Ala. 389; Brown v. S, 74
Ala. 42; Wood v. S., 64 Miss. 761;
Hodgkins v. SS, 89 Ga. %61. But
even under such statutes opprobri-
ous language will not excuse an as-
sault with intent to kill: Jones v.S.,
83 Tex. Ap. 492.
48. v. Bateswell, 105 Mo. 609; S. v.
Denkins, 24 La. An, 29,
58. v. Pugh, 101 N. C. 737; 5. v.
McNinch, 90 N. C, 695.
6 Patterson v.S., 91 Ala. 58 Buta
police officer cannot justify assault.
and battery as a means of repress-
ing disorder: Stone v. 8., 56 Ark.
345.
7C. v. Cooley, 6 Gray, 350; Dela-
foile v.8., 54.N. J. 381; S. v. Pugh, 101
N. C. 737; S. v. Hedrick, 95 N. C. 624;
Rasberry v. S., 1 Tex. Ap. 664.
8 Davis v.S., 6 Tex. Ap..133.
§9Snowden v. S., 12 Tex. Ap. 105.
10 Hinkle v.8., 127 Ind. 490; S. v.
Bitman, 18 Ia. 485. For instance, if
the weapon used is improper: Neal
v. &., 54 Ga. 281. But if no perma-
nent injury is inflicted there must be
legal malice or wicked motive, the
parent being intrusted by law with
discretion: Dean v. S., 89 Ala. 46;
8. v. Jones, 95 N. C. 588,
ll Danenhoffer v. S., 69 Ind. 295;
Dowlen v. §., 14 Tex. Ap. 61; Hutton
206
Cu. 17.] ASSAULT AND BATTERY. [§ 243.
if the punishment is excessive he is guilty of assault and bat-
tery.! In determining whether the punishment is excessive,
the nature of the instrument used in connection with the of-
fense is to be considered by the jury.2 If in the judgment of
the jury the punishment inflicted is immoderate or excessive,
they may infer malice from the act. And as a general rule
the reasonable limit is exceeded when the punishment causes
lasting injury. In other relations where authority is con-
ferred upon one person over another, moderate chastisement
may be lawful, as by the keeper of an almshouse upon an in-
mate so far as is necessary to preserve order and proper disci-
pline.® But those who hire from the state the service of con-
victs have not any such authority over them as will justify
flogging.®
§ 243. Correction of wife—It seems generally to be sup-
posed that by the earlier common law the husband might law-
fully inflict physical chastisement on his wife in exercising
over her a reasonable control, and that unless some permanent.
injury should be inflicted, or there should be an excess of vio-
lence, or such a degree of cruelty as to show that the act was
for the gratification of his own bad passions rather than for
proper restraint, the husband was not guilty of an assault.”
But this authority on the part of the husband has been ex-
pressly repudiated in all the recent cases on the subject, even
in the two states from which earlier cases are cited in the last
preceding note.® The consent of the wife to'sexual connec-
v.S., 23 Tex. Ap. 386; Bolding v. S.,
23 Tex. Ap. 172.
1Gardner v. S., 4 Ind. 632,
2C, v. Randall, 4 Gray, 36.
3 Boyd v. S., 88 Ala. 169; S. v. Staf-
ford, 113 N. C. 635; Whitley v. S., 33
Tex. Ap.172. Immoderate whipping
of an apprentice, even for commit-
ting larceny, will not be excused as
without malice: S. v. Dickerson, 98
N. C. 708.
4S. v. Pendergrass, 2 Dev. & B. 365.
58. v. Neff, 58 Ind. 516; S. v. Hull,
34 Conn. 1382.
6Cornell v. S., 6 Lea, 624; Prewitt
v. S, 51 Ala. 33; Werner v. S., 44
Ark, 122.
78. v. Black, 1 Winst. 266; S. v.
Rhodes, Phill. 453; S. v. Mabrey, 64
N.C, 592; Bradley v.S., 1 Walk. (Miss).
156; 1 Bl. Com. 444 (but see Ham-
mond’s note to this passage, p. 752).
8 Harris v. S., 71 Miss. 462; S. v.
Oliver, 70 N. C. 60 (but a still later
North Carolina case, in a dictum, re-
states the earlier rule: S. v. Edens,
95 N. C. 693); C. v. McAfee, 108 Mass.
458; P. v. Winters, 2 Park. Cr. 10:
Fulgham v.8., 46 Ala. 143; S. v. Buck-
ley, 2 Harr. 552; Reg. v. Jackson, 1
Q. B. D. (1891), 671.
207
[Parr IV.
R§ 244, 245.) UNCOMPLETED ACT.
tion with the husband having been given by the act of marry-
ing, he is not guilty of an assault in having such connection.’
§ 244, Control of premises.— One lawfully in charge and
control of premises used by the public may properly eject there-
from persons unlawfully coming upon such premises, or guilty
of improper conduct thereon, without being liable for assault,
as, for instance, the proprietor of a public house.’ But a station-
master will be guilty of assault in ejecting a passenger without
good cause;* so will a conductor in ejecting a person from a
train while in motion.‘
§ 245. Protection of property.— Assault and battery may
be justified in defense of real or personal property,’ as where
the owner or person in charge of premises without unnecessary
force removes an intruder, or attempts to prevent another from
wrongfully entering upon his premises.’’ But in ejecting a tres-
passer there must first be a request to depart before violence is
resorted to, and then only such violence should be used as is
necessary under the circumstances.’ So the unlawful act of an
officer in attempting to seize property will justify violence in
preventing him from taking the property,® but not in attempt-
ing to retake property from the officer, though wrongfully
taken by him.” Assault and battery is not justified in attempt-
ing to take possession of a house which is in the peaceable pos-
session of another," or in attempting to retake from another,
who is in possession, property claimed to have been stolen
from the assailant.” One tenant in common cannot lawfully
1This is said by a majority of the
court in a prosecution of the hus-
band for assault in having connec-
tion with his wife by consent, but
communicating to her venereal dis-
ease which he had, unknown to her:
Reg. v. Clarence, 22 Q. B. D. 23.
28. v. Steele, 106 N. C. 766.
3P. v. McKay, 46 Mich. 439,
4S. v. Kinney, 34 Minn. 311.
5Souther v. S., 18 Tex. Ap. 352.
6U. S. v. Bartle, 1 Cranch, C. C.
236; S. v. Marsteller, 84 N. C. 726; P.
v. Adams, 52 Mich. 105; P. v. Foss, 80
Mich. 559; Clarke v. S., 89 Ga. 768; S.
v. Weeks, 1 Dev. 135.
78. v. Stoke, 80 Ia, 68, Even though
the owner of premises is unlawfully
obstructing a right of way, he has
a right to protect his premises, and
his act in doing so will not justify
an assault on him by the person en-
titled to the right of way: 8S. ¥.
White, 18 R. L 473,
8C. v. Goodwin, 8 Cush. 154; S. v.
Lazarus, 1 Treadw. (S. C.) 34; S. v.
Burke, 82 N. C. 551; S. v. Taylor, 82
N. C. 554; S. v. Yancey, 74 N. C. 244;
Parrish v. 8., 32 Tex. Ap. 583,
98. v. Briggs, 3 Ired. 357,
108, v. Black, 109 N. C. 856; Cokely
v. S., 4 Ia, 477.
118, v. McKinley, 82 Ia. 445.
12 Hendrix v.S, 50 Ala, 148, But
208
ASSAULT AND BATTERY.
use violence in resisting the entry of another tenant upon the
common premises, though with the declared purpose of com-
mitting an unlawful act.’ In all cases the violence threatened
must be reasonably proportioned to the wrongful act which is
resisted. Thus, itis an assault to point a pistol at another
who, without right, has stopped the assailant from driving
along the highway,’ or to repel a trespass on premises by an
attempt to murder.’
§ 246. Self-defense.— One who is struck at may strike back
to prevent a repetition,‘ not, however, to avenge himself, but
uly in self-defense.- And in self-protection no more violence
‘should be used than is necessary under the circumstances.® In
general, self-defense is a justification ;’ but where defendant re-
lies upon reasonable apprehension of danger, he must show that
his belief was founded on reasonable grounds,’ the jury being
judge of the apparent necessity.? One who has brought on a
difficulty cannot justify striking in self-defense.” But he will
not by reason of his own wrong in provoking the difficulty be
entirely cut off from defending himself from ensuing violence,"
unless he might by retreating have avoided the danger.” A
son may use violence when necessary to defend or protect his
father, but he may not interpose in a fight in which his father
is engaged with another on equal terms."* The whole subject
Cx. 17.) [§ 246.
gher v. S., 8 Minn. 270; Reid v.S., 71
Ga. 865.
assault is said to be justifiable in
attempting to recover money fraud-
ulently taken and in possession of the
“person wrongfully taking it: Ander-
son v. 8&., 6 Baxter, 608.
1C. v. Lakeman, 4 Cush. .597.
2 Hairston v. S., 54 Miss, 689.
38. v. Donyes, 14 Mont. 70; S. v.
Montgomery, 65 Ia. 483.
4 Anon., 2 Lewin, 48; U.S. v. Beyer,
$1 Fed. R. 35.
5 Reg. v. Driscoll, Car. & M. 214.
Although by statute opprobrious
words are made a justification, a
prior blow is not a defense: Riddle
y. S., 49 Ala. 389.
6 Stevens v. S, 1 Tex. Ap. 591;
‘Cotton v. S.,4 Tex. 260; Mooney v.
$., 33 Ala. 419; S. v. Quin, 3 Brev.
515; Floyd v. 8, 86 Ga. 91; Galla-
14
‘7Sharp v. S. 19 Ohio, 379; S. v.
Gibson, 10 Ired. 214; McAfee v. S.,
81 Ga. 411; S. v. Davis, 7 Jones,
52; Edwards v. S., 5 Tex. Ap. 593,
It is not proper to speak of assault in
self-defense; an act done in lawful
self-defense cannot be an assault:
P. v. Lynch, 101 Cal. 229.
8S. v. Bryson, 1 Wins. (No. 2), 86;
May v. S., 6 Tex. Ap. 191.
98. v. McGreer, 18 S. C. 464.
10S, v. Bryson, 1 Wins. (No. 2), 86.
ll Daniel v. 8., 10 Lea, 261; Smith
v. S., 8 Lea, 402; Yoes v. S., 9 Ark.
42.
128, vy. McKinley, 82 Ia. 445.
139, v, Johnson, 75 N. C. 174; Wad-
dell v. S., 1 Tex. Ap. 720.
209
§§ 247-249.] UNCOMPLETED ACT. [Parr IV.
of self-defense is considered under homicide,! and to some
extent under assaults with intent to commit a felony.’
§ 247. Effect of civil action.— Acknowledgment of satisfac-
tion by the injured party will not authorize a discharge of de-
fendant after conviction.’ The prosecution of a civil action to
recover damages for an assault will not bar a criminal prosecu-.
tion for the same assault. Nor will judgment in favor of one
party against another for damages for assault bar a prosecution
of the former for an assault in the same difficulty, since each
may have been guilty of an assault.’ Where the assault is com-
mitted in view of the court and is punished as a contempt, that
fact will not bar prosecution for the crime.®
§ 248, Mitigation or aggravation.— Extenuating circum-
stances not amounting to a complete defense of justification
should not be proven under a plea of not guilty, but are to be
submitted to the court on sentence day.’ For instance, evi-
dence that defendant had been informed before the assault
that the injured party had agreed with defendant’s wife to
help her get a divorce and then marry her is not admissible.®
But on tbe other hand it has been held that by way of mitiga-
tion for assault and battery on the wife the husband may show
that at the time of the assault he was immediately provoked
to its commission by her bad behavior,’ and that in explanation
of what would otherwise appear to have been a wanton and
incomprehensible assault upon his wife, defendant might show
that her prior undue intimacy with another man had been com-
municated to him.” It seems also that circumstances of aggra-
vation may be proven." But the general subject of aggravated
assaults will be treated of in the next chapter.”
§ 249. Effect of consent.— An assault implies an attempt to
use force on the one side, and repulsion, or at least want of as-
sent, on the other, and it must be, therefore, committed against
1 Infra, $§ 301-316. 6S. v. Yancy, Law Rep. (N.C.) 519.
2 Infra, § 267. 7§, v. Smith, 2 Bay, 62,
3P. v. Bishop, 5 Wend. 111. 88. v. Jackson, 17 Mo. 544,
4C. v. Elliott, 2 Mass. 872; P. v. 9 Robbins v. S., 20 Ala. 86.
Judges, etc.,13 Johns. 85; S.v. Frost, 1°Greta v. S., 10 Tex. Ap. 36.
1 Brev. 885 (overruling S. v. Blyth,1 Murdock v. S., 65 Ala. 520; 8. v.
Bay, 166); Buckner v. Beck, Dudley Dearborn, 54 Me. 442.
S. C.), 168, 12 See infra, § 254 et seq,
5P. v. Keuhn, 93 Mich. 619,
210
Cu. 17.] ASSAULT AND BATTERY. [§ 249.
the will of the party assaulted.1. Thus, where parties engage
in a fight at fisticuffs there is no assault, although the act may
constitute an affray, which is a distinct offense.? But even
a boxing-match or fist-fight engaged in by consent may con-
stitute or tend to a breach of the peace, and the parties thus
be guilty of an assault.’ Especially is a prize-fight illegal, and
all persons aiding and abetting therein are guilty of assault,
the consent of the persons actually engaged not affording any
answer to the criminal charge.t The consent of the patient to
improper and injurious medical treatment, in reliance on the
advice of a physician, will not be a defense to the physician
when charged with such improper and dangerous treatment as
constitutes an assault.6 So consent to carnal connection, under
the pretense of medical treatment, will not prevent the act
being an assault.6 On the principle that there is no assault
where there is consent, an indignity offered to a female, where
she is the consenting party to an act involving her own dis-
honor, is not an assault.’ The general effect of proof of con-
sent in prosecutions for rape will be discussed in connection
with that subject. Where the female is under the age of con-
sent, so that the act of connection is criminal (sometimes called
rape), even if she does consent, the authorities are not agreed
whether the attempt to have such connection with her consent
is an assault.? So in case of indecent acts committed by a man
1Duncan v. C., 6 Dana, 295; Smith
v. &., 12 Ohio St. 466.
2Champer v. S. 14 Ohio St. 437;
Duncan v. C., 6 Dana, 295.
3C, v. Collberg, 119 Mass. 350; S. v.
Burnham, 56 Vt. 445; Reg. v. Lewis,
1C & K. 419. And even in civil
actions for assault it has been held
that consent to fight will not pre-
vent recovery for assault and bat-
tery: Bell v. Hansley, 3 Jones, 131;
Stout v. Wren, 1 Hawks, 420; Logan
v. Austin, 1 Stew. 476; Adams v.
Waggoner, 33 Ind. 581.
4 Reg. v. Coney, 8 Q. B. D. 534. Fur-
ther, as to prize-fights, see infra,
§ 1013,
5C. v. Pierce, 188 Mass, 165.
6 Reg, v. Case, 1 Den. 580.
7P. v. Bransby, 32 N. Y. 526.
8See infra, § 464.
3 As holding that such an attempt
even with consent is an assault, see
Cliver v. S., 45 N. J. 46; Hays v. P.,
1 Hill, 351; P. v. McDonald, 9 Mich.
150; Murphy v.S., 120 Ind. 115. Mere
submission of a child of tender years
does not show consent: Reg. v. Day,
9C. & P. 722; Reg. v. Lock, L. R. 2
c.C. 10. On the other hand, as hold-
ing that in such a case the act that
would be rape, if completed, does
not involve an assault if by consent
of the female, see S. v. Pickett, 11
Nev. 255; Smith v.S., 12 Ohio St, 466;
Rhodes v. 8., 1 Coldw. 350; Reg. v.
Martin, 9 C. & P. 215; Reg. v, Banks,
8C. & P. 574; Reg. v. Meredith, 8c.
211
8§ 250, 251.] UNCOMPLETED ACT. [Parr IV.
with a boy too young to understand the nature of such acts
(eight years of age, for instance), the man was held guilty of
an assault! But where such act was committed with a boy
above fourteen years of age by his consent, it was held that
there was no assault.2, Consent obtained by fraud, as where
by personating a woman’s husband another man has connec-
tion with her, will not prevent the act being an assault.? Where
the act goes beyond the consent there may be an assault; for
instance, where, though there is consent to sexual connection,
it is brutal and excessive.t So it has been thought there may
be an assault where, in sexual connection consented to, the male
is, without the knowledge of the female, affected with venereal
disease, which is thus communicated to the female.’ But these
cases have been doubted, and by a divided court it has been
held that it is not an assault for a husband to communicate
venereal disease to the wife.’
§ 250. Principal and accessory.— As assaults, or assaults and
batteries, are misdemeanors and not felonies, there is no dis-
tinction between principal and accessory, and one who incites
others to the commission of such an offense may be convicted
under a charge for the offense itself;7 and those who are pres-
ent aiding and abetting are equally guilty with those who do
the act.®
§ 251. Jurisdiction.— Where the lower grade of offenses
are cognizable only in an inferior court, the offense of assault
or assault and battery is usually of such inferior grade that it
may be prosecuted only in such court, even though some form
of aggravation is alleged, provided such additional allegation
does not raise the offense to a higher grade.’ But it may be,
& P. 589; Reg. v. Read, 2 Car. & K.
957. As to assault with intent to
rape, see, in general, infra, § 464 et
seq.
1Reg. v. Lock, L. R. 2 C. C. 10.
2 Reg. v. Wollaston, 12 Cox, 180,
3 Reg. v. Saunders, 8 C. & P. 265;
Reg. v. Williams, 8 C. & P. 286. As
to whether the act would be rape,
see infra, § 446,
4Richie v. S., 58 Ind, 855.
* Reg. v. Bennett, 4 F. & F. 1105;
Reg. v. Sinclair, 18 Cox, 28,
6 Reg. v. Clarence, 22 Q. B. D. 23.
7C. v. Hurley, 99 Mass, 433; S. v.
Lymburn, 1 Brev. 397; S. v. McClin-
tock, 8 Ia. 203; Thompson v. S., 25
Ala, 41; U.S. v. Ricketts, 1 Cranch,
C. C. 164,
8S. v. Morris, 3 Hawks, 388; S. v.
Merritt, Phil. 184; Hansford v. 8., 54
Ga, 55.
9C. v. Cunningham, 13 Mass. 245;
C. v. O’Donnell, 150 Mass. 502; T. v.
Valdez, 1 New Mex. 548 But a
court of general criminal jurisdic-
212
Cu. 17.] [§ 252.
ASSAULT AND BATTERY.
under peculiar provisions as to jurisdiction, that the question
of whether the offense is of a higher grade can only be deter-
mined on the evidence and not by the pleadings, and in such
case the higher court would have jurisdiction.1 Where assault
and battery is by statute a criminal offense, and the provis-
ion is such that all criminal offenses are tried upon present-
ment or indictment only, then such proceeding would be
necessary in case of this crime? A question of territorial
jurisdiction arises when a person in one state shoots across the
line at a person in another, and it has been held that there is:
in such case a crime committed in the state where the person
is who is assailed.? Similar questions are considered in the
chapter on homicide.
§ 252. Indictment.— The indictment may be as at common
law,® but where special terms are used in the statute the in-
dictment must correspond therewith. Matter of aggravation
not necessary to charge the crime may be alleged without
vitiating the indictment.’ It is not necessary to set out the
particular acts of violence done,’ nor to allege the nature of
the weapon used, or the manner of its use.? Even if the means
is stated, other means may be proven without constituting a
variance.” As in other cases, time should be alleged (although
not material)," unless by statutory provision such allegation is
not necessary.” Facts showing the present ability to commit
tion can entertain the prosecution
unless it directly appears that it is
exclusively in the jurisdiction of
some other court: S. v. Earnest, 98
N. C. 740.
1g, v. Jones, 73 Me. 280.
2 Rector v. S., 6 Ark. 187; Durr v.
Howard, 6 Ark. 461.
3Simpson v. 8., 92 Ga. 41,
4 Infra, § 369,
5 Evans v. S., 25 Tex. 304.
68. v. Trulock, 46 Ind. 289; Rollins
v. S., 62 Ind. 46; Howard v. S., 67
Ind. 401; Slusser v. S., 71 Ind. 280.
“Touch, strike and wound” are
equivalent to the statutory words
“touch in a rude, insolent or angry
manner, unlawfully:” S. v. Miller,
27 Ind. 15; but “violently beat,
bruise, wound and ill-treat” are suf-
ficient without “in an angry and
wilful manner,” where the latter
words are not used in the statute:
S. v. Boynton, 75 Ia. 753. Similar
words were held sufficient in Reg. v.
Crespin, 11 Q. B. 913.
7Murdock v.8., 65 Ala. 520; S. v.
Dearborn, 54 Me. 442; 8. v. Inskeep,
49 Ohio St. 228.
8 Bloomer v. S., 3 Sneed, 66; Rober-
son v. S., 15 Tex. Ap. 317.
9P, v. Casey, 72 N. Y. 398; S. v.
Clayton, 100 Mo. 516. As to alleg-
ing the manner or means in aggra-
vated assaults or assaults with in-
tent, see infra, §§ 260, 268.
10Ryan v. S, 52 Ind. 167; P. v.
Casey, 72'N. Y. 393.
118, vy. Eubanks, 41 Tex. 291.
12 Myers v. &., 121 Ind. 15. The fact
213
[Parr IV.
§ 252.] UNCOMPLETED ACT.
the offense on the part of the defendant at the time of the as-
sault need not be alleged; the words of the statute are suffi-
cient.!| The unlawful character of the assault need not be
alleged nor need the intent to injure be stated.?_ It is not nec-
essary to allege that the person beaten was in the peace of the
state, nor are the words “with force and arms” necessary.?
Nor is it necessary to say that the party wronged was “date
of said county,” or that he was damaged. The act may be
charged as felonious where the statute defining the offense
brings it within the definition of a felony.’ Where the offense
is statutory the conclusion of the indictment should be, “ against
the form of the statute,” as in other indictments for statutory
offenses.6 The name of the person injured, if known, must be
alleged;* if not known, that fact must be stated. The name of
the person upon whom the assault is charged to have been
committed is material, and proof of an assault upon such per-
son or another will not support a conviction;® but identity of ,
the name of the person assaulted with the name used in the
indictment is sufficient, although there are,two persons of the
same name.” An assault may be charged as made upon two
persons without the allegation being objectionable as charging
two offenses." So two persons may commit an assault and bat-
tery each on the other, but each will be guilty of a separate
offense.”
of correspondence between the date
of an assault as charged in an in-
dictment and the date of an assault
for which prosecution was previ-
ously dismissed will indicate, in the
absence of evidence to the contrary,
that they were the same assault:
Reg. v. Westley, 11 Cox, 189.
1 Shinn v. S., 68 Ind. 423. Further
as to whether present ability must
be alleged, see supra, § 233, and infra,
§ 266.
28. v. Hays, 41 Tex. 526; S. v.
Hartman, 41 Tex. 562; S. v. Lutter-:
loh, 22 Tex. 210.
38, v. Elliott, 7 Blackf. 280,
48, v. Wimple, 8 Blackf. 214,
58. v. Goddard, 69 Me, 181.
6S. v. McKettrick, 14 8. C. 346.
But see Noles v. S., 24 Ala. 672.
78. v. Bitman, 18 Ia. 485.
8 Rutherford v. &, 18 Tex. Ap. 92;
8. v. Snow, 41 Tex. 596; 5S. v. Elmore,
44 Tex. 102.
9 Brown v. &., 16 Tex. Ap. 197.
10 Rex v. Peace, 8 B. & Ald. 579;
Rex v. Clendon, 2 Ld. Ray. 1572,
cited in argument in Rex v. Ben-
field, 2 Burr. 980; Anon., Lofft, 272.
Kenney v. &, 5 R. I. 885; S, v.
Nash, 86 N. C. 650; S. v. Merritt,
Phill. 134; Fowler v. S., 3 Heisk. 154.
But old English cases seem contra:
Rex v. Clendon, 2 Ld. Ray. 1572,
cited in argument in Rex v. Ben-
field, 2 Burr. 980; Anon., Lofft. 272.
128, v. Lonon, 19 Ark. 577.
214
Ox. 17.] AGGRAVATED ASSAULTS. [S§ 252a-254.
§ 252a. Forms.— The recognized forms of complaint for as-
sault and battery are exceedingly simple. They do not con-
tain, as a rule, the method or means, either of the assault or
the injury. The following will be sufficient illustrations:
ASSAULT AND BATTERY.
That A. B., on ——, in the county of ——, in and upon one
C.D, did make an assault, and him, the said C. D., then and
there did beat, bruise, wound and ill-treat, and other wrongs to
the said C. D. then and there did.!
ASSAULT WITHOUT BATTERY.
That A. B., on , in the county of ——, in and upon one
C. D., with a certain instrument called a rake, did make an as-
sault, and other wrongs to the said C. D. then and there did
and committed.
§ 253. Included offense.— An assault is necessarily included
in a battery,? and under an indictment for assault and battery
the defendant may be convicted of an assault only. But under
‘an indictment for simple assault there cannot be a conviction
of a battery. The offense of maiming and disfiguring neces-
sarily includes an assault and battery ;> so does false imprison-
ment;® but an indictment for an affray will not sustain a con-
viction for assault and battery unless it contains substantive
allegations such as to admit proof of the other offense.’ In
discussing aggravated assaults and assaults with intent, it will
appear that they include necessarily an assault and sometimes
an assault and battery.®
TI. AcaravaTep ASssAULTs.
§ 254. How classified.— The circumstances under which an
assault is committed or the intent with which it is committed
may show a higher degree of criminality than would be indi-
1This is substantially the form. assault if the allegations as to beat-
recognized in the common-law form ing, etc., were omitted.
‘books and adopted by the modern 28. v. Twogood, 7 Ta. 252.
writers. Itomitssomeof the phrase- ‘Lewis v. S., 33 Ga. 131.
ology of the older books, but noth- 4¥Furnish v. C., 14 Bush, 180.
ing that is material. It is usual to 5 Benham v. S., 1 Ia. 542,
thus charge battery, as well as as- Francisco v. 8., 24 N. J. 30.
‘sault, even though an assault only 7 Childs v. 8, 15 Ark. 204,
thas been committed. The form 8See infra, §§ 262 and 271; also as
would doubtless be sufficient for an to assault with intent to commit
rape, see § 462.
215
§ 255.] UNCOMPLETED ACT. [Part IV.
cated by the acts alone, and assaults which are thus made
especially criminal may therefore be divided into aggravated
assaults, or those in which the circumstances or manner of the:
assault are made a ground of aggravation, and assaults with
felonious intent, or those in which the intent of the assailant.
renders the crime of a higher degree. It will be difficult to
fully distinguish these two kinds, for the reason that they are
for the most part provided for by statute, and the statutes
sometimes combine in the description of the offense both cir-
cumstances or means, and the intent; but in the main these
divisions will be found practicable and useful. The cases in-
cluded under this subheading are those in which the increased.
criminality of the assault is made to depend on the circum-
stances under which or the means by which it is committed. °
§ 255. What constitutes aggravation At common law
all assaults were misdemeanors only, punishable by fine and
imprisonment, but the circumstances of aggravation could be
taken into account by the court in affixing punishment. Stat-
utes have made some aggravated assaults felonious.! Under
statutes providing generally for cases of aggravated assault, an
aggravation in the manner or character of an assault or bat-
tery, as, for instance, by reason of its wantonness, its violence,
or the injury inflicted, may be considered sufficient to render it
of an aggravated nature;? but it was held that striking and
beating with a pistol in. a manner calculated to inflict serious
bodily pain and injury did not per se constitute an aggravated
assault. The offense of “endangering the life” of another
may be committed by shooting at him, though he is not hit.
Unnecessary beating of a prisoner by an officer for refusing to
go with him upon being arrested may constitute an aggravated
assault.> By statute, in one state at least, an assault and bat-
tery committed upon a decrepit person is made specially pun-
ishable.6 Assaults upon females are sometimes specially men-
tioned by statute.’ By the Texas statute an assault by an adult
1Cornelison v. C., 84 Ky. 583; T. v. ®Hall v. S., 16 Tex. Ap. 6.
Conrad, 1 Dak. T. 363. TRidout v.S.,6 Tex. Ap. 249; At-
2Norton v. §,, 14 Tex. 387. kins v. 8. 11 Tex. Ap. 8; Munday v.
3 Miles v. S., 23 Tex. Ap. 410, Maiden, 33 L. T. 877; Wilkinson v.
48. v. Agee, 68 Mo. 264, Dutton, 3 B. & S. 821. But the
5Skidmore y. §., 2 Tex. Ap. 20. Texas statute describes the offense
216
Ox. 17.] AGGRAVATED ASSAULTS.
[§ 256.
upon a child, or an assault in the house of a private family, is.
an aggravated assault.? An assault is sometimes declared ag-
gravated if committed in resisting an officer in the discharge:
of his duty.* In England cutting or stabbing with intent to
resist lawful apprehension has been made specially punishable-
by statutory provision.’ An assault committed in a court of
justice is in Texas made an aggravated assault.’ In North.
Carolina there is provision as to a secret and malicious assault
with a deadly weapon.®
§ 256. Shooting, cutting, stabbing, wounding, inflicting
great bodily harm, etc.— The nature of the injury inflicted,
or the intent to inflict serious injury, is by some statutes made.
an element of increased criminality, as, for instance, an assault
by wilful shooting, in which case the indictment need not al-
lege that the shooting was done with a dangerous weapon,’
as by an adult male upon a female
and the indictment should so allege:
Blackburn v. §., 89 Tex. 153; Lawson
v.13 Tex. Ap. 88; Andrews v. S.,
13 Tex. Ap. 348; Kemp v. S., 25 Tex.
Ap. 589. To constitute an aggra-
vated assault upon a female it must
be shown that defendant attempted
to use force with intent to injure
the person: Floyd v.S., 29 Tex. Ap.
349. A woman may be joint princi-
pal, in connection with an adult
male, in such assault: Kemp v. S.,
25 Tex. Ap. 589. An injury result-
ing in a sense of shame from violence
to the person is by Texas statute an
aggravated assault: Young v.S., 31
Tex. Ap. 24.
1Under such statute an adult is
a person twenty-one years of age:
George v. S., 11 Tex. Ap. 95; Sche-
nault v. &, 10 Tex. Ap. 410. The
term “child,” not being specially de-
fined, must be taken in its ordinary
sense as indicating a boy under
fourteen, or a girl under twelve, and
not as synonymous with minor: Mc-
Gregor v. 8S. 4 Tex. Ap. 599; Bell v.
S., 18 Tex. Ap. 58, In such cases it
is not the instrument used, nor the
manner of its use, that constitutes
the aggravation: Stanfield v. S., 43:
Tex. 167.
28. v. Cass, 41 Tex. 552; Pederson
v. &., 21 Tex. Ap. 485. But shooting:
in a dwelling-house does not consti-
tute the statutory offense of shoot--
ing into a dwelling: S. v. Kye, 46 La.
An. 424,
3 Johnson v.8., 26 Tex. 117: S. v.
Coffey, 41 Tex. 46; Johnson v. S., 5
Tex. Ap. 48; U. S. v. McEwan, 44
Fed. R. 594. In England beating a
deer-keeper in the discharge of his-
duty is specially punished: Rex v..
Amey, Russ, & Ry. 500. But “beat-
ing” must be more than a simple
battery: Reg. v. Hale, 2C. & K. 326.
4 Reg. v. Price, 8 C. & P. 282; Reg.
v. Walker, Dears. 358; Rex v. Will-
jams, 1 Moody, 387; Rex v. Howarth,.
1 Moody, 207; Rex v. Gardener, 1
Moody, 390; Rex v. Fraser, 1 Moody,
419; Rex v. Ricketts, 3 Camp. 68;
Rex v. Dyson, 1 Stark. 246.
58. v. Hunter, 44 Tex. 94; S. v..
Murrah, 25 Tex. 759.
6S, v. Jennings, 104 N. C. 774; S. v.
Gunter, 116 N. C. 1068; S. v. Patton,
115 N.C. 753; S. v. Shade, 115 N.C.
757.
78, v. Cognovitch, 34 La. An. 529,
217
& 256.]
UNCOMPLETED ACT.
[Parr IV.
although the statute was evidently intended to cover shooting
with such weapon.! In charging such offense it is not neces-
sary to describe the weapon nor the method of its use.” Mali-
cious stabbing does not necessarily involve such malice as
would be necessary to make death resulting therefrom murder
in the first degree.2 The offense of cutting or stabbing with
a knife, sword, or other deadly weapon, includes the offense of
cutting another with anax.t To constitute stabbing, the knife
need not penetrate further than to draw blood,’ and the alle-
gation that defendant did “cut, penetrate and wound,” suffi-
ciently shows a stabbing.’ Striking upon the head with the
- claw part of a hammer may constitute a cutting;’ but an indict-
ment for cutting and maiming with intent to murder and dis-
able is not supported by evidence of a cutting with intent to
produce a temporary disability.2 A wounding may consist in
an injury which breaks the skin and draws blood, although the
instrument used is not one calculated to inflict a wound.’ The
But the indictment must charge
wilful shooting, not merely a wilful
assault by shooting: 8S. v. Langston,
45 La, An. 1182.
18, v. Mosely, 42 La, An. 975.
28, v. Ladd, 2 Swan, 225. An as-
‘sault need not be alleged, the stat-
utory terms being sufticient: S. v.
Phelan, 65 Mo. 547. The fact that
the weapon was loaded with powder
and paper only will not prevent the
offense being that of ma#icious shoot-
ing if the circumstances indicated
-an intent to kill or do other griev-
-ous bodily harm: Rex v. Kitchen,
Russ. & Ry. 95. Method of firing
-off the gun is immaterial: Rex v.
Coates, 6 C. & P. 394. In West Vir-
ginia the statute provides for the
punishment of malicious shooting
and unlawful shooting, in either case
with intent to maim, disfigure, dis-
-able or kill: 8. v. Harr, 88 W. Va. 58.
3 Wright v. S,9 Yerg. 342; Tyra
vy. C., 2 Met. Ky.) 1. If the offense
by statute is stabbing with intent to
‘maim, etc., the intent must be found:
“Marshall v. C., 5 Grat. 668. But a
general allegation of the intent is
enough: Woodson’s Case, 9 Leigh,
669.
4Wilson v. C.,3 Bush, 105. Thrust-
ing with a dangerous weapon in-
cludes thrusting with an iron bolt,
whether the point be sharp or not:
S. v. Lowry, 33 La. An. 1224,
5 Ward v. S., 56 Ga. 408.
6 Starks v. S., 7 Baxt. 64.
TRex v. Atkinson, Russ. & Ry,
104. ;
5 Rex v. Boyce, 1 Moody, 29.
98. v. Leonard, 22 Mo. 449; Rex v.
Payne, 4 C. & P. 558; Rex v. With-
ers, 4 C. & P. 446; Reg. v. Briggs, 1
Moody, 318; Reg. v. Smith, 8 C. & P.
178; Rex v. Beckett, 1 M. & Rob.
526; but a separation of the cuticle or
upper skin only is not sufficient: Reg.
v. McLoughlin, 8 C. & P. 685. Break-
ing collar-bone and bruising is not
a wounding: Rex v. Wood, 4 C. & P.
381. Injury from a kick which
causes a flow of blood will be a
wounding if the flow of blood is
due to rupture of the skin: Reg. v.
Waltham, 8 Cox, 442; Reg v. Jones,
218
Cu. 17.] AGGRAVATED ASSAULTS. [§ 257
wound must be direct, and therefore an injury occasioned by
falling in consequence of a blow is not a wounding;! but where
a wound was occasioned by a violent blow with a weapon,
upon prosecutor’s hat, although the weapon did not come in
‘contact with the head, the offense was held to be a wounding.”
An injury from oil of vitriol thrown in the face is not a wound-
ing,’ nor is biting off the end of the nose or the joint of a finger
a wounding, the intent of the statute appearing to be to punish
wounding by some instrument and not merely by the hands or
teeth. Throwing another down with violence, or scratching
his face, is not a striking and wounding.’ Inflicting serious
bodily injury, or great bodily harm, etc., is sometimes-by statute
made an aggravated assault; but to constitute such injury or
harm something more than mere pain and anguish must be
shown.’ Breaking a rib in an attempt to beat, but-without in-
tent to do serious injury, was held not a serious bodily injury ;?
but it is not necessary that the injury should be premeditated
or dangerous.® Under a statute providing a punishment for
an assault by means likely to produce great bodily injury, one
may be indicted for throwing another out of a third-story
window.
§ 257. Assaults with dangerous or deadly weapons.— It is
often made an element of aggravation that the assault is com-
8 Cox, 441. A wounding less than as to imperil its life, but not caus-
mayhem has a definite meaning
when used in a statute as descriptive
of an offense: 8. v. Hagan, 45 La.
An. 839.
1Reg. v. Spooner, 6 Cox, 392.
2 Rex v. Sheard, 7 C. & P. 846,
3Rex v. Murrow, 1 Moody, 456;
Henshawel’s Case, 2 Lewin, 135.
Throwing vitriol with intent to in-
jure is a statutory offense, and in-
cludes an assault: P. v. Stanton, 106
Cal. 139.
4Rex v. Harris, 7 C. & P. 446; Jen-
nings’ Case, 2 Lewin, 130.
5C, v. Gallagher, 6 Met. 565.
6S. v. Nash, 109 N. C. 824.
7 Halsell v. S., 29 Tex. Ap. 22.
8Reg. v. Ashman, 1 F. & F. 88;
Rex v. Cox, Russ. & Ry. 362. A
mother exposing her infant child so
ing a lesion of any organ, was held
not guilty of causing bodily injury:
Reg. v. Guay, Dears. & B. 903. An
indictment for inflicting actual bod-
ily harm is sustained by proof of
communicating an infectious dis-
ease to a female by sexual connec-
tion, without knowledge on her part
of the diseased condition of the male:
Reg. v. Sinclair, 13 Cox, 28; Reg. v.
Bennett, 4 F. & F. 1105. One who,
by producing a panic in a theater,
caused the people to rush against an
iron bar placed by him across the
door, thus producing serious injury,
was held guilty of inflicting grievous
bodily harm: Reg. v. Martin, 8 Q. B.
Dz 54.
9P, v. Emmons, 61 Cal. 487,
219
§ 257.] [Part IV.
UNCOMPLETED ACT.
mitted with, or by one who is armed, with, a dangerous or @
deadly weapon.!' Where the statute uses the term “ dangerous
weapon,” without describing any particular kind of weapon as
dangerous, the character of the weapon is a fact for the jury,”
a dangerous weapon being one likely to produce death or great
bodily harm It is not necessary to allege the assault spe-
cifically as “ with a dangerous weapon” where the indictment.
states facts showing that a dangerous weapon was used,‘ nor
that, if a pistol, loaded, was used, that it was used to shoot.®
The question as to what is a dangerous weapon may depend
upon the nature of the assault.6 The offense of assault and
battery with a cowhide, etc., having at the time in possession
a pistol or other deadly weapon,’ is sufficiently shown by proof
1 There is no punishment provided
for an assault with a dangerous
weapon, committed within the ex-
clusive jurisdiction of the United
States on land: U. 8. v. Williams, 2
Fed. R. 61; but such an assault com-
mitted on the high seas, on board an
American vessel, is criminal: U. 8.
v. Lewis, 36 Fed. R. 449.
28. v. Brown, 41 La. An, 845; Nel-
son v. P., 23 N. Y. 293; P. v. Irving,
95 N. Y. 541; U.S. v. Small, 2 Curtis,
241.
38. v. Dineen, 10 Minn. 407; 8. v.
Godfrey, 17 Oreg. 300. The “danger”
involved, that the weapon may be
dangerous, is danger to life: U.S. v.
Small, 2 Curtis, 241; or of great bod-
ily harm: S. v. Godfrey, 17 Oreg. 300.
48. v. Mosley, 42 La. An. 975. By
-the Texas statute an assault with a
stick, which is a dangerous but not
a deadly weapon, is not an aggra-
vated assault, unless with premedi-
tated design or with the infliction of
great bodily injury: Pinson v. S., 23
Tex. 579. Thus an aggravated as-
sault can be committed with the
fists: Keley v. 8. 12 Tex. Ap. 245.
But unless the nature of the weapon
is stated there can be no convic-
tion of an assault with a dangerous
weapon: Garcia v. 8., 19 Tex. Ap.
389,
5C. v. Fenno, 125 Mass, 387. .
6A pocket-knife is not, in terms, a
dangerous weapon, but it may be
such if used to inflict a dangerous.
wound: §. v. Hertzog, 41 La. An.
775; S. v. Scott, 38 La. An. 387; fur-
ther as to knife, see Weaver v. S., 24
Tex. 387. A belaying-pin may be a
dangerous weapon: U.S. v. Small, 2
Curtis, 241. An unloaded gun may
be a dangerous weapon within strik-
ing distance; otherwise not: S. v.
Godfrey, 17 Oreg. 300. The allega-
tion of stabbing with a knife, in a
charge for inflicting a wound with
a dangerous weapon, is sufficiently
supported by evidence of cutting
with a knife, the term “stabbing,” in
such connection, not having a tech-
nical meaning: Ruby v. S, 7 Mo.
206. Threatening to strike with a
pound-weight or a large stone may
constitute an aggravated assault by
use of a dangerous weapon: Brown
v. &, 58 Ga. 212; S. v. Dineen, 10
Minn. 407. A large piece of timber
may be a dangerous weapon: S. v.
Alfred, 44 La. An. 582; so an iron
auger: Jennings v. 5., 9 Mo. 852. As
bearing on this question, see cases in
notes to this section as to what is a
deadly weapon.
7 As provided by statute: Clarke v.
T., 1 Wash. T. 68; Lawson v. 8, 62
220
On. 17.) AGGRAVATED ASSAULTS.
[§ 257.
of possession of the weapon, although such possession was not
ostensible nor known to the party assaulted! The charge of
assault while armed with a dangerous weapon is supported by
proof of arming with the weapon prior to the assault, whether
at the place of the assault or elsewhere? In defining assault
with a deadly weapon, statutes sometimes enumerate certain
weapons, concluding the enumeration with a general specifica-
tion of “other deadly weapons,” and in such case the enumer-
ated weapons are not exclusive, but others not included in the
enumeration must, to bring the crime within the statute, be
alleged to be deadly. But if the weapon is of a kind included
in the statutory enumeration it is not necessary to allege it to.
be a dangerous or deadly weapon; ‘ and if the weapon is of this
character, then it is not necessary to allege the assault to have
been committed in a manner calculated to produce death!
Where no particular weapons are enumerated by statute as
deadly, it is sometimes held that the court may judge from the
nature of the weapon as described whether it is deadly in the
manner used.° Itis sufficient to allege the assault to have been
with a deadly weapon.’ An ax may be described in the in-
dictment in terms as a deadly weapon without any allegation
as to size, weight, etc.;® and it is so held, also, as to a club;?
so held, also, as to the handle of a hoe.” Such allegation is
sufficient even though the weapon or instrument is not one
which is usually considered to be deadly ;¥ but an allegation of
an assault “with a deadly weapon, to wit, a certain stick,” is,
Miss. 556; Higginbotham v. §., 50 harm in the manner used, and of this -
Ala. 133.
1 Lawson v..8S., 62 Miss. 556,
28. v. Dineen, 10 Minn. 407.
3S. v. Sebastian, 81 Mo. 514.
4S. v. Hoffman, 78 Mo. 256; S. v.
Greenhalgh, 24 Mo. 373.
58. v. Painter, 67 Mo. 84
6P, v. Guidice, 73 Cal. 226; S. v.
Swann, 65 N. C. 330. ‘Therefore, in
such case, an instruction as to sim-
ple assault may. be necessary: S. v.
Schloss, 93 Mo. 88 Guns, swords,
pistols, knives and the like are
deadly, as matter of law, when used
within striking distance;, others are
deadly or not, according to their ca-
pacity to cause death or great bodily
the jury must judge: S. v. Godfrey,
17 Oreg. 300; Stevens v. S., 27 Tex.
Ap. 461.
TP, v. Congleton, 44 Cal. 92. But
in another case it is said that the
character of the weapon must be
averred: S. v. Russell, 91 N. C. 624.
88. v. Schields, 110 N. C. 497%. An
ax is a deadly weapon: Wilson v.
C., 8 Bush, 105. So is a sledge-ham-
mer: Philpot v.C., 86 Ky. 595.
98. v. Phillips, 104 N. C. 786.
10S, v. Thompson, 30 Mo. 470; Ham-
ilton v. P., 113 Ill. 34.
up, v. Casey, 72 N. Y. 393; S, v.
Harper, 69 Mo, 425,
221
‘
UNCOMPLETED ACT.
§ 257.] [Parr IV.
on the contrary, held not sufficient to show an assault with a
deadly weapon;' and even in the case of an ax, or a fence-
post, or brass knuckles (enumerated by statute among the
deadly weapons which are forbidden to be carried), it is held
that there must be proof that the weapon or instrument is of
a deadly character? The question whether or not a weapon
is deadly is for the jury? If the assault is shown to have been
with a knife, there must be evidence that it was a deadly
weapon to sustain a conviction. The question whether the
weapon is deadly or not will often depend on the manner of its.
use, and the jury must determine whether, in the manner in
which it appears to have been used, it was deadly or not. To
sustain a charge of assault with a deadly weapon it must ap-
pear that there was present ability on the part of accused to:
commit the threatened injury with the weapon used;* but
some cases hold that where an assault is charged to have been
made with a weapon in its nature deadly, as a gun, it is not.
necessary to allege the present ability ;7 and-that the fact that
such weapon was not loaded is matter of defense;* and that
such weapon, though unloaded, is still deadly.2 Any weapon
is a deadly weapon which is likely to produce death; but a
weapon capable of producing death is not necessarily a deadly
18. v. Porter, 101 N. C. 713.
2Melton v.S., 30 Tex. Ap. 278: Wil-
son v. 8.15 Tex. Ap. 150; Wilks v.
S., 3 Tex. Ap. 34.
3P. v. Irving, 95 N. Y. 541; Nelson
v. P., 23 N.Y. 293.
‘Hilliard v. S, 17 Tex. Ap. 210.
Proof as to size of blade and manner
of use held sufficient in Briggs v. S.,
6 Tex. Ap. 144.
5P. v. Leyba, 74 Cal. 407; Hunt v.
S.. 6 Tex. Ap. 663; Blige v.S., 20 Fla.
742; so held as to a chair: Kouns v.
S., 3 Tex. Ap. 13; so held as to a pis-
tol used to strike with but not to
shoot: S. v. Franklin, 36 Tex. 155;
Pierce v. 8.,21 Tex. Ap. 540; Jenkins
v. 8, 30 Tex. Ap. 379; Key v. S., 12
Tex. Ap. 506; Stephenson v. S., 33
Tex. Ap. 162; so held as to a fork
with prongs ten inches long: Rey-
nolds v. S., 4 Tex. Ap. 827; so held as
to a stone: C. v. Duncan, 91 Ky. 592.
But proof of intent to kill is not nec-
essary: 8. v. Hertzog, 41 La. An. 775.
6If with a gun, accused must have
been within shooting distance: S. v.
Godfrey, 17 Oreg. 300; or if a weapon
used for striking, within striking
distance: P. v. Dodel, 77 Cal. 293.
‘Forrest v. &, 3 Tex. Ap. 232. If
with a loaded pistol, it is not neces-
sary to allege a shooting rather than
a striking: S. v. Fenno, 125 Mass. 387.
The offense of pointing a fire-arm at
another may be committed although
there is a wall between the parties:
Lange v. S., 95 Ind. 114.
8 Allen v. P., 82 Ill 610; Burton v.
S., 3 Tex. Ap. 408; Cross v. S., 55 Wis.
261; S. v. Herron, 12 Mont. 280.
9 Johnson v. 8. 26 Ga. 611; Allen
v. S., 28 Ga. 395; Flournoy v. S., 16
Tex. 31,
222
Cx. 17.] AGGRAVATED ASSAULTS. [S§ 258, 259.
weapon.! Ifa weapon is not one deadly per se, the jury should.
be instructed as to the meaning of the phrase? The indict-
ment may charge an assault with two weapons, and the state
is not required to elect between them.’ As in other cases of
assault, there must be either an attempt to injure or something
done which causes apprehension of such intent.’
§ 258. Loaded weapons.— Under English statutory provis-
ions against attempting to discharge loaded fire-arms, a weapon
was held not to be loaded which, for want of priming, could
not go off. The weapon must have been so loaded as to be
capable of doing the mischief intended.’ If the allegation is.
of maliciously shooting, with a loaded gun, that is sufficient
without alleging how it is loaded.”
§ 259. Intent.— Where the increased criminality of the as-
sault depends on the fact that it was made in such manner that.
life was thereby endangered, the intent is immaterial;* and, in
general, where the crime consists in an assault with a danger-
ous or a deadly weapon, the intent is sufficiently shown by
proof of words indicating the purpose of committing injury
with such weapon, although the accused was not yet in the im-
mediate act of using the weapon.’ Intent to kill is not neces-
sarily an ingredient in a charge of malicious stabbing,” and
under such a charge the accused may be convicted even though
the circumstances show that death resulting from such an as-
sault would be manslaughter and not murder, malicious intent
1 Pittman v. &, 25 Fla. 648. Per- v. Whitley, 1 Lewin, 123. But the
haps there isa distinction in this re-
spect between a deadly weapon and
a dangerous weapon, the latter being
defined as one by the use of which
death or great bodily harm may be
inflicted: 8. v. Godfrey, 17 Oreg. 300.
And see other case under note, supra,
in this section.
2 Howard v. S., 18 Tex. Ap. 348,
3 Johnson v. S., 35 Ala. 363.
4Young v. 8.,7 Tex. Ap. 75; S v.
Painter, 67 Mo. 84.
5 Reg. v. James, 1 C. & K. 530. So
if the touch-hole was plugged: Rex
v. Harris, 5 C. & P. 159,
6 Rex v. Carr, Russ. & Ry. 377; Rex
crime is committed if the weapon is.
presented with intent to shoot, al-
though the assailant is disarmed
before the weapon is discharged:
Reg. v. Duckworth, 2 Q. B. D. (1892),.
83.
7Reg. v. Cox, 8 Cox, 58.
88. v. Hays, 67 Mo. 692.
9S. v. Epperson, 27 Mo; 255; John-
son v. S., 7 Tex. Ap. 210.
10 Tyra v. C., 2 Metc. (Ky.) 1. And
see supra, § 256. Nor is intent to kill
essential in the offense of inflicting
a wound with a dangerous weapon:
S. v. Hertzog, 41 La, An. 775.
223
§ 260.] UNCOMPLETED ACT. [Part IV.
being general malice and not malice aforethought.' In such
case malice against the individual is not essential, general malice
being sufficient.2, So where the charge is of assaulting, being -
armed with a dangerous weapon, no intent to inflict death or
great bodily harm need be proved. No other intent need be
shown than that involved in being armed with such weapon
and making an assault.’ But if the statute makes the offense
to consist in assault with a deadly weapon with intent to
inflict bodily injury, etc., the intent must be alleged.‘ The
atiempt to commit a violent injury on another by the explosion
of gunpowder constitutes an assault with a deadly weapon
though the accused was not present when the explosion oc-
curred.> Ina charge of aggravated assault, where the aggra-
vation consists in the manner of the assault or the danger of
injury therefrom, defendant may testify as to his purpose.‘
If the act of defendant was, under the circumstances, justifiable,
as, for instance, in using a gun in self-defense, the act will not
be an aggravated assault.’
§ 260. Indictment.— Something more than a mere state-
ment that the offense was an aggravated assault is necessary
in the indictment; as, for instance, that a deadly weapon was
used.’ The indictment should state the facts constituting the
aggravation.’ Nor is it sufficient to charge that accused made
an aggravated assault with a pistol; the facts must be set
forth.” But it is sufficient if the indictment proceed to charge
1Nichols v. §., 8 Ohio St. 485; Tay-
Jor v. S., 6 Lea, 234 Gross negli-
gence in the discharge of a pistol in
violation of a city ordinance may
indicate the criminal intent: C. v.
5P. v. Pape, 66 Cal. 366.
6 Berry v. S., 30 Tex. Ap. 428,
TFondren v. S., 16 Tex. Ap. 48,
8Flynn v. 8. 8 Tex. Ap. 368. To
charge that defendant was armed
Hawkins, 157 Mass. 551,
2Rex v. Hunt, 1 Moody, 93. So if
the injury is accidental in the at-
tempt to unlawfully and maliciously
wound another, there may be a con-
viction on the charge of unlawfully
and maliciously wounding the per-
son injured: Reg. v. Latimer, 17 Q.
B. D. 359,
88. v. Godfrey, 17 Orey. 300. And
see P, v. Savercool, 81 Cal. 650; S. v.
Moore, 65 Mo. 606.
48. v. Eschbach, 13 Mont. 899.
with a deadly weapon and did as-
sault is not enough to show an as-
sault with a deadly weapon: P. v.
Vierra, 52 Cal. 451.
98. v. Beadon, 17 8. C. 55; Griffin
v. 8. 12 Tex. Ap. 428; Marshall v. S.,
3 Tex. Ap. 492.
10 Key v. S., 12 Tex. Ap. 506. The
indictment must be more specific
than the common-law indictment
for assault and battery: 8, v. McKet-
trick, 14 8. C. 346. But where the
method of procedure providing for
224
Cu. 17.] AGGRAVATED ASSAULTS. {§ 260.
that accused presented the pistol to the person assaulted and
did then and there shoot at him.1 The charge must in general
be proved as alleged, but it will not constitute a fatal variance
“if the charge is of an assault with a knife while the evidence
is of an assault with some other weapon, inflicting the same
kind of a wound.? Where the charge was of an assault in a
school-house, and the evidence disclosed an assault upon a min-
ister in a congregation assembled for religious worship in a
brush arbor near such school-house, it was held that there was
not a fatal variance, either act being criminal under the same
statutory provision; * but under an information charging aggra-
vated assault committed with a certain deadly weapon, to wit, a
shovel, proof of an assault committed with an ax was held to con-
stitute a fatal variance.® Under the Texas statute defining
various forms of aggravated assault, the distinguishing circum-
stances constituting the aggravation so as to indicate under
which subdivision a conviction is sought must be alleged; it is not
sufficient to simply charge that accused did make an aggravated
assault on, etc., with intent to injure him. An indictment for
an assault with a deadly weapon need not specify the weapon;7
aggravated assaults involves a cer-
tificate by the magistrate, under
which the offense is thereupon cog-
nizable by a higher court, it is not
necessary to make any distinction in
the charging of the offense, the fact
of the certificate having been given
being alleged in the higher court: 8.
v. Hilton, 32 N. H. 285; S. v. Bean, 36
N. H. 122; 8. v. Stevens, 36 N. H. 59. In
such case the objection that the in-
dictment does not recite such pre-
vious certificate must be taken be-
fore plea: §. v. Thompson, 20 N. H.
250.
18. v. Lutterloh, 22 Tex. 210.
2 Anderson v.S., 16 Tex. Ap. 132;
Pinson v. §., 23 Tex. 579.
38. v. Dame, 11 N. H. 271; Hull v.
S., 79 Ala. 32.
4Blackwell v.8., 30 Tex. Ap. 416.
5Ferguson v. S., 4 Tex. Ap. 156;
and see Walker v. S., 73 Ala. 17.
6 Browning v. S., 2 Tex. Ap. 47.
But under such statute it is not nec-
15
essary to describe the assault as ag-
gravated: Meier v.S., 10 Tex. Ap. 39.
It is sufficient to state the facts show-
ing the offense to be an aggravated
assault: Rasberry v. S., 1 Tex. Ap.
664. Under such statute aggravated
assault is synonymous with aggra-
vated assault and battery, and the
terms may be used interchangeably:
Smith v. S, 9 Tex. Ap. 315; and a
verdict of guilty of aggravated as-
sault and battery is good although
no battery is charged or proven:
Bittick v. S.. 40 Tex. 117. Further
as to the construction of the Texas
statute, see Bronson v. §., 2 Tex. Ap.
46; Bowden v. S., 2 Tex. Ap. 56;
Coney v. S., 2 Tex. Ap. 62; Haynes
v. S., 2 Tex. Ap. 84; Nelson v. 8., 2
Tex. Ap. 227; Chamberlain v. S., 2
Tex. Ap. 451; Pugh v. S., 2 Tex. Ap.
539.
78, v. Tidwell, 48 Ark. 71; P. v.
Congleton, 44 Cal. 92; P. v. Savercool,
81 Cal. 650.
225
[Part IV.
§ 261.] UNCOMPLETED AOT,
and where the offense consists by statute of an assault with a
deadly weapon, or by any. means or force likely to produce
great bodily injury, the allegation of an assault with a deadly
weapon need not allege that it was made with intent to pro-
duce such injury.' It is not bad to charge an assault as com-
mitted with several different kinds of dangerous weapons.*
Where the statutory words are “ unlawfully and maliciously,”
an allegation of the assault as committed feloniously, wilfully
and maliciously is bad as not following the terms of the stat-
ute? The use of the word “assault” sufficiently charges illegal-
ity in the act.! Under the Texas statute making an assault.
committed in a court of justice an aggravated assault, the al-
legation that the assault was committed in a court of justice is
sufficient,’ and it is not necessary even to specify the court or
to state that it was legally in session.6 An indictment for as-
saulting a peace officer need not aver his official character.’
§ 261. Forms.— Assaults of this character are dependent
entirely for their definition upon statute, and therefore no gen-
eral forms can be given which will be of much value. The fol-
lowing illustrations may, however, be suggestive:
ASSAULT WITH DANGEROUS WEAPON.
That A. B., on ——, in the county of , upon one ©. D.
did wilfully and feloniously make an assault with a certain
dangerous weapon called a hatchet, and him, the said OC. D.,.
did then and there beat, bruise, wound and ill-treat, to the great
injury of him, the said C. D.
1p, v. Turner, 65 Cal. 540. Sowhere flict” grievous bodily harm instead
the statute describes the offense as
shooting at another or assaulting
with a deadly weapon in resisting
execution of process, it is sufficient
to charge the shooting at the officer
without alleging an assault or the
use of a dangerous weapon: §, v.
Estis, 70 Mo. 427.
2S. v. McDonald, 67 Mo. 18.
3 Rex v. Ryan, 7 C. & P. 854. Soa
charge of maliciously assaulting and
shooting is not sufficient for the of-
fense of maliciously shooting: Allen
v. &, 4 Baxt. 21. But where the
charge was that accused did “in-
of using the statutory word “cause,”
held, that the indictment was suffi-
cient: Reg. v. Bray, 15 Cox, 197.
4U.58. v. Lunt, 1 Sprague, 311. It
is not necessary to allege the assault
as committed feloniously: U. S, v.
Gallagher, 2 Paine, 447.
5S. v. Hunter, 44 Tex. 94,
68. v. Murrah, 25 Tex. 759.
78, v. Belk,-76 N. C.10. But to the
contrary it was held that such an in-
dictment should set forth the au-
thority of the officer and the capacity
in which he was acting at the time:
Rountree v. U. 8., 1 Pinney, 59.
226
Cu. 17.] ASSAULTS WITH FELONIOUS INTENT. [§§ 262, 263.
ASSAULT AND STABBING.
That A. B., on ,in the county of , upon one C. D.
did wilfully and feloniously make an assault with a dangerous
weapon called a knife, held open in the hand of him, the said
A.B.,and did, with said knife held open as aforesaid, then and
there wilfully and feloniously cut and stab him, the said C. D.
§ 262. Included offense.— As the various forms of aggra-
vated assaults are simply assaults with some additional element
of criminality, there may be a conviction of the assault alone
where the additional element is not established ;! therefore it is
error to refuse to instruct the jury as to conviction of an as-
sault under the charge of an aggravated assault.? Butif the evi-
dence shows that if the assault was committed at all it was
committed in such way as to constitute an aggravated assault,
no charge as to simple assault is required? An aggravated as-
sault does not necessarily include an assault and battery;* but
if the aggravation as charged consists in the injury done to the
person of the assailed, then upon failure to prove that kind of
injury, if the evidence shows some injury there may be a con-
viction of assault and battery.®
TII. Assavuirs wits Ferontovs Intent.
§ 263. Whether felonious or not.— At common law assaults
with intent to commit a felony are misdemeanors,’ but assaults
1Kennedy v. P., 122 Ill. 649; Bry-
ant v.S.,41 Ark. 359; Harrison v.
S., 10 Tex. Ap. 93; T. v. Conrad, 1
Dak. 363; Reg. v. Taylor, L. R.1C.
C. 194; Reg. v. Yeadon, L. & C. 81;
Reg. v. Oliver, Bell, 287. Thus, under
the Texas statute, a higher and lower
degree of assault may be charged in
the same indictment if both are
charged as the result of one act:
S. v. Bradley, 34 Tex. 95. Similar
questions arise under indictments
for felonious assaults: See infra,
§ 271.
2Harrison v. S., 10 Tex. Ap. 93;
Jackson v. S., 25 Tex. (Sup.) 229.
3S, v. Guidice, 78 Cal. 226; Ward
v. S., 56 Ga. 408.
4¥For instance, where the assault
is with a deadly weapdn: Young v.
P., 6 TIL, Ap. 484; Moore v. P., 26 IL
Ap. 187.
5P. v. Casey, 72 N. Y. 398; Higgin-
botham v.S., 50 Ala. 183; Whilden
v. S., 25 Ga. 396; Clarke v. T., 1 Wash.
T. 68. Under an indictment for
stabbing there may be conviction
for assault and battery: Rives v. S.,
74 Ga. 375.
6 Green v. P., 3 Colo. 68; Rice v. C.,
3 Bush, 14; S. v. Swann, 65 N. C. 330;
even an assault with intent to com-
mit murder: P. v. Pettit, 3 Johns.
511; C. v. Barlow, 4 Mass, 489;
Bacon’s Case, 1 Lev. 146; 1 East,
P. C. 411. Assault with intent to
kill is by some statutes a misde-
meanor only: Kennedy v. §., 15 Fla,
227
&§ 264, 265.] UNCOMPLETED ACT. [Parr IV.
with intent to commit felonies are frequently by statute made
felonies.!
§ 264. What included.—In many states the statutes make
an assault with intent to commit any felony punishable to a
greater degree than a simple assault. They also usually specify
some particular assaults of this kind, as assaults to murder or
to kill, assaults to commit rape, assaults to rob, etc., providing
a special punishment for each. The assault with intent to com-
mit rape will be discussed in connection with that offense, and
the assault with intent to murder or to kill, with intent to do
great bodily harm, and with intent to rob, will be treated in
subsequent sections of this chapter.?
§ 265. The intent involved. The various assaults with
felonious intent are examples of the different attempts in which
the intent gives color to the act rendering it punishable on ac-
count of the evil involved in the intent.’ It is therefore not
sufficient to prove merely a general felonious intent, but a par-
ticular intent must be alleged and proven,’ and proof of the
intent is just as indispensable as proof of the act.’ There must
be something more than the malice implied from the act itself,®
635; S. v. Hord, 8 S. C. 84. Some-
times by statute aggravated assaults
are misdemeanors, while assaults
with intent to kill, etc., are felonies:
Ex parte Brown, 40 Fed. R. 81.
1 Hughes v. §., 12 Ala. 458. See, in
case of sodomy, Davis v. 8., 3 Har. &
J. 154; in case of maiming, S. v.
Brown, 60 Mo. 141; in case of larceny,
Corneille v. S., 16 Ind. 232. Where a
statute provides a punishment for
an assault with intent to commit
murder, larceny, or other felony, as-
sault with intent to commit petit
larceny is included, although it is
only a misdemeanor: Kelly v. P., 132
Til. 363.
2 Infra, §§ 278, 280, 281.
3Cunningham v. S., 49 Miss, 685.
And see attempts, supra, § 222,
Without either intent to injure or
injury, there can be no conviction:
S. v. Moran, 46 Kan, 318. In crimes
requiring force in their commission,
there is no material difference be-
tween assault with intent and as-
sault with attempt to commit a
crime: Johnson v.S., 14 Ga. 55. And
see Prince v. S., 85 Ala. 367. But it
is said that there is no such an of-
fense as an assault with an attempt
to murder, the attempt not being
equivalent to the intent: S. v. Mar-
shall, 14 Ala. 411; nor as an attempt
to commit an assault with intent to
murder: White v. 8S. 22 Tex. 608.
Under a statute making it an offense
to assault with intent to commit a
crime, it was held that an attempt
to commit larceny was included, and
not assaults on the person merely:
Hayes v. §., 15 Lea, 64.
4Ogletree v. S., 28 Ala. 693; Wat-
son v. 8S., 2 Wash. 504; Marshall v.
C., 5“Grat. 663; Davis v. S. 15 Tex.
‘Ap. 475; S. v. Seymour, 1 Houst. Cr.
C. 508.
5 Botsch v. S&., 43 Neb, 501.
6 Pennsylvania v. McBirnie, Add.
28. :
228
Cx. 17.] ASSAULTS WITH FELONIOUS. INTENT. [§ 265,
and the intent is not necessarily to be inferred from the act
done, but must be made out from the circumstances.! How-
ever, the intent may be inferred from the acts done, on the
principle that each person is presumed to intend the natural
and probable consequences of his acts unless a different intent,
appears.’ The specified intent may be negatived in the same
way as in other cases where specific intent is essential? Evi-
dence of threats or quarrels as showing the intent is admissi-
ble! Two or more may be liable in case of combination for
the same assault with intent,’ or one may be liable as aiding
and abetting another,’ but there must be some participation or
abetting.’ Where parties combine in the assault, evidence of
acts afterwards committed by one of them will not be admis-
sible to show the intent of the other, unless the act committed
was in pursuance of the common plan.’ It is a sufficient find-
ing of the intent that the jury find defendant guilty of the act
18, v. Glovery, 10 Nev. 24.
2P, v. Landman, 103 Cal. 577; S. v.
Gillett, 56 Ia. 459; Krehnavy v. S.,
43 Neb. 337; Ex parte Brown, 40 Fed.
R. 81. The presumption, however,
is one of fact, merely, to be drawn by
the jury, if they see fit to do so; it
is not a presumption of law: Mur-
phey v. S., 43 Neb. 34. It is error to
authorize the intent to kill to be
inferred from the use of a deadly
weapon without regard to the cir-
cumstances under which the assault
is made: Friederich v. P., 147 ILL 310.
While a person is presumed to. in-
tend the consequences ordinarily re-
sulting‘from the act, expert evidence
is not admissible to show what re-
sult might have been apprehended
by a skilled physician from the acts
done: S. v. Redfield, 73 Ia. 648. The
result of a kick should not be con-
sidered as evidence of the intent
with which the kick was given, with-
out other evidence that the result
was contemplated, but the result as
showing the force used may be taken
as evidence of the intent: P. v. Mil-
ler, 91 Mich. 639. Further as to pre-
sumption of intent in assaults with
intent to murder, see infra, §§ 275,
276.
38. v. Fiske, 68 Conn. 388; P. v.
Gordon, 103 Cal. 568. And as to spe-
cific intent in general, see supra,
§ 122.
4Sharp v. P., 29 Ill. 464; but: not
threats against some other than the
person assailed: Ogletree v. S., 28
Ala, 698; S. v. Ackles, 8 Wash. 462;
S. v. Pennington, 124 Mo. 388. Evi-
dence showing ill-will toward as-
sailed is admissible as bearing on the
state of mind of the accused: Moore
v. S., 31 Tex. Ap. 234.
5 Garrett v. S., 89 Ga. 446; King v.
S., 21 Ga. 220.
6S. v. Pile, 5 Ala. 72; Mills v. S., 13
Tex. Ap. 487.
TWhite v. P., 189 Ill. 143; Cabbell
v. S., 46 Ala. 195.
8 Watts v. S., 5 W. Va. 532; Reg. v.
Sullivan, Car. & M. 209. And, in gen-
eral, as to joint liability in cases of
combination, see supra, § 195. The
question of common intent is for
the jury: Hudgins v. S., 61 Ga. 182.
229
[Parr IV.
§ 266.] UNCOMPLETED ACT.
alleged as charged in the indictment, where the indictment
itself sufficiently charges intent.!
§ 266. Ability to commit the injury threateued.— The
same difficulty arises here as was discussed in connection with
assaults, in regard to whether ability to commit the injury
threatened is essential in order to constitute the offense of as-
sault with intent to commit acrime.2 An assault merely by
putting in fear is not enough, without ability to do some injury ;
for it is evident that, if there is mere putting in fear without
intent to injure, the crime cannot be assault with intent, though
it might be assault. The weight of authority seems to be here,
as with reference to simple assault, that it is not necessary to
allege the present ability to complete the injury intended.
For instance, to substantiate the charge of assault with intent
to commit robbery, it is not necessary that there should have
been anything in the possession of the assailed which could be
stolen.’ While it is doubtless true that some adaptability, real
or apparent, of the means employed to the end charged to have
been intended must appear,’ yet in a charge of assault with in-
tent to kill by means of a pistol it need not be stated in the in-
1 Jones v. C., 31 Grat. 830.
2 Supra, § 234.
3 McCollough v. S., 24 Tex. Ap. 128.
4C. v. Creed, 8 Gray, 387; S. v.
Rigg, 10 Nev. 284; S. v. O’Flaherty,
7 Nev. 153; Kunkle v. S., 32 Ind. 220.
6Kunkle v. S., 32 Ind. 220. But
even then it is sufficient that the
adaptability be apparent, although
there is some inadequacy not known
to the assailant which would pre-
vent his carrying out his purpose:
Where the statute as to assaults re-
quires the present ability to be al-
leged, it must be alleged also in
assault with intent: S. v. Swails, 8
Ind. 524; Adell v. S. 34 Ind. 548;
Howard v. S., 67 Ind. 401. But in
Illinois it is said that in charging
assault with a deadly weapon it is
not necessary to allege a present
ability, as that is implied in the
term “assault” itself: Kennedy v. P.,
122 Tll. 649. And where the assault is
properly charged, it is not necessary
to state the means with which the
crime was intended to be made to
show the present ability to commit
such crime: Freel v. S., 125 Ind. 166,
5 Hamilton v. S., 86 Ind. 280.
Ibid. Where the gun used was only
loaded with powder and wadding,
and was fired at such a distance as
not to be dangerous, held, that the
act did not constitute the offense of
shooting at one with intent to kill:
Henry v. S., 18 Ohio, 32. But it is
said that the charge of assault in it-
self implies the ability to do the act
threatened, and therefore it is not
necessary to charge that the person
assailed was within the distance to
which the gun would carry: Shaw
v. &, 18 Ala. 547. Present ability
held to be sufficiently shown in par-
ticular cases: S. v. Sheerin, 12 Mont.
539; Hatton v. S., 31 Tex. Ap. 586,
230
Cu. 17] [§ 267.
ASSAULTS WITH FELONIOUS INTENT.
dictment that defendant was within pistol range of the person
assailed,! nor that the pistol was loaded.? Where the defend-
ant was charged with. shooting at another, it was held that he
could not be convicted on proof of firing a gun into a room of
the latter’s house where he supposed the latter to be? But
where defendant fired at a place where another was supposed
to be, with intention of killing him, and the person at whom
the ;shot was fired was some little distance away from the
exact place, it was held that the offense of assault with intent
to kill was complete. Where the evidence to support a charge
of assault and battery with intent to kill showed that defend-
ant believed that a certain drug was a deadly poison, and ad-
ministered such drug to another with intent to kill him, it was
held wholly immaterial to inquire whether the drug was in
fact poisonous or what quantity would endanger life.®
§ 267. Justification, excuse, or mitigation.— Facts which,
if the threatened act had been completed, would have justified,
excused, or mitigated the offense, are admissible as affecting the
intent, where the charge is of an assault with intent to commit
such an offense. Thus, the intoxication of the accused at the
time of the assault is material to show that he was incapable
of the intent charged.® So facts showing that the assault was
justifiable in self-defense will negative the crime.’ But the cir-
1Mayfield v. S., 44 Tex. 59. It is
sufficient in alleging the gun with
which the assault was made to be
loaded to state that. it was loaded
with gunpowder, as that might ren-
der it dangerous: 8. v. Sears, 86 Mo.
169, But under an indictment charg-
ing intent to murder with a pistol
loaded with gunpowder and leaden
bullets, it is said that the state must
show that the pistol was so loaded
as to produce death, although it may
establish this fact by circumstantial
evidence: Porter v. 8., 57 Miss. 300.
2 Bradberry v. S., 22 Tex. Ap. 273.
3 Rex v. Lovell, 2 M. & Rob. 236.
4P, v. Lee Kong, 95 Cal. 666.
58. v. Glover, 27 8. C. 602.
6Mooney v. S., 83 Ala. 419; S. v.
Garvey, 11 Minn. 154,
7Vandermark v. P., 47 Il, 122;
Christian v. S., 96 Ala. 89; Hobbs v.
S.,16 Tex. Ap. 517; Black v.S.,8 Tex.
Ap. 829. As in cases of self-defense,
reasonable belief of danger is suffi-
cient: Rapp v. C., 14 B. Mon. 614;
Howell v. S., 5 Ga. 48; Rodriguez v.
S.,8 Tex. Ap. 129; Spearman v. §.,
23 Tex. Ap. 224; S. v. Dennison, 108
Mo. 541. For the purpose of show-
ing such belief, previous threats of
the assailed are admissible: Gray v.
S., 63 Ala. 66; Black v. S.,8 Tex. Ap.
329. But proof that defendant had
previously made cornplaint before a
peace officer, charging assailed with
having threatened his life, and ask-
ing to have him bound over to keep
the peace, is not admissible: S. v.
Doty, 5 Oreg. 491; nor evidence of
a fight: between prosecutor and de-
fendant two years before the alleged
231
a
§ 268.] UNCOMPLETED ACT. [Parr IV.
cumstances must be such as to make the case a proper one for
self-defense.! If the offense charged is an assault with intent
to commit murder, provocation may be shown as indicating
that the assault was in heat of passion, and, therefore, that:
there was no intent to murder? Ifthe circumstances under
which a husband shoots at a person found in criminal inter-
course with his wife would reduce the crime, if death had re-
sulted, to manslaughter, the attempt to kill will not be assault
with intent to commit murder.’ But that which would not be
an adequate provocation in homicide to reduce to manslaughter
will not be a defense in assault with intent to commit murder.*
Some statutes require that, to constitute assault with intent to
commit murder, it shall appear that there was no considerable
provocation or just excuse.°
§ 268. Indictment; charging assault.— The assault is to be
alleged as at common law,’ and that which would be an assault
crime: Hatcher v. S., 18 Ga. 460.
But there must be apprehension of
bodily danger or some other feloni-
ous violence: Reg. v. Hewlett, 1 F.
& F. 91. Assault with intent to kill
cannot be justified in defense of
property: S. v. Morgan, 3 Ired. 186;
or to eject a trespasser: S. v. Smith,
12 Mont. 378. The fact that the per-
son assailed has a weapon in his pos-
session will not be a justification if
the situation is such that he is un-
able to use it: Connaghan v. P., 88
Ill. 460. The defendant, claiming
that he acted in self-defense, must
prove it by a preponderance of evi-
dence: 8. v. Jones, 20 W. Va. 764.
1As that, if the assailant com-
menced the difficulty, he withdrew
therefrom as far as possible before
attempting to kill: Crane v. S, 41
Tex. 494; Wilson v. S.,4 Tex. Ap.
637; Sullivan v.8., 31 Tex. Ap. 486;
Crowder v. 8., 8 Lea, 669; Aldrige v.
S., 59 Miss. 250. 2
2 Williams v. S., 25 Tex. Ap. 216,
And where the charge was of assault
with intent to kill, held, that provo-
cation might reduce the offense to
assault and battery: Smith v. S., 86
23
Ala. 28. So ifthe assault is in resist-
ance of unlawful arrest, it will not
be assault with intent to commit
murder: C. v. McLaughlin, 12 Cush.
615; Davis v. S., 79 Ga. 767.
Biggs v. S., 29 Ga. 7238. As to a
cease of shooting at another under
belief that he is having illicit inter-
course with defendant’s daughter,
see Lewis v. S, 18 Tex. Ap. 116.
That mere belief of previous illicit
intercourse with defendant’s wife
will not be a defense, see Reed v. S.,
62 Miss. 405; Stewart v. S., 66 Ga. 90.
4Allen v. S., 52 Ala, 391. Mere
words or opprobrious epithets are not
enough: Steffy v. P., 130 Ill. 98;
Brown v. §., 58 Ga. 212; nor a previ-
ous injury or insult: 8. v. Lawry, 4
Nev. 161; nor a charivari: Minaghan
v. 8. 77 Wis. 643 (but on the other
hand, see S. v. Adams, 78 Ia. 292); nor
resisting lawful arrest: Johnson v.
S., 30 Ga. 426; Phillips v. S., 66 Ga. 755.
5 Baker v. P., 49 Ill. 308; P. v. Fair-
banks, 7 Utah, 3. But it is not nec-
essary to negative the exception in
the indictment: Jenkins v. §., 92 Ga.
470.
6 Beasley v.S., 18 Ala. 535. An al-
2
Cu. 17:] ASSAULTS WITH FELONIOUS INTENT. [§ 268.
if uncombined with a felonious intent will be such when it is
thus combined.!' The acts constituting an assault should be
specified as in any other case;’ but the allegation of an assault
with a deadly weapon, naming it, with intent to kill, is suffi-
cient under a statute making such act a felony, without stating
» the mode of making the assault. Indeed, it is generally held
that it is not necessary to charge the manner, means, or instru-
ment with which the assault is made.t But if the offense is
assault with a deadly weapon, the weapon should be stated
and it should be alleged that an assault was made therewith.*
There is some apparent conflict between the cases on the ques-
legation of attempt to kill suffi-
ciently shows an assault: S. v. Feam-
ster, 12 Wash. 461.
18. v. Malcolm, 8 Ia. 413.
2 Beasley v.S., 18 Ala. 535; Trexler
v. 8, 19 Ala, 21. An assault is nota
postulate; it must be defined to the
jury and the law applied to the
facts: Campbell v. S., 9 Tex. Ap. 147.
But failure to state in the indict-
ment the acts constituting an as-
sault cannot be taken advantage of
after verdict: S. v. Doty, 5 Oreg. 491.
38. v. Chandler, 24 Mo. 371. But
if the charge is of assault with a
pistol loaded with powder and a
leaden bullet, it was formerly held
that it must appear that the pistol
was loaded with a bullet: Rex v.
Hughes, 5 C. & P. 126. And see Reg.
v. Oxford, 9 C. & P. 525. Under a
statutory description of the offense,
it has been held sufficient to charge
a crime in the language of the stat-
ute without stating the means with
which the assault was committed:
Murphey v. S., 43 Neb. 34
48. v. Smith, 80 Mo. 516; S. v.
Keele, 105 Mo. 38; S. v. Chandler, 24
Mo. 871; Connors v. S., 45 N. J. 211;
Hamilton v. P., 113 Ill. 34; Williams
v. 8. 47 Ind. 568; Baker v. S., 134
Ind. 657; Ash v.S., 56 Ga. 583; Ful-
ford v.S., 50 Ga. 591; S. v. Gainus,
86 N. C. 632; Harrison v.S., 2 Coldw.
232; Lacefield v. S., 34 Ark. 275; S.
v. Jackson, 87 La. An. 768; S. v.
Smith, 41 La. An. 791; S. v. Croft, 15.
Tex. 575; Martin v. S., 40 Tex. 19;
Bittick v. S., 40 Tex. 117; Mayfield
v.S., 44 Tex. 59; Nash v.S., 2 Tex.
Ap. 362; Hines v. S., 3 Tex. Ap. 483;
Montgomery v. S., 4 Tex. Ap. 1403.
Payne v. S., 5 Tex. Ap. 35; Price v.
S., 22 Tex. Ap. 110; Hernandez v. S.,
382 Tex. Ap. 271; Reg. v. Briggs, 1
Moody, 318. Variance as to the in-
strument used will not be fatal:
Douglass v. S., 26 Tex. Ap. 109. Sev-
eral different methods of making
assault may be alleged: C. v. Creed,
8 Gray, 387. An indictment charg-
ing two with a joint assault with in-
tent to murder, the one with a gun,
the other with a knife, is not objec-
tionable for duplicity: Shaw v.&.,
18 Ala. 547. And to the same effect.
see Hamilton v. P., 113 Ill. 34 If
the assault and the stroke are
charged as unlawful and felonious,
that is enough: S. v. Bailey, 21 Mo.
484. The offense may be charged
and described in the words of the
statute: S. v. Chumley, 67 Mo. 41;.
S. v. Collyer, 17 Nev. 275; S. v. Shee-
rin, 12 Mont. 539; S. v. Brady, 39 La.
An. 687; S. v. Aleck, 41 La. An. 83;
"8. v. Daley, 41 Vt. 564; Rice v. P., 15:
Mich. 9. See, also, as to assault to
kill or murder, infra, § 274.
5S. v. Jordan, 19 Mo. 212; 5. v.
Johnston, 11 Tex. 22.
233
§ 268.] [Parr IV.
UNCOMPLETED AOT.
tion as to whether the means must be alleged, but this seems
to grow out of confusing the requirements as to allegation of
the assault with those as to allegation of the intent. As will
be seen in the next section, it is not necessary to allege the
means by which the felony intended was to be carried out, but
there is certainly no reason why the assault should not be
charged with as much definiteness at least as is required in an
indictment for assault alone.' When a statute defines what
shall constitute an assault, it is necessary to charge the assault
in such statutory terms in. case of an assault with felonious
intent.2 The fact that the indictment also charges a battery,’
or an aggravated assault, will not render it objectionable; nor
will it be a ground of objection that the indictment alleges a
stabbing in addition to the assault.’ If the statute defines the
offense as assault and battery with intent to kill, etc., the in-
dictment must allege a battery as well as an assault.6 A con-
structive assault, as by besetting the house of another, will not
constitute the crime, but there must be an actual assault on
the person, coupled with a felonious intent.’ The act must be
charged as felonious if by statute the offense is made a felony.®
But if the proper allegation as to felonious intent is made, that
is sufficient.? If the statute uses the term “ wilful” in describing
1U.S. v. Barnaby, 51 Fed. R. 20;
Gordon v. S., 23 Tex. Ap. 219. An
indictment charging the crime of
stabbing, in the perpetration of rob-
bery, with intent to murder, should
allege the robbery and stabbing with
the same particularity as if those
offenses alone were charged: S. v.
Brown, 21 La. An. 347,
2 Adell v. S., 34 Ind. 548. But the
statutory language will be sufficient
without a specific description of the
assault: Williams v. S., 47 Ind. 568;
P. v. Pettit, 3 Johns, 511. Where
the statute defines shooting with in-
tent to kill as a crime, the words of
the statute may be followed with-
out charging an assault: S. v. Phe-
lan, 65 Mo. 547. If the offense con-
sists of inflicting a wound less than
mayhem, these words must be used:
S. v. Jackson, 48 La, An. 183,
3 Cokely v. S., 4 Ia. 477.
4Young v. &., 44 Tex. 98; Johnson
v. S., 1 Tex. Ap. 1380; S. v. Parker, 42
La, An. 972,
5 Cole v. S., 10 Ark. 318,
6U. 8S. v. Turley, 4 Cranch, C. C.
334. And the allegation of the in-
tent may be made following the al-
legation of a battery without mak-
ing it also in connection with the
assault: S. v. Schloss, 98 Mo. 361.
7Evans v. 8., 1 Humph, 394; S. v.
Freels, 3 Humph. 228.
88, v. Clayton, 100 Mo. 516.
8 Wood v. S., 64 Miss, 761. It was
held the other way, however, in a
case of assault with intent to com- -
mita rape: Williams v.8., 8 Humph.
584.
234
Cu. 17.] ASSAULTS WITH FELONIOUS INTENT.
[$ 269.
the offense, an allegation that it was felonious is sufficient, as
the term “felonious” includes “ wilful.” }
§ 269. Charging the intent.— The specitic intent must be
averred, as the intent is the gist of the offense,’ and the felony
intended must be specifically alleged.? But such felony need
not be described with the particularity required in an indict-
ment for the crime itself.t For instance, if the assault charged
is with intent to steal or rob, the particular goods need not be
described.’ But the intent as to the person to be injured must
be correctly described; and if the intent is to murder A. and
B. is actually assaulted, an indictment for assault with intent
to murder B. cannot be sustained.’ It has been held necessary
to allege the intent to have been felonious as well as the as-
sault.’ It is not necessary, however, to repeat the allegation
of time and place in connection with the felonious intent, hav-
ing alleged them as to assault.? A charge of assault and at-
tempt to murder is a sufficient allegation of assault with intent
to murder;® and so a verdict of assault to kill is sufficient for
assault with intent to kill.”
1§, v. McDaniel, 45 La. An. 686.
*Conolly v. P., 4 Ill. 474; S&S v.
Child, 42 Kan. 611. If the offense is
defined as assault with intent to
kill, etc., which would, if death
should result, constitute murder or
manslaughter, the latter qualifica-
tion need not be stated: S. v. Van
Zant, 71 Mo. 541; Jennings v. S., 9
Mo. 852. Where the intent alleged
was to murder, it was held that a
conviction for the act with intent
to prevent wilful apprehension was
not warranted: Rex v. Duftin, Russ.
& Ry. 365. If in separate prosecu-
tions the same assault is charged
with different intents, conviction or
acquittal in one will bar the other:
S. v. Chinault, 55 Kan. 326.
3 Davis v. S., 35 Fla. 614°
48, v. Montgomery, 7 Baxt. 162;
S. v. Newberry, 26 Ia. 467; S, v.
Lynch, 20 Oreg. 389; Ridenour v. &.,
38 Ohio St. 272,
5 Rogers v. C., 5 Serg. & R. 463;
S. v. Blake, 39 Me. 322; Grogan v. S.,
63 Miss. 147; Hayes v. S., 15 Lea, 64;
Reg. v. Huxley, Car. & M. 596. And
in regard to attempts on the same
point, see supra, § 228.
6 McCormack v. &., 102 Ala. 156.
And see infra, § 276.
78. v. Yates, 21 W. Va. 761; S. v.
Howell, Ga. Dec., pt. I, 158; Milan v.
S., 24 Ark. 346; S. v. Davis, 121 Mo.
404; S. v. Hang Tong, 115 Mo. 389.
Contra, S. v. Davis, 29 Mo. 391. But
if the intent is described as.feloni-
ous, that sufficiently qualifies the
act: S. v. Sonnier, 388 La. An. 962.
8Buntin v. S., 68 Ind. 38; S. v.
Murphy, 35 La. An. 622.
9Felker v. S., 54 Ark. 489. But
there is no such crime as an attempt
to make an assault: Wilson v. S., 53
Ga. 205; White v. S., 22 Tex. 608.
108, v. Dooley, 121 Mo. 591.
235
UNCOMPLETED AOT. [Part IV:
§ 270.]
§ 270. Forms.— These offenses are usually fully described
by statute, and the statutory language is on general principles
sufficient,! but a few examples may profitably be given.
ASSAULT WITH FELONIOUS INTENT.
That A. B., on , in the county of , in and upon one
C. D. did make an assault, and him, the said C. D., did then and
there beat and ill-treat with intent [Aere state the felony wm-
tended].
ASSAULT WITH INTENT TO ROB.
That A. B., on , at ——, in and upon R. B. feloniously
did make an assault with intent the money, goods and chat-
tels of the said R. B. from the person and against the will of
him, the said R. B., then and there feloniously and violently
to rob, steal, take and carry away.’
ASSAULT WITH INTENT TO KILL OR MURDER.
That A. B., on ——, at , with a certain loaded pistol, the
same being a deadly weapon, which said pistol the said A. B.
then and there held in his hand, did then and there unlawfully
and feloniously make an assault upon one §. P., then and there
being, with intent then and there with the pistol aforesaid, un-
lawfully, ree and with malice aforethought to kill and
4
murder the said 8S.
ANOTHER FORM UNDER STATUTE.
That M. H., on the —— in the ——, unlawfully and feloni-
ously and with malice aforethought did assault W. W. with
intent to commit murder in the first degree upon him, the said
Wi We
ASSAULT WITH DANGEROUS WEAPON WITH INTENT TO COMMIT MURDER.
That A. B., on ——, at ——, in and upon one J. H. with a
certain dangerous weapon, to wit, with a pistol then and there
loaded with powder and a leaden ball, with which dangerous
1See supra, § 260.
21 Archbold’s Cr. Pr. & Pl. (8th ed.)
929, ,
3Reg. v. Huxley, Car. & M. 596.
See a similar form for attempt to
rob and steal, supra, § 228a.
4This substantially follows the in-
dictment held sufficient in Hamilton
v. P., 113 Ill, 84,
5 Harrison v. 8., 2 Coldw. 232. In
Indiana it was held sufficient to al-
lege assault and battery in the lan-
guage of the statute, and then to
allege that such assault and battery
was “with the intent then and there
thereby unlawfully, feloniously, pur-,
posely and with premeditated malice
to kill him, the said,” etc.: Williams
v. S., 47 Ind. 568,
236
Cx. 17.] [§ 271.
ASSAULTS WITH FELONIOUS INTENT.
weapon the said A. B. was then and there armed, feloniously,
wilfully, and with his malice aforethought did make an assault
with intent the said J. H. then and there, with the pistol afore-
said, feloniously and wilfully and with his malice slorethoucht
to kill and murder.!
§ 271. Included offenses.— There are frequently statutory
provisions by which, on charges of assault with intent to com-
mit the various felonies, there may be conviction of the included
offenses.?- But even where there is no such special provision,
there is usually a general provision authorizing conviction of
lower degrees or included crimes which would authorize the
same result, and the cases may properly be considered without
regard to any special statutory provision authorizing the convic-
tion of the lower offense. Thus, there may be conviction of an
aggravated assault under an indictment charging assault with
intent to murder,— the former offense being of the same gen-
eral character as,and of a lower grade than, that charged.’ So
under an indictment for assault with intent to commit murder,
defendant may be convicted of felonious assault.‘ Under in-
dictment for assault and stabbing with a dangerous weapon with
intent to murder, there may be a conviction of assault with a,
dangerous weapon.’ A charge of assault and battery with in-
tent to commit murder includes assault and battery with intent
to commit murder in the second degree, or involuntary man-
slaughter, or simple assault and battery. Assault with intent
to kill is included in a charge of assault with intent to kill with
malice aforethought.’ An assault with intent to commit mur-
1 This was held sufficient as against
the objection that it did not set forth
an assault. But a majority of the
court also held that it sufficiently
alleged an assault with a pistol by
shooting, and not merely by striking
as withaclub: C. v. Fenno, 125 Mass.
387. A fuller form containing the
averments of shooting, wounding,
etc., may be found in C. v. Creed, 8
Gray, 387.
28. v. Gummell, 22 Minn. 51; S. v.
Melton, 102 Mo. 683; S. v. Baldridge,
105 Mo. 819; Nelson v. P., 23 N. Y.
293; Foley v. S., 9 Ind. 363; P. v.
Odell, 1 Dak. T. 199; T. v. Conrad,
1 Dak. T. 363.
38. v. Robinson, 31 S. -C. 453; Pitt-
man v. §., 25 Fla. 648; Corley v. S.,
95 Ga. 465; Blackwell v. S., 33 Tex.
Ap. 278; Moore v. §., 33 Tex. Ap. 306.
So under a charge of felonious as-
sault there may be conviction of
aggravated assault, although no cir-
cumstances of aggravation are al-
leged: Bolding v.S., 23 Tex. Ap. 172;
Davis v. S., 20 Tex. Ap. 802.
48, v. Baldridge, 105 Mo. 319. But
the jury must be limited to some
specified felonious assault: S. v.
Schleagel, 50 Kan. 325.
58, v. De Laney, 28 La. An, 431.
6 Behymer v. 8., 95 Ind. 140,
79, v. Berning, 91 Mo. 82.
237
§. 271.) UNCOMPLETED AOT. [Part IV.
der in the second degree is included in a charge of intent to
commit murder in the first degree;! therefore, if the indict-
ment is not sufficient to charge assault with intent to commit
murder in the first degree, because it fails to charge delibera-
tion and premeditation, there may be a trial and conviction
under it as an indictment for assault with intent to commit
murder in the second degree.? And assault with intent to com-
mit murder necessarily includes assault with intent to commit
manslaughter.* It is therefore error, under an indictment for
assault with intent to commit murder, to instruct the jury that
if they find defendant guilty they must convict him of the of-
fense charged, for they might convict him of a lower offense.‘
If, under an indictment charging assault with intent to kill and
murder, the jury find defendant guilty of assault with intent to
kill, this will be considered as negativing intent to murder.’
And if the assault with intent to kill is not a crime in itself in
the state, then defendant can be convicted only of assault or
assault and battery. An assault with a deadly weapon with
intent to murder covers assault with a deadly weapon with in-
tent to do bodily harm.?’ It has been held that a charge of
assault with intent to kill includes an assault with a deadly
weapon,’ and also an assault with a deadly weapon with intent.
to inflict bodily injury.2 But assault with malice aforethought
and assault with a deadly weapon with intent to kill, etc., are
distinct offenses, and the latter is not included in the former.”
So maliciously shooting at another with intent to kill is a dif-
ferent crime than assault to murder, even when committed by
shooting." An indictment for assault with intent to murder by
1 Wall v. S., 23 Ind. 150.
2S. v. Saylor, 6 Lea, 586.
38. v. Butman, 42 N. H. 490; S. v.
White, 45 Ia. 325; Spivey v. S., 30
Tex. Ap. 348. Further, as to as-
sault with intent to commit man-
slaughter, see infra, § 278.
4P. v. Fine, 58 Cal. 268.
5 Nancy v. S., 6 Ala. 483,
6S. v. Burns, 8 Ala, 318.
TP. v. Congleton, 44 Cal. 92; Beck-
with v. P., 26 Ill 500; S. v. Johnson,
3 N. Dak. 150. Where the verdict
was of assault with intent to com-
mit great bodily injury, there being
no such crime by statute, held, that
it imported only a simple assault:
Ex parte Ah Cha, 40 Cal. 426. But
assault with intent to commit mut-
der does not include assault with in-
tent to do great bodily harm: Hun-
gate v. P., 7 IIL Ap. 101.
8P. v. Bentley, 75 Cal. 470; P. v.
Gordon, 103 Cal. 568; P. v. Gordon,
99 Cal. 227.
98. v. Collyer, 17 Nev. 275.
10S. v. Burk, 89 Mo. 635.
11 Wilson v. S., 18 Ohio, 148.
238
Ox. 17.] ASSAULTS WITH FELONIOUS INTENT.
[§ 271.
Stabbing includes the minor offense of stabbing. But an in-
dictment for shooting with intent to murder will not justify a
verdict of inflicting with a dangerous weapon a wound less
than mayhem.’ An assault is necessarily included in any of
the offenses described as assault with felonious intent, etc.;?
thus, there may be conviction of simple assault under a charge
of assault with intent to murder; ‘ or assault to do great bodily
injury ;° or assault with intent to commit mayhem; or assault.
with intent to rob."’ Where the statute does not provide for
any such offense as assault with intent to kill, a charge of that.
kind will nevertheless be a sufficient charge of an assault.2 But
a conviction for a less offense can only be had when such of-
fense is necessarily proved in making proof of the greater
offense charged; therefore, a charge of assault with intent to
kill will not authorize a conviction of wounding,? or of ma-
licious shooting.” In view of the general principle that accused
can only be convicted of an offense charged, there can be no
conviction, as for an included offense, of an offense some ele-
ment or condition of which is not covered by the higher crime
charged." Thus, under an indictment charging assault with
intent to murder, there cannot be conviction of assault and
battery, as the charge does not necessarily include a battery *
(unless, of course, the indictment states facts showing a bat-
1Tsom v. S., 88 Ga., 37&
2S. v. Murdoch, 35 La. An. 729.
But it does include shooting with
intent to kill or wound: Robinson
y. C., 16 B. Mon. 609.
3 Winburn v. §., 28 Fla. 339.
48. v. Triplett, 52 Kan. 678; S. v.
Reynolds, 126 Mo. 516; P. v. Defoor,
100 Cal. 150; S. v. Coy, 2 Aikens, 181;
Bedell v. S., 50 Miss. 492; S. v. Jarvis,
21 Ia. 44; S. v. Shepard, 10 Ia. 126;
Horn v. S., 98 Ala. 23. If the indict-
ment is insufficient to support a con-
viction for assault with intent to
murder, there may still be a convic-
tion under it for simple assault: 8.
y. Archer, 34 Tex. 646. °
5 Orton v. 8., 4 Greene (Ia.), 140; S.
v. Schele, 52 Ia. 608; S. v. King, 111
Mo, 576; Reg. v. Phillips, 3 Cox, 225.
And see Reg. v. St. George, 9 C. & P.
483.
6 McBride v. S., 7 Ark. 374
7 Dickerson v, C., 2 Bush, 1,
8 Wilson v. S., 25 Tex. 169,
9S. v. Melton, 102 Mo. 683.
10 McCroskey v. S., 2 Coldw. 178.
11g, v. Ackles, 8 Wash. 462; S. v.
Largent, 9 Wash. 691.
12G$weeden v. S., 19 Ark. 205; T. v.
Dooley, 4 Mont. 295. So the offense
of aggravated assault with a danger-
ous weapon with intentto do bodily
harm does not include assault and
battery: S. v. Marcks, 3 N. Dak. 582.
But under charge of assault with in-
tent to kill, a verdict of aggravated
assault and battery was held to sup-
port a conviction for aggravated
assault alone: §S. v. Robinson, 3158, C.
453,
239
§ 271.] - [Parr IV.
UNCOMPLETED ACT.
tery). Ifthe crime described by statute and charged in the
indictment expressly involves assault and battery, such as
felonious assault and battery;? or assaalt and battery with in-
tent to kill;? or assault and battery with intent to commit a
felony,‘ there may properly be a conviction for assault and bat-
tery, the intent not being proven.’ There are some cases, how-
ever, which seem to justify conviction for assault and battery
under a charge of assault with intent not involving a battery,
as, for instance, under a charge of assault with a deadly weapon
with intent to kill;*® or assault to kill;’ or assault with intent
to inflict great bodily injury ;* or assault with intent to com-
mit murder.® Of course, under an assault with intent to
commit a crime defendant cannot be found guilty of the crime
itself." Where the evidence indicates that, if the defendant is
guilty at all, he is guilty of the crime charged, there is no neces-
sity of instructing the jury with reference to the included
crime." But if in a prosecution for assault with intent to mur-
der there is evidence of aggravated assault, which, if death had
resulted, would have been manslaughter, an instruction as to
manslaughter is called for.” If the crime charged is one of
which the court has jurisdiction, there may properly be a con-
viction of an included offense, which, if charged alone, would
not have been within the jurisdiction of the court, but only
-within the jurisdiction of an inferior court. Under the same
1Clark v. S., 12 Ga. 350; S. v. Gra Bowling, 10 Humph.52; Gardenheir
ham, 51 Ia. 72. But even ifthe in- v.S., 6 Tex. 348; Reynolds v. S, 11
dictment does show a battery,a ver- Tex. 120; Johnson v. S., 17 Tex. 515,
dict for assault will be sustained:
Bard v.S., 55 Ga. 319. The charge _
of malicioysly, etc., shooting a pistol
to, at, and against another includes
an assault and battery: Hays v.5S.,
77 Ind. 450.
2 Mears v. C., 2 Grant, 385.
38. v. Stedman, 7 Port. 495.
4¥Foley v. §., 9 Ind. 363.
5Greer v. S., 50 Ind. 267; McGuire
v. S., 50 Ind. 284; S. v. Murphy, 21
Ind. 441,
68. v. Schreiber, 41 Kan. 807,
TKruget v. S., 1 Neb. 365.
88. v. Welsh, 73 Ia. 106.
®Ferrell v. S, 2 Lea, 25; 8. v.
10 Manigault v. S., 538 Ga. 118.
Spivey v. S., 30 Tex. Ap. 348; S.
v. Johnson, 129 Mo. 26; S. v. Maguire,
118 Mo. 670; S. v. Woods, 124 Mo.
412; S. v. Moran, 46 Kan. 818. And
see supra, § 262.
2 Spivey v. S., 80 Tex. Ap. 343, If
there is such instruction and the
jury convicts of assault to murder,
there will be no error even if there is
no such crime as assault to commit
manslaughter: Long v. P., 102 Ill. 331.
Gillespie v. S.. 9 Ind. 380; S v.
Johnson, 81 Mo. 60; S. v. De Laney,
28 La. An. 431; 8. v. Berritt, 17 N. H.
268; Pittman v. S., 25 Fla. 648. In
240
Cg.17.] | ASSAULT WITH INTENT TO KILLOR MURDER. [8§ V7 2, 273.
principle there may be a conviction for a lower offense under
a charge for the higher brought within the proper period of
limitation for the higher, although the time for prosecuting the
included offense has expired.
§ 272. Joinder.— On the same principle which allows con-
‘viction for an included crime, different crimes when one is neces-
sarily included within the other may be charged in the same
indictment without subjecting it to the objection of duplicity.’
Or the two crimes may be charged in the same count in the con-
junctive® If there are two counts, a general verdict of guilty
will be considered as a conviction of the higher offense.‘ So if
there is but one count charging an offense which necessarily
includes less offenses, a general verdict of guilty will support
a conviction for the offense charged.*
IV. Assavrtr witn Intent to Kitt on Morver.
§ 273. The assault.— The previous discussion has covered
‘many questions which arise in connection with the crime of
assault with intent to murder.6 As in other cases of assault
with intent, there must be something more than the intent
alone; there must be an assault, that is, an attempt.’
The as-
sault may be by the administration of poison.®
Indiana, before the passage of the
statute allowing conviction for lower
offenses, it was held otherwise: Nel-
son v. S., 2 Ind. 249. See, also, S. v.
Smalls, 17 S. C. 62. But if the court
does not have jurisdiction of the
‘major offense it cannot have juris-
diction to try accused for an in-
cluded offense: Ex parte Brown, 40
Fed. R. 81.
1S. v. Bowling, 10 Humph. 52;
Clarke v. S., 12 Ga. 350.
2 People v. Beam, 66 Cal. 394; 8. v.
Cryer, 20 Ark. 64. It is otherwise if
the offenses are such that under the
charge of one there could not be a
conviction for the other: S. v. Johns,
32 La. An. 812.
3S. v. Reed, 40 Vt. 603.
4Manly v. S, 7 Md. 135; S. v.
Glover, 27 8. C. 602; S. v. Scott, 15 S.C.
434, But where one count charged
assault and battery with intent to
kill, and the other charged aggra-.
241
1
vated assault and battery, and the
jury found a verdict for assault and
battery, held, that this must be consid-
ered as for assault and battery only
and not for the aggravated crime
charged: S. v. Smalls, 17S. C. 62.
5Curry v. S., 5 Neb, 412.
6 See supra, § 264. Forms are given
in § 270. :
7P, v. Devine, 59 Cal. 630; Cooley
v. S, 88-Tenn. 250. But it is said
that an attempt to. murder is not
equivalent to an assault with intent
to murder: 8S. v. Marshall, 14 Ala. 411.
It is not necessary, however, to use
the word “assault” if the acts charged
constitute an assault: S. v. Munco, 12
La. An, 625. It is not essential that
there be any actual injury: S. v.
O'Flaherty, 7 Nev. 153; S. v. Roderi-
gas, 7 Nev. 828.
8 Johnson v. S., 92 Ga. 36. Further
as to assaults by poisoning, see supra,
§ 236,
UNCOMPLETED ACT. [Parr IV.
§ 274.)
§ 274. The intent.— The specific intent must be alleged,'
and the weight of authority is that there must be specific in-
tent to kill,? and it must appear that the killing, had death
resulted, would have been murder;* that is, the intent must be
such as to involve malice aforethought in the killing, had death
resulted,‘ and the indictment must charge the intent in that
form.’ But by statutory provision it is sometimes rendered
unnecessary to charge more than simple intent to murder.
If the killing, had death resulted, would have been only man-
slaughter, the assault may be an assault with intent to kill,’ or
an assault with intent to commit manslaughter.’ But the fact
that the killing, had death ensued, would have been murder is.
18. v. Bloedow, 45 Wis. 279; Bart-
lett v. S., 21 Tex. Ap. 500.
2Walls v. S., 90 Ala, 618 (overrul-
ing Smith v. 8. 88 Ala. 23); McCor-
mack v. S., 102 Ala. 156; Moore v. S.,
18 Ala. 532; Jeff v.S., 39 Miss. 593;
Williams v. S., 80 Tex. Ap. 429;
White v. S., 13 Tex. Ap. 259; Court-
ney v. 8, 13 Tex. Ap. 502; Moore v.
S., 26 Tex. Ap. 822; Reg. v. Cruse, 8
C. & P. 541. But it is not necessary
that the intent should have been
formed at the beginning of the diffi-
culty: Henderson v. 8., 12 Tex. 525.
An attempt to commit suicide is
not an attempt to commit murder:
Reg. v. Burgess, L. & C. 258; nor is
an assault to commit great bodily
harm the same thing as an assault
with intent to commit murder, even
though, if death had resulted, the
crime would have been murder:
Harrell v. S., 13 Tex. Ap. 374; Gilles-
pie v. S., 18 Tex. Ap. 415; White v.
S., 18 Tex. Ap. 259,
3P, v. Landman, 108 Cal. 577; Mc-
Coy v. 8%. 8 Ark. 451; King v.S., 21
Ga. 220; 8. v. Boyden, 13 Ired. 505;
Seborn v. 8., 51 Ga. 164; Jackson v.
8., 51 Ga. 402; Smith v. S., 52 Ga. 88;
Thomas v. S., 91 Ga. 204; Revels v.
S., 33 Fla. 308; Hopkinson v. P., 18
TL 264; Hooper v. S., 29 Tex. Ap. 614,
48. v. Miller, 27 Ind. 15; Vaughan
v.8., 128 Ind. 14; S, v. Fiske, 63 Conn,
388; 8. v. Keasling, 74 Ia. 528; 8, v.
Newberry, 26 Ia. 467; P. v. McFad-
den, 65 Cal. 445; nor need the assault
be charged as felonious: Wood v.S.,
64 Miss. 761. A charge of assault to
kill with malice aforethought is a
sufficient charge of assault to mur-
der, the legal effect being the same:
Smith v. S., 31 Tex. Ap. 33.
58. v. Fee, 19 Wis. 562; Hungate
v. P., 7 Il. Ap. 101; S. v. Howell, Ga.
Dec., part I, 158. ij
8 Cross v. S., 55 Wis. 261; Kilkelly
v. §., 43 Wis. 604; Rice v. P., 15 Mich.
9; Robinson v. C., 16 B. Mon. 609.
Particular indictments were consid-
ered in this respect in the following
cases: Hanrahan v. P., 91 Ill. 142; S.
v. Doyle, 107 Mo. 36; S. v. Maguire,
118 Mo. 670; Anthony v.S., 18 Sm. &
M. 263; Burns v. C.,8 Met. (Ky.) 18;
S. v. Munco, 12 La. An. 625; S. v.
Green, 36 La. An, 99; S. v. Frances,
36 La. An. 336.
7Ex parte Brown, 40 Fed. R. 81.
But the charge of assault with in-
tent to kill and murder will support.
a conviction of assault with intent.
to murder.
8Maher v. P., 10 Mich. 212; 8. v.
Neal, 87 Me. 468; Rapp v. C., 14 B.
Mon. 614; Williams v. §., 48 Tex. 382;
Elliott v. S., 46 Ga. 159; Read v. C.,
22 Grat. 924. And further as to as-
sault with intent to commit man-
slaughter, see infra, § 278,
242
Cu. 17.] AssaULT WITH INTENT TO KILL OR MURDER.
[§ 275.
not conclusive as to the intent to murder, for an act resulting
in death is sometimes murder where there is no intent to kill,
and therefore no intent to murder; ' as, for instance, where death
results in pursuance of an attempt to do great bodily injury, the
death would be murder though the assault would not be an as-
sault with intent to commit murder As the malice afore-
thought is an essential element of the crime it must be ex-
plained to the jury.’ It is not necessary, however, to specify
whether the intent is to commit murder in the first or in the
second degree, there being in general no such degrees in the
crime of assault with intent to commit murder;‘ and it is not
necessary to show that if death had resulted it would have
been murder in the first degree;* but by some statutes there
may be assault with intent to commit murder in the first de-
gree, and in such case the intent is to be described by the terms
proper in an indictment charging murder in that degree.
§ 275. Allegation and proof of intent.—It is not neces-
sary to charge specifically the acts showing that the intent was
to murder;’ nor need the intent be shown by direct and posi-
tive testimony, as it may be inferred from the circumstances.®
IP, v. Mize, 80 Cal. 41; S. v. Evans,
39 La. An, 912: Gallery v. S., 92 Ga.
463; Carter v. S., 28 Tex. Ap. 355.
2Harrell v. S., 138 Tex. Ap. 374;
Pruitt v. S., 20 Tex. Ap. 129.
3 Garza v.S., 11 Tex, Ap. 345; Will-
iams v. S., 3 Tex. Ap. 316; Hodges v.
S., 3 Tex. Ap. 470; Ewing v.S., 4 Tex.
Ap. 417; Daniels v. S., 4 Tex. Ap. 429;
Johnson v.S., 4 Tex. Ap. 598; Caru-
thers v. S., 18 Tex. Ap. 339. But
there need be no explanation of the
distinction between express and im-
plied malice, that not being material
under the statute: Wilson v. S., 4
Tex. Ap. 637.
4S. v. Jarvis, 21 Ia, 44; Meredith
v. S., 60 Ala. 441; P. v. Scott, 6 Mich.
287; Sharp v. S., 19 Ohio, 379; Curry
v. S., 4 Neb. 545; S. v. Williams, 23
N. H. 821. Allegations of delibera-
tion and premeditation are not es-
s2utial: S. v. Keasling, 74 Ia. 528; S.
v. Newberry, 26 Ia. 467.
5 Ogletree v. S., 28 Ala. 698; Stapp
v. 8. 3 Tex. Ap. 188. Contra, Bon-
fanti v. S., 2 Minn. 123,
68. v. Jenkins, 120 Ind. 268; Cooley
v. S., 88 Tenn. 250; Logan v. S., 2
Lea, 222,
7 Williams v. S., 47 Ind. 568. Contra,
Williams v. S., 42 Miss. 828; T. v.
Sevailles, 1 N. M. 119. See supra,
§ 269.
8Conn v. P., 116 Ill. 458; Weaver
v. P., 182 TL 536; Jackson v. S., 94
Ala. 85; Trevinio v. S., 27 Tex. Ap.
372; Cole v. S., 10 Ark. 318; S. v.
Woodward, 84 Ia, 172. For instance,
where it appeared that the accused
armed himself and provoked the
quarrel: Steffy v. P., 130 Ill. 98; or
used the weapon in a manner or
under circumstances indicating an
intent to kill without justification
or excuse: King v. S., 4 Tex. Ap. 54;
Ferguson v. §., 6 Tex. Ap. 504. Some
Alabama cases hold that an instruc-
243
§ 275.) [Parr IV.
UNCOMPLETED AOT.
And in this sense it is said the person is presumed to intend the
consequences of his acts,! and that from the unlawful use of a
deadly weapon? there will be a presumption of intent to mur-
der, unless such presumption is overcome by other testimony
in the case. Indeed, it has been said that in such a case the
burden is on defendant to show that there was no malice.‘ But
such a statement of the law as to burden of proof is not war-
ranted by the weight of authority, as will appear in a discus-
sion of the same question under the subject of homicide;> and
much less is it justifiable to speak of a legal presumption of in-
tent from the use of a deadly weapon where the assault with
intent only is charged; for while the rule has sometimes been
stated that the law implies malice where death results from the
use of a deadly weapon, this does not warrant the presumption
of malice from a portion of the facts, that is, from the use of a
deadly weapon without death resulting. The question of in-
tent is for the jury, even if the facts from which it is sought to
draw the presumption are admitted.’ And it is erroneous to
direct the jury to infer the intent from any facts not including
the whole evidence.* Previous difficulties between the parties
tion to the jury requiring evidence
-of positive intention or specific in-
tent to murder may be refused as
misleading: Moore v. S., 18 Ala. 532;
Jackson v. S., 94 Ala. 85.
18. v. Gilman, 69 Me. 163; Garza
v. &, 11 Tex. Ap. 345. And see a
further discussion of this subject
under the head of intent, supra,
§ 123, and homicide. infra, § 332.
2 A pistol used for striking may be
a deadly weapon for this purpose:
Prior v. S., 41 Ga. 155. But on the
contrary it is said, to render a gun a
deadly weapon, it is necessary to
show that it was loaded with powder
and ball, and a mere threat to shoot
is not sufficient to give rise to the
presumption of intent to kill: Fast-
binder v. S., 42 Ohio St. 341. The
question as to whether the instry-
ment used is a deadly weapon is one
of fact for the jury: 8S. v. Nueslein,
25 Mo. 111. The fact, however, that
the weapon used in the assault is
one not likely to cause death does
not necessarily show that there was
not an intent to murder: Tatum v.
S., 59 Ga. 638; Monday v. S., 82 Ga.
672. Further, as to deadly weapon,
see the discussion under homicide,
infra, § 380, and aggravated assault,
supra, § 257.
3 Jeff v. S. 89 Miss. 598; Wood v.
S., 27 Tex, Ap. 398; Watts v. S., 30
Tex. Ap. 533.
4Hogan v.S8., 61 Ga. 48; Collier v.
S., 39 Ga. 31.
5 Infra, § 882.
® Gallery v. S., 92 Ga. 463,
7 Patterson v. S., 85 Ga. 131; Chris-
man v. 8., 54 Ark. 283; Agitone v.S.,
41 Tex. 501; Anderson v. S., 1 Tex.
Ap. 730; Walker v. S.,7 Tex. Ap. 627;
Seitz v. S., 28 Ala, 42; Morgan v. S.,
88 Ala. 413; -S. v. Stewart, 29 Mo, 419.
‘8Simpson v. S., 59 Ala, 1.
244
Ou. 17] [§ 276..
ASSAULT WITH INTENT TO KILL OR MURDER.
may be shown as bearing on the question of intent;! so may
evidence of previous threats,’ and of violent language during
the assault? or immediately afterward.‘ The fact that defend-
ant, before the assault, armed himself with a secreted weapon
is evidence of a murderous intent.2 Where the defense is tem-
porary insanity from intoxication, evidence of previous assaults
and threats is admissible to show malice and the condition of
defendant’s mind.§
§ 276. Connection of intent and act.— In alleging an assault
with intent to kill or murder, the accused must be charged with
the assault of a certain person with intent to kill that person,
and a mere general intent to kill evidenced by recklessness and
depravity will not support the charge.’ There are cases, how-
ever, the other way.’ At any rate it is not essential that there
be malice toward the particular person upon whom the assault.
is made.? There seems to be no reason, however, why, if an
act is done with intent to murder A., but injury or danger
sufficient to constitute an assault results therefrom to B., the
wrong-doer may not properly be prosecuted for an assault with
intent to murder B., just as he might have been prosecuted for
killing B. with malice aforethought if B. had died from the
injury.” But there are cases holding to the contrary." There
may certainly be assault with intent to murder, even though.
18, v. Schleagel, 50 Kan. 325; Sul-
livan v. S., 34 Tex. Ap. 486. But the
circumstances of the previous difii-
culty are not admissible: Tarver v.
S., 43 Ala. 354.
2Lawrence v. S§., 84 Ala. 424; Smith
v. S., 92 Ala. 30; Bingham v. S., 6
Tex. Ap. 169. So where the assault
was upon the agent of a railroad
company, held, that previous threats
against the company were admis-
sible: Newton v. S., 92 Ala. 33.
3McMahon v. §., 16 Tex. Ap. 357;
Wims v. S., 90 Ala. 623; Brown v.5.,
55 Ga. 169.
4Henderson v. S., 70 Ala. 29; Meeks
v. S., 51 Ga. 429.
5 Price v. S., 36 Miss. 531.
6 Hall v. S., 31 Tex. Ap. 565.
TJones v. S., 11 Sm. & M. 315; Mor-
gan v. S., 13 Sm. & M. 242; Scott v.
S., 49 Ark. 156; Reg. v. Lallement, 6
Cox, 204.
8Perry v. P., 14 Ill. 496; Vander-
mark v. P., 47 Ill. 122; Dunaway v.
P., 110 Tl. 333; Conn v. P., 116 Il.
458; Weaver v. P., 132 IIL 536.
9P. v. Raher, 92 Mich. 165; John-
son v. S., 92 Ga. 36; Harrell v. S., 75
Ga. 842; Reg. v. Fretwell, L. & C. 443.
10S. v. Gilman, 69 Me. 163, 3 Am.
Cr. R. 15 and note; S. v. Montgom-
ery, 91 Mo. 52; McGehee v. S, 62
Miss, 772; S. v. Meadows, 18 W. Va.
658; Hollywood v. P., 3 Keyes, 55; -
Reg. v. Smith, Dears. 559; Rex v.
Jarvis, 2 M. & Rob. 40. One count.
may charge intent to murder A. and.
another intent to murder B.: Rex v.
Holt, 7 C. & P.518 And see § 323.
Lacefield v. S,, 34 Ark. 275; C. v..
Morgan, 11 Bush, 601; McCormack
245
§§ 277, 278.) UNCOMPLETED ACT. [Parr IV.
the intent be to kill a person not knowing who he is.’ So
there may be assault with intent to murder two persons,” and
in such case there may be a conviction on proof of intent to
murder one of the persons named.*
§ 277. Justification or excuse.—If it appears that the as-
sault, though with intent to kill, was under such circumstances
as to make it justifiable or excusable, it will not be an assault
with intent to murder.‘
§ 278. With intent to commit manslaughter.— As there
may be intentional killing which is only manslaughter, it is
evident that there may, in principle, be an assault with intent
to commit manslaughter, and such a charge is not impossible
or repugnant.’ Such an offense would be committed where
there was an assault with intent to kill, but in such heat of
blood arising from provocation that if death had resulted
manslaughter only would have been committed.’ The offense
is identical with that of assault with intent to commit murder
except that the element of malice aforethought is lacking,’
and therefore, under an indictment for assault with intent to
commit murder, a conviction may be supported for assault with
intent to commit manslaughter as an included offense? In
charging the offense it is not necessary to allege malice? If
the statute does not specifically provide for the punishment of
assault with intent to commit manslaughter, the act is still
punishable under general statutory provisions as an assault
with intent to commit a felony.’
v. S., 102 Ala. 156: Reg. v. Hewlett, 1
F.& F.91. Anindictment charging
that defendant caused A. to take poi-
son with intent to murder him is not
supported by proof that the poison,
though taken by A., was intended
for B.: Reg. v. Ryan, 2 M. & Rob. 213.
1 Washington v. S., 53 Ala. 29.
-2C, v. McLaughlin, 12 Cush. 615.
3Tuberville v. S., 40 Ala. 715.
4Long v. S., 46 Ind. 582; Field v.
S., 50 Ind. 15; Pickens v. S., 13 Tex.
Ap. 353.
5§. v. Calligan, 17 N. H. 258; S. v.
Butman, 42 N. H. 490; S. v. Nichols,
8 Conn, 496; Jarrell v. S., 58 Ind.
293; S. v. White, 45 Ia. 325; S. v.
Connor, 59 Ia. 357; S. v. Postal, 83
Ia. 460; S. v. McGuire, 87 Ia. 142;
Smith v. §., 83 Ala. 26. Contra, Moore
v. P., 146 Ill 600; Morman v. S., 24
Miss, 54; Bedell v. S., 50 Miss. 492.
In Tennessee there is no such offense
as assault with intent to commit
involuntary manslaughter: Stevens
v. 8., 91 Tenn. 726.
6S. v. Clair, 84 Me. 248; S. v. Lang,
65 N. H. 284; Spearman v. S., 23 Tex.
Ap. 224,
78. v. Leary, 88 N. C. 615.
8 Supra, § 271.
‘Pierce v. S., 75 Ind. 199,
108, v. Williams, 6 Baxt. 655; S. v.
White, 45 Ia, 325; S. v. Keasling, 74
Ta. 528.
246
Cu. 17.] ASSAULT WITH INTENT TO KILL OR MURDER.
[§ 279.
§ 279. Assault with intent to kill.— At common law as-
sault or assault and battery with intent to kill is a misde-
meanor,' and by statutes in many states providing for the
punishment of such offense it is still a misdemeanor. But in
other states no such offense being specified by statute, it is in
effect only an assault.* In construing the provisions of statutes
on the subject, difficulty has arisen as to whether by intent to
kill was meant intent to kill with malice aforethought — that is,
such as that if death should result it would be murder — or
whether it includes an intent to kill formed in heat of blood
under provocation such that a resulting death would be man-
slaughter only. In New York the statute has been held to be
so framed as to indicate that the offense contemplated was an
assault with intent to kill under circumstances which would
make the crime at least murder in the second degree‘ In
‘Ohio it is held that “intent to kill” was an unauthorized
change in the statute made by the code commissioners in sub-
stituting that expression for “intent to murder.”> And it
seems to be held in some other states that intent to kill means
intent to murder, and means more than intent to commit man-
slaughter.* But with more reason it has been said in other
cases that, as intentional killing may be manslaughter, it is not
necessary that assault with intent to kill be an assault with
malice aforethought.’ Under such construction, if there is
assault with intent to commit murder under the statute, assault
with intent to kill would be assault with intent to commit
manslaughter. The intent to kill may be inferred from the
1§. v. Danforth, 3 Conn. 112.
28. v. Hord, 8 S. C. 84; Kennedy
v. S., 15 Fla. 635; Rice v. C., 3 Bush,
14; S. v. Swann, 65 N. C. 330.
3 Wilson v. P., 24 Mich. 410; Long
v. 85 384 Tex. 566; Sheffield v. S., 1
‘Tex. Ap. 640; Lockwood v. S., 1 Tex.
Ap. 749,
4Pontius v. P., 82 N. Y. 339; Slat-
terly v.. P., 58 N. ¥. 354.
58. v. Stout, 49 Ohio St. 270.»
6Bradley v. 8, 10 Sm. & M. 618;
Milan v. §., 24 Ark. 346. A verdict
of assault with intent to kill will
not sustain a conviction for assault
with intent to commit murder where
there is no such offense as assault
with intent to kill: Sheffield v. S., 1
Tex. Ap. 640.
78. v. Waters, 39 Me. 54; S. v.
Nichols, 8 Conn. 496; Scott v. C., 6
S. & R. 224; U.S. v. Lloyd, 4 Cranch,
C. C. 468; U.S. v. Tharp, 5 Cranch,
C.C. 390. And see preceding section.
8S. v. Waters, 39 Me. 54. But see
S. v. Scannell, 39 Me. 68, which seems
not intelligible in view of the pre-
ceding case.
247
§ 280.] UNCOMPLETED ACT.. [Parr IV.
nature of the act done.' But the fact that death might rea-
sonably be anticipated from the injury inflicted will not neces-
sarily show intent to kill? And the indictment should charge
the assault as made with a deadly weapon.’ In order to show
that the killing intended was not lawful, the indictment should
allege that the intent was unlawful and felonious.“ The fact
that the indictment alleges intent to murder as well as to kill
will not vitiate it as an indictment for assault with intent to
kill? And although the evidence shows the assault to have
been with intent to kill with malice aforethought, a conviction .
under the indictment will not be improper. An indictment.
charging assault with a deadly weapon with intent to kill is
not improper under a statute providing for the punishment of
an assault with intent to kill?
V. Assautt to po Great Bopity Insgury.
§ 280. What constitutes; how shown.— An assault with in-
tent to do great bodily injury or harm is a misdemeanor only,
unless the statute provides otherwise.® But it is sometimes
made a felony * by reason of the seriousness of the specific in-
tent,” especially where it involves the use of a deadly weapon."
The offense is not the same as assault with intent to maim.”
It is not necessary that the intent to injure be of such char-
acter that death resulting would be murder.¥ An indictment
lLane v.S., 85 Ala. 11; Nixon v.
P., 3 ILL. 267.
2P, v. Comstock, 49 Mich. 330; P.
y. Odell, 1 Dak. 189.
3Kruget v. S., 1 Neb. 365.
Curtis v. P., 2 Ill. 285. But the
omission of the words “unlawfully
and feloniously ” will not vitiate the
indictment if other apt words to ex-
press the same meaning are. used:
Perry. v. P., 14. Ill. 496; S. v. Daley,
41 Vt. 564.
59. v. Lynch, 20 Oreg. 389; P. v.
Odell, 1 Dak. 189; S. v. Johnson, 9
Nev. 175.
68, v. Parmelee, 9 Conn. 259. The
fact that the crime is named assault
with intent to murder while the
charge is of administering poison
with intent to kill will not be fatal
to a conviction of the latter offense:
P. v. Cuddihi, 54 Cal. 53,
78. v. Rigg, 10 Nev. 284. Further,
as to sufficiency of indictments in
Nevada, see S. v. O’Connor, 11 Nev.
416.
8p, v. Murat, 45 Cal. 281; Ex parte
Max, 44 Cal. 579.
9P. v. Troy, 96 Mich. 530.
10Smith v. §., 34 Neb. 689,
11 Ex parte Ah Cha, 40 Cal. 426,
128, v. Meadows, 18 W. Va. 658.
13 Harrell v. S., 18 Tex. Ap. 874;
Reg. v. Griffiths, 8 C. & P. 248.
248
Cu. 17.] _ ASSAULT WITH INTENT TO ROB. [§ 281.
for the offense is sufficient which accuses defendant of an as-
sault and battery, alleging the wilful and malicious striking
and beating of another with intent of doing him great bodily
injury.’ And it is immaterial that the battery is alleged? A
great bodily injury is injury to the person of a more grave and
: Serious character than ordinary battery. The question whether
' the injury in a particular case is of such character is for the
jury... The intent may be inferred from the ordinary conse-
quences of the actdone.t But the specific intent must appear.®
It is not necessary, however, that it be the principal intent, if in-
volved in that which is intended.’ If the intent is to do a lawful
act in defense of property or person a crime is not committed.”
But it may be committed in acting in self-defense without hav-
ing retreated as far as necessary to authorize such violence.®
The result of the injury is not to be considered as evidence of
the intent with which it is inflicted, unless the jury tind that
such result was contemplated, but may be taken into account
in determining the force actually employed, and therefore the
intent to be inferred therefrom.? It is not necessary that ac-
cused should have contemplated the very thing which resulted
from the assault, if serious and permanent bodily injury of any
kind was intended.” Specific intent to injure the person in-
jured is not essential if the acts of accused indicate a reckless
disregard of the safety of others."
VI. Assacrr wire Intent ro Ros.
§ 281. What constitutes.— As in other cases of assault with
intent, the intent is the gist of the offense, and must be alleged."
But the allegation need not specifically state the acts indicat-
1. v. Carpenter, 23 Ia. 506. The 7Filkins v. P., 69 N. Y. 101.
Means need not be stated nor the 8 Reg. v. Odgers, 2 M. & Rob. 479.
precise injury intended: Murpheyv. %P. v. Miller, 91 Mich. 639. This
S., 43 Neb. 34 was a case of kicking, as to which,
2Cokely v. S., 4 Ia. 477. see, also, Rex v. Shadbolt, 5 C. & P.
38, v. Gillett, 56 Ia. 459. And see 504.
Rex v. Shadbolt, 5 C. & P. 504. 10 P, v, Miller, 91 Mich. 639.
48, v. Gillett, 56 Ia. 459; S. v. Red- 1 P. v. Raher, 92 Mich, 165.
field, 73 Ia. 643. 12 Conolly v. P., 4 Ill. 474. Convic-
88. v. Vosburgh, 82 Wis. 168; tion cannot be sustained upon evi-
Tarpley v. P., 42 TIL 340. dence of nothing beyond mere as-
6 Rex v. Gillow, 1 Moody, 85. sault: Garrity v. P., 70 Ill. 83.
249
§ 281.] UNCOMPLETED ACT. [Parr IV.
ing such intent.! The indictment may allege both violence
and putting in fear. It is not necessary to specify what ac-
cused intended to take;* and if the intent alleged is to rob
one of his watch and money, it is enough to prove an intent
to rob him of either.‘ It is not necessary that the property
belong to the one assaulted, mere possession being sufficient.’
1 Dickerson v. C.,2 Bush, 1; Taylor ment for the offense of robbery: S.
v. C., 3 Bush, 508; Hollohan v. S., 32 v. Brown, 21 La. An. 347,
Md. 399; Morris v. S., 18 Tex. Ap. 65. 28. v. Montgomery, 109 Mo. 645.
But in another case itis said that | %Conolly v. P., 4 IIL 474; Crumes
the acts must be stated with the v. S., 28 Tex. Ap. 516.
particularity necessary in anindict- 4 Phillips v. 8., 36 Ark. 282,
5Durand v. P., 47 Mich. 382.
250
PART V.
OFFENSES AGAINST THE PERSON.
——
CHAPTER 18.
HOMICIDE.
IL CausaTIon. V. MANSLAUGHTER.
IL WHo DEEMED PERSON. VI. Statutory DEGREES.
IIL Homcipes Nor CRIMINAL;| VIL JURISDICTION AND VENUE.
JUSTIFIABLE AND Excus-| VIII. THe INDICTMENT.
ABLE; SELF-DEFENSE. IX. PROCEDURE AND PUNISHMENT.
IV. MURDER. X. THE EVIDENCE,
§ 282. Scope of the chapter.— It will be necessary to con-
sider in this chapter what is a killing, including various ques-
tions as to causation and as to proximate and remote cause,
and also who is such human being as to be subject of homicide.
Homicide is not, however, the name of a crime or group of
crimes; it is the name of an act, and the act may or may not
be criminal, depending upon the motives actuating it and the
circumstances under which it is done. It will be necessary,
therefore, to further consider what homicides are justifiable or
excusable — that is, not criminal; and as to those which are
criminal, to divide them into grades and degrees.’ Finally,
the method of charging, proving and punishing these offenses
will be discussed.
1Table of homicide.— The analy- only the principal divisions can be
sis of the subject placed in tabular shown in a table, and that for ex-
form, and shown on the following planations and application of the
page, will perhaps be of assistance principles resort must be had to the
as presenting the usual classifica- text.
tion. It will be understood that
251
OFFENSES AGAINST THE PERSON. [Part V.
§ 282a.]
“(Stepimut ‘BulT{ry [NZ
Is1]4O [[@) 9a1ZEp puooas UT -AvpUn [euoryuequl Ag
“UTEY 09 quequT pozeqT "4801 :
-poutaid puv oyetaqtjap “18 [esol Surjsisor uy “(potjdoar
‘(Oj yl JO ‘sara
-O[9} UIV}190 JO UOISSIUT
Io sseidxe 4ysnoq}
{JOEL UE 0 -o10J@ eorpeur yILA)
6
-W100 U1 40 ‘4rem ur Surk tireq Arpoq gvord repan.
&q 3» aoned Sq ep SSN EO OP BEE e OY, pent
-inw Zurpnypoutr Aypensn ‘£u0
eynye4s Aq) e19ep sry UT 9} B Zulyyrw1MI00 Uy
UOT} =
-eooaoid rapun “a "2 ‘pooyq jo 4vay Ul SurT[Ty yeuorytequr &
’
‘qSOLIG [NJAML[UN SUIYSISel UL SUITIY [VUoTyWoyUT Ag ) t ee
‘IOURETUAPSLU B SUIyAIUITUOD UT (qyZnoyjer0y"
‘TIFT 0} JuoqUT JnoYsIM ‘pesn st soueTOIA | eoleuL ynoyyTA)
Aressado9u UN Ila “4SolIB IO ‘WemMesiseyo ‘asuajap-jJjas UT i IogySnesueyy
‘SOIL
-[eJUSMINAYSUI SNOLeSUEp Jo asn Ssoa.1¥O UT
‘os Op 0} Aynp [ezaT @ st
e1ayy oroya y1oddns opraoid 0} oin[rey uy
‘[VAVBIPYJIM 19}ze oI] OAS 07 ‘ABIR uv UT ! ‘(4mBy ynoyyT)
eouesi[seu Ag
‘eINJUGAPPSIUI 10 JuUaprooe Ag eTqesnoxg
‘kuojej @ Zuryusaeid ut uosied Aue sg “(Aqnp ye8
‘qQso11e [NJME[ SULYVUT UL UOSIEd OyevalId B 10 -3] JO. oSarvyostp ur)
Jaorgo ue fq Jo ‘Y}eap Jo sousqUeS SuUIyNOexe AeoLJo uB Ag alqeguisne
—oplaywoy Jo a[qeL, “BZge §
“SnolUuo[a,7 )
*‘SNOIMO[OJ-UON J
“(Aep v
pueived B OIG
qyvep Ur Suryyns
. -e1 Ainfur ue Aq
Suleq uRmUNnyY B JO
47eepayysuisnvo
‘9 ) wgalmMoq
253
‘Cx. 18.] [8§ 283-285.
HOMICIDE,
I. Causation.
§ 283. Means of killing.— The ordinary methods of caus-
ing death, such as wounding, poisoning, strangling, etc., need
no special illustration.1 But there are some questions of diffi-
culty as to what are such acts as that when death follows the
doer of the act can be said to have caused the death. It is
thought that formerly it was deemed to be criminal homicide
if, with intent to cause death, one should falsely swear to the
commission of a crime by another and thus secure his convic-
tion and execution,? but this is not now the récognized law.’
§ 284. Threats, fear. Where one is induced by fear of
violence, caused by threats or otherwise, to do an act likely to
cause his death and which does cause it, the person thus bring-
ing about the fatal result is responsible therefor.4 But it seems
that death from fear alone cannot be considered as criminally
chargeable to the one causing the fear.’
§ 285. Accident.— If the death is accidental and not the
probable or necessary result of the act done, it does not consti-
tute homicide in the person doing the act.6 In general, there
is no criminal liability for the accidental result of an act done
14 BL Com. 196; 1 Hawk. P. C,,
ch. 31, §§ 48.
21 Russ. Cr. 494; 4 BL Com. 196.
3 Rex v. Macdaniel, 1 East, P. C.
333.
4Rex v. Evans, 1 Russ, C. & M
676; Reg. v. Pitts, Car. & M. 284. But
where the wife was able to contend
with her husband, who was a cripple,
it was held that the jury should
have been allowed to inquire
whether it was reasonable fear of
the husband’s violence which caused
the wife to leave the house and re-
sulted in death from freezing: Hen-
drickson v. C., 85 Ky. 281.
51 Hale, P. C. 429. Death occa
sioned by grief or terror cannot, in
law, be deemed murder: C. v. Web-
ster, 5 Cush. 295. But where, as the
result of an unlawful assault upon
the mother, an infant beld in her
arms was so frightened that it had
convulsions, from the effects of,
which it died, held, that the person
making the assault was guilty of
manslaughter if the jury should
think that the assault was the direct
cause of death: Reg. v. Towers, 12
Cox, 530.
6U. S. v. Meagher, 37 Fed. R. 875.
So held where one wrongfully
knocked another off a horse, the
latter being killed by the horse
jumping upon him and kicking him:
P. v. Rockwell, 39 Mich. 503. But
contra, where the assault was such
as to give apprehension that the life
of the person assailed was in danger,
and in spurring his horse to escape
he was thrown and killed: Rex v.
Hickman, 5 C. & P. 151. An acci-
dent is something that occurs not-
withstanding the exercise of the
care required by law to prevent its
occurrence: U.S. v. Boyd, 45 Fed. R.
851.
253
[Parr V.
§ 286.] OFFENSES AGAINST THE PERSON.
in sport.! The liability for accidental death will be further
considered under excusable homicide and also under the head
of manslaughter.’
§ 286. Negligence; failure to provide for dependent per-
sons.— While mere negligence not the proximate cause of the
death does not amount to homicide,’ yet homicide may consist
in an injury or series of injuries caused by neglect, restraint,
exposure, and depriving of sufficient food and nourishment.’
Thus, failure to provide medical attendance for a sick child, as
required by statute,’ or proper food and clothing,‘ or failing to
care for a new-born infant’ or other dependent person,® may
constitute criminal homicide. But to render one thus crimi-
nally liable for death caused by neglect, it must appear that he
was chargeable with the care of the person neglected and had
the means of supplying his needs, and that the person neglected
was entirely dependent on the one sought to be charged and
could not himself have avoided the result.®
1Reg. v. Bruce, 2 Cox, 262.
2See infra, §§ 300 and 347.
3As where a captain refused to
take steps to rescue a sailor who had
fallen overboard, his death being
caused by the fall: U.S. v. Knowles,
4 Sawyer, 517. Where the person
having charge of a steam-engine
stopped it and went away, and an-
other party set it in motion whereby
a person was killed, it was held that
the first party was not guilty of man-
slaughter: Hilton’s Case, 2 Lewin,
214. Where A. and B. were engaged
in an altercation and A. pushed away
B.’s boat, and B,, catching at another
boat to prevent his boat drifting,
fell into the water and was drowned,
held, that A. was not guilty of man-
slaughter: Rex v. Waters, 6 C. & P.
328,00
4C. v. Macloon, 101 Mass. 1.
5 Reg. v. Downes, 1 Q.B.D.8. But
it must appear that the death was
caused or accelerated by the neglect
to provide medical aid: Reg. v.
Morby, 8 Q. B.D. 571. Aside from
statute it is not criminal to thus
A husband is not
4
fail to call medical attendance, if it
isin pursuance of a religious convic-
tion: Reg. v. Wagstaffe, 10 Cox, 530.
6 Reg. v. Bubb, 4 Cox, 455; Rex v.
Friend, Russ. & Ry. 20; Rex v.
Squire, 1 Russ., C. & M. 80, 678; Reg.
v. Conde, 10 Cox, 547.
TReg. v. Middleship, 5 Cox, 275:
Reg. v. Handley, 13 Cox, 79. It is.
not necessary in such case to allege
that defendant was in duty bound
to provide for such child, or that it
was unable to helpitself: S.v. Behm,
72 Ja. 533. But the mere failure of
a woman who knows she is to be
confined to take the necessary pre-
cautions to preserve the life of the
child, after its birth, will not render
her criminally responsible for its
death: Reg. v. Knights, 2 F. & F. 46.
58. v, Smith, 65 Me. 257; Reg. v. In-
stan. 1 Q. B. D. (1893), 450. So, where a
servant is helpless in body and mind,
and under the dominion of the mas-
ter, death from the master’s neglect
will render the latter guilty of man-
slaughter: Reg. v. Smith, L. & C. 607.
92 Bish, Cr. L., 8§ 659-662; Rex v.
254
Cu. 18.] HOMICIDE.
[§ 287.
criminally liable on account of the death of his wife, whom he
has driven from the house by cruelty and threats, unless it ap-
pear that the death of the wife by exposure was the natural
and probable consequence of her leaving the house at the time
and under the circamstances.! Where there is criminal neg-
lect causing death, the offense will be manslaughter.’
§ 287. Physicians and chemists.— Other acts, not in them-
selves wrongful, but calculated to injure another if not done with
proper skill and care, may render the person doing them crim-
inally responsible for death resulting ; thus, one who as physician
undertakes to treat another is bound to have competent skill
and to use care and attention, and if death results from want
of skill or care the physician is criminally responsible.’ While
it may not be criminal in one who has not proper medical
training to administer in good faith a remedy the dangerous
character of which is not known to him and which causes.
death,‘ yet one who rashly administers remedies the effect of
which he does not know, and which cause death, is criminally
Smith, 2 C. & P. 449; Reg. v. Ed-
wards, 8 C. & P. 611; Reg. v. Waters,
2G. & K. 864; Reg. v. Nicholls, 13
Cox, 75. Ifthe person charged has
not the means to supply the neces-
sities of the dependent person there
is no criminal liability: S. v. Merk-
ley, 74 Ia. 695; Rex v. Saunders, 7
C. & P. 277; Reg. v. Rugg, 12 Cox, 16.
It seems that where the person
charged has not the means of sup-
plying necessities, he will not be
held criminally liable by reason of
having failed to apply for relief to
proper authorities: Reg. v. Chandler,
Dears. 453; Reg. v. Rugg, 12 Cox,
16. Contra, Reg. v. Mabbett, 5 Cox,
839, Where a daughter went to her
mother’s house to be confined, and
died because a midwife was not
called, held, that the mother was
under no duty and was not guilty
of manslaughter: Reg. v. Shepherd,
9 Cox, 123,
1Hendrickson v. C., 85 Ky. 281.
So, where the wife, after heing as-
saulted and beaten by her husband,.
and after he had gone to bed, volun-
tarily left the house and unneces-
sarily exposed herself, held, that he
was not responsible for her death:
S. v. Preslar, 3 Jones, 421. Where
husband and wife are living apart.
by mutual consent, the husband.
is not responsible for her death by
reason of the lack of shelter, un-
less he is made acquainted with the
fact that she is without shelter and
refuses to provide her with it: Reg.
v. Plummer, 1 C. & K. 600,
2 Infra, § 349.
3Rex v. Long, 4 C. & P. 423; Rex
v. Spiller, 5 C. & P. 333; Reg. v. Spil-
ling, 2 M. & Rob. 107. But it is other-
wise if death arises from mere error
of judgment: Reg. v. Macleod, 12
Cox, 584. Consent to the operation
will not be an excuse: S. v. Gile, 8-
‘Wash. 12.
4C. v. Thompson, 6 Mass. 1384;
Rice v. S.,8 Mo. 561; 1 Hale, P. C.
429,
255
§ 288.] OFFENSES AGAINST THE PERSON. [Parr ¥.
responsible.) One who bona fide and honestly exercises his
best skill to cure a patient and performs an operation causing
‘death is not criminally responsible.? It seems that, in deter-
mining the criminal responsibility of one who gives medical
treatment, the fact that he is not regularly licensed to practice
will not, in itself, show such negligence as to render him crim-
inally responsible? Mistake of a physician or chemist, causing
death, will not necessarily show criminal liability in the ab-
sence of any evidence of negligence.‘
§ 288. Railroad companies.— In Massachusetts, Maine and
‘New Hampshire are found statutes authorizing indictment of
a railroad company where the negligence of the corporation
or its agents has caused death.’ But the proceeding is to en-
force a penalty in behalf of certain named persons, such as
widow, heirs, etc* Though criminal in form, the proceeding
is in effect civil, and subject to the rules applicable in actions
for damages as to amount of evidence, burden of proof, con-
tributory negligence, etc.’ It
1C. v. Pierce, 188 Mass. 165; S. v.
Hardister, 38 Ark. 605; Rex v. Long,
4 C. & P. 398; Rex v. Simpson, 1
Lewin, 172; Reg. v. Crook, 1 F. & F.
521; Reg. v. Crick, 1 F. & F. 519;
Reg. v. Markuss, 4F. & F. 356; Reg.
v. Chamberlain, 10 Cox, 486; Rex v.
‘Webb, 1 M. & Rob. 405.
28. v. Schulz, 55 Ia. 628; S. v. Hard-
ister, 88 Ark. 605; Rex v. Van Butch--
ell, 8 C. & P. 629; Rex v. Williamson,
3C. & P. 635. Where death resulted
from the operation of sounding, with
a usual. instrument, to determine
pregnancy, held, that the physician
was not criminally responsible in
the absence of negligence: S. v.
Reynolds, 42 Kan. 320.
3C. v. Thompson, 6 Mass. 184; Rex
v. Long, 4 C. & P. 398; Rex v. Van
Butchell, 3 C. & P. 629.
4Reg. v. Noakes, 4 F. & F. 920;
Reg. v. Bull, 2 F. & F. 201; Reg. v.
Spencer, 10 Cox, 525. As to suffi-
ciency of indictment against a drug-
gist for negligence in administering
is provided to supply a defect
a drug causing death, see S. v. Smith,
66 Mo. 92.
5C. v. Boston & Worcester R. Co.,
11 Cush. 512; C. v. Fitchburg R. Co.,
126 Mass. 472; C, v. Coburn, 132 Mass.
555; S. v. Maine Central R. Co., 60
Me. 490; S. v. Gilmore, 24 N. H. 461;
S. v. Railroad, 52 N. H. 528.
6C. v, Eastern R. Co., 5 Gray, 478;
C. v. Boston & Albany R. Co., 121
Mass. 36; S. v. Gilmore, 24 N. H.
461; S. v. Railroad, 58 N. H. 510; S.
v. Grand Trunk R. Co., 60 Me. 145.
7C. v. Fitchburg R. Co., 10 Allen,
189; C. v. Boston & Maine R. Co,
129 Mass. 500; CU. v. Boston & Lowell
R. Co., 184 Mass. 211; S. v. European
& N. A. R. Co, 67 Me. 479; S. v.
Maine Central R. Co., 76 Me. 357; 8S.
v. Maine Central R. Co., 77 Me. 538;
S. v. Maine Central R. Co., 77 Me.
244; S. v. Boston & Maine R. Co., 80
Me. 430; S. v. Railroad, 52 N. H. 528;
S. v. Railroad, 58 N. H. 198,
256
Cu. 18.] Honkdibl.
‘im the common law,! but it is not unconstitutional as class
legislation.?
§ 289. Wrongful act.—In considering the distinction be-
tween murder and manslaughter it will appear that death
resulting from doing a wrongful act will be criminal, the de-
gree of crime depending to some extent on the degree of wrong
in the act done.’ In considering what homicides are accidental
so as to be excusable, and what are so far the result of wrong
as to constitute manslaughter, other cases of death from wrong-
ful acts will also be considered.‘ It is sufficient here to say,
in general, that a wrongful act causing death will render the
one doing it criminally responsible, even though death was not
intended, if the wrong is one in any way calculated to produce
such result Whether an attempt to procure an abortion is
such wrongful act that the death of the woman thereby caused
is criminal will be considered under the head of manslaughter.*
§ 290. Suicide.— While one who commits suicide does take
the life of a human being, yet the impossibility of inflicting
any punishment has prevented any adjudication as to whether
such an act is to be deemed criminal; but it certainly does not
‘come within the definition of excusable or justifiable homicide
‘as hereafter discussed. If the killing is the accidental result
of a lawful act, it evidently does not come within the defini-
‘tion of suicide at all. If it is the unintended result of an un-
[$$ 289, 290.
18. v. Grand Trunk Ry., 58 Me.
176; S. v. Maine Central R. Co., 60
Me. 490.
2Boston, C. & M. BR. Co. v.8., 32
N. H. 2165.
3 See infra, § 289.
4 See infra, § 300.
5 Where one induced another to
drink an excessive quantity of liq-
uor from which death resulted, held,
that he was criminally responsible
for the homicide: Reg. v. Packard,
‘Car. & M. 256. But where it was
claimed that defendant had caused
tthe death of another by setting a
fire, it was held necessary to prove
that the fire could not have origi-
nated from any other cause than de-
‘fendant’s act: Reg. v. Gardner, 1 F.
& F. 669. Where it appeared that
17
defendant, charged with murder,
had wilfully set fire to a stack of
straw, not near to any dwelling-
house, and a person was thereby
burned to death, held that, to war-
rant conviction, it must appear that
deceased was there when the fire
was set: Reg. v. Horsey, 3 F. & F.
287. Accidental homicide in illegally
carrying away furniture to avoid
distress for rent may be murder:
Rex v. Hubson, 1 East, P. C. 258. In
Kentucky special provision is made
as to death caused by shooting,
stabbing, striking, etc., and such of-
fense is not included under an indict-
ment for murder: Trimble v. C., 78
Ky. 176; Peoples v. C., 87 Ky. 487.
6 Infra, § 347.
257
§ 291.] [Part V.
OFFENSES AGAINST THE PERSON.
lawful act, as, for instance, the taking of poison to procure
a miscarriage, it is deemed unlawful.! Although intentional
self-destruction cannot, in the nature of the case, be punished,
there are various questions collaterally involving its lawful-
ness from which a legal inference that it to be deemed unlaw-
ful may conclusively be drawn. For instance, if two mutually
attempt to commit suicide and one survives, he is guilty of
murder of the one who dies, by reason of the doctrine of un-
lawful combinations.? If in attempting to commit suicide the
accidental death of another is caused, such death will be charge-
able as a crime to the one making the attempt * (which would
not be so if death were the accidental result of a lawful act);
and the attempt itself is a misdemeanor at common law in the
person making it,* but it is not attempt to murder. One who
advises and counsels another to commit suicide is an accessory
before the fact to murder. Both from the reasoning which
makes an accessory before the fact to the suicide guilty of
murder, and from the forfeiture imposed until recently by the
English law as a penalty, it is evident that the wrong in-
volved in the act is felonious in its nature.’
§ 291. By act of another; combination; conspiracy.—
Under the general doctrine of combination the criminal re-
sponsibility of one person for acts done by another has been.
already considered. But in determining what is sufficient.
causation in such cases to render one liable for death due to.
the acts of another, some further illustration may be given.
Of course, if by the command of one person another is killed,
the one commanding commits homicide.2 Where two combine
to commit a felony or make an assault, and in carrying out the
common purpose another is killed, the one who enters into the
combination but does not personally commit the wrongful act
1 Rex v. Russell, 1 Moody, 356, 413, And see 8. v. Avery, 113 Mo..
2 Reg. v. Alison,8 C.& P. 418; Rex 475.
v. Dyson, Russ. & Ry. 523,
38. v. Levelle, 34 8. C. 120.
4Reg. v. Doody, 6 Cox, 463; Reg.
v. Burgess, L. & C. 258,
5 Reg. v. Burgess, L, & C. 258.
6C. v. Bowen, 13 Mass. 856; C. v.
Mink, 123 Mass, 422; Blackburn v.
8., 23 Ohio St. 146; 1 Hale, P. C, 412,
73 Stephen’s Hist. Cr. L. 104; 4 BL
Com. 189. And in general, as to
suicides, 1 Hawk. P. C., ch. 27; 2
Bish. Cr. L., § 1187; Reg. v. Ledding-
ton, 9 C. & P. 79; C. v. Dennis, 105:
Mass. 162.
8See supra, §§ 195, 196.
® Washington v. S., 68 Ga. 570; Rex
v. Sawyer, 1 Russ. C. & M. 670.
258
Cu. 18.] HOMICIDE. [§ 292.
is equally responsible for the homicide with the one who di-
rectly causes it; and the conviction of the one who personally
does the act will not prevent the punishment of the other also.
So, if one advise a killing, and the person advised perpetrates
it, the presumption is that the advice had the effect intended
unless the contrary be shown, and the act will be homicide in
the person giving the advice.’ But the mere sanction, or pres-
ence at the commission of a homicide, will not alone render
the person thus present guilty. Where death results from acts
of persons unlawfully assembled to obstruct the officers of the
law, all who are thus assembled are responsible for a homicide
committed in consequence of such assembling.’ So, if several
persons conspire to seize a vessel with force, and death ensues
to another party opposing the design, it is criminal in all who
conspired to do the wrongful act.’ So, if one by force, persua-
sion, or threats induces another to take poison, he is criminally
responsible for the death resulting, whether he furnished the
poison or not, and without regard to whether the deceased
knew the nature of what he was taking.’ As has already been
shown, a master is not criminally responsible for the wrongful
acts done by his servant. So where, in artillery practice, a
ball by accident hits a by-stander, the officer in charge, and in
obedience to whose general orders the ball is fired, is not crim-
inally responsible.?
§ 292. Proximate or remote cause; death from wound.—
One who strikes a blow or inflicts a wound from which death
ensues has committed a homicide, although if properly treated
the injury would not have been fatal. The unskilfulness of
the surgeon (the improper treatment not being intentional,
18. v. Barrett, 40 Minn. 77; 8. v. S., 81 Ala, 20: Rountree v.8..10 Tex. .
Davis, 87 N. C. 514; Mitchell v. C., Ap. 110. And see supra, § 194.
33 Grat. 845; Williams v. S., 81 Ala. 5 Reg. v. McNaughten, 14 Cox, 576.
1; S. v. Simmons, 6 Jones, 21; Beets If a man begin a riot by which an
v. S., Meigs, 106; Taylor v. S., 9 Tex. officer is killed he is criminally lia-
Ap. 100; U. S. v. Ross, 1 Gall. 624; ble for the homicide: Reg. v. Wallis,
Brennan v. P., 15 Ill, 511, 1 Salk. 334.
2 Dumas v. 5., 62 Ga. 58. 6U.S. v. Ross, 1 Gall. 624.
3 Thompson v. C., 1 Met. (Ky.) 13. 7Blackburn v. S., 23 Ohio St. 146.
4Butler v. C., 2 Duv. 485; Con- &See supra, § 187.
naughty v. S., 1 Wis. 159; Jordan v. 9 Reg. v. Hutchinson, 9 Cox, 555.
259
[Parr V.
§ 292.] OFFENSES AGAINST THE PERSON.
but the result of ignorance or carelessness),! or the negligence of
the injured party,? or of others,’ will not relieve the person
inflicting the original injury from the consequences of his act,
which will be charged to such original injury and not to this
intervening cause! So if the wound is the mediate cause it is
no defense to the person inflicting the wound that the immedi-
ate cause was disease resulting therefrom.’ But the person
causing the original injury is not responsible for death result-
ing alone from improper treatment or disease subsequently
contracted, and not from the injury itself.’ It must plainly
sg. v. Bantley, 44 Conn. 537; P. v.
Cook, 89 Mich. 236; S. v. Landgraf,
95 Mo. 97; Clark v. C., 90 Va. 360;
8. v. Scott, 12 La. An. 274; S. v.
Barnes, 34 La, An. 395.
2Bowles v. S., 58 Ala. 335; Will-
jams v. S., 2 Tex. Ap. 271; for in-
stance, his refusal to submit to a
surgical operation: Reg. v. Holland,
2M. & Rob. 351.
3 Failure of a third person to inter-
pose in preventing a fatal conse-
quence from defendant’s act will not
relieve defendant: Belk v. P., 125 IIL
584, 8 Am. Cr. R. 507 and note.
4C. v. McPike, 3 Cush. 181; C. v.
Hackett, 2 Allen, 136; C. v. Costley,
118 Mass.1. A wound given in mal-
ice, not in its nature fatal, but
through mismanagement or neglect
resulting in death, will render the
person inflicting it guilty of the
homicide, unless it appears that the
neglect or mismanagement and not
the wound was the sole cause of
death (overruling McBeth v. S., 50
Miss. 81): Crum v. S., 64 Miss. 1.
5Denman v.8., 15 Neb. 188; Bur-
nett v. S., 14 Lea, 439: S. v. Corbett,
1 Jones, 264; 8S. v. Hambright, 111
N. C. 707; C. v. Green, 1 Ashm, 289;
Kee v. 8, 28 Ark. 155; Powell v.8.,
18 Tex. Ap. 244; 1 Hale, P. C. 428,
So, where the injury inflicted ren-
ders an operation advisable and the
injured person dies by reason of the
administration of chloroform in con-
nection with such operation: Reg.
v. Davis, 15 Cox, 174. If the wound
indirectly causes the death, through
a chain of natural causes and effects,
unchanged by human action, the
death is chargeable to the one in-
flicting it: Kelley v. S., 53 Ind. 811.
It is not necessary that it be the sole
cause if it contributed, mediately or
immediately, to the death: 8S. v.
Matthews, 38 La. An. 795; 8S. v.
Smith, 10 Nev. 106.
6 Coffman v.C.,10 Bush, 495; Bush
v. C., 78 Ky. 268; Smith v.8.,50 Ark.
545. And the jury should be in-
structed, if requested, that they can-
not convict for such homicide unless
satisfied that the death resulted from
the wound and not from the mal-
practice of the surgeon: Brown v.
S., 88 Tex. 482; Parsons v. S., 21 Ala.
300 Where an injured party lived
for nine months, and the evidence
left it in doubt whether death was
caused by the injury or by other
causes, held, that a conviction was
erroneous: Treadwell v. S., 16 Tex.
Ap. 560. If death is due to disease
subsequently contracted, the person
inflicting the wound will not be
chargeable therewith, although the
progress of the disease is quickened
by the enfeebled condition due to
the wound: Livingston v. C., 14
Grat. 592. Of course, if it is doubt-
ful whether death resulted from the
injury in question or some other in-
260
Cu. 18.] HOMICIDE. [§ 292.
appear, however, that the death was caused, not by the wound,
but only by misconduct, malpractice, or ill-treatment on the
part of other persons than the accused.! If, however, after a
fatal blow is inflicted, death is caused by the independent act
of another person without concert with or procurement of the
first, the person inflicting the first wound cannot be held re-
sponsible for the death;? but the one inflicting the subsequent
injury, thereby hastening death, will be held responsible for it.
To hasten the death of one who would soon have otherwise
died from incurable disease will constitute homicide.!
fact that the person killed was
jury, there can be no conviction:
McNamee v. S., 34 Neb. 288.
18. v. Morphy, 33 Ia. 270; S. v.
Scott, 12 La. An. 274. By reason of
the language of the Texas statute
defining homicide, it is held in that
state that the rule of the common
Jaw whereby the neglect or improper
treatment must produce the death
in order to relieve the person inflict-
ing the original injury is changed,
and that gross neglect and improper
treatment which allow, suffer, or
permit the death to result will re-
lieve the person doing the injury as
well as where they directly produce
the destruction of life: Morgan v. .
S., 16 Tex. Ap. 598. Where the de-
fendant was charged with having
caused death of deceased by beat-
ings, and it was sought to show that
the death was in consequence of a
severe burn, held, that evidence as
to whether the burn was received
after death, and also as to statements
by deceased that he had received a
burn, were admissible: S. v. Harris,
63 N.C. 1. Evidence of the health
of the deceased immediately before
the infliction of the wound is admis-
sible as showing whether death was
caused thereby: Phillips v. 8., 68 Ala,
468. The jury isthe exclusive judge
of the cause of death when there is
conflicting evidence as to whether
it resulted from a wound or .rom
The
in feeble condition, so that, his
natural disease or from another in-
jury: P. v. Dunne, 80 Cal. 34.
28. v. Wood, 53 Vt. 560; S. v. Scates,
5 Jones, 420; Jordan v. S., 79 Ala. 9
Contra, Tidwell v. S., '70 Ala. 33.
3P, v. Ah Fat, 48 Cal. 61; Fisher v.
S.,10 Lea, 151. A subsequent injury
not affecting the result will not con-
stitute homicide: S. v. Grinden, 91
Ja. 505. Ifa fatal wound is given in
self-defense, but a second wound is
inflicted by the same person without
justification, there is criminal hom-
icide if the second wound contrib-
utes to or hastened death: Rogers v.
S., 60 Ark. 76.
4C. v. Fox, 7 Gray. 585; P. v. Moan,
65 Cal. 532; S. v. Morea, 2 Ala. 275;
S. v. Smith, 73 Ia. 32; Williams v.
S., 2 Tex. Ap. 271; Reg. v. Murton, 3
F. & F. 492. It is for the jury to de-
termine whether the injury inflicted,
and not the disease, caused the death,
but ignorance on the part of the
defendant of the deceased’s physical
condition will constitute no excuse:
S. v. O’Brien, 81 Ia. 88. Although
where there is doubt as to which of
two persons, not acting in concert,
caused the death, neither can be con-
victed (see supra, § 194), yet a doubt
as to which of two acts by the same
person in the same transaction
caused the death will not relieve:
Pp, v. Ab Luck, 62 Cal. 503. If two
persons at the same time inflict
261
—_~
§§ 293, 204.] oFFENSES AGAINST THE PERSON. [Part V.
death was caused by a blow which would not have caused the
death of a healthy person, will be no defense.’
§ 293. Time of death.— It is evident the longer the injured
person lives after the injury the more doubtful it becomes
whether the death is the result of such injury or of independ-
ent causes, and it is convenient to have a definite period after
which death shall not be deemed due to the particular injury
under investigation. This definite period is fixed by the com-
mon law at a year anda day.? The origin of this rule and the
reason for fixing this particular period are not made clear. The
cases above referred to assume the existence of the rule, with-
out adjudicating or explaining it, but it is definitely laid down
in all the books that refer to the question at all. In computing
the period “the whole of the day on which the hurt was done
shall be reckoned the first,” and if death does not occur until
after the end of the corresponding day of the next year the act
is not deemed a homicide in the person inflicting the injury.
TI. Wao Deemep Person.
§ 294. Human being; child unborn.— A child in its moth-
er’s womb is not a human being in such sense that to cause the
death thereof before birth is a homicide.* In order that the
child shall be so far born as to be considered a human being,
the causing the death of which is homicide, it must have an in-
dependent circulation.» Itis not enough that the child may
have breathed in the progress
mortal wounds and death results, an
jnstruction with regard to a doubt
as to which caused ‘the death need
not be given: T. v. Yarberry, 2 N.
Mex. 391.
1§, v. Castello, 62 Ia. 404. But
such fact may bear on the question
of malice: C. v. Fox, 7 Gray, 585.
21 Hale, P. C. 427; 2 Bish. Cr. L,
§ 640. The indictment must show
the death to have been within a year
and a day after the injury: S. v.
Orrell, 1 Dev. 139; S. v. Huff, 11 Nev.
17; P. v. Kelly, 6 Cal. 210; P. v. Wal-
lace, 9 Cal. 30; Lester v. 8., 9 Mo. 658;
§. v. Mayfield, 66 Mo, 125.
of birth, if the whole body was
31 Hawk. P.C., ch. 31, § 9; 3 Inst. 53.
42 Bish. Cr. L., $632; 1 Hawk. P.C.,
ch. 31, § 16; 3 Inst. 50; 1 Hale, P. C.
433; Abrams v. Foshee, 3 Ia. 274. For
some purposes a child in the womb
has a legal existence, but not in
criminal law except by statute, asin
New York, where it is manslaughter
to cause the death of the foetus after
it is quick: Evans v. P., 49 N. Y. 863
and see Williams v. S., 34 Fla. 217.
5 Reg. v. Wright, 9 C. & P. 754; S. v.
Winthrop, 431a, 519; Sheppard v.S., 17
Tex. Ap. 74, Itis not necessary that
it shall have breathed if fully born
alive: Rex v. Brain, 6 C. & P. 349,
262
Cu, 18.] HOMICIDE. [§§ 295, 296.
not brought alive into the world! But the fact that the child
is still attached to its mother by the umbilical cord will not
prevent its being considered a human being if it has been
wholly produced from the body of its mother and has an inde-
‘pendent circulation.? Ifthe child be actually born alive, although
prematurely, its death, caused by reason of the fact that it is
prematurely brought into the world, will constitute homicide
in the person thus causing its premature birth. One who be-
- fore the birth of the child counsels the mother to kill it when
born is criminally responsible for its death if his advice is acted
upon.!
§ 295. Person in the king’s peace.— The old definitions of
criminal homicide refer to the killing of a person in the king’s
peace,® but this phrase seems to be used in later times only to
exclude cases of killing an alien enemy in war. In general,
every person is entitled to protection against unlawful vio-
lence, and, whether he be a felon or an alien or a person out-
Jawed, to cause his death except in a lawful manner, or in a
way such as to render the homicide justifiable or excusable,
will be criminal.
HI. Homicrpzs Nor Crmmnar; Justiriaste AnD Excusasie;
SELF-DEFENSE.
§ 296. How distinguished.— The previous discussion has
related to what shall be deemed a homicide; but in determin-
ing whether or not a homicide constitutes a crime, that is, what
homicides are not punishable as distinguished from those which
1Rex v. Poulton, 5 C. & P. 329;
Rex v. Enoch, 5 C. & P. 539; Rex v.
Sellis, 7 C. & P. 850. There must be
a complete expulsion, alive, from the
body of the mother: Wallace v. §.,
10 Tex. Ap. 255.
2Reg. v. Trilloe, Car. & M. 650;
Reg. v. Handley, 13 Cox, 79. Ina
‘case as to descent of property, held,
that a child was born alive which
anade an effort to breathe after ex-
pulsion, although still attached by
the umbilical cord: Goff v. Ander-
son, 91 Ky. 303.
3-Reg. v. West, 2 C. & K. 784; Rex
wz. Senior, 1 Lewin, 183.
41 Hale, P. C. 483; 4 BI. Com, 198;
7 Co. Rep. 9; Dwyer, 186; 1 Hawk,
P. C., ch. 81, § 17; 3 Inst. 51.
53 Inst. 50; Pennsylvania v. Rob-
ertson, Addison, 246.
61 Hale, P. C. 433; 1 Hawk. P. C.,
ch. 28, § 8; Id., ch. 31, § 15; 4 BL
Com. 197, 198; 1 Bish. Cr. L., § 134;.
C. v. Holland, 1 Duv. 182; S. v. Cook,
Phil. 535. Thus, it is criminal un-
lawfully to kill a horse-thief: Rye v.
S., 8 Tex. Ap. 153, or a person of
color: Campbell v. P., 16 Ill. 17, or
an Indian: S. v. Gut, 18 Minn. 341;
Jim v. T., 1 Wash. 76.
263
§§ 297-298. ] OFFENSES AGAINST THE PERSON. [Parr V.
are punishable, or what are lawful and what are unlawful,
further classification is necessary. At one time a distinction
was maintained between justifiable homicides, that is, those
committed under lawful authority, for instance, in the course of
justice or in war, and excusable homicides, such as those re-
sulting from accident or in self-defense. The excusable class
were like the justifiable in not being punishable in a criminal
proceeding; but, while the justifiable were deemed wholly with-
out blame, the excusable were attended with some penalty,
such as the forfeiture to the crown of the thing causing the
death and of the goods of the homicide. But by the present
law, forfeitures of this kind are in no way recognized, and all
practical distinctions between justifiable and excusable homi- |
cide have ceased to exist. The cases of homicide which are
not punishable will be considered, therefore, without regard to’
whether they would have been deemed justifiable or excusable,
it being impossible to now determine in all cases within which
class each particular kind of non-criminal homicide would fall.
The two being synonymous, it is not error, in charging the
jury, to use one term for the other. <
§ 297. In executing sentence of death.— A duly authorized
officer who, in pursuance of a writ issued by a court having
jurisdiction, executes sentence of death upon a prisoner, is jus-
tifiable in the act, and no criminality attaches thereto.’
§ 297a. In acting under military command.— The act of
a soldier in causing death in lawful military operations is, of
course, justifiable. But the mere command of a military supe-
rior will not render an act of homicide justifiable unless the
order is lawful.®
§ 298. In arresting or detaining criminals.— The general
questions as to what is a lawful arrest, and whether arrest may
be made by an officer without warrant or by a private person,
pertain to the law of arrest, and cannot be discussed here. But
an officer or private person acting under circumstances author-
izing an arrest may use all the force necessary in overcoming
11 Bl. Com. 300; 4 Bl. Com. 186- 502; 1 Hawk. P. C., ch. 28, §§ 4-10;.
188; 1 Bish. Cr. L., § 968; Foster, 265; Foster, 267; 1 Russ. Cr. 665.
Reg. v. Polwart, 1 Q. B. 818. 4U.58. v. Clark, 81 Fed. R. 710.
28, v. Row, 81 Ia. 188; Bone v. S., 5U. 8. v. Carr, 1 Woods, 480; U.S.
86 Ga. 108. v. Gut, 13 Minn. 341. And see supra,
34 Bl, Com, 178; 1 Hale, P, C. 496- § 1165.
ORL
ree
Ox. 18.] HOMICIDE.
[$ 298.
resistance and defending himself against violence from the per-
son sought to be arrested,! and if in doing so he takes life, it is
justifiable, being in pursuance of public justice. In attempting
to make an arrest, however, where the person to be arrested,
instead of resisting, seeks to make his escape, there is a differ-
ence, depending on the gravity of the offense for which the ar-
rest is being made, as to whether the officer may do an act
calculated to take life. Ifthe offense for which the arrest is
being made is a felony, the person (whether an officer or not,
provided he is lawfully arresting) may take life if necessary in
order to effect the arrest. But if the offense for which the
arrest is being made is a misdemeanor, there is no right to take
life, and the person seeking to make the arrest will be guilty
of a crime in doing so.‘ As to resisting the escape of a prisoner
under arrest or in confinement, it seems that the officer may
resist so far as necessary, and if the attempt is so violent as to
make it necessary to take life in preventing such escape, the
officer will be justified in doing so, whether the prisoner is
under arrest for felony or misdemeanor, or even (at common
1Carter v. S., 80 Tex. Ap. 551; S.
v. Turlington, 102 Mo. 642.
21 Hawk. P. C., ch. 28, §8§ 11-14;
1 Russ. Cr. 665-667; 4 Bl. Com. 179;
2 Bish. Cr. L., 88 647-655; Head v.
Martin, 85 Ky. 480; Adams v. 8., 72
Ga. 85; Clements v. S., 50 Ala. 117;
S. v. Dierberger, 96 Mo. 666; S. v.
Fuller, 96 Mo. 165; S. v. Anderson, 1
Hill (S. C.), 827; S. v. Roane, 2 Dev.
- §8: U.S. v. Jailer, 2 Abb. (U. S.) 265.
An officer who neglects to use proper
means to detain a prisoner is not
justified in the use of a deadly
weapon to prevent escape: Reneau
v. S., 2 Lea, 720. If by a private
person, belief that the crime has
been committed is not enough; there
must have been an actual crime: S.
v. Rutherford, 1 Hawks, 457. As to
Jawfulness of arrest without war-
rant, see, also, Nelson v. S., 83 Neb.
528; Lacy v. S., 7 Tex. Ap. 403; Car-
ter v.S., 30 Tex. Ap. 551. But this
subject properly pertains to the law
of arrest.
31 Hale, P. C,, 481, 489; 1 Hawk.
P. C., ch. 28, §§ 11, 12; Foster, 271; 3
Inst. 221; 1 East, P. C. 298; 1 Russ.
Cr. 666; Carr-v. S., 48 Ark. 99. It is
for the jury to say, under all the cir-
cumstances, whether it was neces-
sary to kill in order to effect the
arrest, and on that question the offi-
cer is entitled to the benefit of a
reasonable doubt: Jackson v. S., 66
Miss. 89.
4See authorities in last note; also,
2 Hale, P. C. 117; 1 East, P. C. 02; .
Dilger v. C., 88 Ky. 550; Handley v. '
8. 96 Ala. 48. Even if he cannot |
otherwise be taken: Rex v. Smith, 1
Russ, C. & M. 749, Larceny of a
horse, though felony by statute, does
not justify killing the thief, though
necessary in order to recapture the
horse: Storey v. S., 71 Ala. 329. It
is held in Texas that an officer may
not kill to prevent escape of prisoner
under arrest even if for grand lar-
ceny: Caldwell v. S., 41 Tex. 86,
265
§ 299.]. OFFENSES AGAINST THE PERSON. [Parr V.
law) merely under civil process.!_ It is probable, however, that
even as to preventing escape the officer is justified in taking
life only to prevent escape for felony, or where, the offense
being a misdemeanor, in resisting force with force his own life
is put in peril, and not where he takes life merely to prevent
escape of one charged with a misdemeanor.’ But the officer
will be justified in taking life only where he has reasonable
ground to believe and does believe that it is necessary in mak-
ing the arrest or preventing escape or defending himself, and
the jury must judge of this on the facts. Where there is no
right to take life in making the arrest or preventing escape, it
will be murder or manslaughter to kill, depending upon circum-
stances;‘ or if the officer does not use vivlence calculated to
imperil the life of the person whom he is seeking to arrest, but
is using only proper force for the purpose, and death results by
accident, it will be excusable.’ Homicide in unlawful arrest,
that is, an arrest without authority, is murder. There is no
right to resist arrest, to the extent of taking life, as will here-
after appear.’ But if the person to be arrested has no knowl-
‘edge that the person arresting is an officer, or as a private
person is seeking to make an arrest, he may resist as in other
cases of threatened wrong.’ But if the officer or arresting per-
son is acting properly, it will be murder to cause death in re-
sistance.
§ 299, Resisting commission of felony.— On the same prin-
ciple which makes it justifiable in an officer to take life in the
discharge of his duties, it is justifiable homicide to take the
life of another, when necessary to prevent the commission, by
1Foster, 321; 1 Hawk. P. C., ch. Bland, 97 N. C. 438; S. v. Rollins, 113
28, § 18; 1 Russ. Cr. 667; S. v. Tur- N.C. 722. But if the facts are un-
lington, 102 Mo. 642; Jackson v. S.,
%6 Ga. 473. But this right does not
extend to an officer attempting to
re-arrest an escaped convict. He has
only such authority as belongs to an
ordinary peace officer in making an
arrest: Wright v. S., 44 Tex. 645. As
to cases of civil arrest, see 1 Hawk.
P. C., ch. 28, §§ 17-20; 1 East, P. C.
806; Mackalley’s Case, 9 Coke, 65;
‘Calfield’s Case, 1 Rol. 189.
2 Reneau v. S., 2 Lea, 720.
s3Jackson v. 8. 76 Ga. 478; S. v.
disputed the question is for the
court: P. v. Kilvington, 104 Cal. 86.
4 Infra, § 347.
5 Plummer v. &., 4 Tex. Ap. 310.
6 Rex v. Longden, Russ. & Ry. 228;
Rex v. Dixon, Russ. & Ry. 58; 1
East, P. C. 812, 813.
‘Infra, 8§ 328, 340.
8Starr v. U. S&S, 158 U. S, 614;
Plummer v. 8., 185 Ind. 308.
98. v. Turlington, 102 Mo. 643.
And see infra, § 328,
266
Cu. 18.]
him, of a felony.
HOMICIDE.
[§ 299.
And this is true as to acts which are feloni-
ous only by statute as well as those recognized as felonious at
common law.’ But it is not justifiable to take life to prevent
a mere misdemeanor,’ nor in the mere protection of property.‘
The extent of the right to protect property by force has al-
ready been discussed under the doctrine of necessity. The
killing must take place while the person killed was in the act
of committing the offense and before its actual completion.
11 Hale, P. C. 484-9; 1 Hawk. P. C,,
ch. 28, §§ 21-27; 4 Bl Com. 180; 1
Bish. Cr. L., $§ 853, 867; Cooper’s Case,
Cro. Car. 544; P. v. Payne. 8 Cal. 341;
P. v. Flanagan, 60 Cal. 2; P. v. De
Los Angeles, 61 Cal. 188; Hicks v.8.,
51 Ind. 407; Aldrich v. Wright, 538
N. H. 898; McPherson v. 8., 22 Ga.
478; 1 Houst. Cr. C. 116. If one is
killed while resisting a felony it will
be murder: Dill v. S., 25 Ala. 15.
28. v. Moore, 81 Conn. 479; Pond
v. P., 8 Mich. 150. Assault with in-
tent to do great bodily harm not
being a felony. by statute, held er-
roneous to instruct with reference
to resisting such assault as though
it were a felony: S. v. Stockton, 61
Mo. 382. But the killing must be
necessary in preventing the felony:
‘Weaver v. 8., 19 Tex. Ap. 547.
As, for instance, larceny, which
by the Tennessee code is not a fel-
ony: Marks v. Borum, 57 Tenn. 87;
-or an assault with intent to do great
bodily harm, such offense not being
a felony; although if the assault
were such as to cause fear of great
bodily harm, the assailed might be
excused for taking life in self-de-
fense: S. v. Stockton, 61 Mo. 382.
And see further as to fear of bodily
harm, infra, § 302. In Carmouche v.
Bouis, 6 La. An. 96, it is said that
homicide is not justifiable to pre-
vent a felony threatened without
force. In Texas, adultery being
only a misdemeanor, held, the hus-
band apprehending another in the
commission of adultery with his
wife is not justified in taking life,
and the person assailed will be guilty
only of manslaughter in taking the
life of the husband to save his own:
Reed v. 8.9 Tex. Ap. 317; Reed v.
S., 11 Tex. Ap. 509. But under the
penal code of Texas, making hom-
icide justifiable when committed by
the husband on one taken in the act
of adultery with his wife, held, that
under the facts of the case deceased
was taken in adultery in such sense
as that homicide was justifiable:
Price v. S., 18 Tex. Ap. 474. With
reference to a similar statutory pro-
vision in Georgia, see Biggs v. 8., 29
Ga. 723; Cloud v.S.,81 Ga. 444. But
a husband is justifiable in slaying
another under the apprehension of
a design to commit a felony on his
wife: Staten v.S., 30 Miss. 619. There
ds no justification for a husband who
kills on account of a past adultery
or attempt to debauch the wife:
Farmer v. S., 91 Ga. 720; Jackson v.
8., 91 Ga. 271.
48. v. Morgan, 8 Ired. 186; Weston
v. C., 111 Pa. St. 251.
5 Supra, § 142. See, also, infra, § 318.
®Under a statute in Texas, how-
ever, such killing is justifiable in
case of burglary or theft by night,
if at the place where such crime is
committed, and it is held that if a
thief by night be shot while within
reach of gunshot from the place of
committing the theft, although he
has abandoned the goods, the hom-
icide is justifiable: Whitten v. §., 29
Tex. Ap. 504. But if the killing is
267
§§ 300, 301.] oFFENSES AGAINST THE PERSON. [Parr V.
§ 800. Accidental killing.— It has already been said that a
homicide by accident is not criminal, but was, at common law,
deemed not justifiable but excusable only, some penalty by
way of forfeiture being involved.! The doctrine that acci-
dental homicide in attempting to do a wrongful act will be
murder or manslaughter, depending on the question whether
the act attempted was a felony or a misdemeanor, will be here-
after discussed.? If, in resisting an assault, death results by
accident, the homicide will be excusable although the assault
was not such as to make the taking of life justifiable.’ So, ac-
cidental killing of a third person in making proper self-defense
will be excused in the same way as though the person kille¢
were the aggressor.’
§ 801. Self-defense.— Aside from the doctrine that it is jus-
tifiable homicide to take life, if necessary, in preventing a fel-
ony,’ is the general proposition that one is excused in taking
the life of a person who threatens his own life.’ This is the
general doctrine of self-defense, which must be discussed, how-
ever, with reference, first, to the kind of danger which will ex-
cuse taking the life of the assailant; and second, the necessity,
or the imminence of the danger, which will make such violent
resistance proper.
with malice and not to prevent a
theft or in consequence of a theft,
it is not justifiable: Laws v. S., 26
Tex. Ap. 643, Evidence indicating-
the purpose of the deceased to have
been to commit a felony is admissi-
ble: C. v. Pipes, 158 Pa. St. 25.
1Supra, §§ 285, 296. The burden
to prove accident, with use of proper
care, is said to be on the accused:
Reg. v. Cavendish, 8 Iv. R. C. L. 178;
S. v. Bond, 2 Nev. 265. The evidence
must be more than simply enough to
Jead to conjecture that the homicide
is accidental: 8S. v. Haywood, Phill.
376.
2 Infra, 8§ 326, 347.
3 Hicks v. S., 51 Ind. 407. But rea-
sonable care must have been exer-
cised: S. v. Morgan, 40 S. C. 345,
4 Aaron v. S., 81 Ga. 167; Butler v.
S., 92 Ga. 601; Hart v. C., 85 Ky. 77;
Plummer vy. S., 4 Tex. Ap. 310; Pin-
der v. S., 27 Fla. 370; Reg. v. Knock,
14 Cox, 1. But one who fires at ran-
dom into a crowd and kills a by-
stander cannot claim to be excused
on the ground of self-defense: S. v.
Smith, 114 Mo. 406.
5 Supra, § 299."
6 Bohannon v. C., 8 Bush, 481; Wall
v. 8., 51 Ind. 453; Jim v. S&S, 15 Ga.
535; Underwood v. §., 25 Tex. Supp.
389. If two assailants are acting in
concert the acts of one may justify
the killing of the other: Jones v. S.,
20 Tex. Ap. 665. A statute making
ita crime to fight in a public place
with a deadly weapon does not im-
pair the right of self-defense: Hun-
ter v. S., 62 Miss. 540.
268
Cu. 18.] HOMICIDE. [§§ 302, 303.
§ 302.. Danger to life or of injury to the person.— Not only
will one be excused for taking the life of one who puts his life
in peril, but one will be equally excused in taking the life of
an assailant who threatens to inflict upon him great bodily in-
jury! Danger of a battery alone will not be sufficient? If
unlawful violence is resorted to in the attempt to make an ar-
rest for a misdemeanor where it is not lawful to imperil life, the
person whose arrest is attempted will be justified in taking life.’
§ 803. Imminent danger.— To warrant taking life in self-
defense the danger must be imminent.’ Mere words or gest-
ures however insulting, not indicating immediate danger to
the person assailed, will not be sufficient ;* neither will threats
1C, v. Carey, 2 Brews. 404; Holmes
v. &, 23 Ala. 17; Meredith v. C., 18
'B. Mon. 49; Minton v. C., 79 Ky. 461;
Shorter v. P., 2 N. Y.193; Pond v. P.,
8 Mich. 150; Young v. §., 11 Humph.
200; Hunt v.S.,72 Miss, 4138; Kingen
v. 8. 45 Ind. 518; Fields v. S., 134
Ind. 46; Cheek v. S., 4 Tex. Ap. 444;
Fuller v. S., 30 Tex. Ap. 559. The
‘terms, “great bodily harm,” “danger
of loss of life or limb,” “enormous
bodily harm,” “great personal in-
jury,” “enormous bodily injury,”
“enormous injury,” “dreadful in-
jury,” may be used in describing the
danger which will excuse taking life
in self-defense: S. v. Murdy, 81 Ia.
603; Green v.S., 28 Miss. 687. But
it is error to require danger of “enor-
mous bodily harm: ” McDonald v.S.,
‘89 Tenn. 161.
2Eiland v. S., 52 Ala. 822; Scales
v. S., 96 Ala. 69; S. v. Thompson, 9
Ia. 188; S. v. Jones, 89 Ia. 182; C. v.
Drum, 58 Pa. St. 9; Reg. v. Hewlett,
1 F. & F. 91; and see note to next
section. But when a fight is actually
going on, sticks and clubs, though
perhaps not in themselves danger-
‘ous Weapons, may become weapons
of a very deadly character, and their
use may give rise to the extreme
right of self-defense: Allen v. U.S.,
157 U. S. 675. If in making proper
-self-defense death results by accident
the homicide is excusable: Supra,
§ 300.
3Tiner v. S,, 44 Tex. 128,
arrest, see supra, § 298.
4Nailor’s Case, Foster, 278; C. v.
Selfridge, 1 Whart. Hom. 417; Dolan
v. 8, 81 Ala. 11. By “imminent” is
meant immediate, such as must be
instantly met, and cannot be guarded
against by calling upon others or
seeking the protection of the law:
U.S. v. Outerbridge, 5 Sawyer, 620.
But it need not be impending at the
very moment. A party may antici-
pate attack if the danger exists, the
jury being judges as to the neces-
sity: Cotton v. S., 31 Miss. 504; For-
tenberry v. S., 55 Miss. 403; Goodall
v. &, 1 Oreg. 338; Philips v. C., 2
Duv. 328. Previous threats cannot
be made an excuse when unaccom-
panied with present "hostile demon-
strations: Turner v. C., 89 Ky. 78;
U.S. v. Leighton, 3 Dak. 29.
5U.S. v. Wiltberger, 3 Wash. C. C.
515; U.S. v. Carr, 1 Woods, 480; S.
v. Martin, 30 Wis. 216; Price v. P.,
181 Ill. 223; P. v. Lombard, 17 Cal.
316; P. v. Tamkin, 62 Cal. 468; P. v.
Taing, 53 Cal. 602; P. v. Campbell,
59 Cal. 248; Lander v.5S., 12 Tex. 462;
Taylor vy. S48 Ala. 180; 8. v. Mc-
Collum, 119 Mo. 469; S. v. Harris, 59
Mo. 550; S. v. Evans, 65 Mo. 574;
Evans v. S., 44 Miss. 762; Rippy v.
As to
269
§ 303.] [Part V.
OFFENSES AGAINST THE PERSON.
which do not indicate a present purpose to carry them out; *
nor the violent and lawless character of one from whom
danger is apprehended.? The fact of antecedent threats or
difficulties, even though such as to induce the fear on the part
of the person threatened that the other may seek to kill on
opportunity, will not justify killing the other without a mani-
festation of present purpose to carry out such threats or con-
tinue the difficulty. There must be such a demonstration of
an immediate intention to execute the threat, or such overt act,
as it is usually called, as to induce a reasonable belief that the
party threatened will lose his life or suffer serious bodily in-
jury unless he immediately defends himself against the attack; *
for it is only danger imminent at the time of the homicide (or
believed to be imminent, as will hereafter be explained) which
will justify or excuse the killing.® The overt act must be one
S., 2 Head, 217; Bohannon v. C., 8
Bush, 481; 8. v. Harrigan, 9 Toust.
369. The wounded pride or sense of
shame which may result from de-
clining to fight will not justify kill-
ing in self-defense: Springfield v. S., °
96 Ala. 81.
1 Hughey v. S., 47 Ala. 97; Byrd v.
C., 89 Va. 586; Harris v. S., 47 Miss.
318; Edwards v. S., 47 Miss. 581;
Irwin v. S., 48 Tex. 236; Williams v.
S., 2 Tex. Ap. 271; Mize v.8., 36 Ark.
658: Roberts v. S., 65 Ga. 4380; U.S.
v. Outerbridge, 5 Sawyer, 620.
28, v. Field, 14 Me. 244; Franklin
v. S.,29 Ala. 14; P. v. Lamb, 2 Keyes,
360.
3 Crabtree v.S.,1 Lea, 267; Parsons
v. C., 78 Ky. 102; Payne v. S., 60 Ala.
80; Myers v. S., 62 Ala, 599; Tid-
well v. S., 70 Ala. 83; S. v. Hall, 9
Nev. 58; 8. v. Ferguson, 9 Nev. 106;
S. v. Stewart, 9 Nev. 120; 8. v. Mullen,
14 La. An. 570; S. v. Bradley, 6 La.
An, 555; Carter v. S., 8 Tex. Ap. 372;
Penland v. S., 19 Tex. Ap. 365. —
4P. v. Scoggins, 87 Cal. 676; Bar-
nards v. S., 88 Tenn. 183; Mitchell v.
S., 41 Ga. 527; Williams v. S, 3
Heisk. 376; Turpin v. 8., 55 Md. 462;
Myers v.58., 33 Tex. 525; Peck v. 8.,
5 Tex. Ap.611; Johnson v.8., 27 Tex.
758; Thomas v. §., 11 Tex. Ap. 315;
McDade v. S., 27 Tex. Ap. 641; S. v.
Cosgrove, 42 La. An. 753; S. v. Jack-
son, 33 La. An. 1087; S. v. Jackson, 44
La. An, 160; S. v. Williams, 46 La..
An. 709. Evidence of threats is not
admissible where there is noevidence
of any overt act: Rutledge v. S., 88
Ala, 85; Smith v.S., 25 Fla. 517; Mo-
riarty v. S., 62 Miss, 654; Allen v. S.,.
17 Tex. Ap. 637; West v.S., 18 Tex. Ap.
640; S. v. Demareste, 41 La, An. 617;
S. v. Labuzan, 37 La. An. 489; S v.
Janvier, 37 La. An. 645; S. v. Jackson,
37 La. An, 896; S. v. Birdwell, 36 La.
An. 859. So as to evidence of bad
character: S. v. Mitchell, 41 La. An.
1073; S. v. Vance, 32 La, An. 11773.
Wesley v. S., 37 Miss. 327.
58, v. Thompson, 9 Ia. 188; S. v.
Neeley, 20 Ia. 108; S. v. Field, 14 Me.
244; Holt v.S., 9 Tex. Ap. 571; Ken-
nedy v. C., 14 Bush, 840; Farris v. C.,
14 Bush, 362; Payne v. C., 1 Met.
(Ky.) 870; Draper v. S., 4 Bax. 246;
Rippy v. 8., 2 Head, 217; Williams v.
S., 3 Heisk. 376; P. v. Morine, 61 Cal.
367; P. v. Herbert, 61 Cal. 544; P. v.,
Cochran, 61 Cal. 548; P. v. Williams,
32 Cal. 280; P. v. Gonzales, 71 Cal.
270
Cau. 18.] HOMICIDE. [§ 804.
indicating an intent to take life or cause great bodily harm;
@ mere intent to assault will not be enough.' As to what con-
stitutes such an overt act as will justify homicide in self-
defense must depend on circumstances,? and is a question for
the jury, for which no general rule can be laid down, each case
depending upon its own circumstances. One who is about to
be assailed with a deadly weapon is not required to wait until
his assailant gets upon equal terms with himself before pro-
ceeding to make self-defense,‘ and it is erroneous to limit self-
defense to a case of extreme necessity and as a last resort.5
§ 304. Apparent danger.— It is evident that notwithstand-
ing the language of cases which hold that the danger must be
real and imminent, what is meant is, real and imminent to the
mind of the person assailed; and that apparent danger is enough
to excuse his acting in self-defense, that is, a danger which to
his mind is real and imminent, that he is about to suffer death
or great bodily injury unless he resists the assault.6 The neces-
sity need not be actual, provided the circumstances are such as.
to impress the mind of the person assailed with the reasonable —
belief that such necessity is impending.’
669; Scott v. S., 56 Miss. 287; S. v.
Newcomb, 1 Houst. Cr. C. 66; S. v.
Hollis, 1 Houst. Cr. C. 24;S. v. Vines, 1
Houst. Cr. C. 424; Jackson v. S., 94
Ala. 85; Dupree v. S., 33 Ala. 380;
Harrison v. S., 24 Ala. 67; Hull v.&.,
79 Ala. 82; S. v. O’Connor, 31 Mo.
389; S. v. Horne, 9 Kan. 119; S. v.
Swift, 14 La. An. 827; Johnson v.&.,
58 Ark. 57; Reg. v. Bull, 9 C. & P.
22; P. v. Cole, 4 Park. Cr. Rep. 35.
1 Wortham v. 8., 70 Ga. 336; Bailey
v. S, 70 Ga. 617; S. v. Brittain, 89
N.C. 481; S. v. Shreves, 81 Ia. 615;
S. v. Thompson, 9 Ia, 188; Hiland v.
S., 52 Ala. 322, An attempt to carry
out a conspiracy to take life with-
out more will not be enough: Hender-
son v. S., 77 Ala. 77.
2Oder v. C., 80 Ky. 32. That one
assailed with threats and offensive
language puts his hand into his
pocket does not authorize the in-
ference that he is about to drawa
weapon: Mitchell v. S., 41 Ga. 527;
If the acts of the as-
nor will the possession by one as-
saulted of a weapon warrant such
inference, at least where the circum-
stances are such that he could not
use it: Connaghan v. P., 88 IIl. 460.
3 Jackson v.S.,6 Baxt. 452; Allison
v. U.S., 160 U.S. 203.
4See supra, § 302, n. Where one
killed a pursuer who was aiming a
deadly weapon at him, held, that the
crime was not murder: Underwood
v. S., 25 Tex. Supp. 389.
*King v. S., 18 Tex. Ap. 277.
6 Evans v. S., 44 Miss. 762; Rapp v.
C., 14 B. Mon. 614.
7Shorter v. P., 2 N. Y. 198; Pond
v. P., 8 Mich. 150; Patten v. P., 18.
Mich. 314; Murray v. C., 79 Pa. St.
311; P. v. Lamb, 2 Keyes (N. Y.). 360;
Wall v. S., 51 Ind. 453; West v. S.,
59 Ind. 118; Hays v. 8, 77 Ind. 450;
Duncan v. S., 84 Ind. 204; Cockrill .
v. C., 95 Ky. 22; 8. v. Neeley. 20 Ia.
108; S. v. Sorenson, 82 Minn. 118; S.
v. Howard, 14 Kan. 173; S. v. Sloan,
271
[Parr V.
§ 305.] OFFENSES AGAINST THE PERSON.
sailant, in view of previous threats or the character of the
deceased, of which the person assailed is aware, indicate an im-
minent danger, the assailed is justified in acting with reference
thereto,! and it will be immaterial that, as a matter of fact, de-
ceased was not in a position to inflict the injury which seemed
imminent.2 If there is any evidence, however slight, of rea-
sonable grounds of apprehension of danger, an instruction as
to the law of self-defense should be given.’
§ 305. Belief of danger.— Therefore, a well-grounded belief
of danger will excuse.‘ It will be immaterial as affecting the
criminality of the act of the person assailed that he supposed
the assailant to be armed with a deadly weapon, whereas, in
fact, although the person assailed had reasonable grounds to
believe his assailant was thus armed (there being also an overt
47 Mo. 604; Oliver v. S., 16 Ala. 587;
Dill v. S., 25 Ala. 15; Keener v. S., 18
Ga. 194; Boatwright v. S., 89 Ga.
140; Ingram v. S., 62 Miss. 142; P. v.
Flahave, 58 Cal. 249; Jordan v. S.,11
‘Tex. Ap. 435; Smith v. S., 15 Tex.
Ap. 838; Nalley v. S, 30 Tex. Ap..
456; Wilson v. S., 18 Tex. Ap. 576;
Honnicutt v. S., 20 Tex. Ap. 632; S.
v. Chandler, 5 La. An. 489; S. v.
Peterson, 41 La. An. 85. One is jus-
tified in resisting an apparent at-
tempt to take his life, although it
afterward appears that the person
resisted was in fact an officer seek-
ing to make an arrest: Logue v. C.,
88 Pa. St. 265; Plummer v. S., 185
Ind. 308; Starr v. U.S., 153 U.S. 614,
1Sims v. S&S, 9 Tex. Ap. 586; S. v.
Mullen, 14 La. An. 570. Further as
to effect of threats and character of
“deceased, see infra, § 307. The real
intention of the deceased will be im-
material,as accused must be judged
‘by his apparent intention: P. v.
Fitchpatrick, 106 Cal. 286.
2P, v. Scoggins, 37 Cal. 676. The
surrounding circumstances are the
test: Williams v. C., 80 Ky. 3138;
Lightfoot v. C.,80 Ky. 516. And the
accused is to be judged by the facts
as they reasonably appear to him,
and not as they actually are: §S. v.
Reed, 53 Kan. 767; Barr v. S, 45
Neb. 458; Rodriguez v. S.,8 Tex. Ap.
129,
3 Batten v. S., 80 Ind. 394; S. v.
Alley, 68 Mo. 124; Johnson v. S.. 72
Ga. 679. But there is no necessity
for an instruction as to apparent
danger when the real nature of the
assault is plain: S. v. Umfried, 76
Mo. 404. And it will be error to in-
struct as to necessity without quali-
fication as to apparent danger: En-
right v. P., 155 Ill. 82; Stanley v. C.,
86 Ky. 440; Cockrell v. C., 95 Ky. 22;
Barnards v. S., 88 Tenn. 183.
48. v. Rutherford, 1 Hawks, 457;
8. v. Roane, 2 Dev. 58; Rogers v. 8.
62 Ala. 170; Hathaway v.S., 82 Fla.
56; Marnoch v. 8S. 7 Tex. Ap. 269;
Pinder v. S., 27 Fla. 870; S. v. St.
Geme, 31 La. An. 302. Further illus-
trations will be found in cases cited
under the preceding section, the doc-
trine as to belief being practically
the same as that with reference to
apparent danger. It is not belief on
the part of the jury that the danger
existed, but belief on the part of de-
fendant as to its existence which is
material; Cockrill v. C, 95 Ky. 22
272
Ou. 18.] HOMICIDE. [§ 306.
act), the assailant was in fact not armed. As bearing on the
reasonableness of the belief on the part of the person assailed,
the relative physical strength of the parties, the condition of
health of the person assailed, and other like matters, may be
taken into account.? If there is no belief of danger, actual
danger will be immaterial. The question is whether defendant
did believe, on reasonable grounds, and not whether there were
grounds on which he might reasonably believe.’
§ 306. Reasonableness of belief.— The question is, however,
not merely as to the existence of the belief, but also as to whether,
under the circumstances as they appeared to defendant, there
was reasonable ground of belief of danger. The doctrine as to
_ 18. v. Potter, 18 Kan. 414; De
Arman v.§., 71 Ala. 351; Everett v.
S., 30 Tex. Ap. 682; Bode v.S., 6 Tex.
Ap. 424; P.v. Anderson, 44 Cal. 65;
Bang v. &, 60 Miss. 571. And for
other illustrations of danger appar-
ent, but not real, see Brown v. C., 86
Va. 466; S. v. Evans, 33 W. Va. 417;
8. v. Cain, 20 W. Va. 679; Murray v.
C., 79 Pa. St. 811; Roach v. P., 77 TL
25; Holloway v. C., 11 Bush, 344;
Fain v. C., 78 Ky. 183.
2Hinch v. S., 25 Ga. 699; S. v. Ster-
rett, 80 Ia. 609; S. v. Harrod, 102 Mo.
590; Stoneham v. C., 86 Va. 523;
Pease v. S., 18 Tex. Ap. 18 By a
‘provision of the penal code in Texas,
the use of a deadly weapon by the
assaulting party justifies the belief
that the assailant intended to kill:
Ward v. S., 30 Tex. Ap. 687; Kendall
v.S.,8 Tex. Ap. 569. For other il-
‘ustrations of appearances support-
ing a belief of danger, see Williams
v. 8., 80 Tex. Ap, 429; Fuller v. S., 30
‘Tex, Ap. 559; S. v. Rhodes, 1 Houst.
Cr. C. 476; Reg. v. Weston, 14 Cox,
846,
3 Trogdon v. 8., 183 Ind. 1; Lovett
v.S&., 80 Fla. 142.
4C. v. Selfridge, Whart. Hom. 417;
Campbell v. P., 16 Ill. 17; Kinney v.
P., 108 Ill. 519; Panton v. P., 114 Tl.
505; S. v. Parker, 106 Mo. 217; Mor-
gan v.S.,3 Sneed, 475; McDermott
18
v. S., 89 Ind. 187; 8S. v. Abbott, 8 W.
Va. 741; Holley v. S. 75 Ala, 14;
Poe v. §., 87 Ala. 65; Askew v. S., 94
Ala. 4; Parker v. S., 55 Miss. 414;
Kendrick v. S., 55 Miss. 486; Wilson
v. &, 30 Fla, 234; Tillery v. S, 24
Tex. Ap. 251. The reasonableness of
the grounds of belief is to be judged
by the jury from the standard of
ordinary men and not from that of
defendant: §. v. Shoultz, 25 Mo. 128;
8. v. Thompson, 9 Ia. 188. The
grounds must be such as reasonable
men would act on: 8. v. Horne, 9
Kan. 119; S. v. Bohan, 19 Kan. 28
Nevertheless, the question is as to
reasonable belief on the part of de-
fendant, and not on the part of an
ideal reasonable man. The jury
should be directed with reference to
the actual persons and circum-
stances: Batten v. S., 80 Ind. 394 It
has been held in some cases that the
question was as to the actual belief
on the part of defendant, and not as
to whether such belief was one
which a reasonable man would have
entertained: Grainger v. S., 5 Yerg.
459. The Grainger case has been
followed with modifications in other
cases in the same state: Rippy v.
S., 2 Head, 217; Copeland v. 8. 7
Humph. 479; Williams v. 8., 3 Heisk.
876; Jackson v. S., 6 Baxt. 452. But
it has been repeatedly criticised in
278
§ 3807.] [Part V.
OFFENSES AGAINST THE PERSON.
reasonable belief does not dispense with the necessity of an overt
act and imminent danger. Fear alone will not be sufficient.’
The person assailed in acting upon appearance and taking the
life of his fellow-man does so at his peril, and will not be excused
unless the circumstances are such as would induce a reasonable
man to believe it necessary to save his own life or save himself
from great personal injury? But the reasonableness of the
apprehension is to be judged from the standpoint of the de-
fendant at the time and not from that of the jury.’ By this is.
not meant, however, that the jury should ask themselves the
question what they would have done under the circumstances
surrounding the accused at the time, but that as sworn officers
of the law they should look carefully at all the circumstances
surrounding the accused as they appeared to him, and ask them-
selves, 1st. Did the accused’believe himself in imminent danger?
and 2d. Were there circumstances such as would justify such
a belief in the mind of a person of ordinary firmness and
reason 2‘
§ 307. Threats and character of deceased.
It has already
been said that threats alone, not accompanied with such overt.
other states: See &. v. Shippey, 10
Minn. 228; Gladden v. S., 12 Fla.
562; S. v. Thompson, 9 Ia, 188. That
case went too far. It is not enough
that the party believed himself in
danger, unless the facts and circum-
stances were such that the jury can
say that he had reasonable grounds
for his belief: Shorter v. P., 2 N. Y.
193. That mere fear, which is not a
fear such as would be entertained
by a reasonable person, is not suffi-
cient, is held in P. v. Stonecifer, 6
Cal. 405; P. v. Hurley, 8 Cal. 390; P.
v. Williams, 32 Cal. 280; Creek v. S.,
24 Ind. 151; Teal v. S., 22 Ga. 75.
The circumstances must be such as
would excite the fears of a person
of ordinary firmness and reason:
Thompson v. S., 55 Ga. 47; Teal v.
S., 22 Ga. 75; S. v. Littlejohn, 33 S. C.
599; Palmore v. S., 29 Ark. 248; Wall
v. S., 51 Ind. 453; 8S. v. Stockton, 61
Mo, 882. Evidence that defendant
was nervous and peculiarly sensi-
tive is inadmissible: S. v. Shoultz, 25-
Mo. 128. Defendant may testify as to:
his belief: Wallace v. U.S., 162 U.S.
466.
1Dyson v.S., 26 Miss. 362; Stoneman
v.C., 25 Grat.887; Hinton v.S., 24 Tex.
454; S. v. Jackson, 44 La, An. 160. But
one need not be in terror to justify
killing: Artov. S.,19 Tex. Ap. 126.
2Pinder v. S., 27 Fla. 370; Smith
v. §., 25 Fla. 517; Smith v. S., 59 Ark.
182; Branch v. S., 15 Tex. Ap. 96.
3 Bell v. S., 20 Tex. Ap. 445; S. v.
‘Cain, 20 W. Va. 679. It is not proper
to require that defendant should
have exercised mature deliberation
in determining whether the circum-
stances were such as to require him
to act in self-defense: Fields v. S.,
184 Ind. 46.
48. v. Wyse, 88 S. C. 582; S. v.
Jackson, 82 §. C. 27, And see S. v.
Jones, 29 8. C. 201; S. v. Harris, 1
Jones, 190; S. v. Evans, 83 W. Va.
417, What circumstances constitute
274
Cu. 18.] HOMICIDE.
[§ 307.
act as to indicate an intention to put them into execution, will
not warrant the person threatened in taking life in self-defense.
But threats accompanying an overt act will, of course, tend to
show the character of the act,' and antecedent threats made
by deceased and known to the defendant will be admissible in
connection with proof of an overt act to show that he had rea-
sonable ground to fear that he was in peril of loss of life or
great bodily injury, and was therefore excused in taking life
in self-defense.? Threats by deceased which have not come to
the knowledge of defendant prior to the killing cannot be
proven for this purpose, as they would not bear upon the ques-
tion of the reasonable belief of defendant at the commission of
the homicide.’ There are cases, however, which hold that un-
communicated threats made by deceased against the defendant
are admissible as tending to show the intention and animus of
deceased.‘ The violent, vicious or lawless character of deceased
apparent danger is primarily a
mixed question of law and fact, but
when all the facts are ascertained it
is a question of law alone: Long v.
8., 52 Miss. 23. '
1 Supra, §§ 808, 304.
2Wallace v. U. &., 162 U. S. 466;
Pp. v. Arnold, 15 Cal. 476; P. v.
Scoggins, 37 Cal. 676; S. v. Nett, 50
Wis. 524; S. v. Sloan, 47 Mo. 604;
Wood v. S., 92 Ind. 269; Monroe v.
8., 5 Ga, 85; Carico v. C., 7 Bush,
124; Rapp v. C., 14 B. Mon. 614; Rut-
ledge v. S., 88 Ala. 85; Dupree v. S.,
33 Ala. 380; Powell v. S., 52 Ala. 1;
Hawthorne v. S., 61 Miss. 749; King
w. S, 65 Miss. 576; S. v. Abbott, 8
W. Va. 741; S. v. Dodson, 4 Oreg. 64;
Pridgen v. S., 31 Tex. 420; Logan v.
8.17 Tex. Ap. 50. In connection
with proof of threats, evidence of
previous affrays and attacks is ad-
missible, its weight being for the
jury: Russell v. S., 11 Tex. Ap. 288.
There must be proof of an assault
or hostile demonstrations by de-
ceased to warrant the introduction
of proof of communicated threats:
Bond v. 8., 21 Fla. 788; S. v. Spell,
38 La. An. 20. A general threat hav-
ing no reference to defendant is not
sufficient: 8. v. Guy, 69 Mo. 480. But
threats may be made by innuendo:
S. v. Tarter, 26 Oreg. 38. Threats
are not admissible which would not
lead the accused to fear: P, v. Deitz,
86 Mich. 419. Derogatory statements
by deceased in regard to accused not
amounting to threats are not ad-
missible: 8. v. Sullivan, 43 S. C. 205.
3 Powell v. S,, 19 Ala. 577; P. v.
Henderson, 28 Cal. 465; Keener v.
S., 18 Ga. 194; Lingo v. S, 29 Ga.
470; S. v. Dumphey, 4 Minn. 438;
Atkins v. S., 16 Ark. 568; Cocker v.
S., 20 Ark. 53; Harris v.S., 84 Ark.
469; S. v. McCoy, 29 La. An. 593;
S. v. Ryan, 30 La. An., pt. II, i176;
S. v. Fisher, 33 La. An, 1844; S. v.
Bowser, 42 La. An. 936.
4Cornelius v. C., 15 B. Mon. 539;
Roberts v. S., 68 Ala, 156; Green v.
S., 69 Ala. 6; S. v. Turpin, 77 N. C.
473; Fitzhugh v. &, 13 Lea, 258;
Keener v.5S., 18 Ga. 194; S. v. Abbott,
8 W. Va. 741; S. v. Evans, 33 W. Va.
417; West v. S, 2 Tex. Ap. 460;
King v. S., 9 Tex. Ap. 515; S. v. Don-
ohoe, 78 Ia. 486; S. v. Williams, 40
La. An. 168; S. v. Harrod, 102 Mo. 590,
e%
§ 307.] [Parr V.
OFFENSES AGAINST THE PERSON.
as known to defendant before the homicide may be proven for
the same purpose as antecedent threats, that is, to show the
apparent danger to the person assailed.! But there must be
also proof of some overt act.? Moreover, where the homicide
has been committed in an encounter, and defendant claims to
have been acting in self-defense, but it does not appear which
was the aggressor, the character of deceased as a violent man
may be shown as indicating that it was he who brought on the
conflict and that defendant acted in necessary self-defense.*
And previous threats, not communicated, are admissible under
the same circumstances for the same purpose.! But antecedent
threats or the bad character of deceased, not known to the de-
fendant, are not thus admissible according to most authorities,
unless the circumstances of the homicide are such as to leave
1Marts v. S., 26 Ohio St. 162;
Brownell v. P., 388 Mich. 782; S. v.
Tackett, 1 Hawks, 210; Monroe v.
8., 5 Ga. 85; Quesenberry v. S., 3
Stew. & P. 308; Pritchett v. P., 22
Ala. 89; King v. S., 90 Ala. 612;
Dukes v. 8., 11 Ind. 557; S. v. Col-
lins, 82 Ia, 36; S. v. Graham, 61 Ia.
608; S. v. Keene, 50 Mo. 357; S. v.
Hicks, 27 Mo. 588; S. v. Elkins, 63
Mo. 159; S. v. Brown, 63 Mo. 489; 8.
v. Bryant, 55 Mo. 75; S. v. Smith, 12
Rich. 480; Hudson v. S., 6 Tex. Ap.
565; Grissom v. S., 8 Tex. Ap. 386;
Warren v. S., 81 Tex. Ap. 573. But
proof that deceased was reckless is
not admissible: S. v. Middleham, 62
Ia. 150. Proof that deceased was a
man of great physical strength and
bad character is admissible: S. v.
Nett, 50 Wis. 524; S. v. Collins, 32
Ia. 36; Wellar v. P., 30 Mich. 16;
Smith v. U.S. 161 U.S. 85. General
character for violence will be pre-
sumed to have been known to de-
fendant: S. v. Turner, 29S. C. 34.
2 Karr v. S., 100 Ala. 4; Lang v. S.,,
84 Ala. 1; 8. v. Carter, 45 La, An.
1826; S. v. Harris, 45 La. An. 842,
As to necessity of overt act, see
supra, § 803.
88. v. Turpin, 77 N. C. 473; S. v.
Tackett, 1 Hawks, 210; S. v. Spend-
love, 44 Kan. 1; S. v. Bryant, 55 Mo.
75; S. v. Keene, 50 Mo. 357; P. v.
Murray, 10 Cal. 309; S. v. Morey, 25
Oreg. 241; S. v. Keefe, 54 Kan. 197;
Basye v. S., 45 Neb. 261.
4Stokes v. P., 53 N. Y. 164; Camp-
bell v. P., 16 Ill. 17; Wiggins v. P.,
93 U. S. 465; P. v. Arnold, 15 Cal.
476; P. v. Scoggins, 87 Cal. 676; P.
v. Travis, 56 Cal. 251; P. v. Alivtre,
55 Cal. 263; Davidson v. P., 4 Colo.
145; S. v. Brown, 22 Kan. 222; Vaughn
v. &, 88 Ga. 731; Pittman v. S., 92
Ga, 480; Miller v. C, 89 Ky. 653;
Hart v. C., 85 Ky. 77; Holler v. S,,
37 Ind. 57; Keener v. 18 Ga. 194;
Burns v. §., 49 Ala. 870; Johnson v.
S., 54 Miss. 430; Johnson v. S., 66
Miss. 189; S. v. Elliott, 45 Ta. 486; S.
v. Helm, —— Ia. —, 61 N. W. R. 246;
8. v. Harris, 59 Mo. 550; Little v. S.,
6 Baxt. 491; Binfield v. S., 15 Neb.
484; Dickson v. S., 89 Ohio St. 73;
Myers v. S., 62 Ala. 599; S. v. Tarter,
26 Oreg. 38; Wilson v. S., 30 Fla. 234;
P. v. Palmer, 96 Mich. 580; S. v. Faile,
43 S. C. 52; Brown v. S., 55 Ark. 593;
Reg. v. Weston, 14 Cox, 846, Aban-
donment by deceased of his hostile
purpose may be shown: Trumbull v.
8., 25 Tex. Ap. 631. Uncommuni-
cated threats do not bear on man-
slaughter: Levy v. S., 28 Tex. Ap. 203
276
Cu. 18.] HOMIOIDE. [§ 307.
it in doubt which party was the aggressor.' In some cases,
however, a more liberal rule in regard to allowing evidence of
the bad character of deceased is recognized, it being thought
that it is not for the court to say whether the case is a doubt-
ful one as to who is the aggressor.? Other cases do not make
the admissibility of evidence of bad character of deceased, not
known to defendant, depend entirely upow its being doubtful
as to who made the attack, but allow such evidence generally
where it is sought to excuse the homicide on the ground of
self-defense.’ But aside from the question of self-defense, evi-
dence of the dangerous, quarrelsome and vicious character of
the deceased is not admissible. Where the bad character of
the deceased becumes material it is to be proved by reputa-
1 Vaughan v. S., 88 Ga. 731; Doyal
v. S., 70 Ga. 184; Monroe v. S., 5 Ga.
85; Harrison v. C., 79 Va. 374; Eiland
v. S., 52 Ala. 822; Bowles v. S., 58
Ala, 885; Pritchett v. 8., 22 Ala. 39;
Franklin v. S., 29 Ala. 14; Fields v.
S., 47 Ala. 603; S. v. Barfield, 8 Ired.
344; S. v. Rollins, 113 N. C. 722; S. v.
Pearce, 15 Nev. 188; P. v. Stock, 1
Ida. 218; C. v. Straesser, 153 Pa. St.
451; P. v. Murray, 10 Cal. 309; P. v.
Lombard, 17 Cal. 316; P. v. Edwards,
41 Cal. 640; Wesley v. S&S. 37 Miss.
327; Newcomb v. S., 37 Miss. 383;
Creswell v. S., 14 Tex. Ap. 1; 8. v.
Elliott, 45 Ia. 486; S. v. Alexander,
66 Mo. 148; Steele v. S., 33 Fla. 348;
'S. v. Depass, 45 La. An. 1151. Where
it appears that the accused was
armed and was the aggressor, evi-
dence of violent character of de-
ceased, who was unarmed, is imma-
terial: Skaggs v. S., 31 Tex. Ap. 563.
Thus, where it appears beyond ques-
tion that the defendant was the
attacking party, evidence of the bad
character of deceased is not admis-
sible: S. v. Watson, 36 La. An, 148;
S. v. Ford, 37 La, An. 448; 8. v. Pa-
terno, 43 La. An. 514; S. v. Burns, 30
La. An., part I, 679; S. v. Cooper, 32
La. An. 1084; S. v. Claude, 35 La.
An. 71; 8. v. Hays, 23 Mo. 287; Gon-
zales v. S., 81 Tex. 495.
2P. v. Stewart, 28 Cal. 395; Pridgen
v. S, 81 Tex. 420. And generally:
as recognizing the admissibility of
evidence of bad character beyond
the limits fixed by the rules stated
in the text with reference to who is
the aggressor, see 8. v. Ricks, 32 La.
An. 1098; S. v. McNeeley, 84 La. An.
1022; Palmore v. S., 29 Ark. 248;
Payne v. C.,1 Met. (Ky.) 370; Riley
v. C, 94 Ky. 266; Branch v. S., 15:
Tex. Ap. 96,
3Williams v. S., 74 Ala. 18; S, v.
Donohoe, 78 Ia. 486; S. v. McNally,
87 Mo. 644; S. v. Hayden, 83 Mo. 198;
S. v. Matthews, 78 N. C. 523; Will-
jams v. §., 14 Tex. Ap. 102; Moore
v. 8S. 15 Tex. Ap. 1. Such evidence
is also admissible on the degree of
defendant’s guilt: Smith v. S., 88
Ala. 73.
48, v. Thawley, 4 Harr. 562; S. v.
Field, 14 Me. 244; C. v. Ferrigan, 44
Pa. St. 886; Abbott v. P., 86 N. Y.
460; P. v. Garbutt, 17 Mich. 9; 8S. v.
Hogue, 6 Jones, 381; Drake v. S., 75
Ga. 418; S. v. Kennade, 121 Mo. 405;
S. v. Riddle, 20 Kan. 711; S. v. Tilly,
3 Ired. 424; Chase v. S., 46 Miss. 683;
S. v. Jackson, 12 La. An. 679; Mc-
Keone v. P., 6 Colo, 346; Jones v. P., 6
Colo. 452; May v. P., 8 Colo. 210;
Bond v. §., 21 Fla. 738.
general, infra, § 423.
27
And see, in.
4
-_——
§ 308.] OFFENSES AGAINST THE PERSON. [Parr V.
tion, actual character not being material on the question of
reasonable belief.1 Opinions of witnesses are not admissible
on the question.? So bad character cannot be shown by proof
of particular acts of violence or bad conduct.3 Whether or
not a proper foundation has been laid for the introduction of
evidence of the threats or character of deceased is a matter to
be decided by the trial court; but the weight of the evidence
is for the jury5
§ 308. Necessity.— The excuse for homicide in all these
cases of self-defense rests on the doctrine of necessity as show-
ing absence of criminal intent. If the person assailed may
safely avoid the danger without resorting to the use of a
deadly weapon, he must do so! If, notwithstanding the danger,
or apparent danger, it appears that the killing was with wrong-
ful motives and not in self-defense, it will be criminal.’ Where
1P, v. Anderson, 39 Cal. 703.
2Harrison v. C., 79 Va. 374. For
instance, it is not proper to ask a
witness whether deceased was a man
likely to use weapons in a difficulty:
Bingham v. §., 6 Tex. Ap. 169. And
see Hudson v. 8., 6 Tex. Ap. 565;
Lewallen v, S., 6 Tex. Ap. 475.
3Pound v. §., 43 Ga. 88; Campbell
v. S., 38 Ark. 498; Steele v. S., 83 Ala.
20; Thomas v. P., 67 N. Y. 218; S. v.
Abarr, 39 Ia. 185. Contra, P. v. Har-
ris, 95 Mich. 87. Thus, evidence that
the general character of deceased for
honesty was bad is not admissible:
Plasters v.S.,1 Tex. Ap. 678. A rec-
ord of conviction of deceased for
manslaughter may be introduced:
Brunet v.S., 12 Tex. Ap. 521. But itig
not competent to show that he was
an escaped convict: Dupree v. S., 33
Ala, 380; Franklin v. S., 29 Ala. 14.
Where the physical strength of de-
ceased is admissible it is not to be
proved by evidence of specific acts:
Wellar v. P., 30 Mich. 16; C. v. Mead,
12 Garay, 167.
4King v. S, 90 Ala, 612; S. v.
Christian, 44 La. An. 950; 8. v. Spell,
88 La. An. 20; S. v. Stewart, 45 La,
An. 1164; 8. v. Green, 46 La. An. 1522.
5Garner v. S., 28 Fla. 118; Wilson
v. S., 30 Fla. 284,
6S. v. Johnson, 76 Mo. 121; S. v.
Brooks, 99 Mo. 187. The repellant
force must be protective and not
aggressive: Lewis v. S., 51 Ala. 1.
One who resisted an assault by an-
other who was drunk and unarmed,
by stabbing him, was held guilty of
murder in the second degree: Fitz-
gerald v. S., 15 Lea. 99.
7S. v. Scheele, 57 Conn. 307 (dis-
tinguishing C. v. Carey, 12 Cush.
246): De Arman v. 8S, 77 Ala. 10;
Mitchell v. S., 22 Ga. 211; Stiles v.
S., 57 Ga. 188; P. v. Miller, 49 Mich.
23; S. v. Jones, 89 Ia. 182; Kinney
v. P., 108 Ill. 519; S. v. Hudson, 50
Mo. 135; S. v. Brown, 68 Mo. 439; 8.
v. Paxton, 126 Mo. 500; Barnett v. S.,
100 Ind. 171; S. v. Scott, 41 Minn.
365; S. v. Wells, 1 N. J. 424; Turner
v. C., 89 Ky. 78; Varnell v. S., 26
Tex. Ap. 56; C. v. Drum, 58 Pa. St. 9;
8. v. Martin, 2 Ired. 101. But where
there is reasonable cause for believ-
ing that there is imminent danger,
and defendant acts in such belief, it
is immaterial whether the circum-
stances actually caused the belief of
danger. (This was said in constrac-
278
‘Cu. 18.] [§ 309.
HOMICIDE.
defendant claims to have acted upon reasonable ground of
apprehension, he will not be excused if it appears that he did
not really apprehend danger, although he had ground to do so,
‘but acted from other motives.! So, after the danger is past, kill-
ing will not be excused in self-defense? Where the homicide is
the result of a preconceived intention on the part of the de-
fendant and is not brought on by the deceased, even though
there is apparent necessity by reason of the first assault being
made by the other party, the homicide will not be excusable.’
§ 309. Party in the wrong.— One may, by his conduct, put
himself so far in the wrong that he is not afterwards excusable
for acting in self-defense, even though he is put in peril. If by
his wilful, wrongful act, he brings about the necessity for kill-
ing to save his own life, he will not be excused. Therefore,
one who commences an assault which is resisted with violence
is not excused in going to the extent of taking life in avoiding
a danger to his own life, which arises by reason of the violence
of the party whom he has assaulted. It has even been said
tion of a statute): Clifford v. S., 58
Wis. 477.
18. v. Matthews, 78 N.C. 523. It
must appear that the act was done
asaresult of the belief: P. v. Gon-
zales, 71 Cal. 569.
2 Evans v. §., 83 Ga. 4; Guice v. S.,
60 Miss. 714; S. v. Chavis, 80 N.C.
358; Lewis v. S&S, 51 Ala. 1; S v.
Mitchell, 41 La. An. 1073; S. v. Ruther-
ford, 1 Hawks, 457; S. v. Roane, 2
Dev. 58; P. v. Pierson, 2 Ida. 71.
3P, v. Miller, 49 Mich. 23; Kinney
v. P., 108 Ill. 519; S. v. Hudson, 59
Mo. 135; S. v. Brown, 63 Mo. 439;
Murphy v. S., 37 Ala. 142; Coker v.
$., 20 Ark. 58; Helm v. S., 67 Miss.
562; S. v. Hensley, 94 N.C. 1021. The
right of self-defense is a shield and
not a sword to be used for the pur-
pose of excusing an injury to the
party provoked: Barnett v. S., 100
Ind. 171. If defendant, armed with
.a deadly weapon, sought out the de-
‘ceased, and, by insulting language,
intentionally provoked an assault
from the deceased, he is not justified
in taking life in resistance to such
assault: S. v. Scott, 41 Minn. 365.
One who provides a weapon to be
used in overcoming opposition can-
not be excused on the ground of
self-defense: Thomas vy. S., 61 Miss.
60. But see the next section and
notes.
4Eiland v. S., 52 Ala. 322; S. v.
Hill, 4 Dev. & B. 491; Meuly v. S., 26
Tex. Ap. 274; Reg. v. Mawgridge,
J. Kel. 119: Rex v. Oneby, 2 Stra.
766. Thus, an officer attempting to
make an unlawful arrest cannot de-
fend himself against one who resists
such arrest with violence; 8S. v.
Campbell, 107 N. C. 948; Zaner v. S.,
90 Ala. 651; Carter v. S., 30 Tex. Ap.
551; Roberson v. S., 53 Ark. 516. So
one who attempts to resist or escape
from arrest cannot defend himself
against violence on the part of the
officer seeking to affect such arrest:
Floyd v. S., 82 Ala. 16.
58. v. Rogers, 18 Kan. 78; S. v.
Neeley, 20 Ia. 108; Clifford v. 8., 58
Wis. 477; Story v. S., 99 Ind. 413; 8.
79
OFFENSES AGAINST THE PERSON.
§ 309.] [Part V.
that one who provokes a difficulty with abusive language, or
seeks a quarrel, will not be excused in defending himself
against violence which he has thus incited,’ though in such
case, if his original intention was not to kill or inflict great
bodily injury, the necessity which afterwards arises for taking
life may reduce the homicide to manslaughter.? But the mere
provocation of insulting language will not, according to many
cases, deprive the person who thus brings on the combat of the
right of ultimately resorting to violence, even to the extent of
taking life, to defend himself if that is his only available resort.*
The mere preparation for the perpetration of a wrongful act
unaccompanied by a demonstration toward its commission will
v. Starr, 88 Mo. 270; S. v. McDonald,
67 Mo. 18; 8. v. Johnson, 76 Mo. 121;
8. v. Davidson, 95 Mo. 155; S. v. Gil-
more, 95 Mo. 554; Lewis v. S., 88 Ala.
11; Leonard v.8., 66 Ala. 461; Page v.
§., 69 Ala, 229; Johnson v. S., 69 Ala.
253; Tesney v. S., 77 Ala. 33; Waller
v. S., 89 Ala. 79; Gibson v. S., 91 Ala.
64; Davis v. S., 92 Ala. 20; P. v.
Stonecifer, 6 Cal. 405; P. v. Lamb, 17
Cal. 323; P. v. Westlake, 62 Cal. 303;
P. v. Douglass, 87 Cal. 281; Lingo v.
8., 29 Ga. 470; Roach v. S., 34 Ga. 78;
Mitchell v. S., 22 Ga, 211; Stewart v.
8.,1 Ohio St. 66; S. v. Edwards, 112
N. C. 901; Vaiden v. C., 12 Grat. 717;
Harrison v. C., 79 Va. 874; Gilleland
v. S., 44 Tex. 356; Thumm vy. &., 24
Tex. Ap. 667; Brazzil v. S., 28 Tex.
Ap. 584; Roberts v. S., 30 Tex. Ap.
291; Polk v. S., 30 Tex. Ap. 657.
1§. v. Talmage, 107 Mo. 548; Adams
'v. P, 47 Ill. 876; Jackson v. S., 81
Ala. 33; Baker v. S, 81 Ala. 88;
Henry v.S.,79 Ala, 43; S. v. Tram-
mell, 40 S. C. 331. It is said that
the law admits of no qualification
of the requirement that defendant
must have been free from all fault
tending to provoke or bring on the
difficulty: McQueen v. S., 103 Ala,
12. But one who returns a verbal
insult does not thereby deprive him-
self of the privilege of afterward
making self-defense when violently
assaulted: Howell v. S., 79 Ala. 283.
2 This is called, in some cases, the
imperfect right of self-defense: S. v.
Partlow, 90 Mo. 608; S. v. Gilmore,
95 Mo, 554; S. v. Bryant, 102 Mo. 24;
8S. v. Parker, 96 Mo. 382; S. v. Parker,.
106 Mo. 217; S. v. Evans, 128 Mo. 406;.
S. v. Lewis, 118 Mo. 79; Johnson v.
S., 26 Tex. Ap. 631; Meuly v. S., 26
Tex. Ap. 274; Gonzales v. §., 28 Tex.
Ap. 180. It is even said that in such
cases there is a perfect right of self-
defense: S, v. Culler, 82 Mo. 623; S.
v. Anderson, 89 Mo. 312, 331; but
this view is disclaimed in the same
state: S. v. Parker, 106 Mo. 217.
3P. v. Curtis, 52 Mich. 616; Brown
v. S., 58 Ga. 212; Boatwright v. S., 8%
Ga. 140; Bush v. P., 10 Colo. 566; S.
v. Anderson, 86 Mo. 309. And an in-
struction that if defendant provoked
the difficulty he cannot be excused:
for homicide in self-defense is erro-
neous: Brinkley v. S., 89 Ala. 34; S..
v. Harrison, 5 Jones, 115; P. v. Bush,
65 Cal. 129; Logan v. S., 17 Tex. Ap..
50. Publication of a libel is not such
a wrong as to preclude resort to self-.
defense as against a violent assault
by the person libeled: C, v. Selfridge,.
Whart. Hom. 417.,
280 '
Ox. 18.]
HOMICIDE.
[$ 309.
not preclude self-defense;! nor will mere malice or ill-will to-
ward assailant deprive the assailed of that right;? nor the mere
fact of arming in anticipation of an encounter.’ So the fact
that defendant armed himself and prepared for the encounter
which he anticipated might result from the attempt on his
part to do that which he had a right to do, will not preclude a
rightful self-defense on his part if attacked. But, of course, if
he prepares for an attack with the intention of taking advan-
tage thereof in order to wreak his vengeance on his adversary,
there will be no question of self-defense. And a homicide, even
upon sudden combat, is not excusable if undue advantage is
taken of the adversary.6 One who is engaged in perpetrating a
felony will not be excused for taking life to preserve his own
life, as the danger is one growing out of his own wrong;’ and
the same reasoning applies to one who kills in resisting lawful
arrest. So, where defendant had gone to the house of deceased
for the purpose of committing adultery with deceased’s wife,
it was held that he could not excuse himself for homicide in
defending against an assault made by the husband;° but where,
having desisted from the attempt, he was seeking to escape, it
was held that in defending himself against a murderous assault
from the husband he might be excusable in killing. Although
1Cartwright v. S., 14 Tex. Ap. 486;
Meuly v. 8., 26 Tex. Ap. 274,
2P. v. Macard, 73 Mich. 15.
3P. v. Stone, 82 Cal. 36; S. v. Rider,
90 Mo. 54; Fussell v. 8. 94 Ga. 78.
4P. v. Gonzales, 71 Cal. 569; S. v.
. Evans, 124 Mo. 397; Milrainey v. S.,
38 Tex. Ap. 577; Gilcrease v. S., 33
Tex. Ap. 619; Gourko v. U. S., 153
U. 8. 188; Allen v. U. S., 157 U. S.
675. A person anticipating an at-
tack is not obliged to remain at
home to avoid the difficulty, but
may arm himself and pursue his
legitimate avocations and defend
himself when it becomes necessary:
P. v. Macard, 73 Mich. 15. The ac-
cused will not be deemed to have
been in fault by reason of having,
after a quarrel, returned to secure a
settlement of his rights from the
other party: Johnson v. 8., 26 Tex.
Ap. 631. Nor will a threat by de-
fendant to compel deceased to do an
act be imputed to him as a wrong
so as to deprive him of the right of
self-defense: 8. v. Thompson, 83 Mo.
257. A party may have a perfect
right of self-defense, though not free
from blame, if the wrong being done
was not intended to produce the oc-
casion, nor an act which was under ,
the circumstances reasonably calcu- ;
lated to produce the occasion for the i
killing or to provoke the difficulty:
Franklin v. S., 30 Tex. Ap. 628.
5 Allen v. 8., 66 Miss. 885; S. v. Her-
rell, 97 Mo. 105; Allen v. S., 24 Tex.
Ap. 216,
6P, v. Perdue, 49 Cal. 425; S. v.
Christain, 66 Mo. 138.
TDill v. S., 25 Ala. 15.
8Floyd v. S., 82 Ala. 16.
Franklin v. S., 30 Tex. Ap. 628.
10McSpatten v. S., 30 Tex. Ap. 616.
So where defendant laid a trap to
281
§ 310.] [Parr V.
OFFENSES AGAINST THE PERSON.
one who is in the wrong cannot properly make self-defense,
his wrong will not be imputed to relatives or friends who assist
him after he is in imminent danger, they not being aware of any-
thing which deprives him of his right to make defense."
§ 310. Duty to withdraw.— As appears from the preceding
section, one who voluntarily enters into a combat or is the
original aggressor cannot excuse a subsequent homicide com-
mitted in consequence thereof on the ground of self-defense, it
being his duty to withdraw;? but there must be allowed room
for repentance and abandonment of the evil and unlawful pur-
pose, and if the defendant, though originally in the wrong, does
thus abandon his purpose, he may afterwards exercise the right
of self-defense. The withdrawal, however, must be in good
faith; if the original assailant merely ceases to advance for the
purpose of watching his opponent’s movements and without
attempting to avoid the encounter, he will not be excused for
what he afterwards does on the ground of self-defense; and
catch defendant in the act of adul-
tery with the wife, it was held that
as against an assault made by the
husband, the defendant was excusa-
ble for defending himself: Wilkerson
v. S., 91 Ga. 729. So where accused
had been guilty of fornication with
defendant’s daughter, it was held
that, as against an assault afterwards
made upon him by reason thereof,
he might exercise the right of self-
defense: Varnell v. S., 26 Tex. Ap.
56. And in general one who has
merely attempted a felony, or is
being pursued on suspicion thereof,
may defend himself against a mur-
‘derous assault: Felker v. S., 54 Ark.
489; Luera v. S., 12 Tex, Ap. 257.
Further as to making defense on the
part of one originally in the wrong,
but who has withdrawn therefrom,
see the next section.
1Bush v. P., 10 Colo. 566, As to
the right to protect others, see infra,
§ 313.
2Presser v. S., 77 Ind. 274; S. v.
Cain, 20 W. Va. 679; Deal v. S., 140
Ind. 364; "8, v. Spears, 46 La, An,
1524, As to burden of proof in re-
gard to withdrawal see infra, § 316.
It is suggested that in these cases
the difference between excusable
homicide and manslaughter is that
in the one case the slayer could not
escape if he would, and in the other
he would not escape if he could:
U.S. v. King, 34 Fed, R. 302.
3Stoffer v. S, 15 Ohio St. 47;
Parker v. S., 88 Ala. 4; P. v. Robert-
son, 67 Cal. 646; P. v. Simons, 60 Cal.
72; P.v. Wong Ah Teak, 63 Cal, 544;
P. v. Button, 106 Cal. 628; S. v. Cable,
117 Mo. 380; S. v. Talmage, 107 Mo.
543; S. v. Partlow, 90 Mo. 608; Hitt-
ner v. 8., 19 Ind. 48; Wall v. S., 52
Ind. 453; Terrell v. C., 18 Bush, 246;
8. v. Smith, 10 Nev. 106; 8. v. Hill, 4
Dev. & B. 491; S. v. Ingold, 4 Jones,
216; Aikin v. 8.68 Ark. 544; John-
son v. §, 58 Ark. 57; Brazzil v. 8,28
Tex. Ap. 584; Roberts v. S., 30 Tex.
Ap. 291; Johnson v.8., 26 Tex. Ap.
631; S. v. Thompson, 45 La. An, 969;
4 Bl. Com. 184,
4S. v. Rogers, 18 Kan. 78; Parker
v. S., 88 Ala, 4,
282
Cu. 18.] HOMICIDE. [§ 811.
the fact of change of purpose must be known to the other
party! Perhaps this duty to withdraw does not exist where
the danger has become such that a reasonably prudent man
would consider that withdrawal would imperil his life? Buta
distinction must be introduced between the duty to withdraw
here referred to and the duty to retreat discussed in the next
section, for in the cases now under consideration the party who
seeks to avail himself of the right of self-defense has been orig-
inally in the wrong, and it is doubtful whether he ought to be
excused for killing in self-defense before a definite withdrawal,
no matter how dangerous such withdrawal might be.
§ 311. Duty to retreat.— The right of self-defense being a
part of the doctrine of necessity, it follows that, in order to
justify the taking of life, the one who is assailed must employ
all the means within his power and consistent with his safety —
to avoid the danger and avert the necessity.‘ Therefore, it is
well settled that one who is assailed must retreat if he can do
so without danger, and thus avoid the necessity of taking life
in self-defense.» However, a distinction as to the duty to re-
‘treat is made between cases where the assault indicates a pur-
pose to commit a felony, and those where the assault is not
felonious, and it is sometimes said that in the cases of the former
class there is no necessity to retreat.6 One who is not in fault,
and is in a place where he has a right to be, may, without re-
18. v. Edwards, 112 N. C. 901.
28. v. Jones, 89 Ia. 182; Brown v.
‘C., 86 Va. 466.
38. v. Jacobs, 28 S. C. 29.
4McPherson v. S., 29 Ark. 225;
Levelis v. S., 82 Ark. 585; Kendall v.
$., 8 Tex. Ap. 569. s
5C. v. Drum, 58 Pa, St. 9; Shorter
v. P., 2.N. Y. 198; Holmes v. S., 100
Ala. 80; Ingram v. 8., 67 Ala. 67;
Sullivan v. S., 102 Ala. 185; Poe v.S.,
‘87 Ala. 65; Goodwin v. S., 102 Ala.
87; Squire v. S., 87 Ala. 114; Finch
v. 8, 81 Ala. 41; P. v. Giancoli, 74
‘Cal. 642; S. v. Johnson, 76 Mo. 121;
‘8. v. Kennedy, 91 N. ©. 572; S. v.
Crane, 95 N. C. 619; S. v. Jones, 89
da, 182 (overruling Tweedy v.S., 51a. .
433); Brown v. C., 86 Va. 466; Clark
w. C., 90 Va. 360; S. v. Trammell, 40
8. C. 331, And it is said that de-
fendant is not excused from retreat-
ing by the fact that he will not be
placed in a better position or in less
peril, but that he must retreat unless
his danger would thereby be in-
creased: Carter v. S., 82 Ala. 18;
Roden v. S., 97 Ala. 54; McDaniel v.
S., 97 Ala. 14. It is stating the duty
to retreat too strongly, however, to
say that it must appear that the as-
sailed had no other possible or prob-
able means of escape: Babcock v. P.,
13 Colo. 515.
6S, v. Dickson, 75 N.C. 275; Erwin
v. 8. 29 Ohio St. 186; Meuly v. 8., 26
Tex. Ap. 274. This is the rule by
statute in Texas: Parker v. 8., 22
Tex. Ap. 105; Williams v. S., 22 Tex.
Ap. 497.
283
§ 312.] [Parr V-
OFFENSES AGAINST THE PERSON.
treating, resist an attack which reasonably appears to imperil’
his life or threaten him grievous bodily harm, and take the life:
of the aggressor if necessary;! nor is the rule as to duty to re-
treat applicable to one who is in pursuance of a legal duty,
such as an officer or one acting under his command; ora per-
son charged with the custody of property;* nor is the rule
applicable where retreat without danger is impractical,‘ or,
what is the same thing, if it is impracticable to the reasonable
apprehension of the party assailed.°
§ 312. Where felony threatened or invasion of home.—
It has already been suggested in the preceding section that
one who is proceeding in the discharge of a duty, or going
about his own lawful business, is not bound to desist therefrom
and retreat for fear of bringing on a difficulty with some one
who threatens to unlawfully interfere with him. This rule is
especially applicable where a felony is threatened; and, with-
out retreating, one who is opposing the commission of a felony
may resist the attempt by whatever force may be necessary,
even to the extent of taking life. On the same principle, one
who is assailed in his home is not bound to retreat therefrom,
but may resist the invasion thereof for the purpose of commit-
ting a felony or doing personal violence to the inmates, and
may justifiably take life, if necessary, without retreating from
the threatened danger.?’ This exemption does not extend, how-
lBeard v. U. S, 158 U. S. 550;
Baker v. C., 93 Ky. 302; Estep v. C.,
86 Ky. 39; Eversole v. C., 95 Ky. 623;
Sparks v. C., 89 Ky. 644; Harris v.
S., 96 Ala. 24. But such an instruc-
tion is not applicable to a case where
the assault is committed in a public
place, which, though belonging to
the defendant, is one where the de-
ceased also had a right to be: Hall
v. C., $4 Ky, 822,
2Cockrill v. C., 95 Ky. 22.
3 High v. 8, 26 Tex. Ap. 545.
4Philips v. C., 2 Duv. 328; Hollo-
way v. C., 11 Bush, 344; Riley v. C,,
94 Ky. 266; Jones v. S., 90 Ala, 628;
Haynes v.8., 17 Ga. 465; Brown v.
C., 86 Va. 466; Gallagher v. S, 3
Minn. 270; S. v. Thompson, 45 La.
An. 969. Under the language of the
penal code of Texas, retreat from
danger is not required: Foster v. S.,
11 Tex. Ap. 105; Bell v. S., 17 Tex.
Ap. 538; Parker v. §., 18 Tex. Ap. 72;
Williams v. 8S. 30 Tex. Ap. 429;
Nalley v. 8., 30 Tex. Ap. 456; May v.
S., 28 Tex. Ap. 146.
5Baltrip v. S, 80 Tex. Ap. 545;
Stoneham v. C., 86 Va. 5238; Poe v.S.,
87 Ala. 65; Erwin v.S., 29 Ohio St.
186; S. v. Thompson, 9 Ia. 188; Run-
yan v. §., 57 Ind. 80.
6 Stoneham v. C., 86 Va. 523; Pond,
v. P., 8 Mich. 150. That one will be-
justified in killing to prevent a fel-
ony, see supra, § 299.
7Pond v. P., 8 Mich. 150; P. v. Lilly,
88 Mich, 270; Miller v. S., 74 Ind. 1;
284.
Cx. 18.] HOMICIDE. [§§ 318, 314.
ever, to premises not included within the curtilage;! and it
does not afford protection to one who has emerged from his
dwelling to voluntarily enter upon a combat.?
§ 313. Protection of others.—It has already been sug-
gested that the doctrine of necessity justifies the protection of
others against a threatened felony, as well as the protection of
one’s self. Those circumstances which will justify or excuse
a homicide where the assault is upon one’s self will also justify
or excuse taking life in defense of a wife, husband, parent,
child, master, or servant.' In this case the necessity for taking
life must be established to the same extent as though justifica-
tion were claimed for taking life in one’s own defense.’ Indeed,
‘the broad principle has been laid down in some cases that hom-
icide is justified in the protection of the life of another to the
same extent that it would be in protecting one’s own life.®
But the case must be one where killing on the part of the per-
‘son assailed would be justified in self-defense.’
‘ §314. Right to pursue.—It is sometimes said that where
there is a right to make self-defense without retreat, the person
assailed may even pursue his adversary, instead of retreating,
until danger from the assault is passed.®
1
§. v. Harman, 78 N. C. 515; Brown
v. S., 55 Ark. 593. But the resistance
should be by means not imperiling
life, if practicable: King v. S., 55
Ark. 604 The protection of the
home does not justify the shooting
of an invited guest in the home with-
out notice to leave: S. v. McIntosh,
40 S.C. 349. A lodger may resist in-
vasion of the premises to the same
extent as the owner: Cooper’s Cas,
Gro. Car. 544, ;
- 1 Lee v. S., 92 Ala. 15. Whether it
applies to a place of business or
other premises not constituting a
dwelling-house, see supra, § 311.
2'Watkins v.S.,89 Ala, 82. As to pro-
‘tection of property, see supra, § 142.
3 Supra, § 140.
-4Hathaway v.S., 32 Fla. 56; Staten
v. S., 30 Miss. 619; Estep v. C.,86 Ky.
89; Campbell v. C., 88 Ky. 402; Al-
cberty v. U.S., 162 U.S, 499; Reg. v.
Rose, 15 Cox, 540, But where the jus-
tification claimed is that the person
assailed was the wife of the slayer,
the fact of the marital relation must
be established: P. v. Pierson, 2 Ida.
71; Parker v. S., 31 Tex. 132,
5S. v. Wilson, 10 Wash. 402; P. v.
Pierson, 2 Ida. 71.
-6In re Neagle, 185 U.S. 1; Dyson
v. 8.14 Tex. Ap. 454; Glover v.S.,
33 Tex. Ap. 224.
78. v. Greer, 22 W. Va. 800; What-
ley v. S., 91 Ala. 108; Bostic v. S., 94
Ala, 45; Risby v. 8., 17 Tex. Ap. 517.
It seems, however, that if a person
defending another has no knowledge
of facts precluding the right of self-
defense, he will be excusable for
acting in accordance with appear-
ances: Bush v. P., 10 Colo. 566.
8 Philips v. C., 2 Duv. 328; Hollo-
way v. C., 11 Bush, 344; Luby v. C.,
12 Bush, 1; Pond v. P., 8 Mich. 150;
285 :
OFFENSES AGAINST THE PERSON. [Part Vz
§§ 815, 316]
§ 815. Instruction as to self-defense.— Where there is evi-
dence in support of the claim that defendant acted in self-
defense, the law regarding it should be explained to the jury.'
§ 316. Burden of proof.— It is said in many cases that the-
burden is on the defendant to show by preponderance of evi-
dence that he acted in proper self-defense, that is, that the cir-
cumstances as they appeared to him were such as to justify him
in taking the life of his assailant, under the principles already
set out.2 Accordingly it has been held that defendant had the-
burden of showing that he could not safely retreat without ap-
parently increasing his peril.* But in reason it is not proper
to throw the burden of proof as to any element in the crime
Luckinbell v. 8., 52 Ark. 45; West v.
S., 2 Tex. Ap. 460; 8. v. Thompson, 45
La. An. 969. Butin a later Kentucky
case the doctrine of Philips v. C..
supra, is somewhat discredited, and
it is said that certainly no case jus-
tifies one who may think his life in
danger in lying in wait toslay his
adversary without warning: Turner
v. C., 89 Ky. 78. Certainly if the as-
sailant has desisted from the assault
and is in retreat, and danger from
him is over, the assailant will not
be justified in pursuing him and
taking his life: P. v. Pierson, 2 Ida.
71.
1Hinch v. S., 25 Ga. 699; S. v.
Donahoe, 78 Ia. 486; Fields v. S., 134
Ind. 46; Bradley v. S., 81 Ind. 492;
Souey v. S., 13 Lea, 472; Munday v.
C., 81 Ky. 233; P. v. Ye Park, 62 Cal.
204; Bennett v. 8. 12 Tex. Ap. 15;
Short v. §., 15 Tex. Ap. 370; Jackson
v. 8.15 Tex. Ap. 84; Cartwright v.
8. 16 Tex. Ap. 473; Tillery v. S., 24
Tex. Ap. 251. The distinction be-
tween the right of perfect and imper-
fect self-defense (see supra, § 309, n.)
should be explained where there is
any doubt as to the character of the
intent: Meuly v. 8, 26 Tex. Ap. 274.
Where the evidence showed that the
accused was not in serious peril and
had no reasonable cause to believe
there was a necessity for taking life,
held, that it was not erroneous to
ignore such defense: Taylor v. 8., 48-
Ala, 180,
2C. v. Drum, 58 Pa. St. 9; Silvus v.
S., 22 Ohio St. 90; Weaver v. S., 24
Ohio St. 584; Crews v. P., 120 IIL 317;
P. v. Stonecifer, 6 Cal, 405; P. v. Fla--
have, 58 Cal. 249; P. v. Hong Ah
Duck, 61 Cal. 387; Stit v. S., 91 Ala..
10; Cleveland v. 8., 86 Ala.1; Smith
v. §., 86 Ala. 28; S. v. Brown, 348. C.
41; P. v. Schryver, 42 N. Y. 1; S. v.
Bertrand, 3 Oreg. 61; S. v. Jones, 20-
W. Va. 764; S. v. West, 1 Houst. Cr. C.
871. Or asit is perhaps better stated
in another case, the onus to show
the facts which authorize the taking
of life to preserve life is upon the
defendant who relies on them in jus-
tification of the killing: Lewis v. S.,
88 Ala. 11. But it is not proper to.
require self-defense to be made out
beyond a reasonable doubt: U. 8, v.
Crow Dog, 8 Dak. 106; S. v. Ariel, 38
S. C. 221; S. v. Summers, 36 8. C. 479.
Where it is claimed that the homi-
cide, though committed by defend-
ant, was accidental and therefore
excusable, the burden, it is said, is.
on defendant to prove due care: S.
v. Bonds, 2 Nev. 265; Reg. v. Caven-
dish, 8 Ir. R. C. L. 178; Foster, 255.
Contra, Richardson vy. S., 32 Tex. Ap.
524,
3Gibson v. &, 89 Ala. 121; T. v.
Edmonson, 4 Mont. 141; T. v. Tun-
nell, 4 Mont. 148,
286
Cu. 18.] HOMICIDE.
[S$ 317, 318.
upon the defendant, and it has accordingly been held, in ac-
cordance with what is a more reasonable doctrine, that defend-
ant has no such burden even as to self-defense; but that if the
evidence in regard to self-defense raises a reasonable doubt of
the defendant’s guilt, he should be acquitted! Even where the
burden of proof is on defendant to show that he acted in self-
defense, he is not required to go further and prove that he was
not at fault in bringing on the difficulty, and if this is relied on
to overcome the evidence of acting in self-defense, it must be
established by the prosecution.2 Certainly where the evidence
for the prosecution leaves a doubt as to the character of the
homicide, whether justifiable or not, the person is entitled to
the doubt.’ The question whether the evidence is sufficient to
establish self-defense is for the jury.‘
IV. Murper.
§ 317. Felonious.— All homicides, not justifiable or excus-
able, are criminal and felonious. This is so at common law
and also under statutes in the several states. There are prob-
ably not in any state any cases of homicide punishable at all
which are not punishable as felonies.
§ 318. Division into murder and manslaughter.—The com-
mon-law division of the law of criminal homicides into two.
classes constituting distinct crimes of murder and manslaughter
is universally recognized in the states of the Union, and, in-
1C. v. McKie, 1 Gray, 61; Stokes
v. P., 53 N. Y. 164; P. v. Downs, 128
N. Y. 558; P. v. Pallister, 188 N. Y.
601; S. v. Porter, 34 Ia. 181; S. v.
Fowler, 52 Ia. 103; S. v. Donahoe, 78
Ta, 486; S. v. Patterson, 45 Vt. 308;
S. v. Wingo, 66 Mo. 181; 8. v. Alex-
ander, 66 Mo. 148; McKenna v. §., 61
Miss. 589; S. v. Ellick, 1 Winst., ii,
56; Goodall v. S., 1 Oreg. 333; S. v.
Conahan. 10 Wash. 268; S. v. McCluer,
5 Nev. 182; March v. Walker, 48 Tex.
372; Richardson v. 8.,9 Tex. Ap. 612;
Babb v.S., 8 Tex. Ap. 173; Ainsworth
v. &, 8 Tex. Ap. 532, An instruction
that the burden is on defendant, but
that the state must make out its
whole case beyond a reasonable .
doubt, is not objectionable as requir-
ing defendant to prove his inno-
cence: §. v. McIntosh, 40 S. C. 849.
2McCormack v. S., 102 Ala. 156;
McDaniel v. 8., 76 Ala. 1; Brown v.
8., 83 Ala, 33; Harris v. &, 96 Ala.
24; Keith v.S., 97 Ala. 32; Holmes.
v. 8., 100 Ala. 80.
’This is the result of statutory
provision in California: P. v. Arnold,
15 Cal. 476: P. v. West, 49 Cal. 610.
4P. v. Young, 64 Cal. 212; Lister
v. 8. 3 Tex. Ap. 17. The court may
direct the jury that there is no evi-
dence tending to excuse the homi-
cide if such is the fact: T. v. Gay, 2
Dak. 125.
287
§ 3819.] OFFENSES AGAINST THE PERSON. [Parr V.
deed, probably in all English-speaking countries, and involves
one of the most perplexing distinctions to be met in the law.
This distinction is expressed by the term “malice aforethought,”
the presence of which renders an unlawful homicide murder,
and the absence of which makes it manslaughter.
§ 319. Malice aforethought.— The history of the introduc-
tion of this term into the law as indicating the distinction be-
tween murder and manslaughter is exceedingly interesting, but
not important, as it throws little light on the distinction itself,
which is the work of modern refinements. Originally there
was no difference in the punishment, all criminal homicides
being felonies and punishable with death and forfeiture of land
and goods. But at an early day some special provision was
made in regard to secret killings, by which, in such cases, an
amercement was to be paid by the township or hundred, unless
it should be made to appear at the inquest that the person
killed was an Englishman, and this was called presentment of
Englishery. These provisions are said to have been introduced
by King Canute to protect his Danish subjects against the
English, and to have been revived under similar circumstances
by William the Conqueror to protect his French followers.
This secret killing was denominated murdrum, and thus fur-
nished the name for one division of criminal homicide, although
it did not furnish the definition for it. The use of the term
“malice aforethought” first appears, so far as is now known,
in Fitz Herbert,’ as a part of the finding of the jury in deter-
mining that a homicide was not intentional (that is, was by ac-
cident or in chance medley) and therefore subject for a pardon.
Even in this connection the term had no relation to its present
meaning, but it seems to have connected itself subsequently
with the term “malice prepensed,” used in 23 Henry VIIL.,
chapter 1, and in other similar statutes, as designating the kinds
of homicide which should not be entitled to benefit of clergy.
And this distinction at a time when benetit of clergy was be-
coming so general that a crime as to which it was allowed, al-
though a felony, ceased practically to be punishable by death,
created a real distinction, leaving homicides which were denied
benefit of clergy punishable according to the full rigor of the
11 Hale, P. C, 447; 4 Bl. Com, 194, 3Hammond’s note to 4 Bl. Com.
2Corone, 284 (8 Edw. IIL). 195; 3 Stephen’s Hist. Cr. L. 88,
288
Cu. 18.] HOMICIDE. [§§ 3820, 321.
‘common law, and homicide to which it still attached punish-
able only slightly, as by branding of the thumb, fine, etc.!
§ 320. Meaning of term.— All definitions of murder make
use of the term “malice aforethought” in distinguishing it from
manslaughter,’ but the words themselves give no real indica-
‘tion of the distinction intended to be made. Foster,? followed
by Blackstone,‘ speaks of the words as indicating “that the
fact hath been attended with such circumstances as are the ordi-
nary symptoms of a wicked, depraved and malignant spirit,”
‘and some such language is occasionally found in statutes de-
fining murder,> while it is constantly used in the definition of
‘murder by the courts.
§ 321. Malice, in general.—The term “ malice” is sometimes
‘discussed in connection with homicide as though it indicated
something different from malice in other crimes, that is, a
wrongful act intentionally done. But in fact nothing more
‘seems to be intended by malice in this case than in any other.’
12 Bish. Cr. L. 623-625; 3 Stephen’s
‘Hist. Cr. L., ch. 26; S. v. Pike, 49 N.
H. 399.
2The following definition is from
Coke: “Murder is when a man of
sound memory and of the age of dis-
cretion unlawfully killeth, within
any county of the realm, any reason-
able creature in rerum natura,under
‘the king’s peace, with malice fore-
thought, either expressed by the
party or implied by law, so as the
party wounded, or hurt, etc., die of
the wound or hurt, etc, within a
year and a day after the same:”
3 Inst. 47. Blackstone somewhat
modernizes this, as follows: “Murder
is . . . whena person of sound
memory and discretion unlawfully
killeth any reasonable creature in
‘being and under the king’s peace
with malice aforethought, either ex-
“press or implied:” 4 Com. 195. This
definition is constantly quoted. See
Darry v. P.. 10 N. Y. 120, 149; S. v.
‘Conley, 39 Me. 78, 87; P. v. Garbutt,
17 Mich. 9, 21; Fouts v. 8., 8 Ohio
St. 98, 109; McDougal v. S., 88 Ind.
24, 26; Schaffer v. S., 22 Neb. 557,
560; S. v. Crawford, 11 Kan. 32, 42;
Garvey’s Case, 7 Colo. 884, 387; U. S.
v. Meagher, 37 Fed. R. 875.
3Foster, 256, 257.
44 Bl. Com. 198.
5For instance in Alabama, see
Washington v. 8., 60 Ala. 10. °
6C. v. Webster, 5 Cush. 295; S. v.
Smith, 2 Strob. 77; McAdams v. 8.,
25 Ark. 405; S. v. Douglass, 28 W.
Va. 297; P. v. McDonald, 2 Ida. 14;
Vela v. S., 33 Tex. Ap. 322.
78. v. Schoenwald, 81 Mo. 147;
Darry v. P., 10 N. Y. 120; Dozier v.
S., 26 Ga. 156; Carson v. S., 80 Ga.
170; Lovett v. 8., 30 Fla, 142. Malice
in general has already been dis-
cussed in connection with the gen-
eral subject of criminal intent:
Supra, §121. “Aforethought” implies
only that the act is of purpose or de-
sign, in contradiction to an act re-
sulting from accident or mischance:
C. v. Webster, 5 Cush. 295. And see
infra, § 329. As in other crimes,
malice is inferred from an act caus-
ing death, which is not justifiable or
19 289.
§ 322.] [Parr V.
OFFENSES AGAINST THE PERSON.
Malice in this connection does not mean personal hatred or re-
venge.!
§ 322. Express or implied.— It is often said in older defini-
tions of malice aforethought, which are also copied into stat-
utes, that malice aforethought, distinguishing murder from
manslaughter, may be either express or implied.? By express.
malice is meant an intent to take life or cause great bodily
harm;* while implied malice indicates, according to Foster’s:
/Gefinition,‘“ that the fact hath been attended with such cir-
cumstancés as carry in them the plain indications of a heart
regardless of social duty and fatally bent upon mischief.” This
definition of implied malice is, however, too general to be of
any value, although it is still frequently used.’ The real dis-
\tinction between express and implied malice seems to be that in
the former there are circumstances indicating an intent to kill
or do great bodily harm; while in the latter, though there may
be no apparent intent to kill, there is some other wicked in-
tention sufficiently aggravated to make the offense murder.
Such implied malice may consist in a general recklessness im-
periling the lives of others;* or in the intent to commit a fel-
ony, no matter what it may be,and even though its tendency
in itself is not to cause death; or in an intent to resist lawful
arrest. The classes of acts constituting malice aforethought,
express or implied, will be considered hereafter.’
excusable, or accompanied with be serious bodily harm: Wellar v.
such circumstances as to reduce it
to manslaughter: U. S. v. Boyd, 45
Fed. R. 851; P. v. McDonald, 2 Ida.
14; S. v. Douglass, 28 W. Va. 297.
And see infra, § 382.
1Reg. v. Tyler, 8 C. & P. 616; Reg.
v. Mawgridge, J. Kel. 119; Rex v.
Oneby, 2 Stra. 766; C. v. York, 9 Met.
98; S. v. Pike, 49 N. H. 399; Revel v.
S., 26 Ga. 275; Brennan v. P., 15 Ill
511; 8. v. Decklotts, 19 Ia. 447; War-
ren v. S., 4 Cold. 180; McAdams v.
S., 25 Ark. 405; U.S. v. Meagher, 37
Fed. R, 875; U.S. v. Ross, 1 Gall. 624,
24 Bl. Com. 199; 1 Hale, P. C. 451;
1 East, P. C. 222, § 9.
3Exp. Wray, 30 Miss, 678. If the
intent be to do bodily harm, it must
P., 80 Mich. 16,
4 Foster, 257.
5McDonel v. S., 90 Ind. 320; Harris
v.8, 8 Tex. Ap. 90; Ellis v. 8, 30°
Tex. Ap. 601; Mayes v. P., 106 Il.
806; Nye v. P., 85 Mich. 16; Carr v..
S., 23 Neb. 749; Vollmer v. S., 24 Neb.
838.
6S. v. Smith, 2 Strob. 77, And see
infra, § 825.
7In Texas express malice makes.
murder in the first degree, and for
that reason the meaning of the term
has been there fully discussed: Mc-
Coy v. S., 25 Tex. 83; Ake v. S, 30
Tex. 466; Moore v. S., 31 Tex. 572;
Gaitan v. 8, 11 Tex. Ap. 544; Bohan-
non v.S., 14 Tex. Ap. 271; Lewis v.
290
Cx. 18.] HOMICIDE. [§§ 323, 324.
§ 323. Intent to kill the person killed or another,— Illus-
trations of cases where the intent is to kill the person killed
are unnecessary. All such homicides, if criminal at all, will be
murder unless there is such provocation as to reduce the case
to manslaughter, as will be discussed hereafter. But in deter-
mining the criminality of the act of killing it will be immate-
rial whether the intent was to kill the person killed, or whether
the death of such person was the accidental or otherwise unin-
tended result of the intent to kill some one else; the crimi-
nality of the act will be deemed the same.? In such cases a
conviction for the homicide may be based on the ordinary alle-
gation of striking, etc., with malice aforethought, it being im-
material that the malice was not towards the person injured.
But where the offense is for shooting at another with intent to
kill, it must be shown, as has already appeared, that there was
a specific intent to kill the person named, and proof of injury
to such person caused with the intent to kill some one else will
not constitute the offense.’ Of course, the criminal intent may
be executed by another and still the person originating or par-
ticipating in it may be guilty of murder in the act resulting.‘
§ 324. Dueling; fighting by consent.— Killing in a duel
is murder in the principals, seconds, and all others aiding or
encouraging.» Indeed, if by any mutual agreement parties
enter into a fight in a manner calculated to endanger life, death
S., 15 Tex. Ap. 647; Sherar v. 8. 30 posed to be, at or near the spot at or
Tex. Ap. 349. The court must in-
struct as to the distinction: See
infra, § 334.
lInfra, § 336.
28. v. Gilman, 69 Me. 163; C. v.
Breyessee, 160 Pa, St. 451; Wareham
v. 8, 25 Ohio St. 601; S. v. Renfrow,
111 Mo. 589; S. v. Raymond, 11 Nev.
98; Durham v. 8., 70 Ga. 264; Wills
v.8., 74 Ala, 21; S. v. Dugan, 1 Houst.
Cr. G. 568; S. v. Fulkerson, Phill. 233;
S. v. Smith, 2 Strob. 77; Clark v. 8.,
19 Tex. Ap. 495; Gore’s Case, 9 Coke,
81. Where the offense indicates an
intent to kill some one else, and that
is relied on as showing the malice
aforethought, it must appear that
such person was, or might be sup-
about the time of the fatal blow:
Reg. v. Cleary, 2 F. & F. 850.
3 Morgan v. S., 13 Sm. & M. 242;
Barcus v.5S., 49 Miss. 17; Rex v. Holt,
7C.& P. 518 And see supra, § 275.
4S. v. Green, 7 La. An. 518 But
the participation must be in the ma-
licious intent: Savage v. S., 18 Fla.
909; Frank v. S., 27 Ala. 87. And in
general, on the question of combina-
tions, see supra, §§ 195, 276.
5Reg. v. Young, 8 C. & P. 644;
Reg. v. Cuddy, 1 C. & K. 210. All
are joint principals if present: C. v.
Boott, Thatch. Cr. 890; Moody v. C.,
4 Met. (Ky.) 1; 8S. v. Dupont, 2 Mc-
Cord, 334,
291
§ 324.] OFFENSES AGAINST THE PERSON. [Parr V.
resulting therefrom will be murder.! Consent to fight on the
part of the one killed will not prevent the homicide being mur-
der2 There are statutes in many of the states in regard to
dueling, and it seems that some of these relieve the death thus
caused from its common-law consequences as murder and im-
pose a special penalty;* they also provide a punishment for
dueling even though no death results therefrom.* So punish-
ment is provided for consenting to be a second in a duel,’ and
for sending or carrying a challenge to fight a duel.’ It is
also sometimes made criminal to leave the state in order to
elude statutory provisions for the suppression of dueling.’
Aside from statute, an indictment charging the fighting of a
duel with pistols states no offense. Under a statute punish-
ing dueling itis sufficient to use the statutory language, naming
the parties, and designating the place where the engagement
was made and the fight was had without particulars? In
charging the offense of aiding and abetting in fighting a duel,
it must be clearly alleged that the duel was fought.” In charg-
ing consent to a challenge under statute it is not necessary to
set out the words of the challenge nor even the substance
thereof! There are sometimes constitutional provisions dis-
qualifying from holding office on account of having been en-
gaged in a duel, but there must be some legal proceedings in
18. v. Christian, 66 Mo. 138. If the
means used involve personal injury
not of dangerous character, death
resulting will be manslaughter: See
infra, § 389.
2Rex v. Rice, 3 East, 581.
3P. v. Bartlett, 14 Cal. 651.
48. v. Herriott, 1 McMull. 126; S. v.
Taylor, 1 Treadw. Const. 107.
5 Harris v. 8., 58 Ga. 332.
68. v. Gibbons, 4 N. J. 40; S. v.
Perkins, 6 Blackf. 20; Ivey v. S., 12
Ala. 276; Smith v. 8, 1 Stew. 506;
S. v. Dupont, 2 McCord, 334; 8S. v.
Strickland, 2 Nott & McC. 181; Cun-
ningham v. §., 2 Spears, 246; S. v.
Taylor, 3 Brev. 248; 8S. v. Farrier, 1
Hawks, 487; Moody v. C., 4 Met.
(Ky.) 1; Heffren v. C., 4 Met. (Ky.) 5;
C. v. Hart, 6 J. J. Marsh. 119; 8S. v.
8. 8, 1 Tyler (Vt.), 180. Under an
indictment for unlawfully carrying
a challenge to fight a duel, scienter
must be proved: U. 8. v. Shackel-
ford, 3 Cranch, C. C. 178. To consti-
tute a challenge a letter must be
something more than an invitation
or incitement to a challenge: Aul-
ger v. P., 34 IIL 486.
7S. v. Warren, 14 Tex. 406.
8C. v. Lambert, 9 Leigh, 603.
5C. v. Barrett, 108 Mass. 302.
WC, v. Dudley, 6 Leigh, 613.
11 Brown v. C., 2 Va. Cas. 516; S. v.
Farrier, 1 Hawks, 487. Although a
challenge is set out by copy it may
be helped with an averment that it
was intended and understood as a
challenge to fight with deadly
weapons, although the fact does not
appear from the language itself:
C. v. Pope, 8 Dana, 418,
292
Cu. 18.] [§ 325.
_ HOMICIDE.
which the question can be determined before the right to hold.
office for violence of the provision is forfeited.)
§ 325. General recklessness; acts dangerous to life.—
Where an act in itself unlawful is intentionally done for the
purpose of killing or inflicting serious bodily injury and death
ensues, it is murder at common law, although the intention is
not directed toward any particular person.’ So it is where
death results from discharging a firearm in the direction of
another with reckless indifference to consequences, if the act is
likely to result in the death of the person toward whom the
shot is fired,’ or where it is caused by discharging a firearm
into a crowd of persons with intent to kill some one, or with
criminal recklessness;* so, where life is taken by setting a
spring-gun to defend property other than the dwelling-house
against trespass, or otherwise attempting by unlawful violence
to prevent a mere trespass or personal injury not threatening
life or likely to cause great bodily harm.’ So itis murder to
cause the death of another by threats and show of violence,
thereby recklessly and wilfully inducing him to do an act im-
minently dangerous to life.’ In general, to cause death by wil-
fully doing an act calculated to endanger life or cause great
bodily harm will be murder, although there is no specific in-
tent to kill’ But if the intention, though unlawful, was not
1C. v. Jones, 10 Bush, 725. But
under a Virginia statute there may
be removal from office by quo war-
ranto without conviction in a crimi-
nal prosecution: Royall v. Thomas,
28 Grat. 130.
2Mayes v. P., 106 Ill. 806. Andsee
Howard v. &., 25 Tex. Ap. 686.
3Conn v. P., 116 Ill. 458 Itis not
necessary in order that this be mur-
der that it be in the commission of
some unlawful act: Pool v.S., 87 Ga.
526.
4Dunaway v. P., 110 TIL 383; S. v.
Edwards, 71 Mo. 312; Aiken v. 8., 10
Tex. Ap. 610; Golliher v. C., 2 Duv.
168; Washington v. S., 60 Ala, 10.
5Simpson v. &, 59 Ala. 1; S. v.
Barr, 11 Wash. 481. Further as to
injury from spring-gun, see supra,
§ 142,
6 Harrison v. 8., 24 Ala. 67; S. v.
Shippey, 10 Minn. 228; S. v. Smith. 3
Dev. & B. 117; S. v. McDonald, 4
Jones, 19; 8. v. Brandon, 8 Jones,
463; Lyon v. S., 22 Ga. 399; S. v.
Ferguson, 2 Hill, 619.
7 Adams v. P., 109 Ill. 444.
8Boyle v. S., 57 Wis. 472. As by
running over a child: Lee v. S..»1
Coldw. 62, Or by omitting to pro-
vide for a child where such omission
is likely to cause death: Lewis v.8.,
72 Ga, 164. Or by using means dan-
gerous to life in attempting to pro-
curean abortion: Peoples v. C.,87 Ky.
487; S. v. Moore, 25 Ia. 128, (Further
as to homicide in attempting to pro-
cure an abortion, see infra, § 327.)
Or by ordering a seaman who is in
a state of debility so that he cannot
safely go aloft to do so, compelling
293
[Parr V.
§ 326.] OFFENSES AGAINST THE PERSON.
ay
to cause death or great bodily injury, and death accidentally
or unexpectedly resulted, the offense is not murder but man-
slaughter. The negligence or unlawfulness may be sufficient
to make the act criminal, although not sufficient to show malice
aforethought.!
§ 326. In the attempt to commit a felony.— Design to kill
is not necessary to constitute malice aforethought,’ except as
may be specially provided by statute.? The state of mind in-
volved in the attempt to commit a felony constitutes malice
aforethought (implied); so that death resulting, although en-
tirely unintended, will be murder. Thus, if persons conspire
to commit a felony, death resulting will be murder in all, al-
though it happened beside the original design.’ But if homi-
cide is committed as a preliminary to the perpetration of the
felony, itis a homicide of express malice.’ So it is if the felony
is one such as mayhem, which in itself involves great bodily
harm.’ In each of these cases the offense will not be of the
lower degree of murder provided for by statute, where the
death results from the attempt to commit a felony, but of the
degree involved in the intentional killing or causing great bod-
ily injury. But to constitute murder by killing in the execu-
tion of a felony it is necessary that the death and the felonious
action from which the necessary implied malice is derived have
him with brutal malignity to obey
so that death results: U.S. v. Free-
man, 4 Mason, 505. Or by beating
another in a cruel and inhuman
manner: Duebbe v. §., 1 Tex. Ap.
159; especially a child: Powell v. S.,
67 Miss. 119; or a person in feeble
health with knowledge of his condi-
tion: C. v. Fox, 7 Gray, 585; S. v.
O’Brien, 81 Ia. 88. Intent to kill is
not essential in such cases: Adams
v. P., 109 Il. 444; 8. v. Walker, 37
La, An. 560; Warren v. S., 4 Coldw.
130; Scott v. S., 87 Ala. 117; How-
ard v. 8., 34 Ark, 438; Boyle v. S., 57
Wis. 472.
1 Pool v. 8., 87 Ga. 526; C. v. Thomp-
son, 6 Mass. 134; Errington’s Case, 2
Lewin, 217; Ann v. §., 11 Humph.
158. And further as to cases of un-
lawful intent, not felonious, and neg-
ligence, see manslaughter, infra,
88 347, 849,
28. v. Alexander, 808. C. 74; Brags-
field v. 8, 55 Ark. 556; Sweeney v.
S., 85 Ark, 585; P. v. Wilson, 145
N. Y. 628.
3 Fouts v.S., 8 Ohio St. 98; Robbins
v. 8.8 Ohio St. 181; Jones v. S., 51
Ohio St. 381; S. v. Young, 55 Kan. 849.
4Keefe v. P., 40 N. Y. 348; Terrill
v. 8. 74 Wis. 278; T. v. McAndrews,
3 Mont. 158.
58. v. Shelledy, 8 Ia. 477; P. v.
Olsen, 80 Cal. 122; Smith v. P., 1
Colo. 121.
68. v. Worrell, 25 Mo. 205,
7 Foster v. P., 50 N. Y. 598.
8 As to homicide caused in the at-
tempt to perpetrate any of the prin-
cipal felonies, itis usually made mur-
der in the first degree: See infra,
294
Cu. 18.] HOMICIDE. [S§ 3827, 328.
at least some intimate relation and close connection, so that
the danger to life is naturally consequent upon the felony com-
mitted. The felony attempted must be other than that in-
volved in the act of violence itself,? and must be alleged.’
§ 327. Attempt to procure abortion.— An illustration of
the difference as to whether the intent is felonious or not in
determining whether a consequent death unintended is murder
or manslaughter is found in the cases of attempting to procure
an abortion. At common law such attempt is not felonious,
and therefore death resulting is manslaughter, not murder.‘
§ 328. In resisting lawful arrest.— Death resulting from
resistance to lawful arrest will be murder,’ and it is immaterial
whether the person arrested is guilty of the crime charged or
not.6 To make the crime murder it is not necessary that the
warrant be strictly legal if it be within the jurisdiction of the
magistrate issuing it.’ Nor is it necessary that the appoint-
ment of the officer be shown by record evidence; it is sufficient
that it appear that he was acting as officer, which fact was
generally known.’ It will equally be murder to kill a private
1 Pliemling v. S., 46 Wis. 516; Reg.
v. Serne, 16 Cox, 311.
28. v. Downs, 91 Mo. 19; S v.
Sloan, 47 Mo. 604.
3 Titus v. S., 49 N. J. 36.
4Reg. v. Fretwell, 9 Cox, 152;
Smith v. S., 33 Me. 48; Evans v. P.,
49 N. Y. 86; S. v. Barker, 28 Ohio St.
583. But by statute death thus
caused is sometimes made murder:
S. v. McNab, 20 N. H. 160. I£ the
means used are such as are calcu-
lated to endanger life, malice afore-
thought will be implied from the act
unlawfully and unjustifiably com-
mitted: S. v. Moore, 25 Ia. 128; Peoples
v. C., 87 Ky. 487. But to make the
death criminal it must appear that
the act was unnecessary: Willey v.5S.,
46 Ind. 368; S. v. Fitzporter, 93 Mo. 390.
‘If causing death by an attempted
abortion is made a distinct offense,
punishable in a different manner
from that of murder or manslaughter,
it must be charged under the special
statute: C. v. Railing, 113 Pa. St. 37.
5Dilger v. C., 88 Ky. 550; S. v.
Green, 66 Mo. 631; Simmerman v.§.,
16 Neb. 615; Minniard v. C., 87 Ky.
218; Washington v. §. 1 Tex. Ap.
647; Reg. v. Porter, 12 Cox, 444. So,
if in making such resistance a third
person is accidentally killed it is
murder: Angell v.S., 36 Tex. 542. So,
it is murder to kill an officer in at-
tempting to escape: Wilson v. S., 11
Lea, 310. So, it is murder to kill an
officer seeking to recapture an es-
caped convict: Wallace v. S., 20 Tex.
Ap. 360. It is immaterial who fires
the first shot, if the person seeking
to make the arrest is acting within
the scope of his duties: Tolbert v.8.,
71 Miss. 179.
6 Roten v. S., 31 Fla. 514,
7 Boyd v.S., 17 Ga. 194. Informal- ,
ity in the warrant should be taken
advantage of by proper proceeding
and not by amurderous assault with
the purpose of effecting escape: Reg.
v. Allen, 17 L. T. 222.
8 Martin v.S., 89 Ala. 115; Weather-
295
§ 328.] [Parr V.
OFFENSES AGAINST THE PERSON.
person making arrest where the circumstances authorize an
arrest by such person.! Also, it is murder to kill an officer
acting without warrant under circumstances where a warrant.
is not required.’ As will hereafter be seen,* death caused im
resisting unlawful arrest, although not justifiable, is man-
slaughter and not murder. Therefore, if the person being
arrested does not know, and has no reason to know, that the
arrest is lawful, death caused by him in resistance will be only
manslaughter! But if the person arrested have reason to be-
lieve that the person attempting to make the arrest is an offi-
cer, it will be murder if he takes life in resistance although
the officer does not in terms state his official character. The
reason for making homicide, in resisting unlawful arrest, man-
slaughter, is that the unlawful arrest is deemed a provocation.®
Therefore, if the killing is with malice, irrespective of the provo-
cation of illegal arrest, it is murder and not manslaughter.’
In charging the murder of an officer while making an arrest it
is not necessary to allege that he was an officer, nor the fact of
the arrest and its legality, but the charge may be made as of
the murder of a private citizen.2 Whether the arrest is lawful
or not is not a question wholly for the jury, but is a mixed
question of law and fact.®
ford v. S., 31 Tex. Ap. 5380; Rex v.
Gordon, 1 East, P. C. 352. That the
seeking to arrest him is an officer:
Thomas v. S., 91 Ga. 204; S. v. Mowry,
deceased was an officer de facto is
sufficient: S. v. Zeibart, 40 Ia. 169;
S. v. McMahan, 103 N. C. 379.
1Snelling v. S., 87 Ga. 50; S. v.
Mowry, 37 Kan. 369.
2Ballard v. 8., 43 Ohio St. 340; Rex
vy. Curran, 3 C. & P. 897; Rex v.
Hems, 7 C; & P. 312; Reg. v. Hagan,
8 C. & P. 167; Rex v. Ford, Russ. &
Ry. 329; Rex v. Ball, 1 Moody, 330,
3 Infra, § 340.
4Croom v. S., 85 Ga. 718; Mocka-
bee v. C., 78 Ky. 880; Fleetwood v.
C., 80 Ky. 1; Rex v. Gordon, 1 East,
P. C. 315.
5P, v. Pool, 27 Cal. 572; Rex v.
Woolmer, 1 Moody, 834, One who
attempts to escape has no right to
express information that the person
37 Kan. 369.
6 Infra, § 340.
‘Rafferty v. P., 72 Ill. 37; P. v.
Brown, 59 Cal. 845; Muscoe v. C., 86
Va, 448; C. v. Drew, 4 Mass. 391;
Roberts v. S., 14 Mo. 188; 8S. v. John-
son, 76 Mo. 121; S. v. Oliver, 2 Houst.
58; Miller v. S&S, 82 Tex. Ap. 319.
So where defendant had for some
time been in custody without knowl-
edge of any informality in the war-
rant, held, that homicide in the
attempted escape was murder, not-
withstanding such defect: Graham
v.8., 29 Tex. Ap. 31; Reg. v. Allen,
17 L. T. 222.
88. v. Roberts, 15 Mo. 28,
§ Pritchett v. S., 92 Ga. 65; Muscoe
v. C., 86 Va. 443,
296
Cu. 18.] HOMICIDE. [§§ 329, 330.
§ 329. “ Aforethought; ’’ deliberation; premeditation.—
The+erm “aforethought,” as applied to the malice necessary
to constitute murder, does not imply anything further than aw
intentional act as distinguished from an act done on sudden
provocation in heat of passion.! It is not necessary that the
intent shall have been entertained for any length of time.®
But the malice must exist at the time of the killing; a prede-
termination to Kill will not be sufficient where the killing is.
not the result of such predetermination, but of some other in-
tent not in itself constituting malice.2 What is such delibera-
tion and premeditation as to constitute murder in the first.
degree will be considered hereafter.*
§ 380. Evidence of malice.— Malice may be proven by cir-
cumstances, and this even applies to express malice, which in-
volves the intent to kill or do great bodily harm.’ From cir-.
cumstances indicating a manifest disregard of human life and
a wicked, depraved and malignant spirit, malice may be in-
ferred. Previous threats are evidence of malice.’ Previous.
ill-treatment of a child or an inferior will tend to show malice-
in a subsequent act of ill-treatment causing death of such per-
son.’ So declarations after the act may tend to show express.
malice.? But proof of threats and previous preparation should
1C, v. York, 9 Met. 93.
2p, v, Clark, 7 N. Y. 885; S. v. Mc-
Donnell, 82 Vt. 491; S. v. Decklotts,
19 Ia, 447; Peri v. P.,65 Ill. 17; Spies
v. P,, 122 Ill. 1; U. S. v. Cornell, 2
Mason, 60; Jones v. S., 29 Ga, 594;
McQueen v. &., 103 Ala. 12; Green v.
S., 13 Mo. 882; C. v. Drum, 58 Pa. St.
9; Lewis v.S., 15 Tex. Ap. 647; Mc-
Kenzie v. 8., 26 Ark. 334; McAdams
v. 8, 25 Ark. 405. When it is said
that the homicide must be deliber-
ate, it is only meant that it must be
intentional and malicious: Nichols
v. C., 11 Bush, 575. It is sufficient
that the malicious intent was formed
at the moment of striking the fatal
blow: McDaniel v. C., 77 Va. 281;
Brown v. C., 90 Va. 671; Cook v. 8,
77 Ga. 96.
3 Domingus v. S., 94 Ala. 9; Clem-
ents v. S., 50 Ala. 117; McMillan v.
8. 35 Ga. 54; 8S. v. Anderson, 2’
Overt. 6; Bristow v. C., 15 Grat. 634;
Brooks v. S., 90 Ind. 428.
4 Infra, § 358,
5Gomez v. S, 15 Tex. Ap. 3273.
Sharpe v. S., 17 Tex. Ap. 486; Farrer-
v. &., 42 Tex. 265; Resp. v. Langcake,
1 Yeates, 415. It may appear other-
wise than by verbal declarations, as,.
by lying in wait, antecedent menaces,.
the character of the act done, etc:
Singleton v. §., 1 Tex. Ap. 501.
6 Adams v. P., 109 Ill. 444; S. v.
O’Hara, 92 Mo. 59; S. v. Smith, 2:
Strob. 77.
7Moon v. S., 68 Ga. 687; Nichols v.
C., 11 Bush, 575; Anderson v. S., 15
Tex. Ap. 447; T. v. Egan, 3 Dak. 119.
8 Burnett v. S., 14 Lea, 439; Will-
iams v. §., 64 Md. 384; S. v. Harris,
63 N. C. 1.
9 Lewis v. S., 29 Tex. Ap. 201,
297
R§ 331, 332.] oFFENSES AGAINST THE PERSON. [Part V.
be such as to show that they were made in contemplation of a
homicide without justification or excuse. If they indicate in-
tention and preparation to resist an expected attack, they will
not be proof of malice! Where deliberate malice is once as-
certained, its continuance down to the perpetration of a homi-
.cide must be presumed unless there is evidence to repel it and
show an abandonment of the wicked purpose.’ But if a subse-
quent reconciliation, followed by fresh provocation, is proved,
the law will refer the motive of the slayer to the recent provo-
cation unless special circumstances forbid such presumption.’
It is for the jury to say whether the killing was the result of
previous malice or of a subsequent provocation or necessity.*
Sc where there has been an antecedent provocation it may still
appear from the circumstances that the killing was the result
‘of malice aforethought and not of provocation.®
§ 331. Intoxication or insanity as affecting the question of
malice.— The deliberate intent to kill not being necessary in
murder (unless in the first degree), evidence of intoxication is
not admissible for the purpose of reducing the offense from
murder to manslaughter.’ But while intoxication is not to be
-considered as showing want of malice, it may be shown in cases
where defendant relies upon provocation as reducing the crime
to manslaughter, as indicating that the homicide was the result
-of the provocation, and not in cold blood.’
§ 332. Whether malice presumed; use of deadly weapon.
When the homicide is committed in such a manner and by such
means that death or greatly bodily injury is the probable re-
‘sult, such facts will indicate malice aforethought.? The defend-
1Bolzer v. P., 129 Ill. 112. Proof
-of anticipation of an attack is there-
fore admissible on the part of de-
fendant: Long v. S., 52 Miss. 23.
29. v. Johnson, 1 Ived. 354; 8S. v.
“Tully, 4 Ired. 424.
38. v. Barnwell, 80 N. C. 466; Can-
non v. 8., 57 Miss. 147.
49. v. Tachanatah, 64 N. C. 614;
Read v. C., 22 Grat. 924; McCoy v.
$., 25 Tex. 33,
58. v. Dillon, 74 Ia. 658; Johnson
v. 8., 30 Tex. 748. And, in general,
as to provocation, see infra, § 342.
6S, v. Smith, 49 Conn. 376; P. v.
Langton, 67 Cal. 427,7 Am. Cr. R. 439
and note; Boyle v. 8. 61 Wis. 440.
But it is said that intoxication may
be shown on the question whether a
dangerous weapon was used with in-
tent to do great bodily harm: Reg.
v. Doherty, 16 Cox, 306.
78. v. McCants, 1 Spears, 384; 8. v.
Johnson, 40 Conn. 136; S. v. John-
son, 41 Conn. 584; Wilkerson: v. C.,
88 Ky. 29; Bolzer v. P., 129 Ill. 112.
See the whole question discussed,
supra, § 162.
8C, v. Webster, 5 Cush. 295; Boat-
wright v. 8., 89 Ga. 140. Malice is
298
Cu. 18.]
HOMICIDE.
[§ 332.
ant will be presumed to have intended the natural consequences
of his act.!. The use of a dangerous or deadly weapon, in the
absence of circumstances indicating provocation or excuse, in-
‘dicates intent to kill, and therefore is evidence of malice afore-
thought? What is meant by the cases just cited evidently is,.
that the use of a deadly weapon indicates an intention to take
life or do great bodily injury.
In many other cases it is said,
in a general way, but evidently in the same sense, that the un-
lawful use of a deadly weapon is evidence of malice,’ or gives
‘presumed where it does not appear
that there was any apprehension of
great bodily harm, or such provoca-
tion as to cause heat of blood: Peri
v. P., 65 Ill. 17; Boatwright v. S., 89
Ga. 140. The fact that the injured
party exposed himself will not tend
to show that the wound was not, in
itself, dangerous: S. v. Stokely, 16
Minn, 282.
1Doherty v. 8., 84 Wis. 152: U.S.
v. Boyd, 45 Fed. R. 851. Thus, the
age, condition and strength of the
person assailed may be considered as
well as the nature of the weapon
used and the blow inflicted: C.
v. Fox, 7 Gray, 585; Murphy v. P.,
‘9 Colo. 485. Even if the fact be that
the deceased was in a feeble condi-
tion, so that a blow of less force
would cause his death than would
be required to take the life of a
healthy man, this will not constitute
a defense: S. v. Castello, 62 Ia.
404. Shooting at a person is dan-
gerous, and where death ensues and
the circumstances afford evidence
of malice, the homicide is murder:
8S. v. Sisson, 3 Brev. 58. So where
the death of a child resulted from
giving it sufficient laudanum to kill
it, the offense was held to be mur-
der: S. v. Leak, Phill. 450. So in
other cases where the circum-
stances indicate an intention to kill
without excuse or provocation: Bel-
tram v. S., 9 Tex. Ap. 280; S. v. Ah
Lee, 8 Oreg. 214. Otherwise if an
excuse for the killing appears: Petty
v. &,6 Baxt. 610. It is erroneous,
however, where the act does not in-
dicate an intent to kill, to instruct
the jury that a person is liable for
all possible consequences of his acts:
P. v. Munn, 65 Cal. 211. If the kill-
ing is not the result of an act calcu-
lated to take life or cause great bod-
ily harm, it will not indicate malice
unless such intent otherwise ap-
pears: Wellar v. P., 30 Mich. 16; 8.
v. Shirley, 64 N. C. 610.
2Beauchamp v. &, 6 Blackf. 299;
U.S. v. McGlue, 1 Curtis, 1; Oliver
v.8., 17 Ala. 587; Hornsby v. 8., 94
Ala. 55; Sullivan v. S., 102 Ala. 135;
P. v. Wolf, 95 Mich. 625; Clifford v.
S., 58 Wis. 477; Green v. S., 28 Miss.
687; State v. Gillick, 7 Ia. 287; S. v.
Zeibart, 40 Ia. 169; S. v. Jones, 64
Ia, 349; S. v. Sullivan, 51 Ia. 142; 8.
v. Hockett, 70 Ia. 442; S. v. Hogue,
6 Jones, 381; Brown v. C., 90 Va. 671;
S. v. Willis, 63 N. C. 26; Bivens v.S.,
11 Ark. 455; McAdams v. 6., 25 Ark.
405; U.S. v. Crow Dog, 3 Dak. 106;
S. v. Des Champs, 42 La. An. 567.
Under like circumstances, if death
does not ensue the jury may infer
that the assault was with intent to
murder: S. v. Gilman, 69 Me. 163;
Walker v. 8., 8 Ind. 290; Chrisman
v.S., 54 Ark. 283, And see supra,
§ 275.
38. v. Ward, 5 Harr. 496; Walter
v. P., 832 N. Y. 147; 5S. v. Hargett, 65
N. C. 669; Kriel v. C., 5 Bush, 362.
299
§ 332.] OFFENSES AGAINST THE PERSON. [Part V.
rise to a presumption of malice.! It has been said that this
presumption from the use of a deadly weapon can only be over-
come by evidence offered by defendant to show sufficient prov-
ocation.? But by the great weight of authority there is no
such presumption in law, and the whole question of whether
there is malice aforethought is for the jury, the evidence of the
use of a deadly weapon being for their consideration as indi-
cating malice in the absence of evidence of provocation or ex-
cuse.? It is not the intention to use a deadly weapon, but the
intention to kill, of which such use is evidence, that indicates
murder.! By statute the use of a deadly weapon is sometimes.
made evidence of malice. When the question is as to whether
the weapon was deadly or whether it was used in a deadly man-
1C. v. Drum, 58 Pa. St. 9; 8. v. Tal-
mage, 107 Mo. 548; S. v. Evans, 65
Mo. 574; S. v. Hays, 23 Mo, 287; S. v.
Levelle, 34 8S. C. 120; Moon v. 8., 68
Ga. 687. Aninstruction that malice
is implied from the unlawful and in-
tentional use of a deadly weapon is
not erroneous where there is no evi-
dence that the homicide was acci-
dental or under provocation: S. v.
Rainsbarger, 71 Ia. 746. But malice
is not proved by such evidence; the
fact merely raises a presumption of
malice subject to be rebutted: S. v.
Townsend, 66 Ia. 741. It has also
been said that where the evidence
shows a deliberate killing, without
provocation or excuse, murder in
the first degree may be presumed:
P. v. Wolf, 95 Mich. 625; S. v. Mar-
tin, 124 Mo. 514; S. v. Mahn, 25 Kan.
182.
?Kilpatrick v. C., 81 Pa. St. 198.
3 Farris v. C., 14 Bush, 862; Hornsby
v. §., 94 Ala, 55; Tesney v.8.,'77 Ala.
33; Cross v. S., 68 Ala. 476; Hiland v.
S., 52 Ala, 822; 8 v. McKinzie, 102
Mo. 620; Hawthorne v. S., 58 Miss.
778; 8. v. McDonell, 382 Vt. 491;
Madden v. 8., 1 Kan. 840; C. v. Hawk-
ins, 3 Gray, 463, It is erroneous to
instruct the jury that the presump-
tion of malice arises from the fact
of using a deadly weapon: Erwin v.
S., 29 Ohio St. 186; Smith v. C, t
Duv. 224; S. v. Newton, 4 Nev. 410..
While the use of a deadly weapon,
not in self-defense, is evidence of
malice, it does not follow that every
homicide thus committed is murder:.
Dunnellan v. C., '7 Bush, 676; Hill v..
8. 41 Ga. 484. For it may appear
that-there was such provocation as.
to reduce the murder to man-
slaughter: Murphy v.S8., 81 Ind. 511;
Miller v. S., 87 Ind. 482; P. v. Curtis,
52 Mich, 616; S. v. Hoyt, 18 Minn.
132, Indeed, an intent to kill is not
necessarily presumed from the use
of a deadly weapon: Anderson v.S&.,
8 Heisk. 86; Floyd v.8., 3 Heisk. 3423.
Miller v. S., 87 Ind, 482; Hurd v. P.,
25 Mich. 405.
4Palmore v. 8., 29 Ark. 248; P. v..
Crowey, 56 Cal. 33,
5As in Texas, where a homicide
committed with a bowie-knife or
dagger is made murder: Isaacs v. S.,
25 Tex. 174. And, such statute is.
constitutional: Cockrum v. S., 24
Tex. 394. But the fact that the
weapon with which the homicide
was committed was carried in viola-
tion of the law in regard to carry-
ing concealed weapons will not im
itself imply malice aforethought:.
Alfred v. S., 88 Ga, 303.
300
Cu. 18.] [§ 833.
HOMICIDE.
ner, it is for the jury.!. But where the weapon is one neces-
sarily dangerous and it is used in a deadly manner, the court
may, as matter of law, declare its nature.? Thus, an ax may
be a deadly weapon.? It cannot be said as matter of law that
a pocket-knife is not a deadly weapon.* An instrument may
or may not be a deadly weapon, depending upon the manner
in which it is used;*° so held as to a stick of wood. A deadly
weapon is not one a blow from which would ordinarily pro-
duce death, but one from which, as used, death would probably
result;7 an instrument designed for offensive and defensive
purposes, by means of destruction of life or infliction of bodily
injury.2 Where death was caused by the use by a school-boy
of a twenty-two calibre pistol, held, that it was not error to in-
struct the jury on the theory that such instrument was a deadly
weapon.? The question as to what is a deadly weapon is also
considered under the head of aggravated assaults."
§ 333. Presumption of malice from killing.—In some cases
it has been said that malice is presumed from evidence of in-
tentional killing, the burden to overcome this presumption
being on defendant." In other cases it is said that this presump-
tion arises in the absence of any evidence indicating that the
18. v. Levigne, 17 Nev. 485; S. v.
Olds, 18 Oreg. 440.
28, v. Levigne, 17 Nev. 485; S. v.
‘Craton, 6 Ired. 164. See supra, 265.
38. v. Ostrander, 18 Ia. 485; Mask
v. S., 36 Miss, 77.
4Sylvester v. S., 71 Ala. 17. If so
used as to cause death it is deadly:
Webb v. S., 100 Ala. 47. The use of
a pocket-knife may be considered as
indicating maliceaforethought:'Gat-
lin v. S., 5 Tex. Ap. 531. ~
5If not in nature deadly, the use
of the weapon cannot be held to in-
dicate an intent to kill unless by
reason of the manner of its use:
Nichols v. 8, 24 Tex. Ap. 187.
6S. v. Brown, 67 Ia. 289; Kelly v.
8., 68 Miss. 348. So as to a large
bottle thrown at another: Weeks v-
S., 79 Ga. 36. A pin is a deadly
weapon when pushed down an in-
fant’s throat in a manner likely to
cause death: S. v. Norwood, 115 N.C.
789.
7Sylvester v. S., 72 Ala. 201.
8C. v. Branham, 8 Bush, 387.
9S. v. Sterrett, 80 Ia. 609.
See supra, § 257.
UC, v. York, 9 Met. 938; C. v. Web-
ster, 5 Cush. 295; Dejarnette v. C., 75
Va. 867; S. v. Norwood, 115 N. C.
789; S. v. Payne, 10 Wash. 545; S. v.
Knight, 43 Me. 11. And this is the
English rule: Rex v. Oneby, 2 Stra.
766; Rex v. Greenacre, 8 C. & P. 35;
Reg. v. Kirkham, 8 C. & P. 115; 4
Bl. Com. 201. Homicide is presumed
by law to be murder in the second
degree until circumstances of justi-
fication, excuse, or mitigation are
shown: S. v. Miller, 9 Houst. 564;
Myers v. C., 90 Va. 705; Davis v. s.,
25 Ohio St: 3869; Clements v. S., 50
Ala, 117.
301
[Part V.
§ 333.] OFFENSES AGAINST THE PERSON.
killing was justifiable, excusable, or under provocation,’ and it
devolves upon the defendant to repel the presumption.? But.
this rule is properly qualified, so as to give defendant the ben-
efit of any justification, excuse, or mitigation appearing from
the evidence for the prosecution as well as from the evidence
‘introduced on his behalf.2 Where, however, all the circum-
stances of the transaction are disclosed in evidence, there is no.
presumption, but the question is for the jury upon the evi-
dence.‘ It is also said that where there is proof of killing, the
burden is upon defendant to show justification, excuse, or miti-
gation;® and,in accordance with the same theory, it is held
that the mitigation must be proven by a preponderance of evi-
dence, and that it is not enough if the evidence merely raises a
reasonable doubt of guilt.6 But in other cases this wholc doc-
trine of presumption, with the resulting rule as to burden of
proof and amount of evidence to show mitigation, is repudiated,
and the more reasonable and logical rule is announced that the
10’Mara v. C., 75 Pa. St. 424; C. v.
Drew, 4 Mass. 391; Murphy v. P., 37
Ill, 447; Upstone v. P., 109 Ill. 169;
S. v. Lautenschlager, 22 Minn. 514;
S. v. Brown, 41 Minn. 319; Clarke v.
S., 35 Ga. 75; Wilson v. S., 69 Ga.
224; Mitchell v. S, 5 Yerg. 340; 8.
v. Johnson, 3 Jones, 266; Green v.
S., 28 Miss. 687; Hague v. S., 34 Miss.
616; 5S. v. Town, Wright, 75; Davis
v. &, 25 Ohio St. 869; Clements v.
S., 50 Ala. 117; Brown v. S., 4 Tex.
Ap. 275; Schlencker v. S8., 9 Neb. 300.
2. v. March, 6 Cal. 548; Williams
v. §., 6 Neb. 334; Milton v. S., 6 Neb.
136.
3P. v. Elliott, 80 Cal. 296; Haw-
thorne v. S., 58 Miss. 778; Gladden
v. &,13 Fla. 623; Jordan v. 8, 79
Ala. 9; Dixon v. S, 13 Fla. 636;
Alexander v. 8S. 17 Tex. Ap. 614;
Robinson v. §., 16 Tex. Ap. 347; Tur-
ner v. S., 16 Tex. Ap. 878; U. S. v.
Armstrong, 2 Curt. 446; Conner v.
8., 4 Yerg. 186; S. v. Dugan, 1 Houst.
Cr. C. 563.
4C. v. Hawkins, 8 Gray, 463; P. v.
Potter, 5 Mich. 1; 8. v. Alexander,
30 8. C. 74; S. v. Ariel, 88 S.C. 221:
8. v. Coleman, 6 8. C. 185; Hampton
v. 8. 45 Ala. 82; Dukes v. S., 14 Fla.
499; Vollmer v. S., 24 Neb. 838; S. v.
Wright, 46 La. An. 1403. By statute
in Florida the rule formerly recog-
nized as to presumption from the
fact of killing is changed and proof
of malice must be made by the
state: Adams v. S.,, 28 Fla, 511. The
charge that malice is implied unless
justification or mitigation appears
from the evidence is erroneous, as
infringing upon the doctrine of rea-
sonable doubt: Morgan v.S., 16 Tex.
Ap. 593; Bryant v. S., 7 Baxt. 67;
Smith v. P., 142 Il. 117.
5Vann v. S., 88 Ga. 44; Hill v. C,
2 Grat. 594; S. v. Brittain, 89 N. C.
481; 8. v. Whitson, 111 N. C. 695; S.
v. Hobbs, 87 W. Va. 812; S. v. Evans,
124 Mo. 397; T. v. McAndrews, 3
Mont. 158; S. v. Bonds, 2 Nev. 265;
8. v. Briscoe, 80 La. An., pt. I, 483;
Rex v. Greenacre, 8 C. & P. 35; 4
BL Com. 201.
8C. v. York, 9 Met. 93; S. v. Cox,
110 N. C. 503; S. v. Smith, 77 N. C.
488; 8. v. Haywood, Phill. 876; 8. v.
Byers, 100 N. C. 512.
802 ’
Cu. 18.] HOMICIDE.
[$§ 334, 335.
burden of proof is throughout upon the prosecution; and if upom
the evidence a reasonable doubt arises as to whether the homi-
cide was upon malice aforethought, the defendant is entitled to-
the doubt.
§ 334. Instructions as to malice.— Malice aforethought
being an essential, therefore, in murder, it has been held in
Texas that it must be explained to the jury by the instructions,
and that a failure to instruct in that respect will constitute:
error even though no instruction on the subject were asked.”
But in other jurisdictions there seems to be no such specific
rule, and the sufficiency of the instructions in this respect will
depend upon the nature of the case. In Texas it is also re-
quired that the distinction between express and implied malice
be explained.‘
V. MansLavuaurer.
§ 335. How distinguished.— From the explanation already
given of what constitutes non-criminal homicide, either justifia-
ble or excusable, on the one hand, and murder, that is, killing
with malice aforethought, on the other, the general scope
of the crime of manslaughter, which includes all criminal
homicides not amounting to murder, is quite definitely indi-
cated. Cases of manslaughter, however, fall into classes hav-
ing different characteristics. They may be, Ist, cases in which
it appears that the intent was to take life or do great bodily
harm, and which would therefore be murder but for some mit-
igating circumstance; 2d, cases where death unintentionally
1Stokes v. P., 58 N. Y. 164; P. v. 2Holmes v. S, 11 Tex. Ap. 2283.
Fish, 125 N. Y. 186; S. v. Patterson,
45 Vt. 308; S. v. Hopkins, 15 8. C.
153; S. v. Jones, 29 8. C. 201; P. v.
Powell, 87 Cal. 348; P. v. Ah Gee
Yung, 86 Cal, 144; P. v. Bushton, 80
Cal. 160 (overruling P. v. Knapp, 71
Cal, 1); Kent v. P., 8 Colo. 563;
Perry v. S., 44 Tex. 473; Murray v.
S. 1 Tex, Ap. 417; S. v. Trivas, 32
La. An. 1086; S. v. Swayze, 32 La.
An, pt. II, 1323, If the facts are
not in controversy the question is
for the court, otherwise for the jury:
S. v. Hildreth, 9 Ired. 429; T. v. Gay,
2 Dak, 125,
Babb v. 8, 12 Tex. Ap. 491; Hayes
v. 8. 14 Tex. Ap. 330. And this is.
not cured by an instruction as to
the distinction between express and
implied malice: Ainsworth v. 8,
29 Tex. Ap. 599; Callahan v. S., 30
Tex. Ap. 275; Moody v. S, 30 Tex.
Ap. 422.
3 Kennedy v. P., 40 Ill. 488; Peri v.
P., 65 Til. 17; 8. v. Forney, 24 La. An.
191; Holley v.8., 75 Ala. 14.
4Jones v. 8., 5 Tex. Ap. 397; Pick-
ett v. S., 12 Tex. Ap. 86,
303
§ 336.) OFFENSES AGAINST THE PERSON.
[Parr V.
results from doing an unlawful act not constituting a felony,
the unlawfulness of the act separating them from cases of acci-
‘dental homicide, and the nature of the act as less heinous than
that of a felony, making them less than murder; and 3d, cases
of negligence where, although there was no intent to kill, there
was the doing or omission of an act, which doing or omission,
though not in itself wrongful, was attended with circumstances
endangering life. Blackstone designates the first of these classes
as voluntary and the last two as involuntary manslaughter.)
All these classes are characterized on the one hand by the pres-
ence of some wrong, and on the other by absence of malice
aforethought, so that a short definition of manslaughter would
be criminal homicide without malice aforethought.? This defi-
nition is sometimes embodied in statutes, in which case it is:
necessary to resort to the common law to determine what kill-
ings are and what are not within the definition.? Manslaughter
is not a degree of murder, but a distinct crime, included, how-
ever, in the crime of murder.‘
§ 336. Intentional killing, when manslaughter.— Intent
to kill or do great bodily harm does not necessarily make
homicide resulting murder. If it appears that by reason of
passion, caused by what is deemed an adequate provocation (to
be hereafter explained), the homicide is without malice afore-
thought, it is manslaughter only.» In such case “the law
pays that regard to human frailty as not to put a hasty and a
deliberate act upon the same footing with regard to guilt.” ®
Intentional homicide may be murder in either degree (as will
be hereafter explained), or it may be manslaughter; and the
14 Bl. Com. 191. As to voluntary
and involuntary, see, also, infra, § 368.
2 Rex v. Taylor, 2 Lewin, 215.
3 Hornsby v. S., 94 Ala, 55; S. v.
Shelledy, 8 Ia. 477; 8. v. Moore, 25 Ta.
128; 8S. v. Abarr, 39 Ia, 185; S. v.
Hockett, 70 Ia, 442.
48. v. White, 45 Ia, 825. As to as-
sault to commit manslaughter, see
supra, § 278.
5P. v, Freel, 48 Cal. 486; P. v. Doy-
ell, 48 Cal. 85; P. v. Kernaghan, 72
Cal. 609; C. v. Drum, 58 Pa. St. 9;
Brown v. C., 86 Va. 466; Hoss v. S.,
18 Ind. 349; Dennison ‘v. 8., 13 Ind,
510; Murphy v. §., 31 Ind. 511; Exp.
Moore, 30 Ind. 197; S. v. Cooper, 71
Mo. 436; Erwin v. S., 29 Ohio St. 186;
Burden vy. 'P., 26 Mich. 162; S. v.
Decklotts, 19 Ia. 447; S. v. Spangler,
40 Ta. 365; Quarles v. S., 1 Sneed,
407; Perry v. S., 43 Ala. 21; Hinton
v. &, 24 Tex. Ap. 454; S. v. Anderson,
1 Houst. Cr. C. 88.
64 Bl Com, 191; P. v. Freel, 48
Cal. 436; Preston v. S., 25 Miss. 383.
In such case the law imputes the
homicide to inherent frailty, instead
of malice or formed design: Smith
v. S., 83 Ala, 26,
804
Cu. 18.] HOMICIDE. [8§ 337, 338.
difference in such case between murder in the second degree
and manslaughter is not in the intention with which the injury
is inflicted, but in the fact that in manslaughter the act is done
under heat of blood upon provocation.! If done under such
circumstances, although not justifiable or excusable, the homi-
cide is deemed to be without malice and therefore man-
slaughter.’
§ 337. Provocation.—In general, provocation consists in
circumstances of such nature as are calculated to produce and
do produce such excitement and passion as might obscure the
reason of an ordinary man, and render him liable to do the act
which causes the homicide.’ Some cases seem to make it sim-
ply a question whether the circumstances would, in a reasonable
person, create heat of blood or passion;* but as to some partic-
ular classes of cases the law has determined what is and what
is not a sufficient provocation.
§ 338. What sufficient.— Mere words or gestures, no matter
how insulting, opprobrious, or abusive, are not sufficient to re-
duce an intentional killing to
18, v. Spangler, 40 Ia. 365; S. v.
Decklotts, 19 Ia. 447; S. v. Ellis, 74
Mo. 207; S. v. Hoyt, 13 Minn. 182.
2Nye v. P.,35 Mich. 16. The prov-
ocation reduces the homicide to
manslaughter, but does not render
fit’ justifiable or excusable: S. v.
Vance, 17 Ia. 138,
3Maher v. P., 10 Mich. 212; S. v.
Hoyt, 18 Minn. 182; Seals v. S, 3
Baxt. 459; S. v. Rhodes, 1 Houst. Cr.
‘C. 476. The passion contemplated is
some emotion of the mind, such as
anger, rage, sudden resentment, or
terror rendering it incapable of cool
reflection: Boyett v. S., 2 Tex. Ap.
93. Provocation does not excuse or
justify, it only mitigates: S. v. Mur-
phy, 61 Me. 56. But a charge to such
effect may be misleading as exclud-
ing self-defense: Smith v. S., 68 Ala.
424,
4Maher v. P., 10 Mich. 212; Seals
v. S&S, 3 Baxt. 495; S. v. Zellers, 7
N. J. 220; Murray v. S.,- 85 Ga. 378.
Thus, abuse of and assault upon a
20
manslaughter.’ Mere trespass
married daughter by her husband
may constitute sufficient provoca-
tion to mitigate the killing of the hus-
band by the father: Campbell v. C.,
88 Ky. 402. One who, on seeing his
friend shot down, kills the slayer in
sudden passion caused thereby, is
guilty of manslaughter only: Moore
v. S., 26 Tex. Ap. 322. But the kill-
ing of a friend will not be sufficient
provocation if not done in defend-
ant’s presence: S. v. Gut, 13 Minn.
341. The fact that the deceased was
drunk when he uttered insulting
words may be considered in deter-
taining whether such words would
palliate an assault upon him by the
other party: Harris v. S., 34 Ark.
469.
5 Steffy v. P., 180 Ill. 98; S. v.
Levelle, 34 S. C. 120; S. v. McNeill,
92 N. C. 812; S. v. Carter, 76 N. C.
20; Jackson v. S., 77 Ala. 18; Exp.
Brown, 65 Ala. 446; Smith v. S&,
108 Ala. 4; Johnson v. S., 102: Ala.
1; P. v. Turley, 50 Cal. 469; P. v.
805
§ 338.]
5
OFFENSES AGAINST THE PERSON.
[Parr V.
to property will not be sufficient.! The provocation should be
sudden and sufficiently great, that is, calculated to exasperate,
both in its character and in respect to the person against whom
it is directed.2 In general, a blow or other personal: violence
is sufficient. But circumstances may affect the question by
indicating whether or not the blow was such as would arouse
uncontrollable passion in an ordinary person.‘ The sufficiency
Murback, 64 Cal. 369; P. v. Biggins,
65 Cal. 564; P. v. Butler, 8 Cal. 435;
Malone v. S., 49 Ga. 210; Bird v. 8.,
55 Ga. 317; Ross v. S., 59 Ga. 248;
Hawkins v. S., 25 Ga. 207; Fry v. S.,
81 Ga. 645; S. v. Hockett, 70 Ia. 442;
S. v. Berkley, 109 Mo. 665; S. -v. Mar-
tin, 124 Mo. 514; S. v. Buchanan, 1
Houst. Cr. C. 79; S. v. Draper, 1
Houst. Cr. C. 531; Rapp v. C., 14 B.
Mon, 614; Wall v. S&S, 18 Tex. 682;
S. v. Fuentes, 5 La, An. 427; S. v.
Leonard, 6 La. An. 420. There must
be personal violence or injury and
not mere words or gestures: Beau-
champ v. S., 6 Blackf. 299; Reg. v.
Welsh, 11 Cox, 336; Rex v. Oneby, 2
Stra. 766. By statute in Georgia
threats are not sufficient: Jackson
v. 8. 45 Ga. 198; Freeman v. S., 70
Ga. 736. Disgraceful conduct on the
part of a wife, though long contin-
ued, will not constitute such provo-
cation as to reduce the act of the
husband in killing her to man-
slaughter: Murphy v. P., 9 Colo. 435.
18. v. Zellers, 7 N. J. 220; S. v.
Buchanan, 1 Houst. Cr. C. 79; 8. v.
Woodward, 1 Houst. Cr. C. 455. But
where a person armed with a club
enters upon the premises of an-
other in a threatening manner and
provokes the quarrel, in the excite-
ment of which the other with a
stick fells the aggressor, inflicting a
wound from which he dies, itis at
most manslaughter: Silgar v. P.,,
107 Ill. 563. Where deceased having
violently assailed defendant and fol-
lowed him up into his own house in
a threatening manner, the act of de-
fendant in taking his life after he
had ordered him to stop before en-
tering the house will not constitute
more than manslaughter: Hurd v.
P., 25 Mich. 405. Attempt to unlaw-
fully seize property under a mort-
gage without warrant may consti-
tute provocation although the owner
does not resort to all other available
means of preventing the seizure be-
fore taking life: Ledbetter v. S., 26.
Tex. Ap. 22,
2 Flanagan v. S., 46 Ala. 703.
38. v. Branstetter, 65 Mo. 149;
Exp. Warrick, 73 Ala. 57; Nichols
v. C., 11 Bush, 575. The blow need
not be one endangering life: S. v.
Sizemore, 7 Jones, 206. Opprobrious
and insulting epithets accompany-
ing the offer of personal violence
may make it sufficient: S. v. Um-
fried, 76 Mo. 404. It is error to
charge that in all cases there must
be some actual assault: Mack v.
S., 63 Ga. 693; Reg. v. Smith, 4F. &
F. 1066. One who is not assaulted,
but voluntarily interposes in a fight
between others, and purposely using
a dangerous weapon causes death, is
guilty of murder: Johnston’s Case,
5 Grat. 660,
4Stewart v. S., 78 Ala. 436; Nich-
ols v. C., 11 Bush, 575. Personal re-
straint or a slight blow, proper under
the circumstances, will not consti-
tute provocation: Thompson v. S.,
55 Ga. 47; Holmes v. S., $8 Ala. 26;
Rex v. Willoughby, 1 East, P. C. 288.
So it is not every slight provocation
306
Cu. 18.] HOMICIDE.
[§ 339.
of the provocation does not depend alone on whether it act-
ually caused passion and heat of blood in the defendant, but
also on whether it was calculated to cause such state of mind
in a reasonable person,! that is, there must be an adequate
cause.” The terms “reasonable” or “lawful” or “adequate”
or “sufficient” or “legal” may be used in describing the prov-
ocation which will be sufficient? The nature of the weapon
or method of injury must be considered in determining the
adequacy of the provocation. It will require great provoca-
tion to mitigate a homicide committed with a deadly weapon.‘
§ 339. Quarrel; mutual combat; tumult. — It would seem
from the authorities cited in the notes to the preceding sec-
tion that a mere quarrel with words will not constitute a
provocation extenuating an intentional killing, although such
circumstances might extenuate an assault and battery not in
its nature calculated to cause death, but which by accident re-
sults fatally, so that the homicide would be only manslaughter.
In general, however, a quarrel leading to a fight with deadly
weapons, in the gourse of which death is caused in passion, will
reduce the homicide to manslaughter.’ But even if the combat
which will mitigate killing with a
deadly weapon to mauslaughter:
Rex v. Lynch, 5 C. & P. 324. But if
the provocation is sufficient it is im-
material how violent and dispropor-
tionate was the defendant’s act.
Degree of force does not constitute
an element in determining: whether
the crime is manslaughter or not:
Beaty v. S., 30 Tex. Ap. 677.
1Davis v. P., 114 Ill. 86; Maher v.
P.,.10 Mich. 212; Reese v. S., 90 Ala.
624; Preston v. S., 25 Miss. 383; S. v.
Shippey, 10 Minn. 223; Reg. v. Welsh,
11 Cox, 836. It is not the fact that
the blow is given in passion, but
rather that there is provocation for
such passion, that reduces it to man-
slaughter: S. v. Ellis, 74 Mo. 207;
Reg. v. Noon, 6 Cox, 187; Smith v.
S., 49 Ga. 482, In Texas the statute
describes an assault and battery,
severe pain, or bloodshed as an ade-
quate cause constituting a provoca-
tion: Tickle v. S, 6 Tex. Ap. 623;
Reed v. S.,9 Tex. Ap. 317. But other
adequate causes aside from those
described may be considered: Ruth-
erford v.S., 15 Tex. Ap. 236; Will-
iams v. S., 15 Tex. Ap. 617; Wadling-
ton v. S., 19 Tex. Ap. 266; Bonner v.
S., 29 Tex. Ap. 223. ;
2 McKinney v. 8., 8 Tex. Ap. 626;
P. v. Bruggy, 93 Cal. 476.
38. v. Ellis, 74 Mo. 207; S. v. Smith,
10 Rich. 341.
4S. v. Shippey, 10 Minn. 223; S. v.
Hoyt, 13 Minn: 132. ‘
58. v. McDonnell, 32 Vt. 491;
Golden v. S., 25 Ga. 527; S. v. Rob-
erts, 1 Hawks, 349; S. v. Floyd, 6
Jones, 392; Atkins v. S., 16 Ark. 568;
U.S. v. Mingo, 2 Curtis, 1; S. v. Cos-
ten, 1 Houst. Cr. Cas. 340; S. v.
O’Neal, 1 Houst. Cr. Cas. 58. But
the homicide may be such as to show
an intention of killing regardless of
provocation and constitute murder:
P, v. Sanchez, 24 Cal. 17; S. v. Gooch,
94 N. C. 987; McAllister v. T., 1 Wash,
807
§ 339.] [Parr V.
OFFENSES AGAINST THE PERSON.
is not with deadly weapons, and one takes the life of the other
in sudden heat,! even with the use of a deadly weapon, it is
still only manslaughter.2 No matter how disproportionate the
violence is to the provocation (provided the provocation is
such as is calculated to cause heat of blood and does cause it),
the homicide will be manslaughter only. One who brings on
or voluntarily enters into an affray or combat cannot, as has
already been said, justify the taking of life in self-defense in
the continuance thereof, although his life may be put in peril;
but if he does thus kill he is guilty of manslaughter and not
murder. So one is not excused in killing after a murderous
assault on bim is discontinued,® but his act, if in heat of blood,
will be manslaughter only.”. The assembling of persons for
the purpose of charivari, accompanied with tumult and con-
fusion, has been held sufficient provocation to those annoyed
and insulted by it to reduce a homicide, caused by firing into
the crowd, from murder to manslaughter.’ But it has also
360; Rex v. Shaw, 6 C. & P. 372.
And further as to killing which is
not the result of provocation, al-
though following the provocation,
see infra, § 342.
18. v. Miller, 112 N. C. 878; Will-
jams v. S., 25 Tex. Ap, 216.
2Silgar v. P., 107 Ill. 563; Perkins
v. S 78 Wis. 551; Smith v. S., 73
Ga. 81; Battle v. S, 92 Ga. 465;
Patterson v. S., 66 Ind. 185; S. v.
Murphy, 61 Me. 56; 8S. v. Hender-
son, 24 Oreg. 100; Tate v. S., 46 Ga.
148; S. v. Massage, 65 N. C. 480;
Allen v. S., 5 Yerg. 453; S. v. Levigne,
17 Nev. 485; Bonnard v. S., 25 Tex.
Ap. 178; Carter v. S., 30 Tex. Ap.
551; S. v. Davis, 1 Houst. Cr. Cas. 13;
Rex v. Snow, 1 East, P. C. 244; Rex
v. Taylor, 5 Burr. 2798; Rex v. An-
derson, 1 Russ., C. & M. 731; Rex v.
Ayes, Russ. & Ry. 166; Rex v. Ran-
kin, Russ. & Ry. 43; Rex v. Kessal,
1C. & P. 487. For a construction of
the Georgia code provision as to
mutual combat, see Hinch v. 5., 25
Ga. 699.
3 Judge v. S., 58 Ala. 406; Kelly v.
S., 68 Miss. 348; S. v. Blunt, 91 Mo.
503; McGuffie v. S., 17 Ga. 497; S. v.
Curry, 1 Jones, 280; S. v. Ramsey, 5
Jones, 195; Cotton v.S., 31, Miss. 504;
Holly v. S10 Humph. 141; Frank-
lin v. S&S, 80 Tex. Ap. 628; Rex v.
Thomas, 7 C. & P. 817. If the occa-
sion is sudden, the blood heated and
the killing during actual combat, it
is manslaughter: S. v. Havercamp,
54 Ia. 250. But an actual struggle
is not conclusive. Other facts may
show malice or its absence: S. v.
White, 30 La. An., pt. I, 364; Coch-
ran v. §., 28 Tex. Ap. 422; Bracken
v. S., 29 Tex. Ap. 362,
4See supra, § 309.
5S. v. Davidson, 95 Mo, 155; S. v.
Partlow, 90 Mo. 608; Kinney v. P.,
108 Ill, 518; Childers v. S., 33 Tex.
Ap. 509; Wallace v. U.S., 162 U.S. 466..
But if the act is unnecessary and in-
tentional, even after retreating, it is
murder: §. v. Scott, 4 Ired. 409.
6 Supra, § 308.
78, v. Gaskins, 93 N. C. 547.
38. v. Adams, 78 Ia. 292. Evidence
that chiravaris were customary in
308
Cu. 18.] HOMICIDE. [§ 340.
been said that the fact that a homicide occurs in a melee does
not necessarily reduce it below murder.! One who, not a party
to a combat, interferes therein, cannot claim heat of blood as
mitigating his act of homicide to manslaughter If a murder-
ous blow is dealt under such circumstances that the death of
the person against whom it is directed would be manslaughter
only, the death of a by-stander caused thereby will be of no
higher degree.’ Cases where the killing of a master by a
slave were held to be reduced by provocation arising from tle
master’s acts to manslaughter are cited in the note.‘
§ 340. Resisting unlawful arrest.-- A homicide committed
in resisting unlawful arrest is manslaughter and not murder.’
The reason of this seems to be that an unlawful arrest is deemed
such a provocation as is likely to cause heat of blood in an or-
dinary person, and therefore the homicide is manslaughter only.’
Some cases seem to announce the doctrine that, if the attempted
arrest would be illegal, the homicide committed in resisting it
will be manslaughter only, although the resistance was with a
deadly weapon prepared beforehand for the purpose,’ and al-
though resistance is made with unnecessary violence.’ Other
cases make an exception where the killing is with express
the neighborhood is inadmissible to
increase the provocation: Minaghan
v. 8, 77 Wis. 643.
1S$mith v. S., 88 Ala. 73; Patten v.
P., 18 Mich. 314.
2 Johnston’sCase, 5Grat. 660. And
see note to § 342. But where defend-
ant, on seeing his friend shot down,
had, in sudden passion resulting
therefrom, killed the slayer, held, that
he was guilty of manslaughter only:
Moore v. S., 26 Tex. Ap. 322.
3Rex v. Brown, 1 East, P. C. 231,
245, 274.
48. v. Will, 1 Dev. & B. 121; S. v.
Brodnax, Phill. 41; S. v. Caesar, 9
Ired. 391; Maria v. S., 28 Tex. 698.
5C. v. Drew, 4 Mass. 391; Rafferty
v. P., 72 Ill. 37; Ballard v. 8., 43 Ohio
St. 340; Roberts v. S., 14 Mo. 138;
Harrison v. S., 24 Ala. 67; Poteete v.
S., 9 Baxter, 261; S. v. List, 1 Houst.
Cr. Cas. 1383; Ross v. 8., 10 Tex. Ap.
455; Reg. v. Phelps, Car. & M. 180;
Rex v. Addis, 6 C. & P. 888; Rex v.
Davis, 7 C. & P. 785; Rex v. Withers,
1 East, P. C. 295, 360; Rex v. Curvan,
1 Moody, 132. Unless attended with
cruelty and barbarity: 8. v. Craton,
6 Ired. 164. Homicide in attempting
to escape from an officer holding in
custody under an unlawful arrest is
only manslaughter: Goodman v. S.,
4 Tex. Ap. 349. So, homicide by ac-
cident in unlawfully attempting to
arrest another will be manslaughter:
See infra, § 347.
6Foster, 312; 1 Bish. Cr. L., sec.
868 (2).
7C. v. Carey, 12 Cush. 246; Rex v.
Thompson, 1 Moody, 80. Contra,
Rex v. Patience, 7 C. & P. 775.
8Brown v. U. S., 159 U. S. 100;
Ross v. S., 10 Tex. Ap. 455.
309
§ 341.] OFFENSES AGAINST THE PERSON. [Part.V.
malice,! and other cases go even further in making exceptions
to the rule and refuse to consider as sufficient mitigation an
illegal arrest which is unaccompanied by any imminent dan-
ger? If the party threatened with arrest has reason to believe
and does believe the arrest to be legal, homicide committed in
resistance will be murder, as the circumstances negative pas-
sion.’ Therefore mere error in the process will not reduce the
killing to manslaughter.‘
§ 341. Wife in adultery; insults to females, etc.— Where
the husband discovers another with his wife in the act of com-
mitting adultery, the killing of either of them, as the result of
the sudden passion thus aroused, will be manslaughter, the cir-
cumstances being deemed to constitute a sufficient provoca-
tion’ But it isonly when the husband has detected the parties
in the very act that the provocation will be deemed sufficient.
If a homicide is the result of previous knowledge of adulterous
relations,’ and after some time has elapsed,’ or upon suspicion
1Rafferty v. P., 69 Il. 111; S v.
Holcomb, 86 Mo. 371.
2Noles v. S&., 26 Ala. 31; Galvin v.
8., 6 Coldw. 283. But if the threatened
illegal arrest is with violence and a
show of deadly weapons, homicide
in resistance will be manslaughter
only: P. v. Burt, 51 Mich. 199,
3Ex parte Sherwood, 29 Tex, Ap. 384,
But in a proceeding in a case in the
same court it was said that the law-
fulness of the arrest, not the infor-
mation of the accused respecting its
legality, was the criterion in connec-
tion with the character of the means
used to effect the arrest upon the
one hand and those used to resist it
upon the other: Alford v. 8., 8 Tex.
Ap. 545.
4Mackaley’s Case, Cro. Jac. 279.
But if the warrant is issued in blank
and afterwards filled in by the offi-
cer, the arrest under it will be so far
illegal that homicide in resistance
will be manslaughter only: Rafferty
v. P., 69 TIL 111; Rex v. Hood, 1
Moody, 281.
5Shufflin v. P., 62 N. ¥. 229; Gal-
vin v. S, 6 Coldw. 283; Pearson’s
Case, 2 Lewin, 216; Manning’s Case,
T. Raym. 212; 3 © (Ss. N., Maddy’s
Case), Ventr. 158.
8S. v. France, 76 Mo. 681; Hooks
v. 8., 99 Ala, 166; Reg. v. Kelly, 2C.
& K. 814, In a prosecution of a hus-
band for killing his wife, evidence
of infidelity on the part of the wife,
unknown to the husband, is not ad-
missible: P. v. Osmond, 138 N. Y. 80.
One who is employed by the hus-
band to watch the wife and detect
her in adultery is guilty of murder
in killing her paramour, although he
detects the parties in the act: P. v.
Horton, 4 Mich. 67. While perhaps
a father, seeing a person committing
an unnatural offense with his son,
will be guilty of manslaughter only
if he kills instantly, he would be
guilty of murder if, hearing of such
conduct, he goes in search of the
person and kills him: Reg. v. Fisher,
8C. & P. 182.
78, v. Pratt, 1 Houst. Cr. Cas, 249;
Alfred v. S., 87 Miss. 296.
8 Sanchez v. P., 22 N. Y. 147; S. v.
310
Cx. 18.] HOMICIDE.
[§ 341.
producing a frenzy,! or after preparation and lying in wait,?
the offense will be murder. The fact that deceased has been
criminally intimate with defendant’s wife’s sister is not suffi-
cient provocation to reduce the homicide to manslaughter? In
another case it is said that obscene language used in the pres-
ence of defendant’s family in connection with other vexatious
conduct could be taken into account in determining whether
the circumstances were calculated to produce and did produce
such excitement and passion as would obscure the reason of an
ordinary man.‘ So the resentment felt by the father on seeing
his daughter violently assailed by her husband was held suffi-
cient provocation to reduce the killing of the latter by the
father to manslaughter.’ In Texas, by statute, insulting words
to a female relative may constitute such provocation as to re-
duce a homicide in consequence thereof to manslaughter.®
Samuel, 3 Jones, 74; S. v. Neville, 6
Jones, 423; S. v. John, 8 Ired. 330;
S. v. Herrell, 97 Mo. 105; McNeill v.
8. 102 Ala. 121; Sawyer v. S, 35
Ind. 80; Pickens v. S., 31 Tex. Ap.
554 By statute in Texas the provo-
cation will be sufficient if the kill-
ing is upon first learning of the fact:
Paulin v. S., 21 Tex. Ap. 436.
1Sanchez v. P., 22 N. Y. 147; S. v.
Avery, 64 N. C. 608.
2 Breedlove v. S., 26 Tex. Ap. 445.
See, also, as to killing to prevent the
commission of adultery, supra, § 299.
3S. v. Hockett, 70 Ia. 442. And see
as to killing a man who appeared to
have committed adultery with de-
fendant’s sister, but where the homi-
cide seemed to have been deliber-
ately planned: Lynch v. C.,77 Pa.
St. 205. Improper conduct on the
part of a wife living apart from her
husband will not constitute such
provocation as to reduce his act in
killing her to manslaughter: S. v.
Bulling, 105 Mo. 204.
4 Seals v. S., 3 Baxt. 459.
5 Reg. v. Harrington, 10 Cox, 370.
6The statute covers insulting
words used concerning a female rel-
ative who is absent, as well as such
words used in the presence of such
relative: Hudson v. S., 6 Tex. Ap.
565; Niland v. S., 19 Tex. Ap. 166.
To be excusable, the homicide must
be immediately upon the happening
of the conduct or utterance of the
language, or on the first meeting
after being informed of the insult:
Evers v. S., 31 Tex. Ap. 318; Orman
v. S., 22 Tex. Ap. 604; Norman v. S.,
26 Tex. Ap. 221; Howard v. S., 23
Tex. Ap. 265; Melton v. S., 24 Tex.
Ap. 47; Pitts v. S., 29 Tex. Ap. 374
And it must appear that the fact
of the insult had become known to
defendant: Gibson v. S., 23 Tex. Ap.
414; or that defendant believed the
insult to have been given, even
though it had not been given in fact:
Jones v. S., 33 Tex. Ap. 492. It must
also appear that the killing was the
result of the provocation: Hill v. 8,
5 Tex. Ap. 2; Eanes v.S.,10 Tex. Ap.
421; Ex parte Jones, 31 Tex. Ap. 422;
Richardson v. S., 28 Tex. Ap. 216.
It is immaterial what length of time
had elapsed between the reception
of the information and the meeting:
Jones v. S., 33 Tex. Ap. 492. The
statute provides that any female
under the permanent or temporary
311
ia
§ 342.) OFFENSES AGAINST THE PERSON. [Parr V.
§ 342, Homicide irrespective of provocation.— The theory
of these various kinds of provocation is that heat of blood has.
been produced by circumstances which would produce such
condition in the mind of a reasonable person and that the homi-
cide is the result thereof. But unless the provocation does
cause heat of blood, which exists at the time of the commission
of the homicide,? then the offense is not mitigated to man-
slaughter. If it appears that the moving cause of a homicide
was revenge and not an insult,’ that is, that the homicide was
the result of express malice, notwithstanding the provocation,*
the offense will be murder. If a former threat or grudge is the
cause of the homicide, it will be immaterial what provocation
immediately preceded the killing.’ So, if one goes into the
combat with a preconceived purpose of taking life, as shown
by his having provided himself with a deadly weapon, and thus
with an undue advantage,’ or prepares to kill in anticipation of
protection of the slayer at the time
of the killing shall be included
within the meaning of the term “re-
lation,” and held that the difference
between the case of an actual rela-
tion and that of the statutory rela-
tion of protection is that in the latter
case the killing must occur while
the female is still under the protec-
tion of the slayer: Ex parte Jones,
31 Tex. Ap. 422. During the life-
time of a man’s wife her daughter
is his female relation: Clanton v.58.,
20 Tex. Ap. 615. To call one a “son of
a bitch” is not within the statute as
to insulting words towards a female
relative: Simmons v. §., 23 Tex. Ap.
6538; Levy v. S., 28 Tex. Ap. 203;
Shields v. S.,89 Ga. 549. One woman
killing another for insulting words
about herself does not make a case
within the statute: Moore v. S., 33
Tex. Ap. 351, Insult to a male rel-
ative, however infirm or closely re-
lated, is not within the statute: Ex
parte Jones, 31 Tex. Ap. 422.
18, v. Talmadge, 107 Mo. 548. Thus,
one who as a volunteer engages in
an affray between others and com-
mits homicide is guilty of murder.
As to him there is no provocation:
Conner v.S., 4 Yerg. 186; Johnston’s
Case, 5 Grat. 660; P. v. Cole, 4 Parker
Cr. R. 35; Holland v. S., 12 Fla, 117.
28. v. Ellis, 74 Mo. 207; Roman v.
S., 41 Wis. 312.
3Escareno v. S., 16 Tex. Ap. 85.
48. v. Pankey, 104 N. C. 840; S. v.
Lane, 4 Ired. 113; §. v. Nelson, 101
Mo. 464; S. v. Gee, 85 Mo. 647; Mc
Neill v. S., 102 Ala. 121; Miles v. S.,
18 Tex. Ap. 156; Reg. v. Kirkham, 8
C. & P. 115; Rex v. Mason, 1 East,
P. C. 289: Reg. v. Selten, 11 Cox,.674.
5 Riggs v. S., 80 Miss. 685; Pickens
v. S., 61 Miss. 52; S. v. Johnson, t
Tred. 354; C. v. Mosler, 4 Pa. St. 264;
8. v. Downham, 1 Houst. Cr. Cas. 45;
Boyett v. S.,2 Tex. Ap. 98.
6S. v. Dunn, 80 Mo. 681; S. v.
Christian, 66 Mo. 188: Scales v. S.,
96 Ala. 69; Kennedy v. S., 85 Ala.
826; S. v. Ferguson, 2 Hill (S. C.), 619;
S. v. Kearley, 26 Kan. 77; Rex v.
Whiteley, 1 Lewin, 173; Rex v. Kes-
sal, 1 C. & P. 437. But the mere fact.
of the possession of a deadly weapon
will not be sufficient to show such
purpose: Reg. v. Smith, 8 C. & P.
160; Atkins v. S., 16 Ark. 568. Arm-
812
vee
Cu. 18.] HOMICIDE. [§ 343.
unlawful arrest,! or where the circumstances otherwise show a
premeditated design to take life,? or where the act is cowardly
and unmanly,’ the homicide will be murder. If there is re-
flection or deliberation, the law does not measure the length of
time, but pronounces the offense murder.‘ If the slayer acts
coolly and vengefully, or with violence out of all proportion to
the provocation, the offense will be murder, although the kill-
ing immediately follows the provocation.’ If one party to.a
conflict retreats and the other follows him up and kills him, it
is murder.® But the law will not presume a homicide to be the
result, of previous malice where an adequate provocation ap-
pears.’ The question whether the homicide is in pursuance of
previous malice or of passion pene by the provocation is
for the jury.’
§ 343. Cooling time.— The preceding discussion has shown
that homicide under provocation is reduced to manslaughter
on account of the heat of passion thereby engendered, which,
out of charity to the weakness of human nature, is assumed to
deprive the killing of that malignant character which would
otherwise be supposed to exist and to constitute malice afore-
thought. And it has also appeared that the provocation must
be such as would have influenced a reasonable person, and that
the killing must be the result of passion. Therefore, if such time
has elapsed after the provocation as that a reasonable person
would have regained self-control, then the act must be deemed
malicious and not the result of the provocation, and, therefore,
murder. In other words, if there has been sufficient time for
ing for a proper self-defense willnot 5S. v. Boon, 82 N. C. 637; S. v. Snell,
prevent a subsequent intentional 78 Mo. 240; S. v. Scott, 36 W. Va. 704.
killing on provocation beingreduced 6S. v. Howell, 9 Ired. 485; Green
to manslaughter though not in self- v.S., 45 Ark. 281. So where the as-
defense: Gourko v. U. S., 153 U.S. sailed, after the assailant was dis-
183; Allen v. U. S., 157 U. S. 675.
1Rafferty v. P., 72 ILL 37; Miller v.
S., 32 Tex. 319.
2Lynch v. C., 77 Pa. St. 205; Ex
parte Nettles, 58 Ala. 268. So if
there is a mutual intention to kill:
Bonnard v. S., 25 Tex. Ap. 173.
3C. v. Mosler, 4 Pa. St. 264; S. v.
Kloss, 117 Mo. 591.
4Ex parte Brown, 65 Ala. 446.
abled by a blow, gave another fatal
blow unnecessarily, the homicide
was held to be murder: P. v. Beck-
with, 103 N. Y. 360.
18. v. Barfield, 7 Ired. 299; 8. v.
Horn, 116 N. C. 1037; Copeland v. S.,
7 Humph, 479; Murray v. S&S, 1 Tex.
Ap. 417.
8 Bolzer v. P., 129 IIL. 112; Meuly v.
S., 26 Tex. Ap. 274,
313
§ 344.] OFFENSES AGAINST THE PERSON. [Parr V.
the passion to cool, the provocation will not mitigate a subse-
quent killing to manslaughter.' The question is not whether
the blow was actually struck in a continuance of the passion,
but whether there had been a reasonable time for the passion
to cool in the case of an ordinary person, or whether the de-
fendant did actually commit the homicide in cold blood.’ This
must depend on the circumstances of the case, and is a question
for the jury... There are cases which seem to make the ques-
tion as to whether there has been sufficient time to cool one
for the court and not the jury;‘ but these cases, as well as
others holding that the question of the sufficiency of the provo-
cation is for the court, seem to be capable of a different inter-
pretation.» In the note are given cases in which the question
of the sufficiency of time under particular circumstances is dis-
cussed. Whether the time for cooling has been sufficient will
not be affected by the fact that defendant was intoxicated.’
§ 344. Sufficiency of provocation as affected by intoxica-
tion or insanity of defendant, character of deceased, ete.—
It has already been said that the provocation must be such as
would cause heat of blood in an ordinary person; therefore, the
fact that defendant was intoxicated will be immaterial on the
question of the sufficiency of the provocation.’ But where
the question is not whether there was adequate provocation,
18, v. Kotovsky, 74 Mo. 247; Ach-
ey v. S., 64 Ind. 56; McNeill v. S.,
102 Ala, 121; Fitzpatrick v. S. 37
Ark. 238; Rex v. Hayward,6 C. & P.
157; Rex v. Oneby, 2 Stra. 766. But
if the homicide is in a continuing
general affray, it will be recognized
that the opportunity for cooling does
not occur and that the provocation
continues: P. v. Curtis, 52 Mich. 616.
2P, v. Sullivan, 7 N. Y. 396; S. v.
Crayor, 89 Mo. 600; 8. v. McCants, 1
Spears, 384; S. v. Holmes, 12 Wash.
169.
3 Maher v. P., 10 Mich. 212; Fergu-
son v. §.,49 Ind. 83; Kilpatrick v. C.,
31 Pa. St. 198; S. v. Yarborough, 39
Kan. 581; T. v. Bannigan, 1 Dak. 482,
4Rex v. Oneby, 2 Strange, 766; Reg.
v. Fisher, 8 C. & P. 182; S. v. mnoESs
69 N. C. 267,
5 See infra, § 345.
®Hurd v. P., 25 Mich. 405; Mce-
Whirt’s Case, 3 Grat. 594; Cates v.
8., 50 Ala. 166; Ex parte Moore, 30
Ind. 197; S. v. Moore, 69 N. C. 267;
T. v. Bannigan, 1 Dak. 451. The
court may instruct that an interval
of three days is sufficient, but if the
time is short the question should be
left to the jury: Rockmore v. S., 93
Ga. 123.
7C, v. Hawkins, 3 Gray, 463. Fur-
ther, as to whether the intoxicated
condition of defendant can be con-
sidered in determining the suffi-
ciency of the provocation, see the
next section.
8C. v. Hawkins, 3 Gray, 463; a
v. 8, 11 Tex. Ap. 544,
314
Cu. 18.] ‘HOMICIDE. [S§ 345, 346.
but whether the defendant acted under the provocation or in
cold blood, evidence of his intoxication is admissible as tending
to show that he acted in passion.’ Violent character of de-
ceased, not known to defendant, is not admissible under the
question of provocation.? .
§ 345. Question of law or fact.— It is sometimes said that
the question as to the sufficiency of the provocation is for the
court;* but it will be found on examining these cases that what
is meant in most of them is, either that the sufficiency of the
provocation to affect an ordinary person and not the idiosyn- °
erasy of defendant in this respect is the legal test,‘ or that
where there is no legal evidence of provocation the court may
disregard that issue.© The reasonable view seems to be that,
under proper instructions as to what will constitute sufficient
provocation, the question of its existence and whether defend-
ant acted under it is for the jury.®
§ 346. Burden of proof; sufficiency of evidence.— While
it is sometimes said that the burden of proving extenuation,
such as will reduce a homicide to manslaughter, is upon de-
fendant,’ yet it appears that what is meant by such statement
is simply that, where no extenuating circumstances are indi-
cated in the evidence offered by the defendant or in the evi-
dence offered by the prosecution, the jury should not merely
on conjecture, without evidence, find the defendant guilty of
manslaughter instead of murder.’ It is not necessary that
the extenuating facts should be affirmatively proved by de-
1. v. McCants, 1 Spears, 384. And 4Small v. C., 91 Pa, St. 304; Lynch
see supra, § 162. v.C., 77 Pa. St. 205; Beauchamp v.
2C. v. Hilliard, 2 Gray, 294. But S., 6 Blackf. 299.
where homicide was committedina ‘Hillv.S, 11 Tex. Ap. 456; Lum
melee, held, that the violent and v.S., 11 Tex. Ap. 483; S. v. Nueslein,
bloodthirsty character of deceased 25 Mo. 111; 8. v. Moore, 69 N, C. 267;
might be taken into account inde- P. v. Estrado, 49 Cal. 171.
termining the degree of defendant’s 6 Crawford v. P., 12 Colo. 290; Par-
guilt: Smith v. 8., 88 Ala. 73. rish v. S., 18 Neb. 405; Vollmer v.S.,
3Lynch v. C., 77 Pa. St. 205; S.v. 24 Neb. 838; Mackey v.S., 18 Tex. Ap.
Craton, 6 Ired. 164; Rex v. Oneby, 2 360; Meuly v. S., 26 Tex. Ap. 274;
Strange, 766; Reg. v. Fisher, 8 C. & Dennison v. S., 13 Ind., §10; Reg. v.
P. 182; S. v. Moore, 69 N. C. 267; Eagle, 2F. & F. 827.
S. v. Sizemore, 7 Jones, 206; 8 v. 7P, v. Gibson, 17 Cal. 283.
Jones, 20 Mo. 58; S. v. Dunn, 18 Mo. 8U. 8. v. Armstrong, 2 Curtis, 446.
619; S. v. Nueslein, 25 Mo. 111; 8. v.
Ellis, 74 Mo. 207.
815
§ 347.] [Part V..
OFFENSES AGAINST THE PERSON.
fendant; it is sufficient if they appear from the evidence in-
troduced by the state. And therefore it is error to instruct
that the burden of proof is upon the defendant to establish
the mitigation and that he must do it by a preponderance of
evidence? If the jury are not convinced of the malice they
should convict only of manslaughter.’
§ 347. Unintentional killing in doing wrongful act; at-
tempted abortion.— The cases of manslaughter already dis-.
cussed are those where the killing is intentional, but under such
provocation as to indicate absence of malice and reduce the of-
fense to manslaughter. But there are also cases of unintentional
homicide amounting to manslaughter, just as there are of unin-
tentional homicide amounting to murder, the difference being
as to the magnitude of the wrong which was intended and from
which the death has resulted. Thus, if a wrongful blow is.
given, resulting in death, the act will not be less than man-
slaughter, even though the blow was one in its nature not
likely to cause death, or otherwise shown to have been inflicted
with intent to cause death. Death resulting from an act
wrongful per se, such as an attempt to procure an abortion,
where not necessary to save the life of the woman, will be man-
slaughter at least.2 So, if a man, in order to have unlawful
sexual connection with a woman, uses artificial means, from
1Reid v. 8., 50 Ga. 556.
2P. v. West, 49 Cal. 610; S. v. Mc-
Cluer, 5 Nev. 132. But if there is
no evidence in mitigation, such in-
struction will do the defendant no
harm: P. v. Ah Kong, 49 Cal.6. The
question as to presumptions and
burden of proof has already been
considered in connection with justi-
fication and excuse: See supra,
§ 316.
3Short v. S., 7 Yerg. 510.
4C. v. Woodward, 102 Mass. 155;.
P. v. Rector, 19 Wend. 569; Wellar
v. P., 30 Mich. 16; Sutcliffe v. S., 18
Ohio, 469; Rex v. Brown, 1 East, P. C.
231, 245, 274; Rex v. Conner, 7 C. &
P. 438; Rex v. Fray, 1 East, P. C. 236.
If a woman abandons her young in-
fant in a place where it is likely to
be found and taken care of, the re-
sulting death of the infant will be
manslaughter. But if the child is
left in a remote place where it is
not likely to be found, and death en-
sues, it will be murder: Reg. v.
Walters, Car. & M. 164.
5 Peoples v. C., 87 Ky. 487; Reg. v.
Gaylor, Dears. & B. 288. In some
states wilful killing of an unborn
quick child is manslaughter: See su-
pra, § 294. By statute in Wisconsin,
actual necessity, or the advice of
two physicians that such necessity
exists, must be shown to excuse the
act: Hatchard v. S., 79 Wis. 357, A
mere examination with a usual in-
strument, to determine pregnancy,
will not render a physician liable
for death resulting therefrom: S. v.
Reynolds, 42 Kan. 320,
316
Cu. 18.] HOMICIDE. [§ 347.
which death results, it is manslaughter.’ So, if one person
causes the death of another by an act which is in violation of
law, it will be manslaughter, although not shown to be wilful
or intentional? An officer, killing in making an unlawful
arrest, or having unwarrantably made an arrest in prevent-
ing escape, will be guilty at least of manslaughter.’ Where a
party placed an obstruction upon a railroad track, intending to
give information thereof, and thus secure a position as a re-
ward, and an accident resulting in death was caused by a train,
not expected by the wrong-doer, running into the obstruction,
the wrong-doer was held guilty of manslaughter.‘ Where a
trespasser was ejected from premises with unwarrantable vio-
lence, though not in a manner likely to cause death, but death
resulted, it was held to be manslaughter.> Where an unlawful
attempt was made to take a gun from/deceased, and he was ac-
cidentally killed, it was held to be manslaughter.’ So held,
also, where death of a gamekeeper was caused by a poacher
who unlawfully resisted the taking of his gun.’ Where an en-
counter was commenced by defendant by snatching the hat of
deceased in a rude or angry manner, it was held that death
subsequently resulting in the encounter from the act of defend-
ant, although by misadventure and not likely to ensue, rendered
defendant guilty of manslaughter.’ So, ifin a game one player
does an unlawful act causing the death of another, he is guilty
of manslaughter.® The distinction between these cases and
those of accident or misadventure, which are excusable homi-
cide, is the element of wrong or unlawfulness in the act done.”
But it is not every unlawful act from which death results that
will constitute manslaughter.
1§, v. Center, 85 Vt. 378.
2Cases under navigation laws:
U. S. v. Farnham, 2 Blatch. 528; U.S.
v. Keller, 19 Fed. R. 633; U. 8. v.
Holtzhauer, 40 Fed. R.'76. So death
resulting from pointing a gun at
another in sport is manslaughter
where the statute makes it a misde-
meanor to point a gun at another:
Henderson v. §., 98 Ala. 35. So where
one unlawfully discharges his pistol
in the street: Sparks v. C., 3 Bush,
111; P, v. Fuller, 2 Park. Cr. R. 16;
It is only where the unlawful
but this might be murder: See supra,
§ 326.
38S. v. Craton, 6 Ired. 164; C. v.
Drew, 4 Mass. 391; O’Connor v. S.,
64 Ga, 125; Alford v.8., 8 Tex. Ap.
545; as to this see, also, supra, § 298.
48. v. Brown, 1 Houst. Cr. C, 539.
5 Wild’s Case, 2 Lewin, 214.
6 Reg. v. Archer, 1 F. & F. 361.
7Reg. v. Skeet, 4 F. & F. 981.
8 Jenkins v. S., 82 Ala. 25.
2Reg. v. Bradshaw, 14 Cox, 83.
10 Johnson v. 8., 94 Ala. 35.
317
§ 348.] OFFENSES AGAINST THE PERSON. [Part V.
act is intentionally done, under such conditions as will be dan-
gerous to another. Therefore, held, that where defendant un-
lawfully sought to drive through a toll-gate without paying
toll, and the death of the toll-keeper resulted from his attempt-
ing to stop defendant’s horses, the act would not be manslaugh-
ter unless it should appear that defendant had reason to know
that an attempt on the part of the toll-keeper to stop the horses
would be dangerous.! So, where the mere civil wrong of throw-
ing a box, belonging to another, wantonly into the sea caused
the death of a bather, held, that unless there was negligence in
doing the act the homicide was not manslaughter.’
§ 348. Unlawful violence in doing lawful act.— In cases
where some force or violence is lawful, but not to the extent of
endangering life or threatening great bodily injury, death result-
ing from the force or violence used may be of any one of the
three grades of homicide. If no more force or violence is used
than is proper and death results by accident it will be excus-
able as by misadventure.’ If such violence is used as would
naturally cause death or great bodily harm, intent to kill will
be presumed and the offense will be murder.‘ But if, although
undue violence is used, the circumstances do not indicate an.
intent to cause death or great bodily harm, death resulting will
be manslaughter; that is, it will be homicide resulting from an
unlawful act not indicating an intent to cause death or commit
a felony. Thus, death resulting from unnecessary violence of
an officer making an arrest,> or from unreasonable chastise-
ment of a child by the father,® or by a schoolmaster,’ is man-
slaughter. Ifa child of such tender years as to not be capable
of appreciating correction is subjected to physical punishment.
and death results, it is manslaughter.’ The officers of a vessel
unreasonably punishing a seaman, and thus causing his death,
_ will be guilty of manslaughter.? So it is in case of an appren-
tice,” or a boy employed as a servant." There being no right
1Estell v. S., 51 N. J. 182. another person: Hill v. S11 Tex.
2 Reg. v. Franklin, 15 Cox, 163. Ap. 456.
3 Supra, § 300. 7 Reg. v. Hopley, 2 F. & F. 202
4 Supra, $§ 823, 325. 8 Reg. v. Griffin, 11 Cox, 402.
5 Doherty v. 8., 84 Wis. 152; Carter Reg. v. Leggett, 8 C. & P. 191.
v, §., 80 Tex. Ap. 551. 10Rex v. Friend, Russ. & Ry. 203
6 Anon., 1 East, P. C. 261; Rex v. Reg. v. Crumpton, Car.\é& M. 597.
Cheeseman, 7 C, & P. 455; or by Rex v. Wiggs, 1 Leach, 879.
318
Cu. 18.] HOMICIDE. [§ 349.
in Massachusetts in the husband to use violence in the correc-
tion of the wife, death resulting from such violent correction
will be at least manslaughter.! Excessive violence in self-
defense or in defense of another, which causes death, will be
manslaughter.’
§ 349. Death from negligence.— Where one by his negli-
gence has caused or contributed to the death of another he is
guilty of manslaughter.’ It is not necessary that there be
any intent or will concurring in the negligence or omission of
duty which causes death. If the act were intentional and
with a purpose of causing death the homicide would be mur-
der.’ Of course, under the general doctrine of combinations.
if the negligence of others as well as that of defendant has
contributed to the result, he will nevertheless be responsible.*
It is immaterial that there was negligence on the part of de-
ceased himself contributing to the result, the doctrine of con-
tributory negligence having no place in the law of crimes.”
But the death must have been the direct result wholly or in
part of defendant’s negligence. If the negligence of deceased:
or others intervened so as to constitute the proximate, efficient
cause of the death, it will not be criminal homicide in defend-.
ant. In one case it was said that one is not to be held crimi-
nally responsible for the death of another on account of neg-
ligence where he would not have been civilly liable in an
action at the suit of the party injured if the injury sustained.
had not caused death.? The question of how closely the death
1C. v. McAfee, 108 Mass. 458.
2 Brooks v. C., 61 Pa. St. 352; S. v.
Fitzsimmons, 63 Ia. 656; S. v. Elliott,
98 Mo. 150; Rex v. Bourne, 5 C. & P.
120.
8 Robins v. S., 9 Tex. Ap. 666; U.S,
v. Meagher, 37 Fed. R. 875; Reg. v.
Swindall, 2 C. & K. 230; Reg. v.
Hughes, Dears. & B. 248.
48. v. O’Brien, 82 N. J. 169. And
see supra, §§ 129, 130.
58. v. Smith, 65 Me. 257; Reg. v.
Marriott, 8 C. & P. 425; Reg. v. Conde,
10 Cox, 547; Rex v. Self, 1 East, P.
C. 226. To charge that defendant
wilfully, and with culpable negli-
gence, killed deceased, is inconsist-
ent: S. v. Lockwood, 119 Mo. 463.
6 Reg. v. Haines, 2 C. & K. 368; §..
v. Shelledy, 8 Ia. 477, 507.
TReg. v. Kew, 12 Cox, 355; Reg. v.
Longbottom, 3 Cox, 439; Reg. v.
Jones, 11 Cox, 544. For instance,
the fact that deceased might have
avoided the result of defendant’s
negligence if he had not been in-
toxicated, will be no defense: Rex
v. Walker, 1 C. & P. 820; or that
deceased was deaf and dumb: Reg..
v. Swindall, 2 Cox, 141.
8Reg. v. Jones, 11 Cox, 544; Reg.
v. Ledger, 2 F. & F. 857.
9 Reg. v. Birchall, 4 F. & F. 1087.
819
OFFENSES AGAINST THE PERSON.
§§ 350, 351.] [Parr V.
must be related to the act to constitute homicide has already
becn discussed.’ It is not sufficient in charging manslaughter
by negligence to simply allege that by the negligence and mis-
conduct of defendant the death of deceased was caused; the
facts must be set out.2 But in charging death from neglect it
is sufficient to charge that defendant wilfully and feloniously
neglected and refused to provide necessary food, clothing,
shelter, etc., without charging that it was knowingly.’
§ 350. What deemed negligence.— Negligence which will
render unintentional homicide criminal is such carelessness or
recklessness as is incompatible with a proper regard for human
life An act of omission as well as of commission may be so
criminal as to render death resulting therefrom manslaughter.’
But the omission must be one likely to cause death, Failure
to perform the official duty of repairing a highway, from
which death results, will not be homicide. The omission must
be of a public duty.” .
§ 351. Examples.— A great variety of cases of negligent
homicide may be enumerated. It has been held manslaughter
to strike another with a stick and leave him exposed, helpless,
to the elements;® or to cause the death of a child by giving it
spirituous liquors in a quantity unfit for its tender age;° or
to confine an aged person without provision for necessaries.”
Neglect of an officer in charge of seamen is made criminal by
act of congress, and death resulting therefrom will be man-
slaughter." Persons on board a ship are necessarily subject to
something like despotic government, and the law should regu-
late the conduct of those who exercise dominion over them.”
Cases where the failure to provide necessaries for a child or
1 Supra, § 292.
2U. S. v. Holtzhauer, 40 Fed.'R. 76..
38. v. Smith, 65 Me. 257.
4S. v. Emery, 78 Mo. 77; Darry v.
P., 10 N. Y. 120; Reg. v. Finney, 12
Cox, 625. But a mere omission
through forgetfulness of something
which a reasonably prudent person
might omit will not be sufficient:
8. v. O’Brien, 32 N. J. 169. If there
is no omission of duty and no neg-
lect, there is no _ responsibility:
Thomas v. P., 2 Colo. Ap. 513.
5 Reg. v. Lowe, 3 C. & K. 128,
6 Reg. v. Pocock, 17 Q. B. 34.
TReg. v. Smith, 11 Cox, 210,
8 Reg. v. Martin, 11 Cox, 186.
5 Rex v. Martin, 3 C. & P. 211.
10 Reg. v. Marriott, 8 C. & P. 425.
U.S. v. Farnham, 2 Blatch. 528;
U.S. v. Warner, 4 McLean, 468; U.S.
v. Taylor, 5 McLean, 242; U. 8. v.
Keller, 19 Fed. R. 683,
12 Reg. v. Leggett, 8 C. & P, 191,
820
Cu. 18.] [§ 354.
HOMICIDE.
other dependent person is held to amount to homicide if death
results have been already cited.!_ These cases, unless the facts
indicate an intention to cause death, will be cases of man-
slaughter. Reckless negligence and foolhardy presumption on
the part of a physician in pursuing a course of treatment dan-
gerous in its nature and uncalled for, will render death result-
ing therefrom manslaughter.? Homicide, resulting from negli-
gence in the discharge of a perfectly lawful business, may be
manslaughter ;* it is so in case of negligent driving A simi-
lar rule applies to navigation of a vessel where another boat is
run down and death results.’ Negligence in the management
of machinery likely to be dangerous if not carefully managed,
and causing death, will be manslaughter. One who so negli-
gently makes or repairs a cannon that it bursts and causes
1 Supra, § 286.
20. v. Pierce, 188 Mass. 165. Fusther
as to negligence of physicians, drug-
gists, etc., see supra, § 287.
3 Chrystal v. C., 9 Bush, 669. For
instance, in the construction of a
building: Deford v. S., 30 Md. 179.
4Rex v, Walker, 1 C. & P. 320;
Rex v. Grout, 6 C. & P. 629; Rex v.
‘Timmins, 7 C. & P. 499; Reg. v. Dal-
loway, 2 Cox, 273. But not if the
accident happens through some
chance which could not have been
foreseen or avoided: Reg. v. Murray,
‘5 Cox, 509. Where two persons en-
gage in racing their horses at a furi-
ous rate on the highway, and one of
them runs over a man and kills
him, each of the two persons is
‘guilty of manslaughter: Reg. v.
Swindall, 2 C. & K. 230. But in an-
other case it was held that only the
one doing the injury was guilty: Rex
v. Mastin, 6 C. & P. 396.
5 Reg. v. Taylor, 9 C. & P. 672; Rex
v. Green, 7 C. & P. 156; Rex v. Allen,
7 C. & P. 153.
6 For instance, where a person in-
‘competent for the management of
machinery to hoist colliers was tem-
porarily left in charge, and death of
some of the men resulted, it was
at
held manslaughter in the engineer:
Reg. v. Lowe, 3 C, & K. 123. Where
by the neglect of defendant in plac-
ing a stage over the mouth of a
shaft the death of a miner was
caused, held, that defendant was
properly convicted of manslaughter:
Reg. v. Hughes, Dears, & B. 248. So
where the person whose duty it was
to cause a mine to be ventilated,
neglected such duty and an explo-
sion occurred causing death, held,
that he was properly convicted of
manslaughter if a person using rea-
sonable diligence would have at-
tended to the ventilation: Reg. v.
Haines, 2 C. & K. 368. The engineer
of a railway train may be guilty of
manslaughter in the negligent man-
agement of his engine so as to cause
a collision resulting in death: Reg.
v. Birchall, 4 F. & F. 1087. But it
must be clearly shown that the neg-
ligence was that of the defendant:
Reg. v. Gregory, 2 F. & F. 153; Reg.
v. Gray, 4 F. & F. 1098; Reg. v.
Trainer, 4 F. & F.105. It is not nec-
essary that defendant should have
known what would be the result of
his act, if he did the act intention-
ally and it was dangerous in its
character: White v. 8, 84 Ala. 421.
821
[Parr V..
§§ 352, 353.] OFFENSES AGAINST THE PERSON.
death is guilty of manslaughter.! Where, in a frolic, a lad
took the stick out of the front part of a cart, in consequence of
which it was upset and the carman who was in it was killed, it
was held that the lad was guilty of manslaughter.2 Where one
by the careless use of a pistol in sport kills another by accident,
it is manslaughter.’ It is negligence in such case to fail to as-
certain whether the weapon is loaded.’ The wanton and reck-
less discharge of fire-arms causing death will be manslaughter,
although there is no intent to kill or do bodily injury.” One
turning loose a vicious animal where there are passers-by
likely to be injured will be guilty of manslaughter if the animal
causes death.®
VIL. Sraturory Drarrers or MurpEer any MANSLAUGHTER.
§ 352. To determine extent of punishment.— In much the
same way as criminal homicide, which was originally punish-
able in but one way, was divided into the crimes of murder
and manslaughter with regard to the degree of wrong in-
volved, so in the further attempt to distinguish between grades ~
of guilt in these two crimes they have been by statutes, in the
various states of the Union, divided to a greater or less extent
into degrees punishable in different measure.”
§ 353. Degrees of murder.— The first step in this direction
was the division of murder into the first and the second de-
grees, and some such division has become universal in the states
although it is made in somewhat varying terms. The laws of
1Rex v. Carr, 8 C. & P. 163, n.
2 Rex v. Sullivan, 7 C. & P. 641.
3S. v. Vines, 938 N. C. 493; P. v.
Slack, 90 Mich. 448; S. v. Benham,
23 Ia. 154; Nelson v. S., 6 Baxt. 418;
Reg. v. Weston, 14 Cox, 346; Reg.
v. Salmon, 6 Q. B. D. 79.
4S. v. Hardie, 47 Ia. 647; Johnson
v. 8.94 Ala. 35; Reg. v. Campbell,
11 Cox, 323; Reg. v. Jones, 12 Cox,
628. But in one case it was held that,
unless the circumstances were such
as to constitute an assault, the mere
playful and negligent handling of a
pistol believed to be empty, with no
intent to harm, would not make
death resulting therefrom man-
slaughter: Robertson v. §., 2 Lea, 239.
5P. v. Stubenvoll, 62 Mich. 329;
8. v. Grote, 109 Mo, 345; Sparks v. C.,
3 Bush, 111; P. v. Fuller, 2 Parker,.
Cr. R. 16,
6 Reg. v. Dant, 10 Cox, 102.
7TIn Illinois the statute does not
make degrees, but it allows a dis-
crimination in punishment based on
similar considerations: Fletcher v..
P., 117 Til, 184 And evidence of
facts in mitigation is admissible, al-
though such facts would not reduce
the offense to manslaughter: Nowa-
eryk v. P., 189 IIL 836,
822
Cu. 18.] HOMICIDE. [§ 353.
the United States do not, however, make any such distinction.!
The various statutes involve at least three distinct characteris-
tics, some one of which must be present to constitute murder
in the first degree, to wit: Murder by certain forms of killing,
such as poison, or lying in wait; in the commission of any one
of certain named felonies; or by any other wilful, deliberate
and premeditated killing. But this language does not imply
that to make murder by poison, or lying in wait, or in the com-
mission of a specified felony, the first degree, it must be wilful,
deliberate and premeditated. These forms furnish in them-
selves the element of extreme criminality required for the first
degree. It is evident that, where the designation of the first
degree is as broad as above, it will include some cases of ex-
press malice and some cases of implied malice;* thus, i¢ will
include cases where there is no intent to kill, but only an in-
tent to unlawfully injure by poison, or to commit one of the
specified felonies, as well as cases where there is an intent to
kill, On the other hand, the first degree will not include all
cases of intent to kill, for from it are excluded cases where the
killing, though intentional, is not accompanied with delibera-
1U. 8S. v. Outerbridge, 5 Sawyer,
620.
2C, v. Jones, 1 Leigh, 598; P. v.
Bealoba, 17 Cal. 389; C. v. Desmar-
teau, 16 Gray, 1; S. v., Harris, 12
Nev. 414; S. v. Wagner, 78 Mo. 644;
Washington v. S., 25 Tex. Ap. 387.
Contra, holding that the poisoning
referred to is wilful and deliberate
poisoning, see C. v. Keeper of Prison,
2 Ashm. 227; Robbins v. S., 8 Ohio
St. 181. See, further, as to poison-
ing, the discussion in the following
section.
3In some states “express malice,”
and not deliberation and premedita-
tion, is the test of first degree: 8. v.
Verrill, 54 Me. 408; S. v. Jones, 1
Houst. Cr. Cas, 21; Ake v. S., 30 Tex.
466; Jones v. S., 29 Tex. Ap. 338.
Therefore, a killing without justifi-
cation, mitigation or excuse, with a
formed design to kill, and a cool and
sedate mind, is murder in the first
degree: Summers v. 8,5 Tex. Ap.
365; Cox v. 8,5 Tex. Ap. 493; Stan-
ley v. S., 14 Tex. Ap. 315; Campbell
v. 8S. 15 Tex. Ap. 506. An indict-
ment alleging facts indicating ex-
press malice is sufficient for the first
degree: Banks v. §., 24 Tex. Ap. 559.
If the act is the result of a rash and
sudden design, springing from im-
pulse, passion or excitement, it is
not with express malice, and there-
fore not in the first degree: Jones
v. S., 29 Tex. Ap. 338; Burnham v.
S., 48 Tex. 322. But design to kill is
not essential to constitute express
malice; a design to do serious bodily
harm by an unlawful act may be
enough: Primus v. S, 2 Tex. Ap.
869. Evidence of express malice is
admissible where accused can be
convicted only of the second de-
gree: McLaughlin v. 8., 10 Tex. Ap.
340.
823
OFFENSES AGAINST THE PERSON. [Parr V.
§ 354.]
tion and premeditation. It will be necessary to discuss these
various classes separately, but it should be first said that the
statutes do not, in general, change the definition of murder;
and the distinction between murder and manslaughter remains
as at common law, except that in a very few instances what
was at common law a form of murder is by statute made a
grade or degree of manslaughter. Therefore, the second de-
"gree of murder must still have the characteristics of murder at
common law.! Malice aforethought is essential in both de-
grees? To constitute murder in the first degree so far as it
is made to depend upon deliberation and premeditation, there
must be proof of:something more than the malice, express or
implied, which constitutes murder.* It seems that murder in
the second degree is to be looked upon as mitigated murder,
in much the same way as manslaughter is mitigated criminal
homicide But this question will need further discussion in
considerating how murder in the first degree is to be charged
in the indictment.’ Some statutes provide for a third degree
of murder.
§ 354. First degree; by poison or lying in wait.— The
statutes on the subject uniformly make a murder, perpetrated
by means of poisoning or lying in wait, of the first degree, and
they sometimes couple with these forms of killing others of
similar atrocity.’ The use of poison in causing death indicates
deliberation and premeditation, and thus makes the homicide
of the same degree of atrocity as though wilful, deliberate and
premeditated within the other portion of the statute? In an
early case in Pennsylvania, construing the first statute on this
1p, v. Haun, 44 Cal. 96; Gehrke v.
S., 13 Tex. 568, And see infra, § 365.
2P. v. Potter, 5 Mich. 1; Fouts v.
S., 4 Greene (Ia.), 500; S. v. Johnson,
8 Ia. 525; Babcock v. P., 18 Colo. 515;
8. v. Curtis, 70 Mo. 594; Craft v. S.,
3 Kan. 450.
3Smith v. &, 68 Ala. 424; S. v.
Foster, 61 Mo. 549; S. v. Lane, 64 Mo.
319; S. v. Evans, 65 Mo. 574; Finn v.
S., 5 Ind. 400; Palmore v. S., 29 Ark.
248; S. v. Garrand, 5 Oreg. 216; P. v.
Guance, 57 Cal. 154; P. v. Long, 39
Cal. 694; Beers v. S., 24 Neb. 614;
Milton v. S., 6 Neb. 186; Schlencker
v, S., 9 Neb. 800; Anderson v.S., 26
Neb. 387; Sullivan v. C., 93 Pa. St.
284; S. v. Raymond, 11 Nev. 98;
Guffee v. S., 8 Tex. Ap. 187.
4See, by way of illustration, C. v.
Gardiner, 11 Gray, 488; Boyd v.87
Coldw. 69.
5 Infra, § 361.
6 Marshall v. S., 82 Fla. 462,
7See P. v. White, 24 Wend. 520.
8Zell v. C., 94 Pa. St, 258; S. v.
Wells, 61 Ia. 629; S. v. Baldwin, 36
Kan. 1.
824
Cu. 18.] HOMICIDE. [$ 354,
subject, it was said that homicide committed by administering
adrug or using an instrument upon a woman to commit an
abortion was not murder in the first degree, even though the
drug was a poison, the poisoning contemplated by statute being
wilful and deliberate poisoning.! To the contrary, it has been
decided in Missouri that homicide by poison administered, not
with intent to kill, but in order to accomplish some unlawful
act, being murder at common law, will be murder in the first
degree under the statute, because it is murder which is com-
mitted by means of poison.? The question will be in construing
such a statute whether it includes only intentional killing by
poison in the first degree or whether it includes all murder by
poison in that degree. In Ohio, where the statute makes mur-
der in the first degree to consist of any act of “purposely and
of deliberate and premeditated malice, . . . or by admin-
istering poison, killing another,” it is held that intent to kill
the specific person must be shown.’ In Texas the form of the
statute is such that a common-law murder committed by poison
or lying in wait is of the first degree, although these forms are
not expressly enumerated.* The expression, “lying in wait,”
means lying in ambush or concealment.’ And it may be shown
that the killing was of this form under an indictment for mur-
der in the first degree, although alleged to be by wilful, delib-
erate and premeditated killing, instead of by lying in wait, for
the evidence of this form of killing would show wilfulness, de-
liberation and premeditation.6 Under a construction of the
Missouri statute similar to that given in case of a death by
poisoning, it is held that if the murder is committed by lying
in wait it is of the first degree, without reference to whether
the intent was to kill the party killed or another, either of
such cases being murder at common law.’ And in a Tennessee
case it is said that, under such circumstances, evidence as to
the extent of the injury which the party assailing intended to
inflict is irrelevant, as the use of a deadly weapon would show
1C, v. Keeper of Prison, 2 Ashm. 58, v. Cross, 68 Ia. 180.
227, 6S, v. Green, 66 Mo. 631; S. v. Kil-
28, v. Wagner, 78 Mo. 644, gore, 70 Mo. 546; Riley v. S., 9 Humph,
3 Robbins v. 8., 8 Ohio St. 131. 646.
4Tooney v. S.,5 Tex. Ap. 163. But 78, v. Payton, 90 Mo. 220,
they are not so per se: Osborne v.
., 23 Tex. Ap. 481.
8. ‘ex. Ap ee
§ 355.] [Parr V.
OFFENSES AGAINST THE PERSON.
malice aforethought, such as to make the case murder.’ So, in
Virginia, it is said that murder by lying in wait or by poison
will be of the first degree, whether the killing was intended or
not2 The term “concealed” is not synonymous with “lying
in wait;” a person may, while concealed, kill another without
committing the crime of murder. It is only where he conceals
himself for the purpose of killing another unawares that he is
lying in wait.
§ 355. In perpetrating certain felonies.— The statutes de-
fining murder in the first degree, perhaps without exception,
include cases where the homicide results during the perpetra-
tion or attempt to perpetrate certain felonies named, those
usually included being arson, rape, robbery, mayhem and burg-
lary. As has been shown, a homicide resulting from the commis-
sion or attempt to commit a felony is with malice aforethought
and is therefore murder. And the effect of the statutory pro-
vision as to the first degree is to make criminal in that degree
the murder resulting from committing or attempting to commit
the particular felonies specified. No intent to kill and no de-
liberation and premeditation are necessary, the implied malice
involved in the felonious intent being sufficient.6 The intent
to commit one of the named felonies, in itself constitutes delib-
eration and premeditation, and therefore, under an indictment
for the first degree charging the offense as wilful, deliberate -
and premeditated, evidence is admissible that the homicide was
committed in the perpetration of robbery, one of such felonies.®
Or where a common-law form of indictment is sufficient for the
first degree, proof of the first degree by the commission of a
named felony may be made under such an indictment.? The
6S. v. Johnson, 72 Ia. 398; S. v.
Meyers, 99 Mo. 107. Wilfulness and
premeditation are shown by proving
that the homicide was committed as
the initiatory act in the perpetration
_ 1 Riley v. S., 9 Humph: 646,
2C. v. Jones, 1 Leigh, 598.
3P. v. Miles, 55 Cal. 207,
| 4See supra, § 326.
® Moynihan v. §., 70 Ind. 126; Ste-
phens v. S., 42 Ohio St. 150; S. v. Pike,
49 N. H. 399; Cox v. P., 80 N. Y. 500;
©. v. Pemberton, 118 Mass. 36: P.
v. Bealoba, 17 Cal. 389; Pharr v. S.,
7 Tex. Ap. 472; Singleton v.S., 1 Tex.
Ap. 501; Gonzales v. S., 19 Tex. Ap.
394; Washington v. S., 25 Tex. Ap.
387; Smith v. S., 31 Tex. Ap. 14.
of the crime of robbery: 8S. v. Wor-
rell, 25 Mo. 205; Duran v. S., 14 Tex.
Ap. 195; Meradez v. S., 29 Tex. Ap.
608.
7C, v. Flanagan, 7 W. & S, 415;
Cox v. P., 80 N. Y. 500; Titus v. S.,
49 N. J. 86. And see, as to indict-
ment for first degree, infra, § 861.
826
Ca. 18.] HOMICIDE.
[§ 355.
indictment may, however, allege fully the commission of the
felony, and the murder may then be charged as having been
committed while in the perpetration of such felony.1 The
killing is committed n the perpetration or attempt to perpe-
trate one of the named felonies if it occurs at any time while
the perpetrator is engaged in any acts immediately connected
with such felony, even though the felony may have been already
completed? In New York a killing perpetrated in the com-
mission of any felony is murder in the first degree, regardless
of any intent to kill, and regardless of whether the violence
causing death is part of the other felony or separate and dis-
tinct.2 In Wisconsin the court, construing a similar statute,
holds that the felony must be separate and in addition to the
mere act of causing death, and is not supplied or evidenced by
intent presumed from the act itself, so that, although any homi-
cide unexplained would be a felony, the intent to commit a
felony would not be presumed therefrom so as to make the
homicide murder of the first degree; as the court say, this
would be presuming the felony from the act and then qualify-
ing the act by the felony. The doctrine of the New York
court was also recognized under a similar statute in Missouri,’
but has been modified by later cases in the same state; and it is
now held that under the language of the statute which makes
murder, committed in the perpetration of a felony, of the first
degree, it is not enough that death results from the murderous
assault, but there must be some collateral felony attempted dis-
tinct from the acts of personal violence causing the homicide.
1Dolan v. P., 64 N. Y. 485.
2Dolan v. P., 64 N. Y. 485. Thus,
where defendant, having committed
@ robbery, and while carrying off the
‘plunder, was pursued by an officer
whom he shot at, and in so doing
killed a by-stander, held, that the
murder was of the first degree: S. v.
Brown, 7 Oreg. 186.
” 8Buel v. BP, 78 N. Y. 492. Thus,
an attempt to escape from lawful
‘custody on a charge of felony, being
punishable by confinement in the
penitentiary, is in itself such felony
that homicide committed in the at-
tempt is murder in the first degree:
‘Pp. v. Johnson, 110 N. Y. 134. So,
murder committed in the perpetra-
tion of a felonious assault will be in
the first degree: P. v. Giblin, 115
N. Y. 196.
48. v. Hammond, 35 Wis. 315.
58. v. Nueslein, 25 Mo. 111.
6S. v. Shock, 68 Mo. 552. To the
point that it is the murder, and not
merely the killing committed in the
perpetration of a felony, that consti-
tutes murder in the first degree, see,
also, S. v. Earnest, 70 Mo. 520; S. v.
Hopper, 71 Mo. 425. But these cases
327
§ 356.] OFFENSES AGAINST THE PERSON. [Part V.
There must be, however, something more than the mere intent
to commit a felony; there must'also be an overt act,’ and the
killing must have been in the attempt to commit the felony,
and not after the attempt has been abandoned and as the re-
sult of an independent intent.’
§ 356. Wilful, deliberate and premeditated killing.— The.
statutes almost uniformly make of the first degree, murder
which is committed by means of wilful, deliberate and pre-
meditated killing or with wilful, deliberate and premeditated
malice aforethought. The general meaning of these terms, as
grouped together, is that suggested by the words themselves.*
In using the term “other killing,” as qualified by wilful, de-
liberate and premeditated, and after specifying “by poison or
lying in wait,” the statute does not restrict such killing to kill-
ing by like means, but includes wilful, deliberate and premed-
itated killing by any means.! In Massachusett§, where the
statute defines murder of the first degree as “deliberate and
premeditated,” or “committed with extreme cruelty and atroc-
ity,” or committed in the “commission of certain felonies,”
proof of either of these attending elements is sufficient; and
“deliberation and premeditation” are held not applicable to
the other two forms.> The method of taking life in case of a
homicide by poison is by statute equivalent to deliberate and
premeditated homicide; but in cases not specified by statute,
the deliberation and premeditation must be found by the jury
to make the case of the first degree. However a separate dis-
cussion of these terms is necessary.
have again been modified to the ex-
tent of deciding that, if the homicide
would have been murder at common
law, then it would be of the first de-
gree under the statute, even though
the subject of the felony and the
murder is the same person: S. v.
Hopkirk, 84 Mo. 278. The distinction
thus made in Missouri between kill-
ing and murder in the perpetration
of a felony is not recognized in the
courts of Pennsylyania: Kelly v. C.,
1 Grant, 484 ,
1 Kelly v. C,, 1 Grant, 484,
2 Hoffman v. S., 88 Wis. 166.
3 Dale v. S., 10 Yerg. 550.
4C. v. Jones, 1 Leigh, 598; P. v.
Bealoba, 17 Cal. 889; S. v. Fairlamb,
121 Mo. 187; S. v. Harris, 12 Nev.
414,
5C. v. Desmarteau, 16 Gray, 1. And
see supra, § 353.
6 P, v. Sanchez, 24 Cal. 17. So in
Texas, where the statute does not
specify killing by poison or lying in
wait as first degree: Osborne v. S.,
23 Tex. Ap. 481; Tooney v. §., 5 Tex.
Ap. 163.
328
Ong. 18.] HOMICIDE. [x§ 857, 358.
§ 357. Wilfulness; intentional killing.— Intent to kill is
essential to constitute murder in the first degree under the
statutory provision as to wilful, deliberate and premeditated
killing. Implied or constructive malice is not sufficient to
make the bomicide of that degree.! Therefore it has been
said that if with premeditated intent to slay one person death
is caused to another, this will not be murder in the first de-
gree.2. But with more reason it has been held in other cases
that defendant may be guilty of murder in the first degree in
a wilful, deliberate and premeditated killing although his in-
tent was not directed toward any particular individual, but
involved only the killing of some one generally.’ In instruct-
ing the jury as to the killing being intentional, it is erroneous
to say that if defendant “intentionally shot” the deceased,
“killing him,” it is murder in the first degree; the instruction
should be that if he shot intending to kill, and did kill, that
degree of murder would be shown.’ As to the expression
“wilful,” used in the statute, it means nothing more than an
intentional killing,’ and may be omitted from the instruction
entirely if other equivalent words, such as “ maliciously, delib-
erately and premeditatedly,” are used.6 Wilfulness alone does
not make the murder of the first degree.’
§ 358. “Deliberate and premeditated.”— The word “de-
liberately ” is not equivalent to “intentionally” or “wilfully,”
but means more.? It has been said that the word “ premcdi-
1C, v. Green, 1 Ashm. 289; P. v.
Bealoba, 17 Cal. 389; S. v. Gillick, 7
Ja, 287, 811; P. v. Clark, 7 N. Y. 385;
P, v. White, 24 Wend. 520; Donnelly
v. S., 26 N. J. 463, 509; S. v. Herrell,
97 Mo. 105; Anthony v. &, Meigs,
265; Keenan v. C., 44 Pa. St. 55; P.
v. Foren, 25 Cal. 361; Clark v. S., 8
Humph. 671; Dains v. S., 2 Humph.
438.
2Bratton v. S., 10 Humph. 103;
McConnell v. S., 18 Tex. Ap. 390;
Taylor v. S. 3 Tex. Ap. 387. But
where defendant on hearing of a
fight ran into the crowd with a stick,
striking several persons, among
others a by-stander, who died from
the effects of the blow, held, that he
was guilty of murder ‘in the first
degree: Wright v. C., 75 Va. 914.
3 Hopkins v. C., 50 Pa. St. 9; Spies
v. P., 122 Tl. 1; Wright v. C., 75 Va.
914. Thus, two persons may be
guilty of the same murder in the °
first degree: Phelps v.S., 15 Tex. Ap. ;
45; Ruloff v. P., 45 N. Y. 213.
4Savage v. S., 18 Fla. 909. But in
Pennsylvania it is enough if the act
was deliberate: Keenan v. C., 44 Pa.
St. 55.
58. v. Townsend, 66 Ia. 741.
6 Fisher v. S., 10 Lea, 151.
78. v. Keasling, 74 Ia. 528,
88, v. Sharp, 71 Mo. 218. Where de-
fendant by slight insult or assault
has brought on the retaliation of de-
829
§ 358.] [Part V.
OFFENSES AGAINST THE PERSON.
tated” does not indicate anything different from the malice
aforethought of the common law when applied to the express
intent to take life, and a premeditated design to effect death
simply means express malice! Therefore, deliberation is the
only element added to distinguish the two degrees as applied
to an intended killing? On the contrary, it is said in another
case that premeditation implies more than deliberation, and
means to meditate and deliberate before concluding to do the
act, and that this distinctive peculiarity is what characterizes
the first degree? So far as deliberation implies that the act.
must have been thought of beforehand, it distinguishes murder
in the first degree from manslaughter. “Premeditated” means
“thought of beforehand,” and an instruction which defines it
as indicating that the aust was “thought of,” without adding
the word “ feiorelwind: ” is erroneous.> But it does not mean
“thought over,” witch would be equivalent to deliberation®
It is doubtful, however, whether any precise distinction in
meaning between the terms “deliberate” and “ premeditated”
can be made. They have been said in some cases to be synony-
mous,’ or to mean about the same thing.’ The insertion of the
word “or” instead of “and” between “deliberate” and “ pre-
meditated” has been held immaterial.29 The words “ deliber-
ate and premeditated” are intended to restrict the first degree
to cases where deliberation is shown to have taken place before
the commission of the act,!° and require that the killing shall
have been done with reflection and conceived of beforehand."
ceased and then has immediately
killed him with a dangerous weapon,
this indicates murder in the first
degree, since if the intention to kill
had been a sudden impulse the first
attack would not have been a slight
one, which indicates a certain
amount of control: S. v. Wieners,
66 Mo. 18,
1P.v. Clark, 7 N. Y. 885; S. v,
Taylor, 126 Mo. 581.
2Darry v. P.,10 N. Y. 120; 8 v.
Curtis, 70 Mo. 594. Deliberation in-
cludes premeditation: 8, v. Dale,
108 Mo. 205.
+8. v. Johnson, 8 Ia. 525. And see
Wiggins v. S., 23 Fla. 180,
48. v. Robinson, 73 Mo. 3806; S. v.
Lewis, 74 Mo, 222; Craft v. S.,3 Kan.
450.
58. v. Harris, 76 Mo. 361.
6S. v. Ellis, 74 Mo. 207. “Pre-
meditated design” includes malice:
aforethought: S. v. Duvall, 26 Wis.
415.
7S. v. Lopez, 15 Nev. 407.
8 Cleveland v. S., 86 Ala. 1; Bower
v. S., 5 Mo. 864; S. v. Wieners, 66 Mo.
13; 8. v. Kotovsky, 74 Mo. 247,
9P. v. Pool, 27 Cal. 572.
10 Beers v. S., 24 Neb. 614; Milton
v. S., 6 Neb, 186.
Zimmerman v.8., 14 Neb. 568;:
Boulden v. &, 102 Ala. 78; S& v.
880
Ou. 18.] HOMICIDE.
[§ 358.
The intent must have preceded the killing long enough to ad-
mit of premeditation and deliberation, although they need not
have existed for any particular length of time.! There must
be a deliberately formed design.? Some time, however short,
should have intervened between the formation of the design
and its execution, in which the intention was deliberated upon.’
But the length of time is not material;* no particular length
of time is necessary. The law fixes no measure of time for
deliberation and premeditation.’ It is not necessary that there
be any appreciable space of time.’ Premeditation may exist,
although not for an extended time;* “some moments,”® “a
moment,” will be sufficient. No matter for how short a
time deliberation and premeditation are entertained, if they
exist the murder will be of the first degree." It is not neces-
sary that the deliberate, premeditated intention should be
formed and matured prior to the occasion at which the act is
done; if executed the moment it is formed the offense is in the
first degree.” The jury must determine in the particular case
whether there was reflection in the act and a choice and de-
liberation as the result of mental action.“
Reed, 117 Mo. 604. If the intent to
kill formed beforehand is condi-
tional, it will nevertheless make the
offense of the first degree: S. v.
Kearley, 26 Kan. 77.
1§, v. Sopher, 70 Ia. 494; S. v.
Hockett, 70 Ia. 442.
. 2S$wan v. S.,4 Humph. 1386; S. v.
Green, 1 Houst. Cr. C. 217.
3Fahnestock v. S., 23 Ind. 231;
Lovett v. S., 30 Fla. 142.
48. v. Smith, 49 Conn. 376; Shoe-
maker v. S., 12 Ohio, 48; Donnelly v. !
S., 26 N. J. 463; S. v. McCormac, 116
N. C. 1033.
5 Wright ,v. C., 33 Grat. 880; P. v.
Bealoba, 17 Cal. 389; S. v. Dunn, 18
Mo. 419; P. v. Sanchez, 24 Cal. 17;
$v. Ah Mook, 12 Nev. 369; S. v.
Brown, 41 Minn. 319; S. v. Dennison,
44 La, An. 185; Whiteford v. C., 6
Rand. 721; Wright v. C., 75 Va. 914;
S. v. Carr, 53 Vt. 37; S. v. Johnson,
8 Ia, 525.
68, v. Rhodes, 1 Houst. Cr. C. 476;
Carter v. S., 22 Fla. 553.
TP, v. Cotta, 49 Cal. 166; Binns v.
S., 66 Ind. 428; Miller v. S., 54 Ala.
155; Halbert v. S.,3 Tex. Ap. 656;
Green v. 8., 51 Ark. 189.
8 Ernest v. 8., 20 Fla. 383.
98. v. Peffers, 80 Ia. 580.
Keenan v. C., 44 Pa. St. 55;
Anthony v. 8., Meigs, 265; S. v. Jen-
nings, 18 Mo. 435; Lang v. 8., 84 Ala.
1; Donnelly v. 8., 26 N. J. 463; Shoe-
maker v. S., 12 Ohio, 48; Green v. 8.,
98 Ala. 14.
11 Donnelly v.S., 26 N. J. 601; P.
v. Moore, 8 Cal. 90; S. v. Jones, 64
Mo. 391; Jones v. S., 90 Ala. 628; S.
yv. Fairlamb, 121 Mo. 187.
12 Herrin v. 8., 88 Tex. 638; Wright
v. C., 33 Grat. 880.
13 P, v. Hawkins, 109 N. Y. 408; P.
v. Gibson, 17 Cal. 283; S. v. Brown,
41 Minn. 319; Lovett v. S., 30 Fla.
142; Westcott v. S., 31 Fla. 458; S.
v. Morey, 25 Oreg. 241.
331
§ 359.] OFFENSES AGAINST THE PERSON. [Part V.
§ 359. Evidence of deliberation and premeditation.— It
has been said in some cases that an intentional killing, the in-
tent to kill being shown by the use of a deadly weapon, will,
in the absence of any evidence of justification, excuse, or miti-
gation, be murder in the first degree.! Such a presumption is
denied, however, in other cases, and it is said that killing with
a deadly weapon is not enough alone to show deliberation and
premeditation.2 But even where such a presumption is recog-
nized it is not conclusive, but may be overcome by evidence
showing an absence of deliberation? However, according to
the great weight of authority such presumption does not arise
from proof of intentional killing alone, and from such evidence,
without more, the jury would not be justified in convicting of
the first degree. The question whether the killing was delib-
erate and premeditated is for the jury, and it is erroneous to
charge that certain facts will show deliberation and premedi-
tation;® or that there are no circumstances in the case to re-
duce the offense below that of murder in the first degree.’
Circumstances indicating premeditation and deliberation are
to be construed by the jury only as evidence and not as conclu-
sive in law.’ Even where the statute provides that murder
perpetrated by means of poison or by any other kind of wilful,
deliberate and premeditated killing, etc., shall be murder in
the first degree, the jury may still find a verdict for the second.
degree under a charge of murder by poison, the statute espe-
cially prescribing that the degree shall be determined by the
jury... What is meant by saying that the question is for the
1C. v. Green, 1 Ashm. 289; Kilpat-
rick v. C., 31 Pa, St. 198; Warren v.
C., 87 Pa. St. 45; McCue v.C., 78 Pa.
St. 185; Lanahan v. C., 84 Pa. St. 80;
Abernethy v. C., 101 Pa. St. 322; S.
v. Gillick, 7 Ia. 287, 311; S. v. Welch,
386 W. Va. 690; Irvin v. S, 19 Fla.
872; P. v. Bealoba, 17 Cal. 389,
2 Dains v. S., 2 Humph. 4388.
3 Kelly v. C., 1 Grant, 484.
4Stokes v. P., 538 N. Y. 164; Dukes
v,S., 14 Fla. 499; Hall v.S.,40 Ala. 698;
8. v. Foster, 61 Mo. 549; S. v. Carver, 22
Oreg. 602; S. v. Olds, 19 Oreg. 397;
Witt v. S., 6 Coldw. 5; Fouts v. S., 4
Greene (Ia.), 500; S. v. McCormick,
27 Ta. 402; Schlencker v. S., 9 Neb.
300; P. v. Gibson, 17 Cal. 288; P. v.
Belencia, 21 Cal. 544; P. v. Williams,
73 Cal. 531; S. v. Hicks, 27 Mo, 588;
Watson v. C., 85 Va. 867; S. v. Hobbs,
37 W. Va. 812; S. v. Fuller, 114 N. C.
885; Hamby v.5S., 36 Tex. 523; Baltrip
v. S., 30 Tex. Ap. 545.
5P. v. Williams, 78 Cal. 581.
6 P, v. Ah Lee, 60 Cal. 85.
7Hill v. P., 1 Colo. 436.
8S, v. Dowd, 19 Conn. 888,
332
‘Cu. 18.] HOMICIDE. [§ 3859.
jury is that, where there is evidence tending to show delibera-
tion and premeditation, the verdict will not be disturbed! But
if there is not sufficient evidence of these elements, the trial
‘court may so direct the jury, or its sufficiency may be consid-
ered on appeal. While it is necessary, therefore, that the pre-
meditation and deliberation shall be found by the jury, such
finding is not necessarily based upon express or positive evi-
‘dence thereof, but may be predicated upon all the circumstances
connected with the killing? Although, as already indicated,
the mere act of killing will not be sufficient evidence of delib-
eration and premeditation,‘ yet, if the circumstances show that
the defendant had time to consider the act and select the man-
ner or weapon to be used, he may be convicted of the first de-
gree’ Direct proof of previous animosity or other motive is
not necessary in addition to proof of killing where there are
no attendant circumstances to show justification or mitigation.
If all the circumstances surrounding the act are consistent with
premeditated, deliberate intent, the jury may find the first de-
gree.’ There is, however, no presumption of the first degree,
and the introduction of evidence of previous intent to kill, tend-
ing to show premeditation and deliberation, does not a
the burden upon defendant to prove that such intention had
‘been abandoned. Premeditation and deliberation may be
shown by proof of the nature of the murderous assault;® or
by proof of previous hostility and threats; of declarations
just preceding the killing indicating the intent," together with
procuring and employing a deadly weapon in a fatal manner,”
17, v. Johnson, 9 Mont. 21. 5S. v. Holme, 54 Mo. 153; S. v. Wis-
2. v. Olds, 19 Oreg. 397. dom, 84 Mo. 177; P. v. Beckwith, 103
38. v. Dunn, 18 Mo. 419; S. v. N. Y. 360; S. v. Brown, 41 Minn. 319;
Shoultz, 25 Mo.. 128; S. v. Starr; 88 8S. v. Hansen, 25 Oreg. 391.
Mo. 270; 8. v. Joeckel, 44 Mo. 234; S. 6 McKee v. P., 36 N. Y. 113; Sin-
v. Holme, 54 Mo. 153; S. v. Under- dram v. P., 88 N. Y. 196.
wood, 57 Mo. 40; S. v. Foster, 61 Mo. 7P. v. Conroy, 97 N. Y. 62.
549; S. v. Mitchell, 64 Mo. 191; S. v. 8Murray v.C., 79 Pa. St. 311.
Kilgore, 70 Mo. 546; S. v. Walker, 98 9C. v. Murray, 2 Ashm. 41.
Mo. 95; P. v. Bowman, 81 Cal. 566; 19P. v. Bezy, 73 Cal. 186; Kehoe v.
Hicks v. &., 25 Fla. 585; Yates v. 8. ©., 85 Pa. St. 127.
26 Fla. 484; S. v. Brown, 41 Minn. Smith v. 8, 7 Tex. Ap. 414
319; T. v. Romine, 2 N. Mex. 114, 12T, vy. Johnson, 9 Mont. 21; P. v.
49, v. Cushing, 29 Mo. 215. Andsee Goslaw, 73 Cal. 323.
supra, § 358.
333
§§ 360, 361.] OFFENSES AGAINST THE PERSON. [Parr V..
or arranging a plan for the homicide But evidence of pre-
vious brutal and cruel treatment will not suffice.”
§ 360. Intoxication or insanity as showing want of delib-
eration or premeditation.— While, as has been said else-
where,’ intoxication is no excuse for crime, yet, where the
question is between murder in the first degree and second de-
gree, it may be proven as tending to show that there was not
deliberation and premeditation in the act.! But one who de-
liberately resolves to kill another and makes himself drunk for
that purpose is guilty of murder in the first degree.’ Mere:
drunkenness will not negative the specific intent to kill evi-
denced by actual shooting and killing, no motive for the act
being shown.’ Insanity may be taken into account as well as.
intoxication for the purpose of affecting the degree.’
§ 361. Indictment for first degree.— The general requisites.
of an indictment for murder will be hereafter considered, but
in direct connection with a discussion of the difference between
the degrees of murder it will be well to notice whether any
change by reason of such division of the crime into degrees is.
made necessary in the usual form of indictment for murder.
In the state where the statutory division into degrees was first
adopted it was held that the degrees as defined were not
new offenses created by statute, and therefore to be charged
in the language of the statute, but were simply classes of
the previous crime of murder made with reference to the
penalty to be inflicted, and therefore no change in the common-
law indictment for murder was required, punishment for the
first degree being properly inflicted under the usual indictment.*
1Garlitz v. S., '71 Md. 293.
2Shelton v. S., 34 Tex. 662,
3 Supra, § 160.
{Willis v. C., 82 Grat. 929; Kelly
v. Walter, 1 Idaho (N. S.), 386. This.
whole subject is considered in the
chapter on insanity and intoxica-
tion, supra, § 162.
v. C., 1 Grant, 484; Jones v. C., 75
Pa, St. 403; P. v. Williams, 48 Cal.
344; 8. v. Johnson, 40 Conn. 136; 8.
v. Johnson, 41 Conn. 584; Tidwell v.
8., 70 Ala. 33. Contra, S. v. O’Reilly,
126 Mo, 597, And see supra, § 162,
59, v. Robinson, 20 W. Va. 713.
§ Estes v. S., 55 Ga. 31; Nevling v.
C., 98 Pa. St. 322,
7 Anderson v. S., 43 Conn. 514; P.
8 White v. C., 6 Binn. 179; C. v. Flan-
agan, 7 W.& 8.415. And see Greer v.
S., 3 Baxt. 321. The statute creating
degrees does not create new offenses:
Garvey’s Case, 7 Colo. 884. Where-
the statute simply describes condi-
tions of the crime, but does not make.
them separate degrees, the common-
law indictment is sufficient: P. v..
Enoch, 13 Wend. 159.
334
Ca. 18.] HOMICIDE. [§ 361.
And this view has been approved in other states! This
result is also supported in the same states on the ground
that the statute specially directs that the jury shall find the
degree in their verdict, or on a plea of guilty such finding
shall be made by the court (or in some states by a jury specially
impaneled) on the evidence received for that purpose, which
provisions would have been unnecessary if it was intended
that the degree should be specially charged, as in that case a
verdict or plea of guilty would have determined the degree.
In some states it is specially provided by statute that no change
in the form of indictment shall be made necessary by the di-
vision into degrees. And such statutory provision has been
held not to be in conflict with the usual constitutional pro-
vision requiring the defendant to be informed of the offense of
which he is charged.‘ Other cases reach the same result on
the theory that the ordinary indictment for murder alleging
the killing as done feloniously, wilfully and of malice afore-
thought sufficiently charges the first degree.’ According to
the great weight of authority, a finding of guilt in the first de-
gree may be made under an indictment in the common-law
form for murder.®
10, v. Gardner, 11 Gray, 438; C. v.
Desmarteau, 16 Gray, 1; P. v. Haun,
44 Cal. 96; S. v. Pike, 49 N, H. 399.
2White v. C., 6 Binn, 179; C. v.
Flanagan, 7 W. & S. 415; P. v. Doe,
1 Mich. 451; Redus v. P., 10 Colo. 208.
3C. v. Gardner, 11 Gray, 438; Redus
v. P., 10 Colo. 208; Garvey’s Case, 7
Colo. 384. In Minnesota a form of
indictment provided by statute and
not specifying the degree was held
sufficient for the first degree: 8. v.
Dumphey, 4 Minn. 438. So, in Cali-
fornia it has been held that the stat-
utory definition of murder, which
corresponds to the common-law defi-
nition, covers both degrees and that
it is sufficient to follow it (as in the
common-law form) without charging
the characteristics of the first de-
gree: P. v. De La Cour Soto, 63 Cal,
165; P, v. Hyndman, 99 Cal. 1.
4c. v. Gardner, 11 Gray, 488;
In accordance with this general doctrine
Graves v. S., 45 N. J. 347. The de-
cision in a state court that the com-
mon-law indictment will support
conviction for the first degree raises
no question under the federal consti-
tution: In re Robertson, 156 U.S. 183;
Bergemann v. Backer, 157 U. S. 655;
Kohl v. Lehlback, 160 U. S. 293.
58. v. Verrill, 54 Me. 408; S. v.
Hing, 16 Nev. 307; P. v. Ah Choy, 1
Idaho (N. 8), 31% In accordance
with the Maine case it is held in the
same state that under a common-
law indictment a verdict of guilty
implies guilty in the first degree: S.
v. Cleveland, 58 Me. 564 But the
cases cited in the opinion do not
support that conclusion.
6In addition to the cases already
cited in this section the following
support this proposition: Mitchell v.
S., 5 Yerg. 340; 8 C,8 Yerg. 513;
Hines v. §.,8 Humph. 597; Taylor v.
335
§ 361.] OFFENSES AGAINST THE PERSON. [Part V.
as to deliberation and premeditation, it has also been held that
proof of the killing in the perpetration of a felony, such as by
the statute will make the offense murder of the first degree,
may be proved and found by the jury under the common-law
indictment.! Opposed, however, to the authorities already cited
in this section are some cases indicating and approving a gen-
eral practice in their respective states of specially charging the
first degree in the indictment when a conviction for that de-
gree is sought by alleging the killing to have been wilful, de-
liberate and premeditated, or by poison or lying in wait, or in
the commission of some specified felony. It should be said of
these cases, however, before citing them, that in not one of
them (except perhaps the first case from Iowa) is the exact
question passed on; yet they doubtless indicate an opinion on
the part of the courts rendering them which would lead to the
reversal of a conviction in the first degree on an indictment
containing no allegation indicating the crime to have ‘been of
that degree. In Ohio it is held that as in that state there are
no common-law offenses, but all crimes are statutory, and the
statute is explicit in describing murder in the first degree, the
allegations must follow the statute as in the case of other stat-
utory offenses.’ In Missouri it is held that the form of indict-
ment charging the killing as wilful, deliberate and premeditated
is in use, and that a particular indictment under consideration
$., 11 Lea, 708; Williams v. S., 8
Heisk. 37; Hogan v. S., 30 Wis. 428;
Green v. C., 12 Allen, “155; Fitzger-
ald v. P., 87 N. Y. 413; Kennedy
v. P., 39 N. Y. 245; Dolan v. P., 64
N. Y. 485; P. v. Conroy, 97 N. Y. 63;
P. v. Giblin, 115 N. Y. 196; S. v. Jones,
50 N. H. 369; Gehrke v. 8., 13 Tex.
568; Wall v.8., 18 Tex. 682: Roach
v. 8. 8 Tex. Ap. 478; C. v. Miller, 1
Va, Cas. 310; Livingston v. C., 14
Grat. 592; McGee v. &., 8 Mo. 495;
§. v. Dunkley, 3 Ired. 116; Davis v.
S., 39 Md. 355; McAdams v. S., 25
Ark, 405; 8S. v. Lessing, 16 Minn. 75;
Hill v. P., 1 Colo. T. 436; Noles v. 8.,
24 Ala, 672; S. v. Millain, 3 Nev. 409;
Leschi v. T.,1 Wash, T. 13; T. v.
Bannigan, 1 Dak. 432; Davis v. Utah,
151 U. 8. 262. And see 1 Whart. Cr.
L., § 393.
1C, v. Flanagan, 7 W. & S. 415;
Cox v. P., 80 N. Y. 500; P. v. Giblin,
115 N. Y. 196; Titus v. S., 49 N. J. 36;
8. v. Meyers, 99 Mo. 107; Roach v.S,
8 Tex. Ap. 478,
2 Bishop gives his unqualified ap-
proval to this doctrine: See 2 Bish.
Cr. L., § 726; 2 Bish. Cr. P., $561 ef seq.
3 Fouts v. 8.8 Ohio St. 98; Kain
v. 8,8 Ohio St. 306; Hagan v. S., 10
Ohio St. 459. Intent to kill must be
alleged: Robbins v. S., 8 Ohio St. 181,
But purposely and with deliberate
and premeditated malice giving a
mortal wound is sufficient allegation
of such intent: Loeffner v. S., 10
Ohio St. 598,
336
Ca. 18.] HOMICIDE. [§ 361.
was not sufficient in that respect.! In Iowa, without citing
any of the cases on the point, but after dissenting from some
-of the arguments made in support of the general rule, the court
‘held an indictment which did not use the words “deliberately
-and premeditatedly ” insufficient to sustain a conviction of the
first degree.? In the later Iowa cases indictments have been
‘held insufficient to support a conviction in the first degree
which alleged a wilful, deliberate and premeditated assault and
‘the infliction of an injury from which death resulted, but did
‘not allege that the killing was wilful, deliberate and premedi-
‘tated.2 The same conclusion has been reached in Kansas, fol-
lowing the Iowa cases. In Indiana the doctrine of the Ohio
court is adopted and it is said that the indictment must allege
-a purpose to kill.> In Idaho the circumstances constituting the
1This was not, however, the prin-
cipal point in the case: 8. v. Jones,
20 Mo. 58. In a previous case the
-court had passed on the sufficiency
of the evidence to show wilfulness,
deliberation and premeditation, and,
one of the judges dissenting, had as-
‘sumed by way of argument that the
indictment must contain such alle-
gations: Bower v. S., 5 Mo. 364.
2Fouts v. S., 4 Greene (Ia.), 500.
‘This case is said by the same court
to be against the weight of author-
ity, but is not directly overruled, the
precise question not arising: S. v.
Johnson, 8 Ia. 525.
38. v. McCormick, 27 Ia. 402; S. v.
Watkins, 27 Ia. 415; S. v. Knouse, 29
Ta. 118; 8. v. Thompson, 31 Ia. 393;
$. v. Baldwin, 79 Ia. 714; S. v. An-
drews, 84 Ia. 88. And see Kain v.
&., 8 Ohio St. 306. But indictments
have been held sufficient which thus
allege the assault and that defend-
-ant did thereby wilfully, deliber-
ately and premeditatedly inflict a
mortal wound with specific intent
to kill, without saying that the in-
‘tent to kill was deliberate and pre-
ameditated: S. v. Shelton, 64 Ia. 333;
S. v. Townsend, 66 Ia. 741; S. v. Stan-
22
ley, 33 Ia. 526. And see Loeffner v.
S.,10 Ohio St. 598. It is also held
prejudicial error to put a party on
trial for murder in the first degree
under an indictment not sufficiently
charging that degree, although he is
only convicted of the second degree:
S. v. Boyle, 28 Ia, 522; S. v. Knouse,
29 Ia. 118. Sentence for second de-
gree cannot be imposed where con-
viction for first degree is reversed on
account of insufficiency of indict-
ment to charge that degree: S. v.
Watkins, 27 Ia. 415. But see S. v.
McCormick, 27 Ia. 402.
4S. v. Brown, 21 Kan. 38. The ne-
cessity of charging wilfulness, de-
liberation and premeditation in order
to warrant a conviction in the first
degree was recognized in Smith v.S.,
1 Kan. 365; but in that case it was
held that the conclusion to the indict-
ment in whichthe grand jury charged
wilful, deliberate and premeditated
killing made the indictment suffi-
cient. This, however, is contrary to
the Ohio and Iowa cases: Kain v. S.,
8 Ohio St. 306; Hagan v. S., 10 Ohio
St. 459; S. v. McCormick, 27 Ia. 402;
S. v. Andrews, 84 Ia. 88.
5 Snyder v. 8., 59 Ind. 105,
337
[Part V.
§ 362.] OFFENSES AGAINST THE PERSON.
first degree must be charged.! In Connecticut the statute re-
quires that the indictment shall allege the degree of the crime
charged, and the courts of that state, while recognizing the
weight of authority in favor of the general doctrine that the
statute simply divides the crime into degrees and therefore a
common-law indictment is sufficient, requires the indictment
to show that the first degree is charged, but holds this need
not be done by formal averment, but may be by any appropri-
ate words indicating that the grand jury intend to charge the
first degree — a statement of that fact in the conclusion of the
indictment being sufficient.2, The foregoing review of the cases
leads to the conclusion that the peculiar Ohio doctrine, that
there are no common-law crimes and that the statutory de-
scription of murder in the first degree is the description of
a new crime, has been the source of the rule that the first
degree must be specifically charged. In determining the form
to be used in this respect the pleader must be guided by the
precedents in his own state?
§ 362. Finding as to degree.— The provisions of the stat-
utes differ as to how the degree is to be ‘determined and the
punishment affixed. In states where it is not necessary to
specifically charge the first degree, a general verdict of guilty
under a common-law indictment for murder will not establish
the first degree of the crime.* There are a few cases, however,
1P, v. O’Callaghan, 2 Idaho, 143.
28. v. Dowd, 19 Conn. 388; S. v.
Hamlin, 47 Conn. 95; Smith v. §., 50
Conn. 193.
3 For forms, see infra, § 3888; also,
Whart. Prec., Forms 139-141; 2 Bish.
Cr. P., § 561 e¢ seg.; Bish. Direc. &
Forms, § 517.
4Johnson v. C., 24 Pa. St. 386;
Hogan y.8., 30 Wis. 428; Kirby v.
S., 7 Yerg. 258; McPherson v. S., 9
Yerg. 279; S. v. Montgomery, 98 Mo.
. 899; Cobia v. S., 16 Ala. 781; John-
son v.S.,17 Ala. 618; Hall v.S., 40
Ala. 698; Story v. 8, 71 Ala. 329;
Dover v.8., 75 Ala. 40; Levison v.S.,
54 Ala. 520; P. v, Marquis, 15 Cal. 38;
P. v. Campbell, 40 Cal. 129; Tully v.
P., 6 Mich. 278; Williams v. §., 60
Md. 402; Ford v. S., 12 Md. 514; 8, v.
Dowd, 19 Conn. 388; Thompson v.
8., 26 Ark. 323; S. v. Rover, 10 Nev.
388; Slaughter v. S., 24 Tex. 410;
Krebs v. 8., 3 Tex. Ap. 848; Dubose
v. 8.13 Tex. Ap. 418 Even where
the jury fixes the punishment at
that which is provided for the sec-
ond degree, this will not dispense
with the finding of the degree:
Johnson v. S&, 80 Tex. Ap. 419;
Slaughter v. S., 24 Tex. 410. It is
held in §. v. Cleveland, 58 Me. 564,
that “guilty as charged” is a suffi-
cient finding of the first degree even
under a common-law indictment,
but this doctrine is not supported by
the authorities cited in the opinion
and is contrary to the view of the
court as expressed in §, v. Verrill,
54 Me. 408,
338
Cuz. 18.] HOMICIDE. [§ 362.
in which it is held that a verdict of guilty under such an in-
dictment will support a sentence for the first degree without
any finding by the jury.!1 Even in states where the first de-
gree must be specified in the indictment it is held that a ver-
dict of guilty as charged is not a sufficient finding of the de-
gree where the statute requires the degree to be found by the
jury, one reason assigned being that such an indictment also
charges the lower degree.’ If the statute requires that the jury
find the degree, a verdict which does not find the degree is a
nullity and will support no conviction whatever’ It has been
held, however, that where the indictment alleges murder com-
mitted by poison or by lying in wait, or in the perpetration of
robbery, burglary, or some other of the felonies specified in
the description of the first degree, a verdict of guilty as charged
will be a sufficient finding of the degree. It has also been held
that if the verdict in the first degree is not supported by the
evidence, the court may sentence as on a verdict for the second
degree. In general, where the statute directs the jury to find
the degree, the court can give no instructions with reference
thereto.’ The provisions as to the finding of the degree by
the jury have no application to a case where the jury might find
a lower included crime, such as manslaughter; and if a verdict
of guilty is rendered under an indictment charging murder, it
is sufficient to sustain a sentence for murder although the jury
might, under the indictment, have rendered a verdict for man-
slaughter or some other lower offense.’ It seems also that if
the indictment charges only the second degree, a verdict of
guilty simply is sufficient.®
18, v. Gilchrist, 118 N. C. 678; Montgomery, 98 Mo. 399; S. v. Jack-
White v. 8., 16 Tex. 206; Curtis v.S., son, 99 Mo. 60.
26 Ark. 489; Leschi v. T., 1 Wash. T. 4C, v. Earl, 1 Whart. 525; White
28; T. v. Romine, 2 N. Mex. 114; T.v. v. C., 6 Binn. 179; S. v. Weese, 53 Ia.
Yarberry, 2 N. Mex. 391. 92 (overruling to some extent S. v.
2 Dick v. S.,8 Ohio St. 89; Parksv. Moran, 7 Ia. 236, which was in har-
S., 8 Ohio St. 101; McGee v. S., 8 mony with the cases cited in the
Mo. 495; S. v. Upton, 20 Mo. 397; second preceding note). Contra,
Colbath v. S.,2 Tex. Ap. 391. Con- Kendall v. S, 65 Ala, 492; S. v.
tra, Bilansky v. S., 3 Minn. 427. Dowd, 19 Conn. 888,
3 Allen v.S., 85 Wis. 22; In re Eck- 5 Simpson v. S., 56 Ark, 8,
art, 85 Wis. 681; Hall v. S., 31 Fla. 6 Lane v. C., 59 Pa. St. 871.
176; Nelson v. S., 82 Fla. 244; S.v. 7St. Clairv. U.S, 154 U.S, 134
8 Porter v. S., 57 Ark, 267,
339
§§ 363, 364. ] OFFENSES AGAINST THE PERSON. [Part V.
§ 368. Fixing the punishment.— By some statutes a discre-
tion is left to the jury in determining the punishment. If the
provision is such as to authorize a mitigation merely by the
jury, then if they do not in their verdict fix the penalty, it is
the duty of the court to impose the higher penalty provided
by statute;' but some statutes leave the penalty within certain
limits entirely to the jury, and in such a case a verdict not fix-
ing the penalty will be invalid.2?, And the court should not in
any way interfere by instructions with the discretion of the
jury? A statutory provision that the jury shall fix the penalty
is not unconstitutional! Ifthe statute leaves the punishment
to the jury only in case of conviction of the first degree, then
if the verdict is in the second degree the punishment is to be
imposed by the court. Where the fixing of the punishment is
for the jury, evidence in mitigation is admissible, though it
would not be legally sufficient to reduce the homicide to man-
slaughter.’
§ 364, Fixing the degree of punishment on plea of guilty.
Statutes sometimes contain the provision that, in case of a plea
of guilty, witnesses are to be examined by the court and the
degree of the crime thus fixed, and the record should therefore
show that these steps were taken;’ and such a method of pro-
cedure is not unconstitutional.? In Texas the degree must be
fixed by jury, even where defendant pleads guilty.. Where
the degree is to be fixed by the court on such a plea, it is not
error, after hearing the witnesses and determining the degree,
but before entry of judgment, to overrule an application of de-
fendant to withdraw the plea.”
1P. v. Welch, 49 Cal. 174; Green
v. S., 55 Miss. 454; Fleming v. S., 60
Miss, 434.
2Doran v. S, 7 Tex. Ap. 885;
Marshall v. S., 33 Tex. 664; Buster
v. &., 42 Tex. 315; Walston v. S., 54
Ga. 242.
3 Hill v. 8, 72 Ga. 181; Spain v. S.,
59 Miss. 19; S. v. Johnson, 30 La, An,
(pt. IT), 921; 8. v. Foster, 36 La. An.
857; P. v. Leary, 105 Cal. 486 (appar-
ently overruling P. v. Bawden, 90
Cal. 195, and earlier cases).
48. v. Hockett, 70 Ia. 442,
58. v. Howard, 118 Mo. 127; White
v. §., 80 Ala, 518.
®Nowacryk v. P., 189 Ill. 336;
Fletcher v. P., 117 Ill. 184,
‘McCauley v. U. S., Morris, 486.
But in another case it was held that
the presumption that the court acted
properly would be sufficient: In re
Brown, 32 Cal. 48.
8 Hallinger v. Davis, 146 U.S. 314.
9 Sanders v. S., 18 Tex. Ap. 372.
10P, v. Lennox, 67 Cal. 118,
840
Cu. 18.] [§ 365.
HOMICIDE.
§ 365. Murder in second degree.— Where murder is divided!
into two degrees and the facts do not show any of the classes:
of cases which by statute are made to constitute the first de-
gree, but do show what would at common law be murder,!
the crime is murder in the second degree, unless excluded by
some peculiarity in the statutory definition of that degree. In
general, all common-law murders which are not by statute of
the first degree are of the second degree.? The prosecution
may elect to try for the second degree only,® and the fact that
defendant is put on trial for the second degree while the evi-
dence shows the first degree will not render a conviction of
the second degree improper. The presumption, on proof of
homicide without circumstances of mitigation or excuse, will
be as already stated,’ that there was malice aforethought, and
therefore that the crime is murder; but such presumption will
be of murder in the second and not in the first degree.’ Neither
deliberation nor premeditation is essential to murder in the
second degree;’ nor is specific intention to kill.* Murder in
the perpetration of a felony, not being one of the felonies
named in the statutory provision with reference to murder in
the first degree, will be murder in the second degree.’ So,
murder by carelessly throwing a stone into a crowd without
any intention of killing any particular person, but thereby
causing death, is of the second degree.” Murder committed
1Keefe v. P., 40 N. Y. 848.
28. v. Conley, 39 Me. 78; Weighorst
v. S., 7 Md. 442; P. v. Doyell, 48 Cal.
85; Fields v. S., 52 Ala, 348; Gray v.
S., 4 Baxter, 331.
38, v. Moxley, 115 Mo. 644; S. v.
Baldwin, 79 Ia. 714.
4Fuller v. S., 30 Tex. Ap. 559,
5 See supra, §§ 332, 333.
6Schlencker v. S., 9 Neb. 300;
Preuit v. P., 5 Neb. 878; Milton v.5S.,
6 Neb. 186; S. v. Testerman, 68 Mo.
408; S. v. Underwood, 57 Mo. 40; S.
v. Holme, 54 Mo. 153; Pennsylvania
v. Lewis, Addison, 279; Harris v. S.,
8 Tex. Ap. 90; Douglass v. S., 8 Tex.
Ap. 520; Hubby v.S., 8 Tex. Ap. 597.
7§, v. Keasling, 74 Ia. 528.
8S. v. Decklotts, 19 Ia. 447; S. v.
Morphy, 33 Ia. 270; S. v. Mewherter,
46 Ia. 88; S. v. O'Hara, 92 Mo. 59; ex-
cept in Ohio and Kansas: See supra,
§ 326.
98. v. Leeper, 70 Ia. 748; S. v.
Boice, 1 Houst. Cr. C. 355.
10Golding v. S., 26 Fla. 530. So, in
Wisconsin, under a statute defining
murder in the second degree as
homicide when perpetrated by an
act imminently dangerous to others
and evincing a depraved mind re-
gardless of human life, although
without any premeditated design to
effect the death of any particular
individual, held, that this degree in-
cludes cases where the actual intent
to take life is absent, the act being
of such nature as to be inherently
341
§ 365.] [Parr V.
OFFENSES AGAINST THE PERSON.
without deliberation and premeditation, but upon ‘such intent
to kill as arises involuntarily on some sudden provocation or
hasty impulse, not sufficient, however, to reduce homicide to
manslaughter, is of the second degree! Where the killing is
the result of a sudden impulse due to an insult, even though
by words alone, the murder will be of the second degree, there
not being sufficient provocation to reduce the homicide to man-
slaughter? So, disrespectful words spoken of defendant’s wife
may be sufficient to indicate that the killing was not deliberate
and premeditated? But provocation by insulting words will
only reduce the crime to the second degree when the act is the
immediate result of rashness and impetuous temper without
consciousness of any purpose except to do bodily harm, and
not when it is the result of hate and revenge with sufficient
consciousness to select a deadly weapon with the purpose of
taking life. So, other evidence may show that the killing,
though in a sudden combat or upon a sudden occasion, was wil-
ful and deliberate.> If there has been time for the passion to
subside,® or the passion is without reasonable cause,’ it will not
reduce the killing to the second degree. Other cases where
death in a quarrel was held to be murder in the second degree
will be found in the note. On the other hand, where, after a
an assault dangerous to human life,
whether to the person against whom
it is directed or to persons in gen-
eral: Hogan v. S., 36 Wis. 226. And
as to a similar statute in Minnesota,
see 8. v. Stokely, 16 Minn. 282.
18. v. Wieners, 66 Mo. 13; S. v..
Lane, 64 Mo. 319; S. v. Packwood, 26
Mo. 340; P. v. Barberi, — N. Y. -——
(43 N. E. R. 635); Bohanan v. §., 15
Neb. 209; Hornsby v. S., 94 Ala. 55;
Anderson v.5S., 31 Tex. 440; Ake v.
6., 31 Tex. 416, Absence of previous
grudge may be shown to indicate
that the murder was only of the sec-
ond degree: Kelly v. C.,1 Grant, 484,
But even if there appears an old
grudge, the killing may be the result
of a sudden impulse without pre-
meditation, and, therefore, of the
second degree: McQueen v. 8., 1 Lea,
285; S. v. Till, 1 Houst. Cr. Cas, 233.
2 Watson v. S., 82 Ala. 10; S. v. Hill,
69 Mo. 451; S. v. Lewis, 74 Mo. 222;
S. v. Kotovsky, 74 Mo. 247; S. v. Me-
Ginnis, 76 Mo. 826.
38. v. Collins, 81 Mo. 652
Mo. 245.
4Green v. C., 83 Pa, St. 75.
5S. v. Burgess, 78 Mo. 284; S. v.
Wisdom, 84 Mo. 177; 8. v. McDaniel,
94 Mo. 301. A conspiracy implies
premeditation, and is therefore in-
consistent with the second degree:
S. v. Swain, 68 Mo. 605.
6 P, v. Kerrigan, 147 N. Y. 210; Ex
parte Jones, 51 Tex. Ap. 422,
TSmith v. S,, 108 Ala. 4.
8 Harris v. S., 86 Ark. 127; McDan-
iel v. C., 77 Va. 281; Wilson v. S., 6
Tex. Ap. 427; Evans v.S., 6 Tex. Ap.
518; Cunningham v. 8, 17 Tex. Ap.
89; Hull v. S., 6 Lea, 249; abuE v.
8., 5 Lea, 362.
; 8. C, 86
342
Fe
Cu. 18.] HOMICIDE. [$§ 366, 367.
fight is over, one of the parties turns deliberately and kills the
other, the murder is of the first degree! Killing in resisting
rightful ejectment from premises will not be murder in the
second degree, though done in the scuffle arising from the at-
tempt to eject.2, Where an officer in seeking to arrest for a
misdemeanor (and therefore having no right to take life) fired
at the person attempting to escape and accidentally killed a
by-stander, he was held guilty of murder in the second degree.’
While infidelity of the wife may cause such frenzy that the
killing of the wife by the husband will be only murder in the
second degree, yet where there has been time to cool and for
deliberation in view of the circumstances, the killing will be
of the first degree.! Although the second degree of murder is
without deliberation and specific intent to kill, yet there may
be an accessory before the fact to murder in the second de-
gree?
§ 366. Question of law and fact.— Whether the provoca-
tion is sufficient to show that the murder was of the second
degree and not deliberate is a question for the court, and
whether the state of mind involving want of deliberation in an
intentional killing was in fact produced by such provocation
is a question for the jury.®
§ 367. Conviction of second degree under indictment of
first degree.— Defendant being put on trial under an indict-
ment properly charging the first degree, in those states where
the indictment must show the degree, may be convicted of the
second degree on failure of the evidence to show the premedi-
tated malice or the attempt to commit a felony necessary to
establish the first degree.’ Therefore it is proper to instruct
as to the second degree.’ But no instruction as to the second
Aegree is necessary where, under the evidence, the defendant is
guilty of the first degree or not guilty of any crime; for in-
1g, v. Gardner, 1 Houst. Cr. Cas. 5 Jones v..S., 13 Tex. 168.
146; S. v. Rhodes, 1 Houst. Cr. Cas. 6S, v. Ellis, 74 Mo. 207.
A476. 7Keefe v. P., 40 N. Y. 348.
2Keenan v. C., 44 Pa. St. 55. 8S. v. Baker, 18 Mont. 160. This
38, v. O’Neil, 1 Houst. Cr. Cas. 468. subject is discussed hereafter in
49. v. Bulling, 105 Mo. 204; S. v. connection with instructions as to
Anderson, 98 Mo. 461; Garlitz v.S., other crimes necessarily included in
91 Md. 293, murder: See infra, § 391.
348
§ 368.] OFFENSES AGAINST THE PERCON. [Part V.
stance, where defendant relies for justification or excuse om
insanity or accident.’
§ 368. Degrees of manslaughter.— In some states man-
slaughter remains as at common law, but in others it has been
divided more or less elaborately into degrees. Such division is
sometimes made into voluntary and involuntary manslaughter,
the voluntary corresponding to that kind of manslaughter al-
ready described as consisting in intentional killing under such
provocation as to negative malice and therefore prevent the
offense being murder;? the involuntary including all the other
common-law classes of manslaughter, that is, those in which
the offense does not indicate an intention to cause death.’ In.
Texas manslaughter is limited to voluntary homicide, other
1 Boren v. 8., 32 Tex. Ap. 637; 8. v.
Reed, 117 Mo. 604; S. v. Fairlamb,
121 Mo. 137.
2Voluntary manslaughter is on
sudden heat, without malice, but
with intent to kill: Creek v. 8, 24
Ind, 151; Bruner v. S., 58 Ind. 159;
Norton v. S., 98 Ind. 347; Luck v.
S., 96 Ind. 16. But it is not nec-
essary that actual intent to kill
appear, nor that instruments or
means usually fatal shall have been
employed from which such intent
may be implied. The intent may
be implied from the infliction of
violence, which would not be likely
to prove fatal in case of an ordinary
person, upon one in such physical
condition that the use of such vio-
lence would be probably followed by
death or great danger to life. It is
the element of a probably fatal re-
sult from the injury that distin-
guishes voluntary from involuntary
manslaughter: Murphy v. P., 9 Colo.
485. The death need not be by a
deadly weapon in order to make
the manslaughter voluntary; it is
enough that it is with violence
dangerous to life: Thompson v. S.,
24 Ga, 297; Ray v. S, 15 Ga. 228;
Brown v. 8, 28 Ga. 199. Under the
Georgia statute, including death re-
sulting from an attempt to commit
a serious personal injury in volun-
tary manslaughter, held, that this:
expression meant an attempt to
commit an injury greater than a
provocation by mere words and less.
than a felony: Buchanan v. &., 24
Ga. 282. Ina similar case of killing
with a deadly weapon, held, that the-
circumstances supported a convic-
tion for voluntary manslaughter:
Irby v. 8., 32 Ga. 496.
3 Homicide committed in the per-
petration of an act which is in itself
unlawful, or not done with sufficient
caution, but without intention to
kill or do serious bodily harm, is in-
voluntary manslaughter: C. v. Gable,
7 Serg. & R. 423. Itis not included
ina charge of murder or involuntary’
manslaughter, but must be specially
charged in a separate count: Wal-
ters v. C., 44 Pa. St. 135. Drawing a
deadly weapon upon another, being
an unlawful act, is sufficient to make.
death resulting, although unin-
tended, involuntary manslaughter:
Surber v. 8., 99 Ind. 71. Homicide
resulting from doing a wrongful act.
is involuntary manslaughter: 8. v-
Johnson, 102 Ind. 247. Negligently
running over and killing a child wilk
support a conviction of involuntary
manslaughter: Lee v. S., 1 Coldw. 62.
Negligence in performing a surgicak
344
Cu. 18.]
HOMICIDE.
[§ 36%
forms of the common-law offense being otherwise named! In
some states manslaughter is divided into degrees according to
the wrongfulness of the act. The cases with reference to the
construction of these statutory provisions as to degrees are-
sufficiently stated in the note?
operation from which death results
may be involuntary manslaughter:
S. v. Gile, 8 Wash. 12. Where a stat-
ute creates two grades of the offense
of involuntary manslaughter, a ver-
dict of guilt of involuntary man-
slaughter without specifying the
grade will not support a judgment:
Thomas v. S., 38 Ga. 117.
1Therefore a common-law indict-
ment for manslaughter is not suffi-
cient: Jennings v.8., 7 Tex. Ap. 350.
2In Alabama an act amounting
to manslaughter voluntarily com-
mitted is of the first degree without
regard to provocation: Oliver v. S.,
17 Ala. 587; McManus v. S., 86 Ala,
285; Collier v. S., 69 Ala. 247. But
in a later case it is said that to con-
stitute the first degree there must
be either a positive intention to kill
or an act of violence from which, in
the usual course of events, death or
great bodily harm may result: Har-
rington v. S,, 83 Ala. 9; Williams v.
S., 83 Ala. 16. In Wisconsin man-
slaughter in the first degree is what
would at common law be murder
with malice aforethought implied
from the use of a dangerous weapon,
without intent to take life or do
great bodily harm: Rowan v. &., 30
Wis. 129; Boyle v. 8. 57 Wis. 472;
while manslaughter in the fourth
degree is the involuntary killing of
another by any weapon or any means
neither cruel or unusual in heat of
passion: Schlecht v. 8., 75 Wis. 486.
Under the same statute defining a
degree of manslaughter as consist-
ing of killing which is notin a cruel
and unusual manner, and there is
evidence of killing by means of cut-
ting and stabbing with a knife, the
question of whether the manner was.
cruel and unusual is for the jury::
Keenan v. S., 8 Wis..182. So held
also under a similar statute in Mis-.
souri: S. v. Gassert, 65 Mo. 352. By
the Missouri statute manslaughter:
in the fourth degree includes negli--
gent killing: S. v. Morrison, 104 Mo.
638. Under the same statute death.
from negligence while engaged in:
the perpetration of any other felony
refers to death resulting from some-
other wrong than the act of violence:
itself: S. v. Sloan, 47 Mo. 604; S. v..
Downs, 91 Mo. 19. The distinction:
between the third and fourth de-
gree of manslaughter in that state-
turns on the question of whether
the killing in heat of passion was by
a dangerous weapon or by means
cruel or unusual: S. v. Wilson, 98 Mo.
440. But there may be manslaughter
of the fourth degree even where
there is intent to kill, if the act is
without malice and in the heat of
passion: S. v. McKinzie, 102 Mo.
620. Common-law voluntary man-
slaughter does not fall within the-
statutory degree of manslaughter
defined as being without design::
S. v. Edwards, 70 Mo. 480. The stat-
utory crime defined as the unlawful:
killing of another ona sudden quarrel.
without malice does not necessarily
imply intent to kill: Montgomery
vy. S., 11 Ohio, 424. And in such of-
fense there may be an aider and
abettor: Hagan v. S., 10 Ohio St. 459..
But there can be no aider and abet-
tor in involuntary manslaughter-
where there is no conspiracy to use-
a dangerous weapon, even though.
there is a conspiracy to do an unlaw-.
ful act.
845
§ 369.] OFFENSES AGAINST THE PERSON, [Part V.
VIL. Jurispiction AND VENUE.
§ 369. Jurisdiction. The general subject of jurisdiction
belongs to procedure rather than the substantive criminal law,
but in homicide a peculiar question arises which requires atten-
tion here. In general, criminality is determined by the nature
of the act done and the intent with which it is done; but a
criminal homicide is not committed until the death of the in-
jured person, although the connection of the accused with the
crime is already completed. It is true that the act itself ac-
companied with the criminal intent may be some form of
assault, but until death occurs it is not criminal homicide.
Therefore, where the act of the accused is committed in one
jurisdiction, while the death of the injured party takes place
in another, some difficulty has been supposed to arise in deter-
mining in which jurisdiction the offense is to be punished.
‘The origin of the difficulty is to be found in some peculiar
rules of common-law procedure relating to the venue, which are
‘considered in the next section; but the jurisdictional question
is less easily disposed of, for while the venue as between dif-
ferent counties in the same jurisdiction may be regulated by
statute, no statutory regulation can cure the trouble growing
out of a defect in jurisdiction. It is not competent for one
sovereignty to punish as a crime against it an act which is
done outside of its territorial limits.! Therefore the ques-
tion is, whether the homicide is a crime in the jurisdiction
where the wound is inflicted, or the jurisdiction where the
death occurs; and notwithstanding some doubts which have
‘been expressed on the subject, it is now definitely settled that
the criminality of the one who inflicts the wound, or other
injury which subsequently causes death, is fixed by the com-
pletion of his act, provided death subsequently follows within
-a year and a day, and he may be punished within the jurisdic-
tion where the act is thus completed without regard to where
the death occurs.? In some cases this result is held to be
18, v. Carter, 27 N. J. 499; Tyler v. view is enforced by cases cited in
P., 8 Mich. 320; 8. v. Hall, 114 N.C. the next section as to venue: See
909; Reg. v. Keyn, L. R. 2 Exch. 63. especially S. v. Bowen, 16 Kan. 475;
2U.8. v. Guiteau, 1 Mackey, 498, Green v. S., 66 Ala. 40; Riley v. S., 9
47 Am. R. 247; S. v. Hall, 114 N.C. Humph. 646. It is also supported by
“909; S. v. Gessert, 21 Minn. 369. This decisions to the effect that in deter-
846
Cu. 18.) HOMICIDE.
[$ 370.
reached only by virtue of statutory provisions, and it is said
that without legislation the homicide cannot be punished in
the jurisdiction where the wound is inflicted if the death oc-
curs in another jurisdiction.? Statutes have, however, been
upheld which make the offense punishable in the jurisdiction
where the death occurs, on the theory that the crime is a con-
tinuous one and may be punished where it iscompleted.2 The
reasoning of these cases would seem to be inconsistent with
that of the cases just cited, in which it is held that the offense
is complete when the mortal wound is inflicted, provided only
that death subsequently occurs. On the other hand there are
‘eases apparently not supported by sound reasoning which hold
‘that if a wound is inflicted on the high seas, and death subse-
‘quently occurs on land, the crime of murder on the high seas
is not committed. Where a person standing on one side of
the boundary line between two jurisdictions, as, for instance,
two states of the Union, fires across the line at a person within
the other jurisdiction, and thus commits a criminal homicide,
the crime is committed in the jurisdiction where the injury is
inflicted, and not in that where the offender is when he fires
the shot.2 And even if no actual injury whatever is inflicted,
the crime of assault with intent to commit murder is committed
within the jurisdiction where the person is who is assaulted,®
although it is difficult to see why an assault is not also com-
mitted within the jurisdiction of the assailant, as a wrongful
act in the nature of assault and the criminal intent there concur.
§ 370. Venue.— At common law there was at one time a
doubt whether, if the wound was inflicted in one county and
death occurred in another, an
mining when the crime was com-
mitted, for instance whether prior
‘or subsequent to the passing of a
certain statute, the date of inflict-
ing the wound and not that of the
death is to be considered the date of
the crime: P. v. Gill, 6 Cal. 637;-
Dibney v. S., 45 Neb. 856.
1 Hunter v. S., 40 N. J. 495, 546.
2C, v. Linton, 2 Va. Cas. 205.
3C. v. Macloon, 101 Mass. 1; 8. v.
Caldwell, 115 N. ©. 794; Reg. v. Az-
zopardi, 1 GC. & K. 2038; Reg. v.
indictment could be found in
Lewis, 7 Cox, 277. And see Hunter
v.S., 40 N. J. 495, 548.
4U. S. v. McGill, 1 Wash. C. C. 463;
U.S. v. Armstrong, 2 Curt. 446.
5S, v. Hall, 114 N.C. 909, 28 L. RB.
A.59and note. But there can be no
extradition in such a case, as the
criminal does not flee from the state
where the crime was committed:
Ibid. And see Jones v. Leonard, 50
Ta. 106; Hartman v. Aveline, 63 Ind.
344,
6 Simpson v. §., 92 Ga, 41.
347
§§ 371, 372.] | OFFENSES AGAINST THE PERSON. [Parr V.
either county.) But this doubt was resolved in England by a
statute providing that the prosecution might take place in
either county, and similar provisions will be found in the stat-
utes of the various states;? and it is not essential to allege the
circumstances, but the whole transaction may be charged as
taking place in the county where the prosecution is brought.*
Sometimes the statute makes the offense punishable only in the-
county where the blow was struck.‘
VIII. Tas Inpicrment.
§ 371. Murder and manslaughter distinguished.— The dis-
cussion under the third principal heading of this chapter as to
the division of criminal homicide into murder and manslaughter
has indicated in what respect the two crimes differ, and from
that discussion it appears that the crimes are alike as to the
fact and unlawfulness of the killing, and differ only in the nat-
ure of the intent, express or implied, with which the unlawful
act is done. It is apparent, therefore, that it is only in this
respect that indictments for these two kinds of criminal homi-
cide will differ, and that in the main their allegations may be,
as they practically are, the same. Indictments for these two.
offenses may therefore be discussed indiscriminately, except
with reference to the intent, where the distinction will be
pointed out.
§ 372. Elements.— An analysis of the commondaw form of
indictment for criminal homicide® will disclose that such in-
dictment may be divided into the following principal elements.
(omitting the introduction, which is the same in this as in other
indictments for felony): (1) The name of the party charged.
(2) the name or description of the person killed; (8) the act.
done; (4) with reference to the means employed; (5) the injury
inflicted; (6) the result of such injury; (7) the time and place
and fact of the death; and (8) the conclusion.
11 Hale, P. C. 426; 1 Bast, P. C. 16 Kan. 475; Riley v. 8S. 9 Humph.
861; 1 Hawk. P. C., ch. 31, § 18, 646,
2 Nash v. S., 2 Greene (Ia.), 286; C, 38. v. Jones, 88 La. An. 792,
v. Parker, 2 Pick. 550; Dula v. 8, 8 4 Stout v. S., 76 Md, 817; 9 Am. Cr.
Yerg. 510; 8. v. Blunt, 110 Mo. 322; R. 398, and note.
Green v. §., 66 Ala. 40; S. v. Bowen, 5See infra, § 388,
348
Ca. 18.] HOMICIDE.
[$$ 373, 8782.
§ 373. Name of the party charged; “sound mind.’’— No
different principles apply to indictments for criminal homicide
from those applicable in other indictments as to naming the
defendant or accused, and therefore no general discussion of
the question is here material. It is not necessary to describe
defendant as “of sound mind and memory” or to otherwise
indicate his sanity.!
§ 373a. The person killed.—In general, indictments for
homicide do not differ from other indictments as to the neces-
sity and method of naming or describing the injured party, but
some peculiar rules in that respect arise from the fact that it
is the death of the injured party that is complained of. The
indictment must in some way name or describe the person
killed. Even though the name of the person assaulted is given,
if the indictment is blank as to the name of the person killed
it is insufficient.2 The name by which the deceased was gen-
erally or commonly known is sufficient. Where the name
of deceased is to the grand jury unknown, that fact may be
alleged,! coupled with some other description, such as a “female
child,” ® or “infant child,” § a “ woman,” 7 a certain “ Wyandott
Indian.”® But the allegation that the name is to the grand
jury unknown must be proven. If it appears that the name
was known to the grand jury, the misdescription will be fatal.’
lJerry v. S., 1 Blackf. 395; Fahne-
stock v. S,, 28 Ind. 231; Dumas v. 6.,
63 Ga. 600; Bean v. S., 17 Tex. Ap.
60.
28. v. Pemberton, 30 Mo. 376; Dias
v. 8, 7 Blackf. 20. Contra where the
only omission of the name was in
the conclusion, the body of the in-
dictment being in proper form:
Evans v. P., 12 Mich. 27.
3P, v. Freeland, 6 Cal. 96. And it
is immaterial that he has another
name: Jones v. S., 65 Ga. 147; Hunter
v. S., 8 Tex. Ap. 75.
4 Reese v. 8., 90 Ala. 624; Edmonds
v. S., 34 Ark, 720; Rex v. Clark, Russ.
& Ry. 358. If the Christian name is
unknown that fact may be stated,
the surname being given: Bryan v.
§., 86 Ala. 270. So, if the surname
is unknown the Christian name may
be given: Reg. v. Stroud, 1 C. & K.
187; Edmonds v. S., 84 Ark. 720.
58, v. Richmond, 42 La. An. 299.
6 Tempe v.S., 40 Ala. 350. It is not
necessary to aver the sex of the
child: S. v. Morrissey, 70 Me. 401.
TReg. v. Campbell, 1 C. & K. 82,
Or a “white woman:” Rothschild v.
S., 7 Tex. Ap. 519.
8Reed v. S., 16 Ark. 499. Where
the indictment undertakes to de-
scribe deceased by his race, the de-
scription must be proved: Reed v.
S.,16 Ark. 499.
9Reese v. S., 90 Ala. 624. Where
the Christian name is known it
should be stated. It would be erro-
neous to allege that the name is to
the grand jurors unknown: Reg. v.
349
OFFENSES AGAINST THE PERSON. [Parr V.
8 374.]
The indictment must give the name or account for the omis-
sion! But an allegation in an indictment for the killing of an
infant child that it was not named is sufficient.? In the case
of illegitimate children the surname of the mother may be
used if the child has been known by that name,’ otherwise it
should not be described by that name.* Although the name
should be proved as alleged,’ yet, where there is no controversy
as to the identity, it need not be fully proven, no variance ap-
pearing.’ Error in the middle name is not material.’ The
general doctrine in all crimes where description of a person is
necessary, that it is sufficient if the name used in the indict-
ment has, or may be given, the same sound as that proven
(or, as it is generally expressed, is
Hampton, 144 N. Y. 639; S. v. Pa-
gano, 7 Wash. 549; Jim v. S, 5
Humph. 145; S. v. Atkinson, 40 8. C.
863; Shultz v. S., 18 Tex. 401; Will-
jams v. S.,3 Tex. Ap. 123. As to cir-
cumstantial evidence of the corpus
delicti, see supra, § 896.
TP, v. Strong, 80 Cal. 151; Cole-
man v. §., 26 Fla. 61; Dreessen v. 8.,.
38 Neb. 375; Johnson v.S., 18 Tex.
Ap. 385; Crow v.S., 88 Tex. Ap. 264;
Pogue v. 8., 12 Tex. Ap. 283; Hodges”
Case, 2 Lewin, 227.
8Schusler v. S., 29 Ind. 394; Horne
v. S, 1 Kan. 42. Where simulta-
neous shots were fired by two per-
sons not acting in combination, it
was held that if there was any
doubt as to the one fired by defend-
ant having caused the death he
should be acquitted: P. v. Woody,
45 Cal. 289.
386
HOMICIDE.
Ox. 18.] [§ 410.
sonable hypothesis arising out of the testimony and inconsist-
ent with his guilt.1. Though the failure of defendant to explain
circumstances apparently connecting him with the crime, when
it is in his power to do so, may be considered against him, yet
such failure is not conclusive of his guilt,? and has no weight
unless satisfactory proof of guilt is offered. Where a chain
of facts is relied on to establish the main fact in issue, each
fact in the chain must be proved by competent evidence of the
same weight as if that fact were the main fact in issue. The
court should instruct as to the law of circumstantial evidence
where it is relied on for a conviction.®
§ 410. Best evidence; eye-witnesses.— The general doctrine
that the best evidence should be produced of which the case
will admit has been so applied as to require the production of
the evidence of eye-witnesses, if attainable, and render circum-
stantial evidence inadmissible in such cases.’ A rule is also rec-
1Kendrick v. S., 55 Miss. 486,
2Gordon v. P., 83 N. Y. 501.
3C. v. Hardiman, 9 Gray, 136; Find-
ley v. S., 5 Blackf. 576.
40. v. Webster, 5 Cush. 295; P. v.
Phipps, 39 Cal. 333; P. v. Anthony,
56 Cal. 397; Clare v. P., 9 Colo. 122;
Dossett v. U. S., 8 Okl. 591; Harrison
v. S, 6 Tex. Ap. 42; Crow v. S., 33
Tex. Ap. 264. But it is not error to
refuse to charge that if one link in
the chain of circumstantial evidence
is wanting the state fails to make
out a case, for such an instruction
would be misleading: Grant v. S.,
97 Ala. 35.
5 Riley v. S., 20 Tex. Ap. 100; Hunt
v. 8.7 Tex. Ap. 212; Wallace v. 8.,
7 Tex. Ap. 570; Sttuckman v. 8., 7
Tex. Ap. 581; Myers v.S., 7 Tex. Ap.
640. Butit was held error to charge
that circumstantial evidence is legal
evidence, and is often as conclusive
as that which is termed direct and
positive evidence, on the ground
that such instruction was an intima-
tion as to the opinion of the court
on the weight of evidence of defend-
ant’s guilt: Harrison v. 8. 9 Tex,
Ap. 407. On the other hand, a
charge that circumstantial evidence
is as good as any other kind of evi-
dence was held not to be error: West
_v. S76 Ala. 98. The defendant is
not entitled to a. charge that the
jury should not convict upon cir-
cumstantial evidence unless it is as
fully satisfactory to their minds as
would be the positive swearing of
one credible witness that he saw the
act: Rea v. S., 8 Lea, 356; S. v. Car-
son, 115 N. C. 743. After counsel
for defendant had read over cases
where conviction of innocent per-
sons had been secured on circum-
stantial evidence, it was held proper
for the court to caution the jury
against attaching too much impor-
tance to such cases: P. v. Ah Fook,
64 Cal. 380. It is only where the in-
culpatory evidence is wholly circum-
stantial that an instruction as to its
weight is required: Smith v. S., 28 |
Tex. Ap. 309; Self v. S., 28 Tex. Ap.
398; Jones v. S., 31 Tex. Ap. 177.
6Thompson v. 8., 30 Tex. Ap. 325;
Hunnicutt v. 8., 20 Tex. Ap. 632.
387
§ 411.] [Part V.
OFFENSES AGAINST THE PERSON.
ognized in England, and in some of the states, requiring the
prosecution to call all the witnesses who were present at the
transaction, whether they are supposed to be favorable to
the prosecution or the defense, the theory being that in acrim-
inal case the prosecution should have no other object than to
get at the truth.’ Of course, if the witness shows an unfair
bias, the prosecution will be allowed great latitude in his ex-
amination, but should examine him to some extent as to the
facts, so as to give the defense an opportunity for cross-exami-
nation.2 This doctrine has not received general support, how-
ever, in the United States, it being thought that the opportu-
nity which defendant has of securing witnesses, and in many
states of testifying in his own behalf, is sufficient to protect
him against any improper suppression of evidence on the part
of the prosecution; and in states where somé recognition to
the rules is given it is interpreted to mean only that the prose-
cution must show the whole transaction, and not suppress a
part of it and ask a conviction on a partial showing of the
facts.®
§ 411. Res gestw.— It is not necessary in this connection to
discuss the general doctrine as to admissibility of evidence of
the res geste in all its phases, but some pertinent illustrations
may properly be given showing its application in homicide
cases. The general principle is that evidence of the entire
1Maher v. P., 10 Mich. 212, 225;
Hurd v. P., 25 Mich, 405, 415; Thomas
v. P., 39 Mich. 309; P. v. Swetland,
77 Mich. 53; P. v. Deitz, 86 Mich, 419;
P. v. Germaine, 101 Mich. 485; P. v.
Kindra, 102 Mich. 147; S. v. Magoon,
50 Vt. 333; Donaldson v. C., 95 Pa.
St. 21; Reg. v. Holden, 8 C. & P. 606;
Reg. v. Chapman, 8 C. & P, 558; Reg.
v. Orchard, Ibid., note; Reg. v.
Stroner, 1 C. & K. 650; Reg. v. Bull,
‘9C. & P. 22; Whart. Cr. Ev., § 448;
Roscoe, Cr. Ev., § 139.
2Wellar v. P., 30 Mich. 16; 8. v.
Magoon, 50 Vt. 333; Reg. v. Chap-
man, 8 C. & P. 558; Reg. v. Stroner,
1C. & K, 650,
3 Reg. v. Bull, 9 C. & P. 22,
4C. v. Haskell, 140 Mass, 128; C. v.
Schmous, 162 Pa. St, 326; 8. v. Eaton,
75 Mo. 586; S. v. Johnson, 76 Mo. 121;
8. v. Cain, 20 W. Va. 679; S. v. Mar-
tin, 2 Ired. 101; S. v. Smallwood, 75
N. C. 106; Hale v. 8., 72 Miss. 140;
Clark v. C., 90 Va. 860. At any rate,
where there is evidence of eye-wit-
nesses as to the whole transaction,
it is not obligatory on the state to
call all the witnesses to the transac-
tion: 8. v. Middleham, 62 Ia. 150; 8.
v. McGahey, 3 N. Dak. 293.
5Bonker v. P., 87 Mich, 4; T. v.
Hanna, 5 Mont. 248,
888
Cu, 18] [§ 412.
HOMICIDE,
transaction is admissible,' and of the surroundings? In prov-
ing the whole transaction it is competent to give evidence of
what happened after or before the homicide if it is connected
therewith.? Where there has been a continuous quarrel or
difficulty between the parties preceding the homicide, the evi-
dence may cover the entire difficulty. While of course evi-
dence of any other transaction in which defendant was involved,
even though near the time of the transaction in question, is
not admissible,’ yet if the two acts are connected as a part of
one transaction, both may be shown although one of them in-
volves a crime distinct from that for which the defendant is
on trial.®
§ 412. Declarations as part of res gestw.— Declarations of
the parties to the transaction involving the homicide are ad-
missible as a part of the transaction itself.7 And in this way
1P, v. Potter, 5 Mich. 1; Rees v. S.,
7 Ga. 873; S. v. Donelon, 45 La. An.
744, Thus, where the homicide com-
mitted was connected with a con-
troversy about a mining claim, evi-
dence by defendant of his ownership
of the claim was held admissible:
P. v. Costello, 15 Cal. 350. But where
the defendant was charged with
killing a highway commissioner in
a controversy as to the existence of
a road over defendant’s land, it was
held that evidence that the place
where the offense was committed
was not a public road was not ad-
missible: Davison v. P., 90 Ill. 221.
Proof as to the articles found in de-
fendant’s possession immediately
after the commission of the crime
is admissible as part of the res geste:
P. v. Smith, 106 Cal. 73.
2For instance, the existence of
blood stains at or near the place
where violence has been inflicted:
Wilson v. U.8., 162 U. 8. 613.
3 P, v. Marble, 88 Mich. 117; O’Mara
v.C., 75 Pa. St. 424; Howser v. C.,
51 Pa, St. 332; S. v. Kennade, 121 Mo.
405. Proof of statements made by
one party to the controversy in the
presence of the other, and denied by
the latter, may be shown for the pur-
pose of proving the circumstances,
though the statements are not evi-
dence of the truth of what was said:
Haile v. S., 1 Swan, 248.
4Stit v. S., 91 Ala. 10; P. v. Stone-
cifer, 6 Cal. 405; Poindexter v. C., 33
Grat. 766; McGinnis v. S., 31 Ga. 286.
Thus, where defendant was on trial
for the murder of an officer while
in pursuit of defendant for a crime,
proof of the commission of the
crime and defendant’s connection
with it was held admissible: P. v.
Pool, 27 Cal. 572,
5P, v. Lane, 100 Cal. 379.
68. v. Lapage, 57 N. H. 245; Brown.
v. C., 76 Pa. St. 319; C. v. Sturtivant,
117 Mass. 122; P. v. Johnson, 139
N. Y. 858; P. v. Pallister, 1388 N.Y.
601; S. v. Sanders, 76 Mo. 35; S. v.
Mathews, 98 Mo. 125; S. v. Dooléy,
89 Ia. 584; Johnson v. §., 88 Ga. 203;
Heath v. C., 1 Rob. (Va.) 735; Kill-
ins v. S., 28 Fla. 318; Smith v. 8., 88
Ala. 78; Glory v. 5S. 138 Ark. 236;
Fernandez v. S&S, 4 Tex. Ap. 419;
Wilkerson v. S., 31 Tex. Ap. 86; S.
v. Deschamps, 42 La. An. 567.
7P, v. Roach, 17 Cal. 297; S.. v.
Henderson, 24 Oreg. 100; Warren v.S.,
389
§ 413.] OFFENSES AGAINST THE PERSON. [Part V.
the declarations of accused accompanying his act become ad-
missible in his own behalf as showing the motive with which
the act was done.! _In the same way declarations and exclama-
tions made by bystanders have been held admissible as a part
of the transaction.2 But some cases hold the other way on the
ground that such evidence is mere hearsay.’ Even threats
made at the time the act is done, which they are supposed to
characterize and harmonize with it as one transaction, may
be shown as part of the res gestw. This is especially true as to
threats of deceased where the accused seeks to show that he
acted in self-defense. Of course acts or declarations by ac-
cused not a part of the transaction are not admissible in his
behalf, as they would be open to the objection of being self-
serving acts; but they may be shown against him as in the
nature of confessions or admissions.®
§ 413, Antecedent acts and declarations.
It has already
appeared that if they form part of the transaction involving
the homicide, antecedent acts and declarations are admissible.’
9 Tex. Ap. 619; Bejarano v. 8., 6 Tex.
Ap. 265; Cox v. S., 8 Tex. Ap. 254.
18. v. Walker, 77 Me. 488; S. v.
Abbott, 8 W. Va. 741. But no weight
is to be given to a declaration of
accused in his own behalf unless the
jury are satisfied that it was forced
from him as the utterance of truth
by the particular event itself, and
at a time so closely connected with
the transaction that there was no
opportunity to determine as to what
it might be wise to say: U.S. v.
King, 34 Fed. R. 302.
2Flanegan v. S., 64 Ga. 52; Mc-
Rae v. S., 71 Ga. 96; S. v. Duncan,
116 Mo. 288; S. v. Kaiser, 124 Mo.
651. So acts of a third person con-
nected with the subject-matter may
be shown: Alexander v. U. S., 138
U. 8S. 353. Statements of persons
who examined the body immedi-
ately after the killing and at the
place of the homicide may be
shown: 8. v. Robinson, 12 Wash.
491. Where it was sought to show
the exclamations of a child, it was
held that if the child had not such
capacity as that its evidence would
be admissible, its exclamations were
not competent: Adams v. S., 34 Fla.
185. :
Bradshaw v. C., 10 Bush, 576;
8. v. Riley, 42 La. An. 995.
4Wilson v. P., 94 II: 299; S. v.
Gregor, 21 La. An. 478; even though
such threats may not have been
communicated to defendant: Pit-
man v. &, 22 Ark. 354; Reynolds
v. S, 1 Ga. 222. So the character
and habits of the deceased may be
shown as a part of the circum-
stances: Wise v. S, 2 Kan. 419.
Further, as to threats and character
of deceased and threats of accused,
see infra, 8§ 419, 422, 423.
58. v. Smith, 114 Mo. 406; S, v. Tal-
bert, 41.8. C. 526; U. S. v. King, 34
Fed. R. 802.
6 Infra, § 420.
‘Supra, § 411. And see Reg. v.
Edwards, 12 Cox, 230; Howard v. S.,
8 Tex. Ap. 53.
390
Ox. 18.] HOMICIDE.
[§ 414.
But if separated from the homicide and constituting independ-
ent transactions, they are not admissible. There must be some
connection between the two.! But where previous acts are so
connected with the homicide as that evidence of them is ad-
missible, declarations explanatory of such acts, made at the
time of and in connection with the acts themselves, are also
admissible.?
§ 414. Narrative of past transaction.— As a general prop-
osition a narrative of a past transaction, even by one of the
parties to it, is not admissible as res gestw.2 And it is imma-
terial as to the length of time after the transaction, if such
time has elapsed as to make the statements, having regard to
their form and. substance, mere narration.*’ And therefore in
several cases it has been held that statements of deceased made
a few minutes after the injury were not admissible.® And the
same rule is applicable to declarations of the accused.’ But
the cases just cited apply the rule of exclusion of subsequent
statements with a strictness not supported by the weight of
authority. It is evident that statements made after the inflic-
tion of the injury mav be so closely connected with it as to be
a part of the transaction, and therefore admissible under the
general principle of res gestw."’ Thus, declarations of the de-
ceased made immediately after the injury as to how it was
18. v. Woodward, 1 Houst. Cr. Cas.
455; Fonville v. 8.,91 Ala. 39; Henry
v. S 79 Ala. 48; S. v. Anderson, 4
Nev. 265; Newcomb v. S., 87 Miss.
883; P. v. Smith, 26 Cal. 665; Montag
vy. P., 141 Ill. 75; Kahlenbeck v. 8.,
119 Ind. 118; S. v. Swain, 68 Mo. 605;
‘S. v. Baker, 30 La. An., Part II, 1134.
2Hunter v. S., 40 N. J. 495; P. v.
Shea, 8 Cal. 5388; Garber v. S, 4
Coldw. 161: S. v. Howard, 32 Vt.
880; Price v. S. 72 Ga. 441; Jones,
v. §., 103 Ala. 1; Harris v. S., 96 Ala.
24; T, v. Couk, 2 Dak. 188; Carr v.5.,
48 Ark. 99; S. v. Dula, Phill. 211;
Reg. v. Buckley, 13 Cox, 293; Reg. v.
Wainwright, 18 Cox, 171; Reg. v.
Pook, 18 Cox, 172, n.
3 Parker v. S., 186 Ind. 284; Doles
v. 8. 97 Ind. 555; P. v. O’Brien, 92
Mich. 17; Hall v. S., 182 Ind. 317;
Scaggs v. S.,8 Sm. & M. 722; Denton
v. &., 1 Swan, 278; P. v. Dewey, 2
Idaho, 79; Pharr v. §.,9 Tex. Ap. 129;
Cockerell v. S., 32 Tex. Ap. 585; S. v.
Johnson, 35 La, An. 968; S. v. Harris,
45 La, An. 842; S, v. Frazier, 1 Houst.
Cr. Cas, 176; Steele v.S., 61 Ala. 213;
Evans v. S., 58 Ark. 47.
4Parker v. S., 186 Ind. 284; Jones
v. S., 71 Ind. 66.
5P, v. Wong Ark, 96 Cal. 125; S. v.
Carlton, 48 Vt. 636; S. v. Davidson,
380 Vt. 377; Reg. v. Bedingfield, 14
Cox, 341.
6 Hall v. S., 40 Ala. 698; Gardner v,
P., 4 IL 83; S. v. Jackson, 17 Mo, 544
78. v. Harris, 45 La, An, 842,
301
8§ 415, 416.] OFFENSES AGAINST THE PERSON. [Parr V.
received have been held admissible.! So, declarations of the
accused under the same circumstances are admissible either for
or against him.? Especially are such declarations admissible
in behalf of the defendant where they are made concurrently
with his acts and explanatory thereof.’ The principle is that
if the declarations are a part of the facts of the case insepa-
rable from the crime, if they are voluntary and spontaneous,.
and made at a time so near to it as reasonably to preclude the
idea of design, then they are to be deemed admissible.‘
§ 415. Declarations as to physical condition.— Another-
extension of the doctrine with reference to declarations is
found in the principle that where the physical condition of the
person is in question the usual expressions of feeling with ref-
erence to such injury are admissible. And such expressions
may therefore be proven although made after the infliction of
the injury?
§ 416. Motive.— Where the question is whether defendant
was guilty of the homicide charged it is proper to prove any
facts tending to show motive or want of motive for the
killing of deceased by defendant; and such evidence is admis-
sible in behalf of defendant as well as of the-state.® But,
though proof of the motive is important, especially where cir-
cumstantial evidence is relied on, it is not necessary to estab-
1C, v. Hackett, 2 Allen, 186; C. v.
McPike, 8 Cush. 181; S. v. Martin,
124 Mo, 514; Burns v. S., 61 Ga. 192;
Stevenson v. S., 69 Ga. 68; Von Poll-
nitz v. S., 92 Ga. 16; S. v. Talbert, 41
S. C. 526; Lambright v. S., 34 Fla.
564; Craig v. S., 80 Tex. Ap. 619;
Stagner v. 8., 9 Tex. Ap. 440; White
v. S., 30 Tex. Ap. 652; Fulcher v.S.,
28 Tex. Ap. 465; Reg. v. Lunny, 6
Cox, 477; Rex v. Foster, 6 C, & P. 325,
2 Mitchum v.S&., 11 Ga. 615; Thomas
v. S., 27 Ga, 287; 8S. v. Crawford, 115
Mo. 620; Little v. C., 25 Grat. 921;
« Harrison v. §., 20 Tex. Ap. 387; Fos-
ter v. 8. 8 Tex. Ap. 248.
3 Washington v.8.,19 Tex. Ap. 521;
Means v. S., 10 Tex. Ap. 16. But
they should be limited to statements
of fact, and not include statements
of opinion: Monroe v. S., 5 Ga. 85,
4 Craig v. S., 830 Tex. Ap. 619; S, v.
Euzebe, 42 La. An. 727.
5Livingston v. C., 14 Grat. 592;
Denton v. S., 1 Swan, 278; Field v..
8., 57 Miss. 474; Johnson v. 8., 30 Tex.
Ap. 419; Tooney v.S., 8 Tex. Ap. 452;
Edmonds v. S., 34 Ark. 720. On a
somewhat analogous principle it was
held admissible to show declarations
of deceased before the injury as to
what his name was and as to the
fact that he received letters in that
name: Rex v. Timmins, 7 C, & P. 499..
6Story v. S., 68 Miss. 609: Noles v.
S., 26 Ala, 81; Flanagan v. S., 46 Ala.
7083; Hunter v. S, 48 Ga. 483. If
there is evidence of a conspiracy,
proof of motive on the part of an-
other conspirator is admissible as
against defendant: Rufer v. §., 25
Ohio St. 464,
392
Cu. 18.] HOMICIDE.
[§ 416.
lish a motive in order to warrant a conviction, provided the
offense be otherwise made out.! There are many illustrations.
as to what may be shown for the purpose of establishing »
motive. Proof that deceased had money ;? especially if it ap-
pears that the fact was known to the accused;* or that the:
accused supposed that deceased had money;‘ or that accused
had proposed to another to rob one who was supposed to have:
money ;° or that accused attempted to realize insurance money ,
on the life of deceased; * or that a robbery had been committed!
by defendant, and that the homicide was committed in the at-
tempt to conceal stolen goods taken in such robbery,’ is admis-
sible. So it is competent for the same purpose to show that
after the homicide the prisoner had much more money in his
possession than previously. Likewise it is competent to prove:
that accused was a rejected and deceased an accepted suitor
for the hand of the same woman;° or that accused and de-
ceased both visited or sustained illicit relations with the same:
woman; or that illicit relations. existed between defendant
and the wife of deceased; or that after the homicide the wife
of deceased had illicit relations with defendant;” or in case of
uxoricide that the accused had illicit relations with another; ™
1Hornsby v. S., 94 Ala. 55; 8. v.
Morgan, 35 W. Va. 260; Powell v.S.,
67 Miss. 119; Green v.S., 38 Ark. 304;
C. v. Hudson, 97 Mass. 565; C. v.
Vaughan, 9 Cush. 594; 8S, v. Miller, 9
Houst. 564; Vaughan v. C., 85 Va.
671; Pointer v. U.S., 151 U. 8S. 396;
Johnson v. U. S., 157 U. S. 320. The
question as to whether a motive is
shown is for the jury: P. v. Johnson,
189 N. Y. 358.
2 Kennedy v. P., 39 N. Y. 245; Early
v.89 Tex. Ap. 476; S. v. Crowley,
33 La, An. 782.
3 Ettinger v. C., 98 Pa. St. 3388; How-
ser v. C., 51 Pa. St. 382; Marable v. 8.,
89 Ga. 425. Thus, the fact that de-
fendant had declared his intention
to take W.’s money and that defend-
ant knew that deceased had charge
of such money as employee is ad-
missible: Mimms v. S., 16 Ohio St.
221,
4S. v. Howard, 82 N. C. 623; P. v.
Wolf, 95 Mich. 625.
5 Stafford v. S., 55 Ga. 592,
6S. v. West, 1 Houst. Cr. Cas. 871.
7™McConkey v. C., 101 Pa. St. 416.
88. v. Wintzingerode, 9 Oreg, 1533.
Clough v. S., 7 Neb. 320.
9 Hunter v. S., 48 Ga. 483.
10 McCue v. C., 78 Pa. St. 185; C. v.
Ferrigan, 44 Pa. St. 386; 8. v. Larkin,
11 Nev. 314,
11 Pate v. S., 94 Ala. 14; S. v. Reed,
58 Kan. 767; Siebert v. P., 143 Il.
571.
12 Traverse v. S., 61 Wis. 144; Miller
v. &., 68 Miss. 221; or that the de-
fendant immediately married the
widow of deceased: Pierson v. P., '79
N, Y. 424
138t. Louis v. S., 8 Neb. 405; Wil-
kerson v. S., 81 Tex. Ap. 86; O’Brien
y. C., 89 Ky. 354,
393
[Part V.
§ 416.] OFFENSES AGAINST THE PERSON.
and in such cases proof of dissatisfaction of the accused with
the deceased as husband or wife is admissible. On the other
hand, evidence that deceased had made improper advances to
the wife of defendant may be shown.’ In case of a killing of
husband by wife, unchastity on the part of the wife may be
proven.’ Proof of seduction of deceased by accused is admissi-
ble The pendency of a divorce suit by the wife against the
husband may be shown as indicating a motive for the killing
of the wife by the husband. The fact that deceased was or
might be an important witness against accused in the divorce
suit may also be shown;® or that deceased was an obstacle to
the marriage of accused to another;7 or that deceased had en-
tered into a combination with a third person to induce defend-
ant’s wife to elope, that fact having come to the knowledge of
defendant. The fact that deceased had been instrumental in
instituting or threatening a criminal prosecution against de-
fendant is admissible as indicating motive, the fact being known
to defendant. Likewise it may be shown that deceased was
or was likely to be a witness in such prosecution.” In gen-
eral, as will be more fully pointed out in the following sec-
tion, any facts showing a ground for ill-will on the part of
1Duncan v.§8., 88 Ala. 81; Whar-
ton v. §., 73 Ala. 866; S. v. Green, 35
Conn. 203; Marler v. S., 67 Ala. 55.
2Utzman v. 8, 32 Tex. Ap. 426,
But improper intimacy between de-
ceased and the wife of the accused
not known to the accused before the
killing cannot be shown: Polinv.&.,
14 Neb. 540,
3 Weyrich v. P., 89 IIL. 90.
48. v. Kline, 54 Ia. 183.
5 Binns v. S., 66 Ind. 428; Pinck-
ford v. 8., 13 Tex. Ap. 468. But the
record of the suit is not admissible,
as its pendency may be shown by
‘parol evidence: Binns v. S., 57 Ind,
46. The allegations of the petition
for divorce cannot be shown: Pinck-
ford v. 8., 138 Tex. Ap. 468; nor the
final disposition made of the suit
cafter the homicide: C. v. Madan, 102
Mass. 1,
6C. v. Madan, 102 Mass. 1; Marler
v. S., 68 Ala, 580.
7 Marler v. S., 67 Ala. 55; S, v. Lentz,
45 Minn, 177.
8 Cheek v. S., 85 Ind. 492.
8S. v. Moelchen, 53 Ia. 310; Martin
v. C., 93 Ky. 189; Franklin v. C., 92
Ky. 612; Turner v. S., 70 Ga. 765;
Gillum v. §., 62 Miss. 547; Walker v.
8., 63 Ga. 150; Dunn v.S., 2 Ark. 229;
S. v. Patza, 8 La. An. 512; Powell v.
S., 13 Tex. Ap. 244; Coward v.S,, 6
id. 59; Hudson v. S., 28 id. 323,
10 Murphy v. P., 63 N. Y.590; Hodge
v. &, 97 Ala. 87; Williams v. §., 69
Ga. 11; 8. v. Morris, 84 N. C. 756; S.
v. Brantley, 84 N. C. 766; Rex v.
Clewes, 4 C. & P, 221. The fact
that deceased was on the bail bond
of one who was charged with an as-
sault with intent to murder defend-
ant was held admissible: P, v. Chin
Hane, 108 Cal. 597,
894
Cu. 18.] HOMICIDE.
[§ 417.
accused against deceased may be proven.! The fact that de-
fendant was a member of a secret association (known as the
Molly Maguires), one object of which was to commit murder,
was held admissible where the homicide appeared to be con-
nected with the carrying out of the objects of the association.?
In many of the illustrations above given, the evidence tended
to prove another crime, but, it was held that it should not be
excluded on that ground.’
§ 417. Relations of parties.— The previous relations of the
defendant and the deceased may be shown as of more or less
importance in explaining conduct and motives;‘ and this rule
includes social and business relations, where the homicide ap-
pears to have been in any way connected with such relations.°
Thus, proof of a family feud is admissible.6 Indeed, any state
of ill-feeling may become material.’ In cases of uxoricide the
previous relations of the husband and wife and a course of ill-
treatment by one towards the other may be shown.’ And
such evidence has been held admissible though relating to
quarrels and ill-treatment antedating by two or three years
the homicide.
1§, v. Lawlor, 28 Minn. 216; Thomp-
‘son v. S., 55 Ga. 47; Fraser v. &., 55
Ga. 325; Kelose v. S., 47 Ala. 573.
2McMamnus v. C., 91 Pa. St. 57; Car-
roll v. C., 84 Pa. St. 107; Campbell v.
C., 84 Pa. St. 187; Hester v. C., 85 Pa.
St. 139.
38. v. Reed, 53 Kan. 767; P. v. Lane,
101 Cal. 513; S. v. Williamson, 106
Mo. 162.
4Wellar v. P., 830 Mich. 16.
5 Clough v. 8., 7 Neb. 320; Everett
v. S., 30 Tex. Ap. 682.
6P, vy. Walters, 98 Cal. 188. Evi-
dence of a quarrel with a member
of the family of the deceased is ad-
missible: Gravely v. S., 45 Neb. 878.
7P, v. Dennis, 89 Cal. 625; P. v.
Kern, 61 Cal. 244; McMillen v. S., 18
Mo. 30; S. v. ‘Moelchen, 53 Ia. 310;
8. v. Stackhouse, 24 Kan. 445; Myers
v. S., 62 Ala. 599; Commander v.S.,
60 Ala. 1; Evans v. S., 62 Ala. 6;
Haynes v. S., 17 Ga. 465; Coxwell v.
S&, 66 Ga. 309; Spivey v. S., 58 Miss.
But it would seem that where the evidence
858; Marnoch v. S., 7 Tex. Ap. 269;
Reg. v. Hagan, 12 Cox, 357. Where
deceased had been absent from the
neighborhood of the accused for
eight to ten months, the state of
feeling between deceased and ac-
cused immediately preceding such
absence was held incompetent: Dil-
lin v. P., 8 Mich. 357.
8 Painter v. P., 147 IIL 444; S. v.
Cole, 63 Ia. 695; Boyle v. S., 61 Wis.
440; S. v. Rash, 12 Ired. 382; S. v.
Bradley, 67 Vt. 465; Malce v. S., 33
Tex. Ap. 14; Thiede v. Utah, 159
U.S. 510.
9 Sayres v. C., 88 Pa. St. 291; Koer-
ner v. S., 98 Ind. 7; C. v. Holmes, 157
Mass. 238. Where the prosecution
has given proof of the conduct and
expressions of the wife to show un-
pleasant relations of this kind, the
defense may rebut such evidence by
letters of the wife to a third person:
S. v. Leabo, 84 Mo. 168. Declara-
tions by defendant before the homi-
395
[Part V.
§ 418.] OFFENSES AGAINST THE PERSON.
relates to remote difficulties there should be something to con-
nect them with the homicide.! Evidence that the homicide grew
out of a charge by deceased against accused of undue familiar-
ity with the wife of the former was held inadmissible, as the
jealousy of deceased could furnish no explanation of the cir-
cumstances under which his life was taken.’
§ 418. Evidence of intentt.— Testimony going to show mo-
tive is material also as bearing on the question of malice, for
there can be no malice without motive.’ Facts showing intent
are always admissible,‘ such as pre-existing enmity between ac-
cused and deceased,® threats against the accused,® or preparation
for the homicide.’ Any evidence tending to explain such prep-
aration on a theory contradicting the malice, such as fear of
danger, etc., is admissible for defendant.2 As bearing on the
intention with which an act is done, evidence of similar acts is
admissible, even though showing a distinct crime.® Thus, in
poisoning cases, if it is claimed that the poisoning was acci-
cide relating to troubles between
him and his wife, the deceased, are
inadmissible unless forming a part
of the res geste: Billingslea v. 8., 68
Ala. 486.
10. v. Abbott, 130 Mass, 472.
2Costley v. S., 48 Md. 175. But
evidence tending to show, in such a
case, that no improper relations ex-
isted was held admissible: Wadling-
ton v. S., 19 Tex. Ap. 266.
3Fraser v. 8., 55 Ga. 325; Ryan v.
S., 100 Ala. 105. Where defendant
had made hostile demonstrations to-
ward A., mistaking him for B., held,
that this might be shown in a prose-
cution of defendant for the murder
of B.: Angus v. 8., 29 Tex. Ap. 52.
4 Austin v. S., 14 Ark. 556,
5Marler v. S., 67 Ala. 65; Holmes
v. 8. 100 Ala. 80; S. v. D’Angelo, 9
La. An. 46; Stone v. 8., 4 Humph,
26; S. v. Johnson, 2 Jones, 247;
Starke v.S., 81 Ga. 598. Acts and
statements of defendant preceding
the homicide indicating a grudge
against deceased may be shown:
Ortiz v. S., 30 Fla. 256; 8. v. Green,
1 Houst. Cr. Cas. 217.
68. v. Birdwell, 86 La. An. 859. So
threats showing an intention to kill
somebody are evidences of malice,.
although not directed against de-
ceased: Hopkins v. C., 50 Pa. St. 9.
So an expression of a wish to kilb
the deceased will indicate malice:
Clampitt v. S., 9 Tex. Ap. 27.
TBolling v. S., 54 Ark. 588. Testi- -
mony of a third person that he told
defendant to take a brick and look
for deceased held admissible, it ap-
pearing that defendant acted on the
advice: Fisher v. S., 77 Ind. 42.
8S. v. Claire, 41 La, An. 191.
9C. v. Ferrigan, 44 Pa. St. 386;
Goerson v.C., 99 Pa. St. 388; Pierson.
v. P., 79 N. Y. 424; P. v. Shea, 147 N.
Y. 78; S. v. Dooley, 89 Ia. 584. But
evidence of distinct crimes not con-
nected with that in question is not
admissible: Shaffner v. C., 72 Pa. St.:
60; S. v. Martin, 74 Mo. 547; Hall v.
U.S, 150 U. S. 76; Boyd v. U.S., 142
U. 8. 450; Billings v. S., 52 Ark. 303.
396
Oz. 18.]
HOMICIDE.
[§ 419.
dental, evidence of similar poisonings may be introduced! But
it is error to admit evidence of another transaction for the pur-
pose of showing intent, when it is not made to appear that
defendant had any connection with such transaction. Circum-
stances attending the homicide may show the malice with which
the act was done.’ So the violence of the efforts made to escape
may tend to show the animus of defendant.‘
On behalf of de-
fendant the circumstances may be shown as they appeared to
him for the purpose of excusing his acts.’ So the fact of a re-
cent communication made to defendant likely to cause and act-
ually causing great excitement on his part may be shown, but
the truth of the communication made will be immaterial.®
§ 419. Threats and hostile acts of accused.— Prior acts,
declarations and threats of accused, even though not a part of
_the res gestw, are admissible against him when they legitimately
tend to establish motive or intention to commit the crime.’
And it is immaterial whcther these threats had been known to
deceased; the doctrine in regard to threats of deceased being
admissible when communicated to defendant has no application
to defendant’s threats. Even though the threats be general
in their terms and not expressly directed against deceased, yet
if they can be shown to have included or to have had reference
to deceased they are admissible.® Indeed it has been held that
1Zoldoske v. 8., 82 Wis. 580; Reg.
~w, Garner, 4 F. & F. 346; Reg. v. Hee-
son, 14 Cox, 14; Reg. v. Cotton, 12
‘Cox, 400; Reg. v. Geering, 18 L. J.
M. C. 215; Reg. v. Roden, 12 Cox, 680.
2P. v. Hancock, 7 Utah, 170; Reg.
v. Winslow, 8 Cox, 397; Reg. v.
Whitehead, 3 C. & K. 202.
3P, v. Walters, 98° Cal. 188; C. v.
Salyards, 158 Pa. St. 501; Shackle-
ford v. S.,79 Ala. 26. But the use of
superior weapons on the part of the
accused is not in itself evidence of
malice: P. v. Barry, 31 Cal. 357.
4Revel v. S., 26 Ga. 275; C. vy. Sal-
yards, 158 Pa. St. 501.
5 Yates v. P., 82 N. Y. 509; Will-
iams v. P., 54 Ill. 422, And,in gen-
eral as to intent, see supra, §§ 112,
121.
6P. v. Hurtado, 63 Cal. 288.
78. v. Edwards, 34 La. An. 1012;
S. v. Brown, 63 Mo. 489; S. v. Nugent,
71 Mo. 186. A prior assault may be
shown only where it tends to show
enmity or is in pursuance of threats:
Hale v. S., 72 Miss. 140. In general
as to such threats, see S. v. Harrod,
102 Mo. 590; Burgess v. S., 93 Ga.
304; Jones v. S., 76 Ala. 8; Beavers
v. S, 103 Ala. 36; White v. S., 32
Tex. Ap. 625. A witness may give
an opinion as to whether defendant
on a particular occasion manifested
anger toward deceased: 8S. v. Shel-
ton, 64 Ia, 333,
88. v. Black, 42 La. An. 861; S. v.
Elkins, 63 Mo. 159; S. v. Guy, 69 Mo.
430.
9 Parker v. S., 186 Ind. 284; Hardy
v. &, 31 Tex. Ap. 289; Everett v. S.,
62 Ga. 65; Dixon v. S., 13 Fla. 636;
397
OFFENSES AGAINST THE PERSON. [Parr V.
§ 42U.]
general threats to kill somebody, made shortly before the homi-
cide, may be shown as indicating the state of mind of the ac-
cused at the time.! But if such threats are not so connected
with the homicide as to serve this purpose they are not admis-
sible? Even evidence of conditional threats may be admissible.*
With reference to the time elapsing between the threat and the
homicide as affecting the admissibility of the evidence, it may
be stated as a general proposition that the lapse of time goes
to the weight rather than to the admissibility of the evidence.*
And such threats made months or even years before the com-
mission of the crime have therefore been admitted.® But in
the cases just cited there was nothing to indicate that the state
of feeling evidenced by the threat was not still in existence.
If there has been a good-faith reconciliation after the making
of the threats they doubtless would become entirely inadmis-
sible. Where there is a conspiracy to commit the crime, acts.
and threats of those thus conspiring may be shown against
any of them.’ It is not necessary to put in evidence the whole
conversation in connection with which the threat is made? It
is unnecessary to say that a particular threat alone will not
warrant conviction of one accused of the homicide though no
other perpetrator is disclosed.?
§ 420. Confessions and admissions by defendant.— The gen-
eral rules as to the admissibility of evidence of confessions or
admissions against the party making them need not be here
stated, but it is proper to give some illustrations of the appli-
cation of these rules in prosecutions for homicide. Declara-
8. v. Hymer, 15 Nev. 49; S. v. Hoyt,
47 Conn. 518; Anderson v.§.,79 Ala.
5; Jordan v. 8., 79 Ala. 9; Harrison
v. 8., 79 Ala. 29.
1Benedict v. S., 14 Wis. 423; Mus-
coe v. C., 87 Va. 460; Hopkins v. C.,
50 Pa. St. 9.
2 Abernethy v. C., 101 Pa. St. 322;
S. v. Grant, 79 Mo. 113.
38. v. Adams, 76 Mo. 855.
‘Griffin v. S., 90 Ala. 596; Pate v.
S., 94 Ala. 14.
5 Redd v. 8, 68 Ala. 492; Griffin v.
8., 90 Ala. 596; Pulliam v.S., 88 Ala.
1; 8S. v. Bradley, 64 Vt. 466; Hodge
v. S, 26 Fla. 11; 5. v. Campbell,
35 8. C. 28; U. S&S. v. Neverson, t
Mackey, 152. In one case threats
made thirty years before the homi-
cide were held admissible: Goodwin
v. 8., 96 Ind. 550.
6 P, v. Hyndman, 99 Cal. 1.
7Kehoe v. C., 85 Pa. St. 127; Gard-
ner v. P., 4 Ill. 83.
8Stit v. S., 91 Ala. 10; S. v. Oliver,
43 La, An. 1003. But it is error to
exclude part of the threat if it
throws light by way of explanation
on the balance: P. v. Curtis, 52 Mich.
616.
§ Jones v. 8., 57 Miss. 684.
398
Cu. 18.] HOMICIDE. [§ 420.
tions of the accused which are not a part of the res geste are
of course in no case admissible for him.! As against him such
declarations are admissible on the presumption that a person
will not make an untrue statement against his own interests,
but even in that view they are to be received with great cau-
tion because of the danger of mistake and also because influ-
ences of hope or fear often induce the making of an untrue
confession. Subject, however, to these qualifications, confes-
sions are among the most effectual proofs.? The question
whether the declarations sought to be shown as admissions re-
late to the crime charged or to another matter is for the jury.*
Where a confession is admissible it is not competent for defend-
ant to rebut it by proving other declarations showing that it
was false! As a form of confession or admission the prose-
cution may prove statements made by the accused before a
coroner’s inquest;*® or on preliminary examination;® or on a
previous trial.". But on this question there are a few cases hold-
ing to the contrary. In order that a declaration or statement
made by the defendant may be proven it must of course have
some connection with the homicide in question, and it was ac-
cordingly held that a statement that “if she had killed one
woman she would kill another” was not admissible.? But the
matters that may be proven as constituting declarations or ad-
missions having some bearing on the case will depend on the
questions in issue under the evidence; thus, where the capacity
for speed of a horse which accused appeared to have been rid-
ing became material on account of the distance he had to ride
within a given time under the evidence, his statements as to
1§, v. Brandon, 8 Jones, 463.
2P, v. Borgetto, 99 Mich. 336. As
to the sufficiency of such evidence
in particular cases, see Paul v. 8., 65
Ga. 152; Rex v. Morrison, 8 C. & P. 22,
3U. S. v. Beebe, 2 Dak. 292.
4 Honeycutt v. S., 8 Baxt. 371; P. v.
Ah Choy, 1 Idaho (N.8.), 317. Appar-
ently to the contrary, Shrivers v. &.,
7 Tex. Ap. 450.
58, v. Gilman, 51 Me. 206; Snyder
v. 8, 59 Ind. 105; S. v. Wisdom, 119
Mo. 539,
6S. v. Miller, 35 Kan. 328,
7 Dumas v. S., 63 Ga. 600.
8S. v. Dufour, 31 La. An. 804; S..
v. Johnson, 10 La. An, 456; S. v. Par-
ker, 7 La, An. 84; S& v. Young, 1
Wins. 126.
2Ledbetter v. S., 61 Miss. 22, A
statement in regard to meat from a
hog which was the occasion of the
homicide appearing to be clotted
with blood was held to be irrelevant
when standing alone: §S. v. Mikle, 81
N. C. 552,
399
[Parr V.
§ 421.] OFFENSES AGAINST THE PERSON.
such capacity were held admissible.’ And statements by ac-
‘cused as to how he could kill a man were allowed to be shown
as a part of his conduct, indicating the workings of his mind,
although not in any way connected with the homicide in ques-
tion? A writing identified as that of defendant, containing a
suggestion as to the best method of disposing of a dead body,
was held admissible;* and also a letter written long after the
homicide containing a threat connected in its motive with the
homicide in question! Admissions by accused of previous
knowledge or possession of articles found near the place of the
homicide may be shown.’ Admissions as to previous wrongful
acts having some connection with the homicide in question
may be shown.’, Declarations indicating apprehension by the
prisoner on account of the condition of deceased were held
admissible.” So an offer by accused to tell all he knew about
the homicide on certain conditions, which conditions were not
accepted, was held admissible.’ Declarations of a third person
in the presence of accused may be shown in connection with
his reply thereto or acquiescence therein when they tend to
implicate him;* but this principle does not apply to declara-
tions calling for no response or disclaimer.’ Where concert of
action between accused and another with reference to the
homicide appears, the declarations of the other may be shown
as against defendant;" but complicity must be shown.”
§ 421. Acts and behavior of defendant subsequent to the
homicide.— Where the evidence is circumstantial, unnatural be-
1¥raser v. S., 55 Ga. 325.
2Moore v. S., 2 Ohio St. 500; C. v.
‘Crossmire, 156 Pa. St. 304. So evi-
dence that defendant, who belonged
to a Masonic lodge, had said that
any one injuring a member of the
Jodge would pass away, was held ad-
missible, there being some evidence
inculpating other members of the
lodge also: Jones v. S., 4 Tex. Ap.
436.
8State v. Stair, 87 Mo. 268,
4Stephens v. P., 19 N. Y. 549,
5 Murphy v. P., 63 N, Y. 590; Aikin
v. S., 85 Ala, 399,
6 Shaw v. S., 60 Ga. 246; Washing-
ton v. 8. 8 Tex. Ap. 877.
7Tooney v. 8, 8 Tex. Ap. 452.
8 Perkins v. S.; 60 Ala. 7.
§Liles v. S, 80 Ala, 24; Franklin
v. S., 69 Ga. 36,
10 Loggins v. &.,8 Tex. Ap. 484; S.
v. Murray, 126 Mo. 611.
11 Malone v. S., 8 Ga. 408; Ake v. S.,
81 Tex. 416; Williams v. S., 81 Ala.
1; Huling v. 8., 17 Ohio St. 583; S. v.
Ellis, 101 N. C. 765; S. v. Payne, 10
Wash. 545; St. Clair v. U.S. 154 U.S.
134,
128, v. Carroll, 31 La. An. 860; Pres-
ton v. S., 4 Tex. Ap. 186,
400
Cx. 18.] HOMICIDE. [§ 421.
havior of defendant shortly after the homicide may be shown;!
for instance, the fact that, when accused of the murder of his
wife, he showed no concern or emotion.? The conduct of the
-accused in the presence of the dead body is admissible, but his
declarations made at the time cannot be shown in his own be-
‘half. The fact of concealment of the death of a child is evi-
-dence of guilt.‘ Conduct of the accused when the crime is
mentioned in his presence,’ or his failure to reply when charged
with the offense, may be shown.’ Proof of flight after the
crime was committed is competent as against the defendant ;7
-so is proof of an attempt to escape after arrest. So any evi-
dence of concealment of the homicide or misrepresentations as
to the disappearance of deceased are admissible;® or as to the
property of the deceased taken in connection with the homi-
cide.” But evidence of flight or concealment is not conclusive."
The prisoner may rebut the presumption from flight by show-
ing other reasons therefor; ”
1g. v. Brabham, 108 N. C. 793;
Noftsinger v. 8., 7 Tex. Ap. 301; Mil-
fier v. S., 18 Tex. Ap. 2382.
2Greenfield v. P., 85 N. Y. 75.
2U. S&S. v. Neverson, 1 Mackay, 152.
48. v. Love, 1 Bay, 167.
58, v. Nash, 7 la. 847.
68, v. Reed, 62 Me. 129; 8. v. Bow-
‘man, 80 N. C. 482; Kendrick v. 8., 55
Miss, 486; Ford v. S., 34 Ark. 649.
78, v. Anderson, 10 Oreg. 448; Bat-
‘ten v. S., 80 Ind. 394; Revel v. S., 26
“Ga. 275; P. v. Fredericks, 106 Cal.
554; C. v. Bezek, 168 Pa. St. 603, And
where there was ambiguity as to
the occasion of the defendant leav-
ing the neighborhood after the homi-
-cide, it was held admissible to prove
in behalf of the prosecution that he
had a contract to work there, which
‘he did not carry out: Welsh v.S.,97
Ala. 1. The fact of flight is a cir-
-cumstance to be considered by the
jury as tending to increase the prob-
ability of defendant being the guilty
person. It does not give rise to a
egal presumption of guilt: Hickory
26
but he cannot introduce such
v. U. S., 160 U. S. 408; Alberty v.
U.S., 162 U. S. 499.
8 Hittner v. 8.,19 Ind. 48; S. v. Du-
four, 31 La, An. 804. But proof of
forfeiture of appeal bond and elud-
ing arrest was held properly re-
jected: Morgan v.C., 14 Bush, 106.
Threats by defendant to kill a per-
son sent to identify him in jail, held
admissible: P. v. Chin Hane, 108 Cal.
597.
98. v. Dickson, 78 Mo. 4388,
10 Betts v. S., 66 Ga. 508 Posses-
sion of the fruits of the crime soon
after its commission constitutes
prima facie evidence of guilt: Wilson
v. U.S., 162 U.S. 613. Butif the con-
cealed property is found in a house
which is in the joint occupancy of
defendant and another, such fact
should be referred to by the court
as affecting the weight of the evi-
dence: Hall v. 8., 65 Ga. 36. As to
evidence of recent possession in case
of larceny, see infra, § —.
ll Waybright v. S. 56 Ind. 122;
Hickory v. U. S., 160 U. S. 408,
128, v. Barham, 82 Mo. 67.
401
8§ 422, 423.] OFFENSES AGAINST THE PERSON. [Part V.
explanatory evidence unless the flight is proved as tending to
show guilt! A subsequent attempt to carry out the same
criminal purpose as that involved in the homicide may be shown
as against the defendant;? but not a subsequent crime having
no connection with the homicide.’
§ 422. Defendant’s character.— As the admissibility of
proof respectively of defendant’s bad character and good char-
acter are in no way peculiar to homicide, it need not be even
illustrated here. It is suggested, however, that on a trial for
murder, proof of defendant’s good character is entitled to less.
weight than in trials for offenses of a lower grade.‘
§ 423. Threats, character and occupation of deceased.—
The admissibility of antecedent threats of deceased against ac-
cused and his character for violence as bearing on the question
of self-defense has already been fully considered.’ Threats are:
also admissible as showing the relations of the parties and a
motive for the homicide;* and as a part of the ves geste if fre-
quent and continuous down to the time of the killing.’ Evi-
dence of the character of the deceased as a quiet and peaceable
man is not admissible as original evidence in behalf of the pros-
ecution.2 The general character of deceased as a violent and
quarrelsome man cannot be shown in behalf of defendant,®
except as bearing on the question of self-defense, as already ex-
plained.” Where such evidence is admitted in behalf of defend-
ant, the state may in rebuttal prove that deceased was of a.
18. v. Hays, 23 Mo. 287. Texas case it appears to be held that
2McManus v. S., 36 Ala, 285.
38. v. Hoyt, 13 Minn. 182.
4C. v. Webster, 5 Cush, 295,
5 Supra, § 307.
6Painter v. P., 147 Ill, 444. But
not if the threats have not been
communicated to the accused: §. v.
Helm, -—— Ia. —, 61 N. W. R. 246;
Combs v. S., 75 Ind. 215. Even if
communicated they may be so in-
definite as not to be admissible: 8.
v. Guy, 69 Mo. 480.
78. v. Sloan, 47 Mo. 604.
8P. v. Bezy, 67 Cal. 223; S. v. Pot-
ter, 18 Kan. 414; Ben v.8.,, 87 Ala.
103; S. v. Eddon, 8 Wash. 292; S. v.
McCarthy, 48 La. An. 541. In a
the general character of deceased
may be shown as against defendant:
Russell v. S., 11 Tex. Ap. 288. But in
a later case it is said that while such.
evidence is not admissible except in
rebuttal of evidence to the contrary
introduced in behalf of defendant,
yet, if a conviction is otherwise sup-
ported by competent evidence, it
will not be reversed on that account:
Graves v. §., 14 Tex. Ap. 118.
98. v. Thawley, 4 Harr. 562; S. v.
Hogue, 6 Jones, 881; Chase v. S., 46
Miss. 688; 8. v. Tilly, 3 Ired. 424; S.
v. Jackson, 12 La, An. 679,
10 Supra, § 307.
402
Cu. 18.] HOMICIDE. [§§ 424, 425.
peaceful character.1 Even in such cases the evidence should
go to the general character as to violence or quarrelsomeness,
and not to such character under the circumstances of intoxica-
tion.?, The question in such cases is as to the general character
in that respect. In behalf of the prosecution the occupation
of the deceased may be shown, but the illegal or immoral nat-
ure of the business carried on by him is not a matter which
can be inquired into on behalf of defendant as showing an ex-
cuse for the homicide.
§ 424. Declarations of deceased.— As a general rule, dec-
larations of the deceased in regard to the transaction are not
admissible in behalf of the prosecution.’ Nor are such declara-
tions admissible in behalf of defendant.’ An affidavit or depo-
sition by the injured party, who afterwards dies, being an ex
parte statement, cannot be shown.’ Of course, declarations of
the deceased made before the homicide are not admissible as
against the defendant.®
§ 425. Dying declarations.— To the general proposition
stated in the preceding paragraph, that the declarations of the
deceased are not admissible, there is the important exception
that such declarations relating to the transaction, and made in
contemplation of approaching death, may be proven in a pros-
ecution for criminal homicide.” This is said to be a doctrine of
necessity, and to be based on the theory that the solemnity of
the circumstances surrounding the declaration are such as to
give to it the sanction which would result from the administra-
tion of an oath.” But even though this be admitted, there is
1Davis v. P., 114 Ill. 86.
2Fahnestock v. S., 23 Ind. 2381.
3 Jackson v. S., 77 Ala. 18.
4P. v. Butler, 8 Cal. 435; S. v. Ken-
nade, 121 Mo. 405.
5 Binns v. S., 57 Ind. 46; S. v. Cur-
tis, 70 Mo. 594; S. v. Brandon, 8
Jones, 468; Johnson v. S., 63 Miss.
313; S. v. Wyse, 32 S. C. 45.
6C. v. Dunan, 128 Mass. 422; C. v.
Densmore, 12 Allen, 585; Kane v. C.,
109 Pa. St. 541; Fahnestock v. S., 23
Ind. 231; 8. v. Patrick, 3 Jones, 443;
S. v. Punshon, 124 Mo. 448.
7Collier v. S., 18 Ark, 676; Reg. v.
Clarke, 2 F. & F. 2.
8P, v. Carkhuff, 24 Cal. 640; P. v.
Carlton, 57 Cal. 88; Kirby v. S., 9
Yerg. 383; Cheek v.5S., 35 Ind. 492;
P. v. Gress, 107 Cal. 461.
91 East, P. C. 353; 1 Bish. Cr. Proc.,
§ 1207; 1 Greenl. Ev., § 156; Best,
Ev., § 505; S. v. Faile, 43 8. C. 52;
Mattox v. U.S., 146 U. S. 140.
10 Mattox v. U. S., 156 U.S. 2387; P.
v. Glenn, 10 Cal. 32; Donnelly v. S.,
26 N. J. 468; C. v. Murray, 2 Ash-
mead, 41; S. v. Pearce, 56 Minn. 226;
Walston v. C., 16 B. Mon. 15; 1 East,
P. C. 358. But the inadmissibility
does not depend upon whether there
isin fact other evidence: S. v. Wilson,
403
§ 425.] OFFENSES AGAINST THE PERSON. [Part V.
yet lacking the opportunity for cross-examination for the pur-
pose of developing the truth which would have been open to
the party against whom the declaration is introduced, had it
been given by a living witness.! Notwithstanding these diffi-
culties, such declarations are uniformly held to be admissible.
As to the objection which has been made in such cases, that
when the declarations are introduced against the defendant he
.is deprived of his constitutional right to be confronted with the
witnesses against him, it is uniformly held that the deceased is
not a witness, within the scope of this provision, and that the
defendant, being confronted with the witness who testifies to
the declaration, the requirement of the constitutional provision
is complied with.’ But such evidence is limited to the declara-
tions of one deceased whose death is the subject of the charge;
that is, to cases of criminal homicide.t Thus, in a civil action
to recover damages for injuries causing death, dying declara-
tions of the injured party are not admissible.6 Nor are such
declarations admissible in any prosecution except for criminal
homicide, although homicide may have been involved in, or re-
sulted from, other crime. In a prosecution for administering
24 Kan. 189, Belief in the doctrine
of the efficiency of repentance at any
time before death is immaterial;
North v. P., 189 IIL 81.
1The objections to such evidence
are set out in detail in Shell v. S., 88
Ala. 14,
2 Ward v. 8., 8 Blackf. 101; Thomp-
son v. 8, 24 Ga, 297; S. v. Freeman,
1 Spears, 57; S. v. Quick, 15 Rich.
842; S. v. Brunneto, 13 La. An. 45;
U.S. v. McGurk, 1 Cranch, C. C. 71;
U.S. v. Veitch, 1 Cranch, C. C. 115;
U.S. v. Taylor, 4 Cranch, C. C. 338
3Mattox v. U.S, 156 U.S. 287; 8.
v. Dickinson, 41 Wis. 299; Miller v.
S., 25 Wis. 384; Robbins v. S., 8 Ohio
St. 181; C. v. Carey, 12 Cush. 246;
Walston v. C., 16 B. Mon. 15; S. v,
Nash, 7 Ia. 347; Campbell v. S., 11
Ga. 353; Woodsides v. S., 2 How.
(Miss) 655; P. v. Glenn, 10 Cal, 82;
Brown v.C.,'73 Pa, St. 821; Burrell
v. 8. 18 Tex. 713; S. v. Price, 6 La.
An. 691. This rule of evidence was
in force when the state constitu-
tions were adopted: §. v. Dickinson,
41 Wis. 299.
4Rex v. Mead, 2 B. & C. 605; Wil-
son v. Boerem, 15 Johns. 286; Duling
v. Johnson, 32 Ind. 155; S. v. Bohan,
15 Kan. 407; Resp. v. Langcake, 1
Yeates, 415. They must be by the
party whose death is the subject of
the charge: S. v. Jefferson, 77 Mo.
136.
5Daily v. N. Y. etc. R. Co. 82
Conn, 856, Marshall v. Chi. etc. R.
Co., 48 Ill. 475; Brownell v. Pacific
R. Co., 47 Mo. 289. Therefore held,
in an action by the father for the
seduction of his minor daughter,
that the dying declarations of the
daughter as to who was the father
of her child were inadmissible:
Wooten v. Wilkins, 39 Ga. 223,
6 Rex v. Mead, 2 B. & C. 605; Reg.
v. Newton, 1 F. & F. 641; Rex v.
Lloyd, 4 C. & P, 2383,
404
Cu. 18.] HOMICIDE. [§ 426.
medicine or using instruments for the purpose of procuring am
abortion, where death has resulted, the dying declarations of
the victim are not admissible,! even though under the statute
the fact of the death may be material in determining the de-
gree of the crime.? Dying declarations of another whose death
resulted from the same cause as that for which the defendant
is being prosecuted are not admissible.* Dying declarations of
one who confesses the homicide for which defendant is on trial
are not admissible in behalf of defendant.* In general, dying
declarations, when admissible at all, are admissible in behalf of
defendant as well as of the prosecution.5
§ 426. Sense of impending death.— It is essential to the
admissibility of a dying declaration that it was made under a
sense of impending death.* This preliminary fact must be
established by the party offering to prove the declaration.”
1Rex v. Hutchinson, 2 B. & C.
608, n.; Reg. v. Hind, Bell, 253.
28. v. Harper, 35 Ohio St. 78; P.
v. Davis, 56 N. Y. 95; Railing v. C,
110 Pa. St. 109. Butin another case
it is said that the dedth of the victim
being necessarily involved in the in-
vestigation, her dying declarations
should be admitted: Montgomery v.
S., 80 Ind. 338.
3 Brown v. C., 73 Pa. St. 321; S. v.
Westfall, 49 Ia. 328; Fitzhugh v. S.,
2 Oreg. 227; S. v. Bohan, 15 Kan. 407;
Krebs v. S., 8 Tex. Ap. 348; Radford
v. S., 83 Tex. Ap. 520. Contra, S. v.
Terrell, 12 Rich. 321; S. v. Wilson,
23 La. An. 558; Rex v. Baker, 2 M. &
Rob. 53.
4 Davis v. C., 95 Ky. 19; Mora v. P.,
19 Colo, 255.
5P, v. Knapp, 26 Mich. 112; Brock
v. C., 92 Ky. 183; Brown v. &, 74
Ala. 478; Mattox v. U.S, 146 U. S.
140; Rex v. Scaife, 2 Lewin, 150.
Contra, Moeck v. P., 100 Ill. 242;
Adams v. P., 47 Ill. 376.
6 Kelly v. U. S., 27 Fed. R. 616; C.
-v. Roberts, 108 Mass. 296; Sullivan
v. C., 93 Pa, St. 284; Starkey v. P.,17
Ill. 17; P. v. Knapp, 26 Mich. 112; 8.
v. Johnson, 118 Mo. 491; S. v. Brad-
ley, 34 S. C. 186; Pulliam v.S., 88
Ala, 1;,S. v. Garrand, 5 Oreg. 216;
P, v. Lee, 17 Cal. 76; P. v. Ybarra, 17
Cal. 166; P. v. Sanchez, 24 Cal. 17;
Brown v.S., 32 Miss, 433; Lewis v.
S., 9 Sm. & M. 115; Bell v.S.,72 Miss,
507; Montgomery v. S., 11 Ohio, 424;
Brakefield v. S.,1 Sneed, 214; Nelson
v. &, 7 Humph. 541; Smith v. S., 9
Humph. 9; Logan v. S., 9 Humph.
24; S. v. Center, 35 Vt. 378; Bull v.
C., 14 Grat. 613; Hill v. C., 2 Grat.
594; Vass v. C., 3 Leigh, 786; Vaughan
v. C., 86 Ky. 481; Benavides v. S., 3t
Tex. 580; Irby v.S., 25 Tex. Ap. 203;
U.S. v. Woods, 4 Cranch, C, C. 484;
U.S. v. Veitch, 1 Cranch, C. C. 115;
Reg. v. Whitworth, 1 F. & F. 282;
Reg. v. Howell, 1 C. & K.689. While
the old expression of the rule was
that the declaration must be made
in extremis or in articulo mortis, alk
that is contemplated is that there
be the belief of impending death
and that death afterward results:
S. v. Tilghman, 11 Ired. 513.
7 Kelly v. U.S., 27 Fed. R. 616; S.
v. Swift, 57 Conn. 496. If there is
any reasonable doubt as to belief of
impending death and absence of
hope, the declaration should not be
40&
[Parr V.
§ 426.] OFFENSES AGAINST THE PERSON.
Evidence is admissible showing the condition of the deceased
at the time the declarations were made.’ For while the dec-
larations of deceased as to the fact of the apprehension of
death are admissible,’ yet the consciousness of the near ap-
proach of death may be shown by other circumstances, and it.
is not necessary that the deceased shall have expressly de-
clared his belief in that fact. It is proper to prove that the
deceased was told that he could not recover, even though no
reply was made to such information, if his conduct indicated
his realization of the fact,‘ and this consciousness may be shown
by all the circumstances.® But the judge is not to receive the
declarations merely on his own notion as to the nature and
probable effect of the wound as described, without evidence
that deceased believed himself about to die, unless the wound
appears to have been such as would necessarily cause death in
a short time and would lead the deceased as a reasonable per-
received: S. v. Medlicott, 9 Kan. 257.
But the court on appeal will not in-
terfere with the action of the lower
court in admitting the declaration
if there is reasonable evidence to
support it: Robbins v. S., 8 Ohio St.
131. And see Donnelly v. S., 26 N. J.
463. As to the preliminary show-
ing, see, also, infra, § 480.
1Sullivan v. C, 93 Pa. St. 284;
Price v. S., 72 Ga. 441. The vindic-
tive spirit of deceased at the time
the declaration was made, and his
use of profane language at that
time, may be shown, and the decla-
ration may be excluded on that
ground: Tracy v. P.,97 Ill. 101. But
it is not necessary to show that de-
ceased stated explicitly that he was
at peace with God and the world:
S. v. Black, 42 La, An. 861.
2C. v. Thompson, 159 Mass. 56; 8,
v. Cronin, 64 Conn. 293; Hammil v.S.,
90 Ala. 577; Westbrook v. P., 126 IIL.
81.
3C. v. Murray, 2 Ashmead, 41; C.
v. Williams, 2 Ashmead, 69; Kilpat-
rick v. C., 81 Pa. St. 198; Donnelly
v. &, 26 N. J. 463; Nelson v. S, 7
Humph, 541; P. v. Lee Save Bo, 72
Cal. 628; 8. v. Gillick, 7 Ia. 287; S. v.-
Nash, 7 Ia. 847; S. v. Wilson, 24 Kan.
189; Dumas v. S., 62 Ga. 58; Fitzger-
ald v. S., 11 Neb. 577; McLean v. 8,
16 Ala. 672; Justice v.S., 99 Ala. 180;
S. v. Russell, 18 Mont. 164; S. v.
Scott, 12 La, An. 274; Morgan v. S&S,
31 Ind. 198; Rex v. Woodcock, 1
East, P. C. 356; Rex v. Dingler, 1
East, P. C. 856; Rex v. John, 1 East,
P. C. 357; Rex v. Spilsbury, 7 ©.
& P. 187; Rex v. Bonner, 6 C. &
P. 386; Reg. v. Hunt, 2 Cox, 239.
Statements of deceased that he did
not expect to recover are not con-
clusive that the declarations are
under a sense of impending death:
Morgan v. §., 31 Ind. 198; Digby v.
P., 118 ILL 123.
4 Reg. v. Perkins, 9 C. & P. 395; P.
v. Simpson, 48 Mich. 474. On the
other hand, it may appear that the
person believed he was about to die,
although his physician and others
held out to him a hope of recovery:
S. v. Caldwell, 115 N. C. 794.
5C. v. Murray, 2 Ashmead, 41; ~
Donnelly v. 8, 26 N. J. 468; P. v. Lee
Save Bo, 72 Cal. 623; P. v. Farmer,
77 Cal. 1; Westbrook v. P., 126 IIL 81.
406
Cu. 18.] HOMICIDE. [§ 426.
son to so believe. It is not necessary that deceased shall have
been told that he is about to die if his actions indicate his con-
sciousness of that fact and he so states in his declaration.?, But
where there has been no medical advice nor apparent cause to
believe that death is approaching, nor evidence that the de-
ceased does so believe, the declaration is not admissible? Many
eases illustrating what has been held sufficient proof of the
consciousness of the near approach of death are given in the
note without further particularization, which would be im-
practicable and of little value.t On the other hand, if it appears
that the deceased had at the time the statement was made any
hope of recovery the declaration is not admissible.’ Other
cases in which the showing as to the sense of impending death
was held not sufficient are given in the note.® It is not suffi-
cient that the deceased was actually dying, but it must appear
that he was conscious of that fact;? and such consciousness
must appear to have existed at the time of the statement.’ It
is not enough that deceased should have thought that he would
1 Reg. v. Cleary, 2 F. & F. 850.
2Hammil v. S., 90 Ala. 577.
38, v. Johnson, 118 Mo. 491.
4 Kehoe v. C., 85 Pa. St. 127; Small
v.C., 91 Pa. St. 304; Brotherton v.
P., 75 N.Y. 159; C. v. Haney, 127
Mass. 455; S. v. Wilson, 24 Kan. 189;
Westbrook v. P., 126 Ill 81;Simons
v. P., 150 Ill. 66; S. v. Johnson, 76
Mo. 121; S. v. Wensell, 98 Mo. 187;
“8. v. Umble, 115 Mo. 452; P. v.
Hawes, 98 Cal. 648; C. v. Matthews,
89 Ky. 287; S. v. Fletcher, 24 Oreg.
295; Scales v. S., 96 Ala. 69; McQueen
v. S.,94 Ala. 50; Hussey v.S., 87 Ala.
121; Anderson v. S., 79 Ala. 5; Gib-
‘son v. C., 2 Va. Cas. 111; S. v. Jones,
38 La. An. 792; Reg. v. Peel, 2 F. &
F. 21; Ashton’s Case, 2 Lewin, 147;
‘Reg. v. Goddard, 15 Cox, 7.
5C, v. Roberts, 108 Mass. 296; Peak
‘vy. S, 50 N. J. 179; S. v. Simon, 50
‘Mo. 370; Jackson v. C., 19 Grat. 656;
Adwell v. C., 17 B. Mon. 310; Whita-
ker v. 8., 79 Ga. 87; Reg. v. Jenkins,
L. R.1C. C. 187; Rex v. Crockett, 4
4, & P. 544; Rex v. Hayward, 6 C.
& P. 157; Rex v. Welbourn, 1 East,
P. C. 358; Reg. v. Megson, 9 C. & P.
418; Rex v. Fagent, 7 C. & P. 238;
Errington’s Case, 2 Lewin, 148; Rex
v. Christie, Car. C. L. 282. A mere
suggestion of recovery will not pre-
vent the introduction of the declara-
tion if from other evidence it ap-
pears deceased had no hope: Allison
v. C., 99 Pa. St. 17.
6 Digby v. P., 113 Ill. 128; Tracy v.
P., 97 Ill. 101; S. v. Nash, 7 Ia. 347;
Blackburn v. §., 98 Ala. 63; Justice
v. S., 99 Ala. 180; Lewis v. S., 9 Sm.
& M. 115; Irby v. 8, 25 Tex. Ap. 203;
Stewart v. S&S. 2 Lea, 598; Reg. v.
Qualter, 6 Cox, 357; Reg. v. Nicolas,
6 Cox, 120; Reg. v. Osman, 15 Cox, 1;
Reg. v. Mackay, 11 Cox, 148; Reg. v.
Taylor, 3 Cox, 84.
TReg. v. Mooney, 5 Cox, 818.
8 Reg. v. Qualter, 6 Cox, 357. But
where the opinion of deceased that
he was about to die was expressed
at the end of the conversation in-
stead of at the beginning, it was
held to sufficiently appear that the
407
§ 427.] [Parr V_
OFFENSES AGAINST THE PERSON.
ultimately never recover, but it must appear that he was con-
scious that death was actually imminent.! If, however, con-
sciousness of impending death, without hope of recovery,
existed at the time the declaration was made, it is immaterial
that deceased afterwards entertained a hope of recovery.” It.
is the impression of impending death and not the succession of
death in point of fact which renders the testimony admissible; *
and the declaration will be admissible although deceased lived
for some days thereafter. Indeed the time of death is immate-
rial; and there are cases where the declaration was admitted
although the deceased lived two or three weeks after the dec-
laration was made.!
§ 427. As to what matters admissible.— Nothing can be
evidence in a dying declaration which would not be so if the
party was being examined as a witness. In general such dec-
whole statement was made with
that consciousness: 8. v. Peace, 1
Jones, 251.
1Rex v. Van Butchell, 3 C. & P.
629; Reg. v. Forrester, 4 F. & F. 857;
Morgan v. 8., 31 Ind. 1938; Digby v.
P., 113 Ill. 128. Even if the sense of
impending dissolution is not suffi-
ciently shown to have existed when
the declaration was originally made,
yet if such declaration was subse-
quently referred to and affirmed as
true at the time when such con-
sciousness existed, it is sufficient:
Young v. C, 6 Bush, 312; P. v.
Crews, 102 Cal. 174; S. v. Evans, 124
Mo. 397; Johnson v. §., 102 Ala. 1;
Carver v. U. S., 160 U. 8. 553; Reg.
v. Steele, 12 Cox, 168.
28. v. Tilghman, 11 Ired. 518; S. v.
Turlington, 102 Mo. 642; 8. v. Kil-
gore, 70 Mo. 546; S. v. Reed, 53 Kan.
767; Swisher v. C., 26 Grat. 963; Hall
v. C, 89 Va. 171; Reg. v. Reany,
Dears. & B. 151; Reg. v. Hubbard, 14
Cox, 565. The mere fact that de-
ceased had at the time the declara-
tion was made a hope of present
ease or relief is not such a hope as
will render the declaration inadmis-
sible: Johnson v. §&, 17 Ala. 618;
Donnelly v. 8., 26 N. J. 468; Rex v..
Tinckler, 1 East, P. C. 854; Reg. v.
Howell, 1 Den.1. The repetition of
a dying declaration, made after hope
of recovery has revived, is not ad-
missible: Carver v. U. S., 160 U.S.
558. Sending for a physician may
indicate a hope of recovery: Justice
v. S, 99 Ala. 180; but not neces-
sarily: S. v. Evans, 124 Mo. 897; Mc-
Queen v. S., 103 Ala. 12,
3 Pulliam v. S&S, 88 Ala. 1; P. v.
Simpson, 48 Mich. 474; S. v. Kilgore,
70 Mo. 546,
48. v. Nocton, 121 Mo. 587; 8. v.
Wilson, 121 Mo, 484; C. v. Cooper, 5
Allen, 495; C. v. Haney, 127 Mass,
455; Jones v. S., 71 Ind. 66; Hall v.
C., 89 Va. 171; Swisher v. C., 26 Grat..
963; S. v. Banister, 35 S, C. 2905.
Oliver v. S. 17 Ala. 587; Boulden
v. S, 102 Ala. 78; Justice v. S., 99
Ala. 180; Bryant v. S., 80 Ga, 272; Mc-
Daniel v. 8., 8 Sm. & M. 401; Peoples.
v. C., 87 Ky. 487; S. v. Daniel, 81 La.
An, 91; Reg. v. Bernadotte, 11 Cox,
816; Rex v. Mosley, 1 Moody, 98; Rex
v. Tinckler, 1 Hast, P. C. 854,
5 Montgomery v. S., 80 Ind. 8883.
P. v. Lanagan, 81 Cal. 142; Rex v.
Sellers, Car. C. L, 288. And as to
408
Cu. 18.] HOMICIDE. [§ 428..
larations are admissible only so far as they relate to the kill-
ing and the facts and circumstances attending it and consti-
tuting a part of the res geste, and the connection of the accused:
with the offense! So far as such declarations relate to former:
and distinct transactions, even though other evidence of such:
transactions might be admissible, the declarations cannot be:
received.? In such cases they do not come within the principle
of necessity which justifies the admission of dying declarations.*
§ 428. Competency of evidence; opinions.— In general the:
declaration is admissible as to any matter which deceased, if’
alive, would have been competent to testify to. So far as the-
declaration is a mere narrative or statement and not a decla-
ration as to the facts, it is not admissible. Declarations which:
cover the opinion or belief only of the deceased are not ad:
missible, for the deceased if a living witness ‘would not be
allowed to give such:testimony.’ But declarations such as that
accused had no reason for shooting deceased, or that the wound
was given without provocation, or that it was given by acci-
dent, are not excluded as mere matter of opinion, but are ad-
missible as statements of fact.’
opinions not being admissible, see
next paragraph.
18, v. Draper, 65 Mo. 335; P. v.
Knapp, 26 Mich, 112; Pulliam v. 8.,
88 Ala. 1; Moore v. S., 12 Ala. 764;
Johnson v. S., 102 Ala. 1; North v. P.,
189 Ill, 81; S. v. Arnold, 13 Ired. 184;
Wilkerson v. S., 91 Ga. 729; S. v.
Shelton, 2 Jones, 360; Hudson v. &.,
3 Coldw. 855; 8. v. Donnelly, 26 N.
J. 601 (in dissenting opinion, at 623).
They must refer distinctly to the
subject of the homicide and cannot
be connected with it by inference
_or supposition: P. v. Olmstead, 30
Mich. 481.
28, v. Draper, 65 Mo. 335; Leiber
v. C., 9 Bush, 11; Ben v. S., 37 Ala.
103; Johnson v. 8., 17 Ala. 618; Mont-
gomery v. S., 80 Ind. 338; Jones v.
S., 71 Ind. 66; West v. S., 7 Tex. Ap.
150. But in one case it has been
held that the declaration might be
considered in evidence as showing
previous conduct of the prisoner:
S. v. Terrell, 12 Rich. 821. A part of
a declaration which is proper should
not be excluded because another
part relates to antecedent threats:
Jones v. S., 71 Ind. 66.
3 Nelson v. S., 7 Humph. 541,
4P, v. Green, 1 Denio, 614; S. v..
Foot You, 24 Oreg. 61; S. v. Elkins,
101 Mo. 344.
5P. v. Olmstead, 30 Mich. 4815.
Jones v. S., 71 Ind. 66; S. v. Elkins,
101 Mo. 344.
6Binns v. &, 46 Ind. 311; Mont-
gomery v. S., 80 Ind. 338; P. v. Lana-
gan, 81 Cal. 142; 8. v. Parker, 96 Mo.
382; S. v. Chambers, 87 Mo. 406; S.
vy. Vansant, 80 Mo. 67; S. v. Rider,
90 Mo. 54; McPherson v.5S., 22 Ga..
478; Whitley v. 8., 38 Ga. 50; S. v.
Black, 42 La. An. 861; U. 8. v. Veitch,
1 Cranch, C. C. 115.
7 Boyle v. &., 97 Ind. 822; S. C., 105-
Ind. 469; P. v. Farmer, 77 Cal. 1; C.
v. Matthews, 89 Ky. 287; Sullivan v,
S., 102 Ala, 185; Wroe v. 8., 20 Ohio
409
[Parr Vi
§ 429.] OFFENSES AGAINST THE PERSON.
§ 429. Form of statement.— It is immaterial in what form
the statement is made so that it is the declaration of the de-
ceased. Thus, where he is able to understand what is said to
him but is unable to speak, his answers to questions put to
him, communicated by signs, may be proven.’ If it appears
that while the questions are being asked or the statements
read to him he is unconscivus or in a stupor, the-statement
cannot be received.? It is no objection that the statement is
made in response to questions,’ and not a continuous narrative.*
It is not necessary that the exact words of deceased be proved.®
Where the dying declaration was at the time reduced to writ-
ing and read over to the deceased and signed or assented to
by him, the writing must be produced or its absence accounted
for before parol evidence of the declaration is admissible; * but
not if the writing is a memorandum only, made by a bystander,
not signed by deceased or read over and assented to.’ The
writing will not preclude parol evidence of unwritten declara-
‘tions on other occasions. A copy of the written declarations
is not admissible;® and of course a memorandum not signed
‘St. 460; Roberts v. 8.,5 Tex. Ap. 141.
‘Thus, the statement of deceased that
he had been butchered by the doc-
‘tors was held admissible in a trial
for manslaughter of the surgeon
who performed an operation result-
ing in death: S. v. Gile, 8 Wash. 12.
‘So a statement that deceased did
not recognize the accused ‘until he
“commenced his pranks” was held
admissible: Brotherton v. P., 75 N.
Y. 159,
1C. v. Casey, 11 Cush. 417; Jones
v. S., 71 Ind. 66.
2McHugh v. S., 81 Ala, 318,
3C. v. Haney, 127 Mass. 455; Boyle
v.8., 97 Ind. 322; P. v. Brady, 72 Cal.
-490; White v. 8. 30 Tex. Ap. 652;
even though the questions are lead-
ing: Reg. v. Smith, L. & C. 607, and
by the state’s attorney, without any
representation on the part of the ac-
cused: North v. P., 189 IIL 81; S. v.
Foot You, 24 Oreg. 61.
48. v. Nettlebush, 20 Ia. 257; Rex
v. Fagent, 7 C. & P. 288,
5P, v. Bemmerley, 87 Cal. 117;
Montgomery v. S., 11 Ohio, 424;
Ward v. S., 8 Blackf. 101.
6 Rex v. Trowter, 1 East, P. C. 356;
Rex v. Gay, 7 C. & P. 280; S. v. Sul-
livan, 51 Ia, 142; S. v. Kindle, 47
Ohio St. 358; Turner v. S., 89 Tenn.
547; Boulden v.S., 102 Ala. 78; Drake
v. &., 25 Tex. Ap. 298,
7 Allison v. C., 99 Pa. St. 17; S. v.
Patterson, 45 Vt. 308; S. v. Sullivan,
51 Ta, 142. If the memorandum is
made to refresh the recollection of
the witness, it is not primary evi-
dence even though signed and sworn
to by deceased: S. v. Whitson, 111
N. C. 695.
£8. v. Tweedy, 11 Ia. 850; S. v.
Walton, — Ia, —, 61 N. W. R. 179;
P. v. Simpson, 48 Mich. 474; Krebs v.
8., 8 Tex. Ap. 1; P. v. Glenn, 10 Cal.
82; Collier v. S., 20 Ark, 36,
9 Beets v. S., 1 Meigs, 106; Rex v.
Gay, 7 C. & P, 2380,
410
Cu. 18.] HOMICIDE. [§ 430.
cannot be introduced except as a part of the testimony of the
witness who made it.1 The fact that the declaration is sworn
to by the deceased is not material.
§ 430. Admissibility for the court.— The question of the
admissibility of the dying declaration is in the first instance
for the court, which must determine whether the declaration
was made under the sense of impending death. Butifa prima
_Jacie case for the introduction of the declaration is established,
it should be allowed to go to the jury, who will determine ulti-
mately whether the circumstances under which it is shown to
have been made were such as to justify its consideration! The
preliminary showing should precede the introduction of the
declaration as evidence for the jury,’ and may include the dec-
laration itself and the conversation in which it was made, and
‘facts not relating to the killing but bearing on the question as
to the consciousness of impending death on the part of declar-
ant. Even after the declaration has been admitted without
objection, the facts touching this question may be shown.’ It
is in the discretion of the court whether the preliminary evi-
18. v. Wilson, 24 Kan. 189; Beets
v. S., Meigs, 106. When proved by
the person making it to be in the
words of deceased, the writing is ad-
missible though not signed by de-
‘ceased: Pa. v. Stoops, Addison, 381.
28, v. Frazier, 1 Houst. Cr. Cas. 176;
8. v. Talbert, 41 S. C. 526; Turner v.
S., 89 Tenn. 547; Reg. v. Bernadotte,
11 Cox, 316. The sworn statement
is not admissible as a deposition. It
is simply evidence of the declaration:
. ©. v. Haney, 127 Mass. 455.
3Smith v. S, 9 Humph. 9: Don-
nelly v. S., 26 N. J. 463; S. v. Burns,
38 Mo. 483; McLean v. S., 8 Mo. 153;
S. v. Cantieny, 34 Minn. 1; Roten v.
S., 81 Fla. 514: S. v. Reed, 58 Kan.
767; C. v. Sullivan, 13 Phila. 410;
Rex v. John, 1 East, P. C. 357; Rex
v. Welbourn, 1 East, P. C. 358; Rex
v. Hucks, 1 Stark. 521. And see su-
pra, § 426. And if allowed to go to
the jury when the grounds for ad-
mission are not shown, the introduc-
tion will constitute error: S. v.
Johnson, 118 Mo. 491. The court de-
termines the admissibility of the
evidence produced by the state,
without hearing evidence from the
other side: S. v. Frazier, 1 Houst. Cr.
C. 176. The admission of such evi-
dence is to some extent discretion-
ary with the court hearing the wit-
nesses: 8. v. Ah Lee, 7 Oreg. 237.
4C. v. Murray, 2 Ashmead, 41;
Jones v. S., 71 Ind. 66; Varnedoe v.
S., 75 Ga. 181; S. v. Banister, 85S. C.
290. The question of admissibility
is one of law blended with fact, and
the court may receive the evidence
in the first instance for the purpose
of determining the question: S. v.
Seiley, 41 La. An. 141; Donnelly v.S8.,
26 N. J. 463.
5 Montgomery v. S., 11 Ohio, 424,
6P. v. Smith, 104 N. Y. 491.
78. v. Swift, 57 Conn. 496,
411
§ 431.] OFFENSES AGAINST THE PERSON. [Parr V.
dence as to the admissibility of the declaration shall be given
in the presence of the jury.’
§ 431. Credibility and weight.— As has been stated in the
preceding section, the ultimate question as to whether the cir-
cumstances were such as to render the declaration admissible
is for the jury, and even if the evidence leaves the question
doubtful the evidence is to go to the jury for what it is worth.*
Facts bearing upon the credibility of the declarations as con-
stituting the testimony of the deceased may be considered by
the jury, such as that, where the declaration relates to the iden-
tity of defendant, he was in the habit of mistaking persons; *
and the whole statement is to be admitted and other conversa-
tions on the same subject under the same circumstances.‘ But
this rule does not require that the evidence shall show every-
thing that concerned the res gestw, but only that the declarant’s
statements of any given fact should be a full expression of alk
that he intended to say as conveying his meaning as to such
fact.5 On the question whether other statements made by the
deceased not under such circumstances as to entitle them to
admission as dying declarations may be proven to contradict
the statements in the dying declaration, authorities are divided.
Technically such other statements are not admissible as im-
peaching evidence, because the foundation cannot be laid by
calling the attention of the deceased thereto and giving him an
opportunity to explain them.6 But by the decided weight of
authority such declarations are admissible, the lack of oppor-
1Doles v. S., 97 Ind. 555; S. v. John-
son, 41 La. An. 1076.
2P, v. Knapp, 26 Mich. 112. But
see supra, § 426. So if the declara-
tions bear in any degree on the homi-
cide they are admissible, though
vague and indefinite, their effect
being for the jury: C. v. Murray, 2
Ashmead, 41.
3C. v. Cooper, 5 Allen, 495.
{Nelms v.S., 18 Sm. & M. 500; S.
v. Martin, 30 Wis. 216; Mattox v.
U.S, 146 U.S, 140.
5S. v. Patterson, 45 Vt. 308; P. v,
Brady, 72 Cal. 490; Boyle v. S., 97
Ind, 822,
6 Wroe v.8., 20 Ohio St. 460; Maine
v. P., 9 Hun, 118; S. v. Burt, 41 La.
An. 787, This is on the same prin-
ciple on which, where the evidence
of a deceased witness given on a
former trial is allowed to be proven,
declarations inconsistent therewith
are excluded: Craft v. C., 81 Ky. 250;
Ayers v. Watson, 182 U.S. 394; Mat-
tox v. U.S., 156 U.S. 287; Griffith v.
S., 87 Ark. 324; Hubbard v. Briggs,
81 N. Y. 518, 536; Unis v. Charlton’s.
Adm’r, 12 Grat. 484; Kimball v.
Davis, 19 Wend. 487, And see 9 Har-
vard Law Rev. 482, 472,
412
Cu, 18.] HOMICIDE.
[§ 431.
tunity for cross-examination of the deceased as to his declara-
tion being deemed an offset to the lack of opportunity to the
deceased to explain his inconsistent statements.! Of course,
contradictory statements made in the declaration itself or in
different declarations which are admissible as dying declara-
tions may be considered as affecting their credibility.?. In other
respects the credibility of the deceased may be tested as that
of any other witness, as by showing that he was intoxicated
at the time of making them ;* or that he was of such immature
years as not to be competent to give testimony;* or that he
was a disbeliever in a future state of rewards and punishments.°
So, bad character of the deceased, such as would affect his cred-
ibility as a living witness, may be shown, and in such case the
declaration may be corroborated by proof that deceased made
other declarations to the same purport.’ It is said that the
dying declarations are to be received with the same degree of
credit as the testimony of the deceased would have been, had
he been examined on oath.’ But in other cases it is held that
it is error to instruct the jury that such deciarations are en-
titled to the same credit and force as the testimony of a wit-
ness regularly testifying on oath. Such an instruction inter-
1§. v. Lodge, 9 Houst. 542, 33 Atl.
R. 312; P. v. Lawrence, 21 Cal. 368;
Shell v.S.,88 Ala. 14; Battle v.S.,
74 Ga. 101; Morelock v. S., 90 Tenn.
528; Felder v. S., 23 Tex. Ap. 477;
Carver v. U.S. — U.S. —, 178. C.
R, 228; Wharton, Cr. Ev., § 298; 1
Bish. Cr. Proc., § 1209.
2McPherson v. &, 9 Yerg. 279.
Lack of exact correspondence be-
tween a previous affidavit and the
dying declaration will not be mate-
rial unless they are contradictory:
Leigh v. P., 118 IL. 372,
38. v. Nolan, -— Ia. —, 61 N. W.
R. 181.
4Rex v. Pike, 8 C. & P. 598; Reg.
vy. Perkins, 9 C. & P. 395.
5Goodall v. S., 1 Oreg. 833; Don-
melly v. S, 26 N. J. 463, But of
course such disbelief would not
under usual rules of evidence ren-
der the declaration inadmissible, but
would affect its credibility only: S.
v. Ah Lee, 8 Oreg, 214. Attainder
might be shown under the early
common-law doctrine as to the ef-
fect thereof, for the purpose of
excluding the declarations: Rex v.
Drummond, 1 East, P. C. 353, n.
6S, v. Thomason, 1 Jones, 274,
TP, v. Knapp, 1 Edm. Sel. Cas. 177;
Kennedy v. S., 85 Ala. 326; Ashton’s
Case, 2 Lewin, 147. Or, as said in
another case, the declaration is to
have the same weight as the tes-
timony of a witness who cannot be
cross-examined: §. v. Eddon, 8 Wash.
292. And see Jones v.S.,70 Miss. 401.
8 Lambeth v. S., 23 Miss. 822; S. v.
Vansant, 80 Mo. 67, overruling Green
v. S., 13 Mo. 382; S. v. Mathes, 90 Mo.
571,
413
§ 431.] OFFENSES AGAINST THE PERSON. [Parr V.
feres with the province of the jury to determine the weight of
the evidence. It is better to say that the jury may consider
the character of the dying declarations and the circumstances
under which they are made in determining the weight to which
they are entitled?
1§, v. McCanon, 51 Mo. 160; S, v. 226. In general, as to admissibility
Pearce, 56 Minn. 226, and weight of dying declarations,
2 Jordan v. S., 81 Ala. 20; Jones v. see Hill v. S., 41 Ga. 484,
S., 70 Miss. 401; S. v. Pearce, 56 Minn.
414
CHAPTER 19.
‘MAYHEM AND MAIMING.
§ 432. Mayhem; maiming.— The offense of mayhem as
known at common law, aside from any statutory modification,
is defined as the violently depriving another of the use of such
of his members as may render him less able in fighting either
to defend himself or to annoy his adversary.! But by various
statutes in England, one of which (22 and 23 Car. II., ch. 1) is
known as the Coventry Act, the scope of the offense was ex-
tended to include various acts, such as cutting out or disabling
the tongue, putting out the eye, slitting the nose or lip, or
otherwise maiming or disfiguring, thus covering various in-
juries which were included in common-law mayhem.? Notwith-
standing this statute became a part of the common law in the
states of the Union, some statutory provision has been almost
uniformly made for the punishment of such acts, and these
statutes now provide the definition of the offense? “ Maim,”
as used in the statute, is not a synonym of mayhem, but is an
equivalent for mutilate, and involves an injury of a permanent.
nature.> But any such offense made punishable by statute may
be denominated mayhem in an indictment.$
§ 433. Whether felony.— Mayhem at early common law
was a felony involving the punishment of loss of member for
member, but it was not punishable by death except in case of
14 Bl Com. 205. Hawkins and 24 Bl Com. 207; 1 Hawk. P.C., ch.
East use the term “maim” assyn- 44, §4; 1 East, P. C. 394,
onymous with “mayhem,” andde- Foster v. P., 50 N.Y. 598; S. v.
fine it as a bodily hurt whereby one Briley, 8 Port. 472; S. v. Green, 7
is rendered less able, etc.: 1 Hawk. Ired. 39; P. v. Golden, 62 Cal. 542;
P. C, ch. 44, § 1; 1 East, P. C. 393. S. v. Vowels, 4 Oreg. 324. To the
And see 1 Whart. Cr. L., § 581; 2 same effect is an act of congress:
Bish, Cr. L., § 1001; Terrell v. 8.86 U.S. v. Scroggins, Hempst. 478.
Tenn. 523, 8 Am. Cr. R, 532, and ‘C. v. Newell, 7 Mass, 245.
note, f 5Bish. Stat. Cr., § 316.
69, v. Vowels, 4 Oreg. 324.
415 7
[Parr V.
§ 434, 435.] OFFENSES AGAINST THE PERSON.
castration, and therefore was not, with that exception, properly
a felony.
§ 434. What constitutes maiming.— At common law knock-
ing out a front tooth, or putting out an eye,’ is mayhem. The
statutory provisions in regard to disabling contemplate a per-
manent injury.! Thus, an injury inflicted with intent to break
the skull is not done with intent to maim, but with intent to
kill, and the injury is not maiming under the statute.» But an
injury depriving a person of the use of a limb, or rendering him
permanently lame or defective in bodily vigor, is a maim.’ If
there is a loss of a member such as to deprive the person of it
at the time of the injury, the offense is complete, though the
member is at once restored to its proper place and grows
there.’ Whether biting off a small portion of the ear is maim-
ing or disfiguring within the statute depends upon whether the
loss is such as to attract attention;® but such injury has been
held to be covered by a statute defining the offense of mayhem
so as to include the disabling or disfiguring of amember of the
body.? A statute with reference to wounding or disfiguring
the private parts of another relates to the private parts of a
female as well as to those of a male.” The act must be within
the statutory description ;" but the means or instrument is im-
material unless specified in such description.” Various statu-
tory offenses of wounding with a dangerous weapon, and
stabbing, cutting, etc., are discussed under the head of aggra-
vated assaults."
§ 435. Intent.— As to mayhem proper, the intent, aside
from the unlawful intent essential in all crime, is not material,
11 Hawk. P. C., ch. 44, § 8; 1
Whart. Cr. L. 583; 2 Bish. Cr. Pr.
852; 3 Bl. Com. 121; C. v. Lester, 2
Va. Cas. 198; Terrell v. S., 86 Tenn.
523; C. v. Newell, 7 Mass. 245.
2High v. 8, 26 Tex. Ap. 545,
3 Chick v. 8., 7 Humph. 161.
48. v. Briley, 8 Port. 472. The
term is used in the same sense in re-
gard to injuries to animals: Baker
v.84 Ark, 56; Bish. St. Cr, § 316;
Roscoe, Cr. Ev. 389.
5¥Foster v. P., 50 N.Y, 598. But
see 1 East, P. C. 393,
6 Baker v. S., 4 Ark. 56,
7S$lattery v. S., 41 Tex. 619,
8S. v. Abram, 10 Ala. 928; S. v.
Harrison, 30 La. An., pt. II, 1829;
U.S. v. Askins, 4 Cranch, C. C. 98.
9P. v. Golden, 62 Cal. 542. And
see S. v. Green, 7 Ired. 39.
10 Kitchens v. S., 80 Ga. 810.
11 Foster v. P., 50 N. Y. 598,
Baker v. S., 4 Ark. 56; C. v.
Hawkins, 11 Bush, 603.
1B Supra, §§ 256, 257. As to wound-
ing, see, also, S.' v. Brown, 41 La, An.
845; 5S. v. Hertzog, 41 La, An, 775.
416
Cu. 19.] MAYHEM AND MAIMING.
[§ 435.
the proof of the commission of the act being sufficient to give
rise to the presumption of wrongful intent.! Evidence of malice
aforethought or a preconceived intention is not necessary.? In
general, specific intent to maim is not essential. Under stat-
utes similar to the Coventry Act, premeditated design is essen-
tial, but the act of lying in wait which evinces such intention
need not be charged;* and it is not necessary, in order to show
premeditated design, that malice aforethought or lying in wait,
referred to by the statute, should be on purpose to maim or
disfigure, specific intent not being necessary under that clause,
although it is held necessary under the clause “ shall voluntarily,
maliciously and on purpose put out an eye,” etc. Whether
there was such premeditated design is a question for the jury.®
But an act done in a sudden affray or assault without some
evidence of preparation or previous intent does not come within
the statutory provision.’ If the result does not show that an
injury of the kind was intended, a conviction cannot be sus-
tained. Where, however, the statute provides a punishment
for unlawfully or maliciously disabling or disfiguring, an intent
to do a wrongful act, either established by proof or presump-
tion, is sufficient.2 Where specific intent to disfigure is made
an essential element, such intent may be inferred or presumed
if the act is done deliberately and the disfigurement is reason-
ably to be apprehended as the natural and probable conse-
quence.” The statutes do not make the occasion material, and
self-defense will not be an excuse. Consent to the offense is
fmmaterial.? The intent to disfigure may be inferred from an
1Foster v. P., 1 Colo. 293; 5S. v.
Simmons, 8 Ala. 497.
28, v. Gerkin, 1 Ired. 121; S. v.
‘Crawford, 2 Dev. 425; Terrell v.S.,
86 Tenn, 523; U. S. v. Gunther, 5
Dak, 284,
38. v. Clark, 69 Ia. 196; 1 East, P. C.
6 Tully v. P., 67 N. Y. 15.
7Godfrey v. P., 63 N. Y. 207.
8S. v. Cody, 18 Oreg. 506.
9P, v. Wright, 93 Cal. 564.
_ 108, v. Jones, 70 Ia, 505; S. v. Clark,
69 Ia, 196. So the use of an instru-
ment which ordinarily would result
400. It is not necessary that the
blow be struck for the purpose of
inflicting the particular injury:
Werley v. S., 11 Humph. 171.
4Tully v. P., 67 N. Y.. 15.
. 5Resp. v. Langeake, 1 Yeates, 415;
Rex v. Tickner, 1 East, P..C. 398.
«27
in maiming and does so result shows
the required intent: Davis v. S., 22
Tex. Ap. 45; 8. v.Ma Foo, 110 Mo. 7.
11 Molette v. S,, 49 Ala. 18; Foster
v. P., 1 Colo. 293.
12 Rex v. Wright, 1 East, P. C. 396;
Foster v. P., 1 Colo, 293.
417
[Part V.
§§ 436, 436a.] OFFENSES AGAINST THE PERSON.
act which does in fact disfigure unless that presumption is re-
pelled.!
§ 436. Indictment.— It seems that the indictment must al-
lege that the injured party was maimed, disabled, or disfigured,
as the case may be.2 But under statute it is sufficient, gener-
ally, to use the language of the statute, without specifically
charging the effect. Where several intents are mentioned!
disjunctively in the statute they may be properly alleged con-
junctively in the indictment, and proof of either will support a
conviction. “Maim” is a word of art and should be used when
made the essential part of the statutory description.> “Ma-
liciously ” is usually an essential part of the statutory descrip-
tion and must be used in the indictment,’ “feloniously ” not
being sufficient.” ‘
§ 436a. Forms.— As the various offenses of mayhem and
maiming are now entirely regulated by statute, the form of the
indictment must be based on the language of the particular
statute under which it is drawn; nevertheless the following
forms may be suggestive:
PUTTING OUT AN EYE.
That A. B., at ——, on , unlawfully and feloniously
and with malice aforethought in and upon one W. M. an
assault did make, and then and there unlawfully and feloniously
and with malice aforethought, with the thumb and fingers
of the right hand of the said A. B., the left eye of the said
W. M. did put out and destroy, with malicious intent the said
W. M. to maim and disfigure; whereby the said W. M. was
then and there, by the said as out and destroying of his.
said eye as aforesaid, maimed and disfigured.®
18. v. Gerkin, 1 Ired. 121; S. v.
Crawford, 2 Dev. 425; S. v. Evans, 1
Hayw. 281.
2C. v. Lester, 2 Va, Cas. 198; Chick
v.8., 7Humph. 161.
3U. 8S. v. Gunther, 5 Dak. 284 It
is not necessary, where biting off an
ear is charged, to specify which ear:
8. v. Green, 7 Ired. 89.
4 Angel v. C., 2 Va. Cas. 281.
5Chick v. S., 7 Humph. 161.
68. v. Cook, 42 La, An. 85; & v,
Mason, 42 La. An. 714
7C. v. Lester, 2 Va. Cas. 198; S, v.
Watson, 41 La. An. 598.
8’ This follows to some extent the
indictment in Chick v. S.,7 Humph..
161, with the addition of such
averments as are thought necessary
to fully obviate the objections sus-
tained to that indictment. It is dif-
ficult to see any advantage in the
averment that the person assaulted
was maimed, when it is distinctly
alleged that his eye was put out.
with intent to maim him, Possibly
418
Cu. 19.] MAYHEM AND MAIMING. [§ 487.
DISABLING THE THUMB.
That A. B., at ——, on ——, in and upon one W. M. wilfully
and feloniously and with premeditated design did make an as-
sault, and that the said A. B. with his teeth the thumb of the
said W. M. then and there wilfully and feloniously and from
premeditated design did cut, bite, slit and destroy on purpose
with intent the said W. M. then and there to maim and dis-
figure.
§ 437. Included offense.— On an indictment for maiming
defendant may be convicted of an aggravated assault and bat-
tery, the two offenses being of the same generic class, and the
latter included in the former.’ So, one charged with mayhem
may be found guilty of beating only,’ or of a misdemeanor.‘
So a sentence on a verdict for fighting by mutual agreement
under an indictment for maiming may be sustained.® Under
an indictment in two counts, one for aiding and abetting in
mayhem, the other for assault and battery, a conviction on
the second count, with an acquittal on the first count, cannot
be sustained.®
if the intent to maim had been al- isanessential ingredient of mayhem:
leged in the indictment which was S. v. Taylor, 35 La, An. 834.
before the court, it would have been 38. v. Absence, 4 Port. 397.
thought sufficient without the di- ‘Foster v. P., 1 Colo, 293. Under
rect allegation that the party was a charge of felonious wounding
maimed. there may be conviction for the mis-
1This follows substantially the in- demeanor of unlawfully wounding:
dictment in Tully v. P., 67 N. ¥. 15. Reg. v. Waudby, 2Q. B. D. (1895), 482.
2Guest v. S., 19 Ark. 405. Assault ‘Strawn v.S., 14 Ark. 541,
68, v. Bridges, 1 Murph. 184
419
ee
CHAPTER 20.
RAPE AND CARNAL ABUSE OF FEMALE CHILDREN.
§ 438. Rape defined.— There is a general concurrence among
later authors in the definition of this offense as “the unlawful
carnal knowledge of a woman by force and against her will.” !
The only material question which has arisen as to the correct-
ness of this definition is as to the expression “against her will,”
it being contended that want of consent on the part of the
woman is sufficient to constitute the offense.’ It is suggested
in one case that there is no real difference in meaning between
the two forms of expression.? But it will be evident by sub-
sequent discussion of the cases which relate to the different
elements of the offense that the authorities are not entirely
harmonious on this question, and that some support the prop-
osition that actual opposition overcome is essential, while others
are to the effect that lack of consent is enough.
§ 439. The force involved.— The act must be by force,
either actual or constructive, and by force is meant, according
to some definitions, not merely the force necessary to accom-
plish the act of connection, but force overcoming resistance on
the part of the female. According to this theory, connection
with a girl under the age of consent is not rape if there is no
opposition on her part, although by reason of her want of ma-
turity she is not deemed capable of consent. But in other
11 East, P. C., 484; 1 Hawk. P. C., 3C. v. Burke, 105 Mass. 376. And
ch. 41, § 1; 4 BL Com. 210; 1 Russ.
Cr. 675. So by statute: Garrison v.
P., 6 Neb. 274; Sutton v. P., 145 Ill.
279, and probably in other states.
22 Bish. Cr. L., § 1115; Reg. v.
Camplin, 1 C. & K. 746; Reg. v.
Fletcher, Bell, 63; Mooney v. S., 29
Tex. Ap. 257. Against consent is
synonylnous with against the will:
8. v. Gaul, 50 Conn. 578. So by stat-
ute in some states: Leoni v. S., 44
Ala. 110,
see S. v. Gaul, 50 Conn. 578; Harvey
v. S., 53 Ark, 425.
4McNair v. S., 58 Ala. 453, But it
is not necessary that the force be
such as to cause apprehension of
death: Waller v. 8., 40 Ala, 325.
5 Vasser v. S., 55 Ala. 264; Williams
v. 8. 1 Tex. Ap. 90; Walton v. S., 29
Tex. Ap. 163; Bonner v. S., 65 Miss.
293. Further as to whether this is
rape, see infra, § 443,
420
Cu. 20.] RAPE, [§ 440.
cases it is suggested that force is simply a test of consent, and
that if want of consent is otherwise shown force is immaterial.
And as supporting the theory that force is simply a test of con-
sent may be cited cases in which it is said that the force neces-
sary depends upon the relative mental and physical strength
of the parties and the circumstances surrounding them,’ acts of
violence being unnecessary where there is no consent, if the in-
tent is to use force if required in accomplishing the purpose.
The question whether connection procured by fraud or during
insensibility or by fear is sufficient will be discussed in subse-
quent sections.
§ 440. Resistance.— The theory which requires actual force
also requires that there shall have been resistance on the part
of the female to her utmost ability! The cases cited in the
last note are evidently authority for the proposition that actual
force overcoming the will is essential; but the weight of author-
ity seems to be in support of the proposition that the resistance
is merely evidence bearing on the question of want of consent.5
Thus, as will appear in a subsequent paragraph, no resistance
need be shown if it appears that the consent was procured
through threats and fear.6 As excusing the want of resistance,
the strength and capacity of the female mentally as well as
physically may be shown, including her lack of development
and lack of knowledge of the nature of the act.’ In the case.
of a child, although above the age of consent, mere submission
does not necessarily show such consent as to prevent the act:
being rape;* and the fact that the child is young and unde-
1Mooney v. S&S, 29 Tex. Ap. 257;
S. v. Cunningham, 100 Mo. 382. Thus,
it is said that force is implied if it
appears that the connection was had
against the consent of the woman:
8. v. Riggs, 1 Houst. Cr. C. 120.
2 Jenkins v. S., 1 Tex. Ap. 346.
3S, v. Smith, 80 Mo. 516. So where
the female was imbecile, held, that
there was no necessity for showing
that opposition was actually made:
S. v. Tarr, 28 Ia. 397.
4P, v. Dohring; 59 N. Y. 374; P. v.
Morrison, 1 Park. Cr. R. 625; Brown
v. P., 86 Mich. 203; Strang v. P., 24
Mich. 1; S.-v. Burgdorf, 53 Mo, 65;
421
»
P. v. Brown, 47 Cal. 447; Oleson v. S.,
11 Neb, 276; Mathews v. S., 19 Neb.
330; Rhea v.S., 30 Tex. Ap. 483. Op-
position by mere words is not
enough: Huber v. S., 126 Ind. 185.
5C. v. McDonald, 110 Mass. 405;
S. v. Shields, 45 Conn. 256.
6 Infra, § 448.
7P, v. Lynch, 29 Mich. 274; Hollis.
v. S., 27 Fla. 387; S. v. Tarr, 28 Ta.
897; P. v. Connor, 126 N. Y. 278;
Hawkins v. S., 186 Ind. 630.
8 Reg. v. Day, 9 C. & P. 722; S. v.
Cross, 12 Ia. 66. In such case the
same resistance as required in case
of an older female need not be.
OFFENSES AGAINST THE PERSON. [Parr V.
§ 441,]
veloped, and lacks intelligence as to the nature of the act, may
be shown as*tending to prove want of consent, though resist-
ance does not appear to have been made.! But even in such
cases there must not be consent. If there is capacity to con-
sent, and consent is given, the offense is not committed.? Even,
however, if the view be taken that evidence of want of consent
alone is sufficient, yet it must appear that there was resistance,
unless some excuse for want of resistance is shown. And if
such resistance was given over before the accomplishment of
the unlawful purpose, without excuse, there will be such con-
sent as to prevent the act being rape. The force involved in
an attempt to commit rape is such as to justify the repelling
of the attempt by the use of a deadly weapon in case of rea-
sonable belief of actual danger of the accomplishment of the
crime.’ There seems to have been at one time some recogni-
tion of the idea that the fact of conception indicated consent
and therefore negatived rape, but this doctrine has long been
repudiated.$
§ 441. Without consent.— Consent of the female (except
when the will is overcome by fear, as hereafter to be explained)
will prevent the act from constituting rape,’ and this is true no
matter how reluctantly or tardily consent is given or how
much force has been previously employed.’ But subsequent
condonation will not constitute a defense, though it may be
shown as tending to prove that there was in fact consent.®
5 P. v. De Los Angeles, 61 Cal. 188..
And see supra, § 299.
shown: Hammond v.&., 39 Neb. 252;
Thompson v. 8., 44 Neb. 366.
1S. v. Cross, 12 Ia. 66; S. v. Mc-
Caffrey, 63 Ia. 479; Joiner v. S., 62
Ga. 560; Bailey v. C., 82 Va. 107;
Anschicks v. S&, 6 Tex. Ap. 524;
Coates v. 8., 50 Ark. 330, 7 Am. Cr. R.
585 and note; S. v. Niles, 47 Vt. 82,
1 Am. Cr. R. 646 and note.
2 Pounds v. S., 95 Ga. 475; Thomp-
son v. S., 33 Tex. Ap. 472; T. v. Pot-
ter, 1 Ariz. 421.
3 Austine v. P., 110 Ill. 248.
4Reg. v. Hallett, 9 C. & P. 748;
Reg. v. Rudland,4F. & F. 495. Soif
resistance is made in consequence
of a banter, and not in good faith, it
will not be sufficient: S. v. Chap-
man, 88 Ia. 254.
61 Hawk. P. C., ch. 41, § 2; 1 East,
P. C. 445; U. S v. Dickinson,
Hemp. 1.
7Hull v.8&., 22 Wis. 580; Whittaker
v.S., 50 Wis. 518; P. v. Bransby, 32
N. Y. 525.
8 Conners v. S., 47 Wis, 528; Rey-
nolds v. S., 27 Neb. 90; T. v. Potter,
1 Ariz, 421; Sutton v. P., 145 IL. 279.
The prosecuting witness ‘may be
asked whether the act was with or
without consent: Coates v. S.,2 Tex.
Ap. 16.
9C. v. Slattery, 147 Mass. 423, Con-
sent subsequent to the act is no de-
fense: S. v. Bagan, 41 Minn. 285;
Wright v. S., 4 Humph, 194,
422
a
On. 20.] RAPE. [§ 442.
§ 442. Age of the female as bearing upon the question of
eonsent.— Under the discussion of the subject of resistance in
@ previous paragraph,! it has been shown that less resistance is
to be required in a child of tender years and ignorant of the
nature of the act; and as will be shown in the next section,
there are statutes both in England and in the various states
making the act of having connection with a female under the
age of consent (such age being fixed by statute) a crime with-
out regard to the consent of the female. But some courts seem
to have so connected these two phases of the doctrine of con-
sent on the part of females of tender years as to reach the
result that such a child is incapable of giving consent, and
therefore such connection is rape, want of consent being pre-
sumed.? Such presumption of incapacity of consent may be
rebutted by evidence that the child understood the nature of
the act.? But these cases are unsatisfactory. The early Eng-
lish statute (18 Eliz., ch. 7, § 4), which is common law in this
country, made carnal knowledge of a woman child under the age
of ten years a felony, but did not describe the felony as rape;
and as will be seen in the next section there is authority to the
effect that the offense is distinguished from rape, but similar,
the facet of consent being immaterial. According to this view,
even though the female be under the age of consent, the crime
of rape cannot be established without proof of want of consent ;*
but the immaturity of the female may be shown for the pur-
pose of showing that the act was really without consent,
although there was not such resistance as would be necessary
in a person of more mature years.> Notwithstanding a defi-
nition of Lord Hale’s, which speaks of rape as being upon a
woman over the age of consent;® the crime of rape can be com-
mitted upon a child under the age of consent,’ but want of con-
1 Supra, § 440. 61 Hale, P. C. 628, This definition
2Coates v. S., 50 Ark. 330; Will- includes, it is true, carnal knowl-
ijams v. S., 47 Miss. 609; Moore v.S., edge of a girl under age of consent
17 Ohio St. 521; S. v. Miller, 42 La. as rape, but as will be seen in the
An, 1186. next section this is perhaps erro-
30’Meara v. S., 17 Ohio St. 516, neous: See Reg. v. Shott, 3 C. & K.
4Vasser v. S., 55 Ala. 264; Bonner 206.
v. &, 65 Miss. 298; Greer v. S, 50 7C. v. Sugland, 4 Gray, 7; Reg. v.
Ind. 267; S. v. Worden, 46 Conn, 349; Ratcliffe, 10 Q. B. D. 74; Reg v. Dick-
8. v. Wheat, 63 Vt. 673. en, 14 Cox, 8; Reg. v. Neale, 1 C. &
5 Supra, § 440. K. 591. :
423
§ 443.] OFFENSES AGAINST THE PERSON. [Part V.
sent should be alleged and proven as in other cases! And
where the indictment properly charges the act as-by force and
against the will, etc., an allegation that the female was under
the age of consent will be immaterial and may be rejected as
surplusage, leaving the indictment a proper one for rape.”
On the other hand, it is unnecessary in an indictment for rape
by force, etc., to allege that the female was over the age of
consent.®
§ 443, Carnal abuse of females under the age of consent.
The history of the early English statutes relating to rape seems
to indicate that the offense as at first defined involved force
and want of consent, and that a subsequent statute, referred
to in the preceding section, was passed making connection with
females under ten years a crime without regard to consent, and
these are properly stated as distinct crimes. Apparently, how-
ever, without any authority found in the statutes, Lord Hale>
combines the two into one offense. And most of the statutes.
in this country follow this form of definition, thus making the
crime of rape to consist of either the forcible act without con-
sent, or of carnal knowledge of a female child under the age
specified regardless of her consent.’ Under this consolidation
of the two offenses it seems that there may be a conviction
under an indictment charging the act to be forcible and against
the consent of the female, on proof that she was under the
age of consent.’ If the indictment charges the female to have
1S, v. Worden, 46 Conn. 349;
Charles v. S, 11 Ark. 389. It is
therefore not necessary to allege the
age: Hall v. S., 40 Neb. 320.
2C. v. Sugland, 4 Gray, 7; C. v.
Scannel, 11 Cush. 547; S. v. Casford,
76 Ia. 380; Nicholas v. S&S, 23 Tex.
Ap. 317; Coates v.S., 50 Ark. 330;
Dawson v. S., 29 Ark. 116; S. v.
Houx, 109 Mo, 654.
48. v. Gaul, 50 Conn. 578; O’Meara
v.S., 17 Ohio St. 516; S. v. Farmer,
4 Ired. 224; S. v. Storkey, 63 N. C. 7.
And see infra, § 452, |
42 Bish. Cr. L., §§ 1108-1112,
51 Hale, P. C, 628, citing 8 Coke,
Inst., ch. 11, p. 60. And see Givens
v. C., 29 Grat. 830.
6S. v. Dalton, 106 Mo. 463; S. v..
Lacey, 111 Mo. 518; McMath v. S., 55.
Ga. 303; C. v. Roosnell, 143 Mass. 32;
S. v. Newton, 44 Ia. 45; S. v. Wright,.
25 Neb. 38; Davis v. 8., 31 Neb. 240;
S. v. White, 44 Kan. 514; S, v. Woods,
49 Kan. 237; Lawrence v. C., 30 Grat.
845; McKinny v. S, 29 Fla. 565;.
Mayo v.S., 7 Tex. Ap. 342; Rodgers
v. S., 30 Tex. Ap. 510. The two may
be charged in counts of the same in-
dictment: Wright v. S, 4 Humph.
194, :
tLawrence v. C., 80 Grat. 845;.
Davis v. 8., 42 Tex. 226; S. v. Jack-
son, 46 La, An. 547. And see cases
cited in preceding section.
424
Caz. 20.] RAPE. [§ 443.
been under the age of consent it is not necessary to allege the
act to have been forcible and against the will, the allegation
of age being sufficient in this respect.1 But in accordance
with what seems better reason, it is said in other cases that if
the indictment charges that the act was forcible and against
the will of the female it must be so proven, and conviction can-
not be had upon evidence that the female was under the age
of consent, without proof of actual want of consent, even
though such evidence would have sustained a conviction had
the indictment been framed with reference thereto.? The
difficulty is as to whether carnal knowledge of a female child
under the age of consent shall be called rape, it being held,
on the one hand, that if the indictment shows an assault with
intent to have such carnal knowledge, it charges an assault to
commit rape? and on the other that such an allegation does
not show intent to commit a common-law rape and therefore
does not indicate an attempt to commit rape. From the fore-
going discussion it is evident that unless the statute indicates
without equivocation that the two forms of the crime are con-
solidated into one, it is better to treat them as distinct offenses
and draw the indictment accordingly. It is plain that under
a statute punishing carnal knowledge of a female child under
the age of consent the indictment need not describe the of-
fense as rape’ Under a statute providing for the punishment
of carnal knowledge of such child or abuse in the attempt to
have such knowledge, the indictment may state that defend-
ant did carnally know, or abuse in the attempt to know, or it
may charge the carnal knowledge only.’ In such statute the
19, v. Black, 63 Me. 210; Holton v.
S., 28 Fla. 3038; C. v. Sullivan, 6 Gray,
477; P. v. Mills, 17 Cal. 276; 8. v.
Miller, 111 Mo. 542; Farrell v. S., 54
N, J. 416.
2g, v. Johnson, 100 N. C. 494; War-
ner v. §., 54 Ark. 660; Evans v. 8., 52
N. J. 261; Vasser v.S., 55 Ala. 264;
Bonner v. S., 65 Miss. 293; Greer v.
S., 50 Ind. 267.
8Cliver v. S., 45 N. J. 46; Hays v.
P., 1 Hill, 351; P.. v. McDonald, 9
Mich. 150; Proper v. 8, 85 Wis. 615;
McKinny v. S, 29 Fla. 565; S. v.
Meinhart, 73 Mo. 562; P. v. Gordon, .
70 Cal. 467; P. v. Verdegreen, 106 ;
Cal. 211. |
4Smith v. S, 12 Ohio St. 466;
Rhodes v. §., 1 Coldw. 350; Brown v.
S., 6 Baxt. 422; S. v. Pickett, 11 Nev.
255.
58, v. Smith, Phill. 302.
6McGuff v. S. 88 Ala. 147% A
charge of assault with intent to
know does not sufficiently show
abuse: Toullet v. S., 100 Ala. 72.
7Reg. v. Holland, 10 Cox, 478,
425
§ 444.] OFFENSES AGAINST THE PERSON. ‘ [Parr V.
term “abuse” has refe~ence to the sexual organs only and does
not relate to other ill usage.! Under an indictment charging
in one count carnal knowledge and abuse, and in another the
taking of improper and indecent liberties, evidence of the for-
mer will not support a conviction for the latter.’ It is no de-
fense to the charge of having connection with a girl under the
age of consent that accused did not know she was under age.’
It is for the prosecution to prove the age to be below that of
consent.!
§ 444, What deemed the age of consent.— There seems to
have been a discrepancy in the English law at one time with
reference to the age of consent, in that twelve years was
deemed the age of puberty and the age at which a female could
consent to a valid marriage, while the statute punishing carnal
knowledge and abuse of female children related to females
under the age of ten years.’ So there are English authorities
to the effect that connection with a girl under twelve and over
ten with her consent will be a misdemeanor, that is, not the
felony of rape, and that such consent will prevent there being
an assault with intent to commit rape under such circum-
stances. But in this country age of consent means simply the
age fixed by statutes defining the offense of carnal knowledge
and abuse of girls, and making such act rape without regard
to the girl’s consent. It varies in different states from the age
of ten, named in the first English statute on the subject, to that
of eighteen, fixed by some of the recent statutes.’ In these vari-
ous statutes the terms “woman” and “child” indicate respect-
ively a female above the age of puberty and one under that
age.® But where the age of consent was fixed at fourteen, it
was held that the term “female child” indicated a female under
1 Dawkins v. §., 58 Ala. 376. Kan. 237. The objections to statutes
2P. v. Partridge, 86 Mich. 243, raising the age of consent to an age
3 See infra, § 451. beyond the period of puberty are
48. v. Houx, 109 Mo. 654, discussed in 8. v. White, 44 Kan.
51 Hale, P. C. 630. And see 8. v. 514. And similar objections to a
Pierson, 44 Ark. 265. statute making connection with con-
®Reg. v. Martin, 9 C. & P. 213; sent punishable more severely than
Reg. v. Johnson, L. & C. 632; Reg. v. the offense of rape itself are pointed
Beale, L. R. 1 C. C. 10; 1 Hale, P.C. outin 8S. v. Wentler, 76 Wis. 89.
631: 4 Bl. Com. 212; 1 Russ. Cr. 693. 8Greer v. S., 50 Ind. 267; Black-
78. v. Newton, 44 Ia. 45; S. v. burn v. S., 22 Ohio St. 102,
Wright, 25 Neb. 38; S. v. Woods, 49
426
Cu. 20.] RAPE, [$8 445, 446.
that age Under a statute providing a punishment for the
ravishing by a negro of a white “woman,” it was held that a
girl under twelve years of age was included in the term
“woman.”* But under a somewhat similar statute it was held
that an assault with intent to commit rape on a white woman
‘did not cover an assault with intent to have carnal knowledge
of a girl under ten years of age.2 The age may be found by
the jury from the testimony of prosecutrix and her appear-
ance.4
§ 445. Woman insensible.— Where the connection is had by
reason of the fact that the woman is insensible, as, for in-
stance, through sleep, the act is rape, for the woman does not
consent, being incapable of resistance.’ It was so held, also,
where the woman had been rendered insensible by liquor ad-
ministered to her by defendant, although the jury found that
the liquor was administered for the purpose of exciting her,
and not with the intention of rendering her insensible.6 These
eases evidently support the proposition that want of consent is
enough, and that it is not necessary that the act be against the
will of the woman.’ Taking advantage of insensibility for the
purpose of having connection is not, however, having carnal
intercourse by means of fraud within the Texas statute, which
was passed for the purpose of protecting married women
against attempts to have connection by personation of the hus-
band.®
§ 446. Consent obtained by fraud.—TIf the consent of the
woman to sexual intercourse is given, the act will not, aside
from statutory provisions, constitute rape, though it is procured
by reason of the belief on the part of the woman, fraudulently
induced, that the person having connection with her is her hus-
band. It is not rape to have carnal intercourse with a weak-
iP, vy. Miller, 96 Mich. 119. 8King v. S. 22 Tex. Ap. 650;
2C. v. Watts, 4 Leigh, 672. Mooney v. §., 29 Tex. Ap. 257.
3 Sydney v. S., 3 Humph. 478. SLewis v. S., 80 Ala. 54; Wyat v.
4C. v. Phillips, 162 Mass. 504. S., 2 Swan, 394; Reg. v. Barrow, L.
5 Reg. v. Mayers, 12 Cox, 311; Reg. R.10C. C. 156; Rex v. Jackson, Russ.
v. Young, 38 L. T. 540; Harvey v.8, & Ry. 47; Reg. v. Clarke, Dears. 397;
53 Ark, 425.. Reg. v. Sweenie, 8 Cox, 223. But
® Reg. v. Champlin, 1 C. & K. 746. such connection constitutes an as-
7See C. v. Burke, 105 Mass. 376. sault: Reg. v. Williams, 8 C. & P,
427
8§ 447, 448.] OFFENSES AGAINST THE PERSON. [Part V..
minded woman by fraudulent pretense of a fictitious marriage.*
But if the fraud consists in inducing the woman to submit to a
pretended surgical operation or form of medical treatment so
that there is no consent whatever to sexual intercourse, then
the act constitutes rape. Such connection amounts to an’
assault, there being no consent to the thing done.’ :
§ 447, Woman imbecile or insane.— There may be such:
idiocy or insanity on the part of the female as to negative any
consent by her, and therefore make the connection had with
her by reason of her condition rape. But if, even though the
woman be imbecile, she consent to the act, the crime is not
rape,’ and force must be shown,‘ although less resistance would
be required in such cases than in case of a woman of sound
mind.’ By statute in some states it is made criminal, how-
ever, to have carnal knowledge of a woman who is imbecile;
and such provision is intended to cover cases of the kind where
the act is accomplished without force and without consent.*
§ 448. Consent through fear.— Threats of great bodily in-
jury sufficient to overpower the mind of the female and thus.
compel consent are equivalent to the force required to consti-
tute the crime of rape® The rule is otherwise stated, but to:
the same effect, in cases which say that evidence that the con-
nection was had by reason of violence negatives consent on the
part of the female and excuses want of resistance.” But the
threatened violence must be such as to make resistance seem
hopeless and utterly useless," although in case of a child of
286: Reg. v. Saunders, 8 C. & P. 265.
And by statute in Texas it is rape:
King v. §., 22 Tex. Ap. 650; Mooney
v. 8., 29 Tex. Ap. 257; Ledbetter v.
S., 38 Tex. Ap. 400.
12 Cox, 443; Reg. v. Jones, 4 L. T.
154.
5S. v. Shields, 45 Conn, 256; Oleson:
v. §., 11 Neb. 276.
6 Pp. v. Lenon, 79 Cal. 625; Sharp v..
1Bloodworth v. S., 6 Baxt. 614; S.
v. Murphy, 6 Ala. 765.
2Pomeroy v. S., 94 Ind. 96; S. v.
Nash, 109 N. C. 824; Reg. v. Flattery,
2Q. B. D. 410; Reg. v. Stanton, 1 C.
& K. 415.
3 Reg. v. Case, 1 Den. 580.
48. v. Shields, 45 Conn. 256; Hus-
ton v. P., 121 Ill. 497; Felton v. S,,
139 Ind. 531; P. v. Lenon, 79 Cal.
625; S. v. Ruth, 21 Kan. 588; Rice v.
8., 35 Fla, 236; Reg. v. Woodhurst,
8., 15 Tex. Ap. 171.
‘Waller v. S., 40 Ala. 325,
§ Ledley v. S., 4 Ind. 580:
9 Jones v. S., 10 Tex. Ap. 552.
0 Williams v. S.,1 Tex. Ap. 90; S.
v. Vorey, 41 Minn. 184. But evi-
dence of threats may be admissible
for other purposes: Bass v. S., 16
Tex. Ap. 62,
NSharp v. &S, 15 Tex. Ap. 171;
Cooper v. 8., 22 Tex. Ap. 419,
428
Cx. 20.] RAPE. [§ 449.
tender years the overcoming of the will by a long course of
_ ill-treatment may be sufficient.! It is not necessary that the
force used or injury threatened be such as to create a reason-
able apprehension of death in order to excuse want of resist-
‘ance? The question whether resistance is overcome by duress
is for the jury;° and the court should explicitly instruct with
‘reference to the matter.‘ Where the statute defines rape in
-different forms, by force and also by putting in fear, evidence
that the connection is had through fear will not be admissible
‘under an indictment charging the offense to have been com-
‘mitted by force.’ If, however, the indictment charges the
offense in both forms, the state is not compelled to elect which
form it will rely on
§ 449. Who may commit — Husband; boy; woman; joint
principals.— The crime may be committed by any male of the
age of fourteen or over, not the husband of the female.’ Under
the age of fourteen, by the common law of England, a boy is
‘conclusively presumed incapable of the act necessary to con-
stitute rape,’ or having carnal knowledge of a female child
under the age of consent.’ In some of the United States, how-
ever, the doctrine has been established that capacity in a boy
ander fourteen may be proven, and if the fact is shown he may
‘be convicted of the crime.” But the presumption of incapacity
1Reg. v. Barratt, L. R. 2 C.C. 81; the defendant is not the husband:
‘Reg. v. Fletcher, Bell, 63; S. v. Tarr, See infra, § 452.
28 Ia. 397; S. v. Atherton, 50 Ia. 189. 81 Hale, P. C. 630; S. v. Sam, 1
2Crosswell v. P., 18 Mich. 427; Wins. i, 300; Williams v.5S., 20 Fla.
‘Reg. v. Fletcher, L. R. 1 C. C. 39. 777; Reg. v. Waite, 2 Q. B. (1892), 600.
3 Baldwin v. 8., 15 Tex. Ap. 275. If under age no evidence is admis-
4S. v. Cunningham, 100 Mo. 382. sible showing capacity: Reg. v. Jor-
58, v. Enright, 90 Ia. 520. Connec- dan, 9 C. & P. 118; Reg. v. Philips, 8
‘tion procured by duress or threats C. & P. 736.
‘may constitute statutory defilement, 2Reg. v. Jordan, 9 C. & P. 118;
though the resistance is not such as Reg. v. Brimilow, 9 C. & P. 366; Reg.
sto show rape: S, v. Fernald, 88 Ia. 553; v. Williams, 1 Q. B. D. (1893), 320;
9. v. Montgomery, 79 Ia. 737; Pollard Reg. v. Waite, 2 Q. B. D. (1892), 600.
v. S, 2 Ta. 567; Beyer v. P., 86 N.Y. 1 Hiltabiddle v. S., 35 Ohio St. 52;
-869; S. v. Rogers, 108 Mo. 202. Williams v. S&S. 14 Ohio St. 222;
®Don Moran v. P., 25 Mich. 356; O’Meara v.S.,17 Ohio St., 516; Moore
Pleasant v. S., 18 Ark. 360. v.S., 17 Ohio St. 521; P. v. Randolph,
7The husband cannot be guilty of 2 Park. Cr. 174; Heilman v. C., 84
a rape committed by himself upon Ky. 457; Wagoner v.S., 5 Lea, 352;
Jnis lawful wife: 1 Hale, P. C. 629. Gordon v. S., 93 Ga. 531; McKinny
But it is unnecessary to charge that v. S., 29 Fla. 665. In Louisiana it is
429
§ 450.] OFFENSES AGAINST THE PERSON. [Part V.
of a boy under fourteen will prevail until overcome by evi-
dence.! The question of liability of a boy, incapable of com-
mitting the offense, for an assault with intent to commit rape,
will be discussed under that head.2 The fact that the person
charged with the offense is under the age of capacity is one to
be shown by evidence and need not be negatived in the indict-
ment.’ Two or more persons may be guilty of the crime as.
principals, those who are present, aiding and abetting, being
principals in the second degree;* the distinction between prin-
cipals in the first and second degree being now, however,
wholly immaterial.’ Thus, a boy, or a woman, or a husband,.
though incapable of committing the crime, may be guilty
thereof as principal by being present, aiding and assisting in
its commission.®
§ 450. The act ; penetration; emission,— Penetration of
the body of the female by the virile organ of the male is essen-
tial to constitute the crime.’ But the slightest penetration is.
sufficient. It is not necessary that the hymen be ruptured.®
So in case of abuse of a female child, perfect penetration is
doubted whether the common-law
presumption has any force in view
of the conditions being different
from those prevailing in England,
where the rule originated: S. v.
Jones, 39 La. An. 935.
1Heilman v. C., 84 Ky. 457, It is
said that even proof of actual pene-
tration by a boy under fourteen will
not be sufficient without other evi-
dence of capacity to complete the
act: Hiltabiddle v. S., 35 Ohio St. 52.
2 Infra, § 465.
3 Infra, § 452.
4Reg. v. Cray, 7 C. & P. 164; Rex
v. Folkes, 1 Moody, 854; Reg. v. Cris-
ham, Car. & M. 187; Dennis v. 8., 5
Ark, 230; Montague v. 8., 17 Fla. 662;
S. v. Duffy, 124 Mo. 1,
5See supra, § 217.
6S. v. Jones, 83 N. C. 605; Kessler
v. C., 12 Bush, 18; C. v. Fogerty, 8
Gray, 489; P. v. Chapman, 62 Mich,
280; S. v. Dowell, 106 N. C, 722;
Audley’s Case, 3 How. St. Tr. 401; 1
Hawk. P. C., ch. 41, § 6; 1 East, P.C,
446; 2 Bish. Cr. L,, § 1185.
THardtke v. S., 67 Wis. 552; S. v.
Grubb, 55 Kan. 678. And must be
proven beyond a reasonable doubt:
Davis v.8., 43 Tex. 189. But it may
be proved by circumstantial evi-
dence where the victim has been re--
duced to insensibility: Word v.8., 12
Tex. Ap. 174. “Carnal knowledge”
implies the act necessary to consti-
tute the crime: McMath v. S., 55 Ga.
. 803; Burk v. S., 8 Tex. Ap. 336; Lu-
jano v. S., 32 Tex. Ap. 414,
8P. v. Crowley, 102 N. Y. 284; S. v.
Hargrave, 65 N. C. 466; Brown v. 8.,
76 Ga, 623; S. v. Le Blanc, 1 Treadw.
Const. 354; Reg. v. Allen, 9 C. & P. 81.
The male organ must pass within
the labia of the pudendum: Reg. v.
Lines, 1 C. & K. 393. There must be
res in re: 8 Inst. 60; 2 Bish. Cr. L,
§ 1182; 1 Hale, P. C. 428; P. v. Cour-
ier, 79 Mich. 366.
9 Brauer v. S., 25 Wis, 413; Reg,-v.
Russen, 1 East, P. C. 488; Reg. v.
McRue, 8 C, & P. 641; Reg. v. Hughes,
9C. & P. 752; Reg. v. Jordan, 9 C. &
P, 118.
430 J
Cu. 20.] RAPE. [§ 450.
not necessary.! But mere proof of an attempt or of indecent
liberties is not sufficient.2? It-is not necessary, however, that
the act of copulation should have been completed.’ No par-
ticular form of words on the part of the prosecuting wit-
ness is necessary in testifying to the fact of penetration. Her
statement that the defendant had full connection or sexual in-
tercourse with her is sufficient if the jury therefrom believe
that the penetration was effected. There is a doubt as to
whether, by the common law, proof of emission of semen was
necessary to establish the offense. It is said in several English
cases that, prior to the statute on the subject, the fact of emis-
sion must be alleged and proven.! But Lord Hale speaks of
this doctrine as erroneous.’ There is an English statute (9
Geo. 4, ch. 31) which renders proof of emission unnecessary,®
and there are similar statutes in the various states, so that
with us, in general, emission is immaterial.’ But there are
cases in the United States holding that, in the absence of stat-
utes on the subject, emission must be proven.® While it thus
appears that perhaps at common law, and generally by statute,
the fact of emission is deemed immaterial, yet the capacity to
emit is essential, so that mere penetration by a boy so young,
as to be incapable of emission, or by an adult who is impotent,
is perhaps not rape.?
1p, v. Courier, 79 Mich. 366; Reg. v.
Lines, 1 C. & K. 393.
2 Wesley v. S., 65 Ga. 731; 8. v. Dal-
ton, 106 Mo. 463.
3Rodgers v. S., 30 Tex. Ap. 510;
Reg. v. Allen, 9 C. & P. 31.
4Rex v. Hill, 1 East, P. C. 489; Rex
v. Cave, 1 East, P. C. 438; Rex v. Bur-
rows, Russ. & Ry. 519; Rex v. Coz-
ins, 6 C. & P. 351.
51 Hale, P. C. 628,
6Rex v. Jennings, 4 C. & P, 249;
Rex v. Reekspear, 1 Moody, 342;
Johnson v. §., 27 Tex. Ap. 163. This
statute is applicable also to carnal
knowledge of a girl: Reg. v. Mars-
den, 2 Q. B. D. (1891), 149.
7Waller v. S., 40 Ala. 325; S. v.
Burton, 1 Houst. Cr. C. 363; C. v.
Thomas, 1 Va. Cases, 307. It is said
that emission is presumed from the
fact of penetration: Pennsylvania.
v. Sullivan, Addison, 143; Comstock
v. S., 14 Neb. 205.
8S. v. Gray, 8 Jones, 170; Williams
v. §., 14 Ohio, 222; Blackburn v. S.,
22 Ohio St. 102; Brown v. §., 76 Ga.
623. Thus, where there was a stat-
ute rendering proof of emission in
sodomy unnecessary, which statute
was subsequently repealed, held, that
after the repeal proof of emission
was essential to establish the of-
fense: P. v. Hodgkin, 94 Mich. 27.
9 Hiltabiddle v. S., 35 Ohio St. 52;
Nugent v. S., 18 Ala, 521. Though
as to the case of impotency, Lord
Hale is of the contrary opinion: 1
Hale, P. C. 628,
431
§451] OFFENSES AGAINST THE PERSON. [Part V.
§ 451. The intent.— The only intention necessary to consti-
tute the offense is that of having connection by force and with-
out consent. As will be seen hereafter in discussing assaults
with intent to commit rape, this intent is material, and if the
purpose was only to secure connection by consent, no such as-
sault would be committed.’ If the purpose of the defendant
was not to effect the connection by force sufficient to overcome
resistance on the part of the female, there would not be an in-
tent to commit rape. But in a prosecution for having carnal
knowledge of a girl under the age of consent it is not essential
that there be any intent to use force or overcome the will? It
is not, however, the intent with which the act is entered upon,
but the force actually used, that determines whether rape has
been committed. As tending to show intent, prior assaults or
declarations may be proven;® but evidence of prior indecent
liberties and lewd acts should not be received. As bearing on
the question of intent, it has been held admissible for the de-
fendant to prove conduct on the part of the female from which
a belief on his part that she had consented might reasonably
result, although, as a matter of fact, no consent was given.’
Where the offense is in having connection with a child under
the age of consent, belief on the part of the defendant that she
was over the age of consent, and that therefore consent on her
part would prevent the act from being criminal, cannot be
shown. Oonnection with a child under the age of consent
being criminal, one who has connection with a female, which
would in any event be unlawful, must know, at his peril,
whether her age is such as to make the act a rape.®
lInfra, § 463. son v. 8., 48 Tex. 583; Rex v. Lloyd,
? Taylor v. S., 50 Ga. 79; Walton v. 7 C.& P,818. Testimony of medical
S., 29 Tex. Ap. 168; Reagan v.S., 28 experts as to the effect of indecent
Tex. Ap. 227; Reg. v. Stanton, 1C.& liberties upon the mind of the fe-
K, 415; Reg. v. Wright, 4 F. & F.967. male is inadmissible: P. v. Royal, 53
Intent to surprise is not enough: Cal. 62.
McNair v. 8., 63 Ala. 453, 2 Am. Cr, 7 Allen v. S., 87 Ala. 107.
R. 583 and note. 8Lawrence v. C., 30 Grat. 845; S.
. §P, v. Courier, 79 Mich. 366. v. Newton, 44 Ia, 45: 8. v. Houx,
4 Dawson v. S., 29 Ark. 116. 109 Mo. 654; S. v. Baskett, 111 Mo.
58, v. Patrick, 107 Mo. 147; Massey 271; Holton v. S., 28 Fla. 303; Reg.
v. 8., 81 Tex. Ap. 871. v. Prince, L. R. 2.C. C, 154,
6C. v. Merrill, 14 Gray, 415; Thomp-
432
‘Cx. 20.] BAPE. [§ 452.
§ 452. Indictment.— The common-law form of indictment
‘charges that the defendant “did feloniously ravish and carnally
know,” and it is not necessary to allege the force or want of
consent, the term “ravish” implying both.’ It seems to be not
unusual, however, to use words indicating the force and want
of consent, and for that purpose the term “ violently ” is equiv-
alent to “forcibly.” The word “ravish,” however, is the
essential word in the common-law indictment,’ and the allega-
tion of carnal knowledge is a mere repetition.‘ As a substitute
for “ravish” the word “rape” is insufficient.’ Whatever the
statutory expression may be, the allegation of the facts consti-
tating the offense will be sufficient,’ and it is held that words
charging carnal knowledge “by force and against the will”
are equivalent to the statutory term “ravish.”’ As in other
cases of felony, the act should be charged as feloniously done;®
but it seems that an allegation of a felonious assault and of an
act forcibly and against the will is sufficient, without alleging
the act as felonious.® The particular manner of the accom-
plishment of the act need not be alleged.” -It is not necessary,
even where the statute describes the methods of committing
the offense, as by fraud, or artifice, or force and violence, to
state in which of these methods the act was accomplished."
But in one case it is said that, under a statute specifying differ-
ent methods of committing the offense, the acts constituting
the alleged offense should be so stated as to advise the accused
of the different ways in which he was charged to have com-
mitted the crime.” It is not necessary, though usual, to charge
1Harman v. C., 12 Serg. & R. 69; 6P. v. McDonald, 9 Mich. 150; S. v.
C. v. Fogerty, 8 Gray, 489; Williams
v. S., 1 Tex. Ap. 90. But in a North
‘Carolina case it is said that the alle-
gation “forcibly and against the
will” is necessary: S. v. Jim, 1 Dev.
142.
2 Gutierrez v. S., 44 Tex. 587; Wall-
ing v. S. 7 Tex. Ap. 625; S. v. Will-
iams, 82 La. An. 335; S. v. Johnson,
‘67 N. C. 55. To the contrary, see S.
v. Blake, 39 Me. 322.
3Christian v. C., 23 Grat. 954.
4Gibson v. S., 17 Tex. Ap. 574
5 Davis v. S., 42 Tex. Ap. 226.
28
Mueller, 85 Wis. 203.
78. v. Little, 67 Mo. 624.
8 Hays v. S., 57 Miss. 783.
98. v. Casford, 76 Ia. 330.
10 McMath v. S., 55 Ga. 303.
Pp, v. Snyder, 75 Cal. 323. If two
methods are charged the state can-
not be required to elect: Thompson
v. S. 83 Tex. Ap. 472. An indict-
ment charging both rape and carnal
knowledge of a girl under age is not
so defective as to deprive the court
of jurisdiction: In re Lane, 185 U.S.
443,
128, v. Vorey, 41 Minn. 134,
433
x
§ 452.) OFFENSES AGAINST THE PERSON. [Part V.
an assault.! Even if an assault is alleged there must be also
allegation of the act in such manner as to indicate a ravish-
ment, an allegation that the defendant did, by means of an as-.
sault, obtain carnal knowledge, etc., not being sufficient.? It is
not necessary to allege specifically the sex of the person on
whom the crime is alleged to have been committed, if the fact.
appears from the general language of the indictment.’ Neither
is it necessary to allege that the female was of the human spe-
cies.‘ The term “female” is equivalent to the term “ woman ”
used in a statute.* Even when the statute makes the offense
of having carnal knowledge of a female child under ten years
of age distinct from that of rape, it is not necessary, in an in-
dictment for rape, to allege the age of the female to be over the.
age of consent.’ Even under the theory that the two offenses.
are distinct, the crime of rape may be committed on a child
under the age of consent.” It is not necessary to allege in the
indictment that the woman is not the wife of the defendant; *
nor that the accused is a male;° nor that he is over fourteen
years of age.”
1Reg. v. Allen, 9 C. & P. 521.
2Elschlep v. S., 11 Tex. Ap. 301.
38, v. Fielding, 82 Me. 585; Taylor
v. C., 20 Grat. 825; S. v. Hussey, 7
Ia, 409; S. v. Warner, 74 Mo. 83;
Warner v. S., 54 Ark. 660; S. v.
Farmer, 4 Ired. 224; S. v. Terry, 4
Dev. & B. 152; Hill v. S., 3 Heisk. 317.
48. v. Ward, 35 Minn. 182; S. v.
Tom, 2 Jones, 414; Anderson v. S.,
34 Ark. 257; O’Rourke v. S., 8 Tex.
Ap. 70.
5 Myers v. S., 84 Ala. 11; Gibson v.
S.,, 17 Tex. Ap. 574.
6S, v. Fielding, 32 Me. 585; C. v.
Sugland, 4 Gray, 7; Hill v. S, 3
Heisk. 817; Mobley v. S., 46 Miss. 501.
7See supra, § 442.
8C. v. Scannel, 11 Cush. 547; C. v.
Fogerty, 8 Gray, 489; S. v. Williams,
9 Mont. 179. Even where the stat-
ute defines the offense as having
connection, etc., with a woman not
the wife of the accused, the fact
that the woman, in a particular case,
was not the wife of the accused
may appear from the name, etc.,
without being specifically alleged:
S. v. White?44 Kan. 514. Where the
crime is defined by statute in con-
nection with that of incest as hav-
ing carnal connection with any other
woman than a sister or daughter
forcibly, etc., it is necessary to allege:
that the woman was not the daugh-
ter or sister, in order to,specify the
form of the offense charged: How-
ard v. §., 11 Ohio St. 328,
98. v. Tom, 2 Jones, 414; Brown
v.S., 72 Miss, 997; Warner v. 8., 54
Ark, 660; Cornelius v. S.,13 Tex. Ap.
349,
10S, v. Ward, 35 Minn. 182; P. v.
Ah Yek, 29 Cal. 575; Davis v. 8., 42
Tex. 226; Word v.S.,12 Tex. Ap. 174;
Cornelius v. 8, 13 Tex. Ap. 349.
Want of physical capacity is a mat-
ter of defense: P. v. Wessel, 98 Cal.
852,
484
Cx. 20.] RAPE. [S$ 453, 454,
§ 453. Forms.— There is a well-settled common-law form
which is simple and direct, and applicable to all cases except
those where the female is under the age of consent. Such
variations from it as are likely to be found are pointed out in
the note:
FOR RAPE.
That A. B., in the county aforesaid, on the ,in and
upon one C. D. feloniously and violently did make an assault,
and her, the said C. D., then and there violently and against
her will feloniously did ravish and carnally know.!
FOR CARNAL KNOWLEDGE OF FEMALE CHILD.
That A. B.,in the county aforesaid, on , did then and
there in a rude, insolent and angry manner unlawfully and
feloniously touch one 8. M.,a woman child then and there
under twelve years of age, to wit, of the age of nine years, and
did then and there unlawfully and feloniously have carnal
knowledge of her, the said 8. M2
§ 454. Included offenses.— An indictment for the offense
necessarily includes an assault with intent to commit the of-
fense.?
1This form from Archbold is sub-
stantially copied into all the form
books. Sometimes the age of the
female is given so as to show that
she was above the age of consent:
See C. v. Fogerty, § Gray, 489; P. v.
Jackson, 3 Park. Cr. 391; but this
averment is unnecessary, as already
shown. A slightly different form
of averment is illustrated by the in-
dictment for assault with intent to
commit rape, given infra, § 467,
2See Batterson v. S., 63 Ind. 531.
The indictment in that case averred
as to the age of the child simply
that she was under twelve years of
age, that being the age of consent
fixed by statute. But it is usual in
such cases to aver also the actual
age under a videlicef, and such an
averment has been introduced in the
form here given, though it is prob-
ably unnecessary anywhere. It has
been held that the allegation that
So there may be a conviction, under an indictment for
the girl was of the age of eleven
years was sufficient to charge that
she was under the age of fourteen,
the statutory age of consent: P. v.
Gardner, 98 Cal. 127. As the offense
is statutory the language must be
adapted in each state to that found
in the statute.
3P, v. Courier, 79 Mich. 366; P. v.
Abbott, 97 Mich. 484; Prindeville v.
P., 42 Ill. 217; S. v. Mueller, 85 Wis,
208; Pratt v. S., 51 Ark. 167; Polson
v. S., 187 Ind. 519; S. v. Cross, 12 Ia,
66; S. v. Atherton, 50 Ia. 189; S. v.
Vinsant, 49 Ia, 241; S. v. Peters, 56
Ta. 263; S. v. Kendall, 73 Ia. 255; 8.
v. Frazier, 53 Kan. 87; S. v. May, 42
La. An. 82, It is error to instruct
the jury with reference to the com-
pleted crime where the evidence
shows only an assault to commit
it, even though the jury convict of
the assault only: 8. v. Kyzie, 86 Ia.
616,
435
§ 454.] OFFENSES AGAINST THE PERSON,
_ [Parr V.
the offense, of an attempt to commit it.1 The defendant is en-
titled to an instruction with reference to an assault with intent
to commit when put on trial for the completed offense;? and
even if the evidence shows the completion of the act, a convic-
tion for the assault with intent will not be erroneous.’ As the
assault with intent to commit the crime is included in a charge
of the crime itself, a count charging the assault may be united
with one charging the offense.‘ So the offense of simple as-
sault is necessarily included in the charge of rape.’ If the as-
sault is charged in such form as to show a battery, there may
be a conviction of an assault and battery as an included of-
fense.® Where rape and the offense of having carnal knowl-
edge of a female child under the age of consent are regarded
1Glover v. C., 86 Va. 382; S. v.
Frazier, 53 Kan. 87. But an attempt
to commit does not necessarily
amount to an assault with intent to
commit: P. v. Gardner, 98 Cal. 127.
And see P. v. Lee Kong, 95 Cal. 666;
S. v. Godfrey, 17 Oreg. 300.
2 Bethel v. C., 80 Ky. 526; Massey
v. 8, 31 Tex. Ap. 371; P. v. Abbott,
97 Mich. 484. But where the crime
is established it is not error to re-
fuse to instruct as to an assault with
intent: P. v. Chavez, 103 Cal. 407.
38. v. Archer, 54 N. H. 465; S. v.
Smith, 43 Vt. 324; P. v. Miller, 96
Mich. 119; Pratt v. S, 51 Ark. 167.
Contra, 8. v. Mitchell, 54 Kan. 516;
S. v. Frazier, 54 Kan. 719. It was
held otherwise under statute: Kel-
sey v. S., 62 Ga. 558. Also in Eng-
land before statutory provisions on
the subject: Rex v. Harmwood, 1
East, P. C. 411; Reg. v. Nicholls, 2
Cox, 182; but now such a conviction
is sustained: Reg. v. Ryland, 11 Cox,
101. For the discussion of a similar
question, involving an assault by a
slave upon a white woman, see
Wash v. §., 14 Sm. & M. 120. Under
charge of assault with intent, there
may be a conviction, though the evi-
dence shows the completed crime:
P. v. Creadon, 162 Mass. 466,
4Harman v. C., 12 Serg. & R. 69;
P. v. Tyler, 35 Cal. 558; S. v. Sutton,
4 Gill, 494,
5P. v. McDonald, 9 Mich. 150;
Campbell v. P., 34 Mich. 351; P. v.
Courier, 79 Mich. 366; S. v. Vinsant,
49 Ia. 241; S. v. Peters, 56 Ia. 268; S.
v. Bagan, 41 Minn. 285; Reg. v.
Guthrie, L. R. 1 C. C. 241; Reg. v.
Hapgood. L. R. 1 C. ©. 221; Reg.
v. Folkes, 2 M. & Rob. 460; Rex v.
Dawson, 3 Stark. 62; Reg. v. Cather-
all, 138 Cox, 109; Reg. v. Dungey, 4
F. & F. 99.
6Hanna v. P., 19 Mich. 316; Rich-
ardson v. §., 54 Ala. 158; Mills v. S.,
52 Ind. 187; S. v. McDevitt, 69 Ia.
549; S. v. Kyne, 86 Ia. 616. Where
the evidence shows a battery, in-
structions as to assault and battery
are sufficient without any instruc-
tion as to simple assault: S. v. Sigg,
86 Ia. 746. Even if it appears that
the intercourse was consented to,
there may still be a conviction for
the assault and battery if the act
was done in such a brutal and vio-
lent manner as to involve personal
injury, the consent to the inter-
course not necessarily involving con-
sent to such injury: Richie v. S., 58
Ind. 355.
436
Ca. 20.] RAPE. [§ 455.
as distinct crimes, an indictment for the latter will not sustain
a conviction for the former.! Under an indictment for rape,
defendant may be convicted of fornication Whether rape
may also amount to adultery or incest will be considered in
discussing those crimes.
§ 455. Evidence; outcry or complaint.— Evidence of com-
plaint made by the female with reference to the act is admissi-
ble in two ways. In the first place her outcries and declara-
tions immediately connected with the act may be shown as
part of the res geste,* and for the same purpose marks of vio-
lence on the person may be shown.’ In the second place, as it
is essential that the female should have resisted so far as possi-
ble,’ it is important to show, in corroboration of her evidence,
that she made outcry at the time, and complaint afterwards.’
Therefore, where it appears there was no outcry and that no
complaint was made immediately or as soon as reasonable op-
portunity offered, there should not be a conviction,® the absence
of outcry or complaint being admissible as discrediting and
overcoming the otherwise uncorroborated testimony of the
prosecutrix.? Failure to make outery or complaint may be ex-
1g. v. Erickson, 45 Wis. 86; S. v.
Cherry, 1 Swan, 160.
2C. v. Parker, 146 Pa. St. 343. But
it must appear that the parties were
not married to each other, that
being an essential fact in a charge
of fornication: C. v. Murphy, 2 Allen,
168. There are cases holding that
the crime of fornication is not in-
cluded in a charge of rape: S. v.
Shear, 51 Wis. 460; Speer v. S., 60
Ga. 381.
3See infra, §§ 1092 and 1121.
4McMath v. S., 55 Ga. 803; P. v.
Flynn, 96 Mich. 276; Castillo v. S.
31 Tex. Ap. 145; S. v. Shettleworth,
18 Minn. 208; Rex v. Clarke, 2 Stark.
241,
58. v. Shettleworth, 18 Minn. 208.
6 Supra, § 440.
78. v. Brown, 54 Kan. 71; Hannon
v. S., 70 Wis. 448.
8S. v. Patrick, 107 Mo. 147; P. v.
O'Sullivan, 104 N. Y. 481; Monroe
v. 8., 71 Miss. 196; Richards v. S., 36
Neb. 17; S. v. Cone, 1 Jones, 18;
Gazley v. 8. 17 Tex. Ap. 267; Law-
son v. S., 17 Tex. Ap. 292; Thompson
v. S., 33 Tex. Ap. 472.
9 Pefferling v. S., 40 Tex. 486; Topo-
lanck v. S., 40 Tex. 160; Rhea v. S.,
30 Tex. Ap. 483; Whitney v. S., 35
Ind. 503; Eyler v. S., 71 Ind. 49; S. v.
Tomlinson, 11 Ia. 401; Barney v. P.,
22 Til. 160; S. v. Wilkins, 66 Vt. 1;
Smith v. S., 77 Ga. 705. Evidence
that the prosecutrix cried continu-
ously while going home after the
alleged assault is admissible, as indi-
cation of distress is material and
competent: S. v. Bedard, 65 Vt. 278.
So it may be shown that the female
alleged to have been injured re-
quested another to go before a
magistrate and report the offense:
Smith v. S., 47 Ala. 540. Failure to
make outcry will not prevent con-
viction for assault to commit rape
437
§ 455.) OFFENSES AGAINST THE PERSON. [Parr V.
cused, however, where it is shown that the female refrained
from doing so on account of fear,! or by reason of youth and
inexperience? The inference arising against the truth of the
charge from long silence on the part of the female js not a pre-
sumption of law but a matter of fact for the consideration of
the jury. While delay in making complaint may tend to dis-
credit the evidence of the prosecutrix, the mere lapse of time
is not a test of admissibility in evidence of such complaint, but
is only matter for the consideration of the jury in determining
the weight to be given toit.! Evidence of subsequent complaint
by the prosecutrix being admissible, therefore, not as original
evidence or as a part of the ves geste, but to overcome a sus-
picion which would otherwise attach to evidence tending to
show her want of consent and to corroborate her testimony,
the fact that such complaint was made is alone admissible and
not its particulars or details.
if it appears that actual resistance
was made which wes effectual: S. v.
Brown, 54 Kan. 71.
1For instance, in the case of rape
committed by the father on his
daughter of fourteen years of age:
S. v. Wilcox, 111 Mo. 569. But such
relation between the parties was
held not to excuse want of outcry
in S. v. Cone, 1 Jones, 18, and Law-
son v. §., 17 Tex. Ap. 292.
2Sutton v. P., 145 Ill. 279; S. v.
Marshall, Phil. 49; S. v. Cross, 12 Ia.
66.
38. v. Peter, 8 Jones, 19; S. v.
Cross, 12 Ia. 66; S. v. Tarr, 28 Ia.
397; S. v. Hagerman, 47 Ia. 151;
‘Crockett v. S., 49 Ga. 185.
48. v. Niles, 47 Vt. 82; S. v. Mul-
kern, 85 Me. 106; S. v. Witten, 100
Mo. 525; Hill v. S., 5 Lea, 725. The
delay may be explained by showing
excuse therefor: 8S. v. Shettleworth,
18 Minn. 208.
5Lacy v. S, 45 Ala. 80; Barnett
v. &, 83 Ala. 40; Lee v. S., 74 Wis.
45; McMurrin v. Rigby, 80 Ia, 322;
8. v. Clark, 69 Ia, 294; S, v. Richards,
33 Ta. 420; P. v. Mayes, 66 Cal. 597;
P. v. Stewart, 97 Cal. 288; P. v. Gra-
But evidence of the complaint
ham, 21 Cal 261; Oleson v. S., 11
Neb. 276; Ellis v. S., 25 Fla. 702; Pef-
ferling v. S., 40 Tex. 486; Holst v. S.,
23 Tex. Ap. 1; McGee v. S., 21 Tex.
Ap. 670; S. v. Robertson, 88 La. An.
618; S. v. Langford, 45 La. An. 1177;
Reg. v. Megson, 9 C. & P. 420: Reg.
v. Mercer, 6 Jur. 248. Thus, the
statement of the prosecutrix as to
who committed the offense cannot
be shown: Bean v. P., 124 Ill. 576;
Stephens v. S., 11 Ga. 225; S. v. Hill,
2 Hill, 607; S. v. Shettleworth, 18
Minn. 208. Contra, S. v. Cook, — Ia.
—_,61 N. W.R. 185. She may be asked
whether, in making complaint, she
named a person as having commit-
ted the offense without being al-
lowed to give the name: Reg. v.
Osborne, Car. & M. 622. It is not
competent to show that the prose-
cutrix, when making complaint,
said that certain scratches on her
neck were made by the accused in
attempting to ravish her: Scott v.
8. 48 Ala, 420. Evidence of com-
plaints is receivable as confirmatory
evidence only: S. v. Peter, 14 La.
An, 521.
488
Cu. 20.] RAPE. [§ 456.
may extend to showing what the person made complaint of.!
This rule which forbids the prosecution from showing, either
by the prosecutrix or others, the details of her complaint made
after the commission of the offense, though thus supported by
the overwhelming weight of authority, has not been universally
recognized. In a few cases it has been said that the same rea-
sons which permit the introduction of evidence that the com-
plaint was made, require that the complaint in detail should
also be shown.”
§ 456. Evidence of complaints only corroborative.— The
doctrine that evidence of subsequent complaint is admissible is
based on the ‘theory of a corroboration of the testimony of
prosecutrix, and all the cases are of that kind,’ and therefore
it has no applicability where the prosecutrix does not testify
as a witness;* for instance, where she is dead, or is incompe-
tent because so young that her testimony is not admissible,’ or
because imbecile.’ Her complaints are not to be shown as in-
dependent evidence,’ but the authorities generally agree that,
after prosecutrix has testified as to having made complaint, the
particulars of her complaint may, on cross-examination, be in-
18, v. Mitchell, 68 Ia. 116. It is
proper to show the statement of
prosecutrix as to who did the act
and that it was without her con-
sent: S. v. Cook, — Ia. —, 61 N. W.
R. 185; S. v. Carroll, 67 Vt. 477.
29, v. Kinney, 44 Conn. 158; Mc-
‘Combs v. S., 8 Ohio St. 643; Phillips
v. S., 9 Humph. 245; Benstine v. S.,
2 Lea, 169. And see Barnett v. S.,
83 Ala. 40, and S. v. Freeman, 100.
N. C. 429. See, also, language of
Baron Parke in Reg. v. Walker, 2 M.
& Rob. 212.
3See, especially, Johnson v. §S., 17
Ohio, 598; Laughlin v. S., 18 Ohio,
‘99; Phillips v. 8. 9 Humph. 246.
4Reg. v. Guttridges, 9 C. & P. 471.
5 Reg. v. Megson, 9 C. & P. 420.
6Weldon v. S., 382 Ind. 81; Horn-
beck v. S., 35 Ohio St. 277. It was
at one time thought that in such
-cases the statement of the child not
under oath might be taken where
she was too young to be examined
under oath: 1 Hale. P. C. 684; Rex
v. Brasier, 1 East, P. C. 448. But it
was afterwards held that if the child
was too immature to be sworn, her
statements not under oath were like-
wise inadmissible: 1 East, P. C. 444;
4 Bl. Com. 214; 1 Chit. Cr. L. 590;
Reg. v. Guttridges, 9 C. & P. 471;
Reg. v. Nicholas, 2 C. & K. 246. An
English statute now provides that a
statement not under oath may be
received in such cases: Reg. v. Wea-
land, 20 Q. B. D. 827; Reg. v. Paul,
25 Q. B. D. 202. A five-year-old child
held not too young to testify on oath
as to such a crime: S. v. Juneau, 88
Wis. 180.
7P, v. McGee, 1 Denio, 19; S. v.
Meyers, — Neb. , 64 N. W. R. 697;
Hornbeck v. 8., 35 Ohio St. 277.
8 Hornbeck v. S., 35 Ohio St. 277;
Oleson v. S., 11 Neb. 276; P. v. Gage,
62 Mich. 274; P. v. Hicks, 98 Mich. 86.
439
[Parr V.
§§ 457, 458.] OFFENSES AGAINST THE PERSON.
quired into,! and that thereupon, if the cross-examination has.
developed only a portion of such complaint, the balance may
be brought out on re-direct;? and further, that if an attempt
is made to impeach the credibility of her testimony, she may
show the details of her complaint by way of corroboration.’
§ 457. Other discrediting evidence.— On the same theory
on which evidence of outcry or complaint is important, it is
held that the continuance of friendly relations between the
prosecutrix and the defendant after the time of the alleged
crime will tend to disprove the offense.‘ Statements of the
prosecutrix inconsistent with the fact of the commission of the
crime are, of course, admissible.
§ 458. Corroboration of prosecutrix.— The charge of rape
is one which, as Lord Hale observes, is “an accusation easily
to be made, hard to be proved, and harder to be defended by
the party accused, though never so innocent,” * and the court.
may properly warn the jury of the danger in convicting a de-
fendant on the uncorroborated testimony of the prosecutrix.?
As has already been pointed out,’ an important corroboration
is the making of outcry at the time, if it would be of any
avail, and speedy complaint afterward.? However, corrobcra-
tion of the testimony of the prosecutrix by other evidence is
not, in the absence of statute, absolutely essential," and a con-
viction may be had even on the uncorroborated evidence of an
infant, under the years of discretion, where it appears that she
is competent to testify, or upon the uncorroborated evidence of
the prosecutrix, although she is shown to be unchaste."” But
1Barnett v. S., 83 Ala. 40; Reg. v.
Walker, 2 M. & Rob. 212; Reg. v.
Wood, 14 Cox, 46; Reg. v. Eyre, 2 F.
_ & F. 579,
2 Barnett v. S., 83 Ala. 40.
3 Barnett v. S., 83 Ala. 40; Scott v.
S., 48 Ala. 420; Griffin v. S., 76 Ala.
29; S. v. Freeman, 100 N.C. 429; S. v.
Clark, 69 Ia. 294.
48. v. Patrick, 107 Mo. 147; Barney
v. P., 22 Til 160; Sutton v. P., 145 Ill.
279.
5Allen v. S., 87 Ala. 107; Austine
v. P.,110 Ill. 248; Sherwin v. P., 69
TL. 55; Kennedy v. P., 44 IIL 288; 9.
v. Cassidy, 85 Ia. 145.
61 Hale, P. C. 635.
7P. v. Benson, 6 Cal. 221; 5S. v.
Hagerman, 47 Ia. 151.
8 Supra, § 455.
98. v. Cook, — Ia, —, 61 N. W. R.
185. And see 1 Hale, P. C. 633; 1
East, P. C. 445; Topolanck v. S., 40
Tex. 160.
10 Garrison, v. P. 6 Neb. 274; P. v.
Stewart, 90 Cal. 212; P. v. Mesa, 93
Cal. 580; Gonzales v. S., 32 Tex. Ap.
611.
McGuff v. S., 88 Ala. 147; Boddie
v. S., 52 Ala. 895; P. v. Mayes, 66 Cal.
597; Anonymous, 1 Russ, C. & M.
932,
440
Cu. 29.) RAPE. [§ 459.
\
the court may find the uncorroborated evidence of the prose-
cutrix not entitled to sufficient weight, under the circumstances,
to support a conviction.. Where the defendant is entitled to
be a witness, and clearly and explicitly denies the commission
of the offense, there must be evidence corroborating the testi-
mony of the prosecutrix to authorize a conviction.? But to
constitute such corroboration of the prosecutrix, it is not nec-
essary that she be supported by other witnesses as to the par-
ticular act constituting the offense. If she is corroborated as
to material facts and circumstances which tend to support her
testimony, and from which, together with her testimony as to
the principal facts, the inference of guilt may be drawn, this is
sufficient.2 In some states there are statutes requiring the cor-
roboration of the prosecutrix to warrant a conviction.‘
§ 459. Physical condition.— As tending to show the com-
mission of the offense, the state and appearance of the person
claimed to have been injured, marks of violence on her person,
the condition of her dress, etc., shortly after the alleged injury,
may be proven as original evidence.> Evidence as to stains on
the clothing of the prosecutrix is also admissible;® and so is
evidence of physical examination showing bruises and other
LP, v, Ardaga, 51 Cal. 371; Leoni
v. S., 44 Ala. 110.
2Mathews v S., 19 Neb. 380; Ole-
son v. §., 11 Neb. 276; Fisk v.5., 9
Neb. 62.
3Fager v. S., 22 Neb. 332; Ham-
mond v. S., 39 Neb. 252.
4In Iowa the statute requires that
the testimony of the prosecutrix be -
corroborated by other evidence tend-
ing to connect the defendant with
the commission of the crime, and it
is held that the fact of the commis-
sion of the crime may be established
by the testimony of the prosecutrix
alone, and the admission by the de-
fendant of having had sexual con-
nection with the prosecutrix at the
time complained of may furnish suf-
ficient corroboration of his connec-
tion with the offense: S. v. McLaugh-
lin, 44 Ia. 82; S. v. Cassidy, 85 Ia.
145; so may his conduct: S. v. Wat-
son, 81 Ia. 380. But evidence that
prosecutrix was bruised and made
complaint would not, under such
statute, be sufficient corroboration:
S. v. Stowell, 60 Ta. 585. The suffi-
ciency of the corroboration is for
the jury: S. v. Moore, 81 Ia. 578. As.
to sufficiency of corroboration in
particular cases, see S. v. Comstock,
46 Ia. 265; S. v. Mitchell, 68 Ia. 116.
Under this statute corroboration is
not required in case of assault with
intent to commit rape: S. v. Hatfield,
75 Ia. 592; Rogers v. Winch, 76 Ia.
546; S. v. Grossheim, 79 Ia. 75; S. v.
Cook, —— Ia. —, 61 N. W. R. 185; or
in case of forcible defilement: S. v.
Montgomery, 79 Ia, 737.
5 Pefferling v. S., 40 Tex. 486; Horn-
beck v.S., 35 Ohio St. 277; Polson
v. S., 187 Ind. 519; S. v. Sanford, 124
Mo. 484; Rex v. Clarke, 2 Stark. 241.
6S, v. Montgomery, 79 Ia. 737.
441
[Parr V.
§ 460.] OFFENSES AGAINST THE PERSON.
injuries received, the weight of such evidence depending upon
the length of time that has elapsed after the alleged injury
before the making of the examination; but the length of time
is a matter going to the credibility of the evidence, and not to
its competency.! There is, however, no authority on the part
of the court to require an examination of the person of the
prosecutrix by medical experts,? and the defendant is not en-
titled to an instruction that a failure of the prosecution to call
expert testimony to the fact of the existence of such injuries
as would result from penetration should operate in favor of
the defendant.’
§ 460. Previous unchastity ; relations between parties, ete.
While the want of chastity of the female is no defense, for the
crime of rape may be committed upon a prostitute or upon
the mistress of the assailant,‘ yet the bad character of the
prosecutrix as to chastity is material as tending to show that
the evidence of want of consent is not sufficient. The bad
character of the prosecutrix in this respect is to be shown by
proof of general reputation only, and not by proof of particu-
lar instances of unchastity.6 The prosecutrix cannot be cross-
18. v. Teipner, 36 Minn. 535; C. v.
Allen, 135 Pa. St. 483; S. v. McLaugh-
lin, 44 Ta, 82; S. v. Watson, 81 Ia.
880.
2McGuff v. S., 88 Ala. 147.
3 Comstock v. S., 14 Neb. 205.
41 Hawk. P. C,, ch, 41, § 2; 1 Hale,
P. C. 629; Pratt v.S., 19 Ohio St. 277;
Pleasant v. S., 18 Ark, 360; 8. ©, 15
Ark, 624; Wright v. S., 4 Humph.
194; P. v. Hartman, 103 Cal. 242;
Wilson v. S., 17 Tex. Ap. 525; Me-
Quirk v. S., 84 Ala. 435; Rex v.
Barker, 3 C. & P. 589.
5McQuirk v. S, 84 Ala. 435;
O’Blenis v. &, 47 N. J. 279: S. v.
Daniel, 87 N. C. 507; 8. v. Murray,
63 N.C. 81; S. v. Jefferson, 6 Ired.
805; Sherwin v. P., 69 Ill, 55; P. v.
Benson, 6 Cal. 221; Rice v.S., 35 Fla.
236: Shields v. S., 82 Tex. Ap. 498;
Rex v. Barker, 8 C. & P. 589; Reg. v.
Clay, 5 Cox, 146. In rebuttal of evi-
dence of bad reputation for chastity
the prosecution may show the good
character of prosecutrix in that re-
spect: P. v. Tyler, 36 Cal. 522. And
it is said that evidence of good
character is competent by way of
confirming her credibility. (But this
is probably not correct as a general
proposition): Turney v. &, 8 Sm. &
M. 104. Where there is no question
as to force and want of consent, pre-
vious unchastity cannot be shown:
Steinke v. S., 83 Tex. Ap. 65.
6S. v. White, 85 Mo. 500; S v.
Knapp, 45 N. H. 148; 8. v. Forshner,
43 N. H. 89; McCombs v. 8., 8 Ohio
St. 648; McDermott v. S., 13 Ohio St.
882; McQuirk v. S.,, 84 Ala. 435;
Camp vy. S., 3 Ga. 417; Boddie v. S.,
52 Ala. 395; 8S. v. Jefferson, 6 Ired.
205; S. v. Brown, 55 Kan. 766; Mitch-
ell v. Work, 18 R. L 645; P. v. Mc-
Lean, 71 Mich. 309; Strang v. P., 24
‘Mich. 1; C. v. Harris, 181 Mass. 336;
P. v. Jackson, 8 Park. Cr, R. 391;
Pleasant v. S., 15 Ark. 624; Rice v.
S., 35 Fla, 286; Wilson v. S,, 17 Tex.
442
Ox. 20.] RAPE. [§ 460.
examined as to specific unchaste conduct with others than the
defendant! While the great weight of authority is in support
of the proposition that evidence of specific acts of unchastity
on the part of the prosecutrix with others than the defendant
is not admissible, there are a few cases in which the introduc-
tion of such evidence is upheld on the ground that such acts
show the probability of consent in the case in question.2? The
general prohibition in regard to showing specific acts of un-
chastity does not apply to previous illicit intercourse with the
accused.’ Such prior intercourse is admissible to give rise to a
presumption of consent to the act in question. As evidence of
unchastity on the part of prosecutrix goes to the question of
consent, it is immaterial in a
Ap. 525; Dorsey v. 8., 1 Tex. Ap. 33;
Rogers v. 8., 1 Tex. Ap. 187; Reg. v.
Hodgson, Russ. & Ry. 211; Rex v.
Clarke, 2 Stark. 241. A particular
act of lewdness by prosecutrix, not
known to defendant at the time of
his assault upon her, is not admissi-
ble: S. v. Henry, 5 Jones, 65. Testi-
mony to show previous promiscu-
ous sexual intercourse on the part
of prosecutrix is admissible: Woods
v. P., 55 N.Y. 515; Brown v. 8., 72
Miss. 997. Where the prosecutrix
claims that the connection with her
was while she was unconscious and
proves subsequent want of the phys-
ical evidences of virginity, the effect
of such testimony may be overcome
by proof of specific acts of unchas-
tity: Sherwin v. P., 69 Ill. 55. So
where the prosecutrix is shown after
the alleged injury to be bruised and
infected with venereal disease, proof
of sexual intercourse with other
specific persons about the time of
the commission of the alleged offense
is admissible: Nugent v. S., 18 Ala.
521. Evidence as to the reputation
of the prosecutrix for unchastity
should be limited to such reputation
before the alleged commission of the
crime: S. v. Ward, 78 Ia. 582.
1Shartzer v. S., 63 Md. 149; S. v.
Turner, 1 Houst. Cr. C. 76. Contra,
prosecution for having carnal
S. v. Johnson, 28 Vt. 512; S. v. Reed,
39 Vt. 417; Titus v. S., 7 Baxt. 132;
Brown v. §., 72 Miss. 997. It is said
that if prosecutrix is asked on cross-
examination whether she had pre-
viously had connection with a par-
ticular person, her answer is final
and cannot be contradicted: Reg. v.
Holmes, L. R. 1 C. C. 334; P. v. Mc-
Lean, 71 Mich. 309. But if she de-
nies that she had connection with
other men, presumably those men
may be called to contradict her:
Reg. v. Robins, 2 M. & Rob. 512. If
the question as to particular acts be-
comes proper on cross-examination
the prosecutrix is not privileged
from answering: Titus, v. S. 7 Baxt.
132; Brown v. S., 72 Miss. 997; Bed-
good v. S., 115 Ind. 275; P. v. Abbot,
19 Wend. 192.
2Benstine v. S., 2 Lea, 169; P. v.
Abbot, 19 Wend. 192; S. v. Freeman,
100 N. C, 429.
3Pleasant v. S.,15 Ark. 624; Bed-
good v.S., 115 Ind. 275; Wilson v. 8.,
17 Tex. Ap. 525; McQuirk v. S., 84
Ala. 485; Reg. v. Hodgson, Russ. &
Ry. 211.
4P. v. Goulette, 82 Mich. 36; Hall
v. P., 47 Mich. 636; Barnes v. S., 88
Ala. 204; S. v. Cook, 65 Ia. 560; Rex
v. Martin, 6 C. & P. 562; Reg. v.-
Riley, 18 Q. B. D. 481.
443
§ 461.] [Part V.
OFFENSES AGAINST THE PERSON.
knowledge of a girl under the age of consent, for in such a
case want of consent to the act is not essential."
§ 461. Other crimes; burden of proof, ete.— Proof of other
distinct and disconnected crimes of the same character by de-
fendant is not ‘admissible.2 But in sexual crimes a greater
latitude is allowed in proving other like occurrences than is
deemed proper in other cases, and proof of previous assaults
or attempts as against the prosecutrix, made by the defend-
ant, may be shown as indicating his intention and disposi-
tion toward her.’ It is said in one case that where several
acts of unlawful intercourse are testified to by the prose-
cutrix, the state must elect to rely upon a particular act, and
the court must thereupon exclude from the consideration of
the jury all testimony with reference to other acts not tending
to directly prove the commission of the particular act relied
upon for conviction.! But in other cases it is said that the
prosecution may show repeated acts, and that they were com-
mitted against the will of the prosecutrix, in explanation of her
conduct at the time of the specific act relied on.’ Evidence of
other ill-usage, not sexual in character, is not admissible.*
Statements made by the accused prior to the alleged offense
1P, v. Abbott, 97 Mich, 484; P. v.
Glover, 71 Mich. 303; 8. v. Duffey,
128 Mo. 549; P. v. Johnson, 106 Cal.
289. But the prosecution may show
previous relations between prosecu-
trix and accused as indicating his
opportunity and the like: P. v. Ab-
bott, 97 Mich. 484 And see cases
cited under the following section.
28, v. Walters, 45 Ia. 389; Porath
v. S90 Wis. 527; Janzen v. P., —
Ill. —, 42 N. E. R. 862; Parkinson v.
P., 135 TLL 401.
3Proper v. S., 85 Wis. 615; Palin v.
S., 88 Neb. 862; Williams v. S., 8
Humph. 584; P. v. O'Sullivan, 104
N. Y. 481; S. v. Walters, 45 Ia. 389;
S. v. Knapp, 45 N. BH. 148; Sharp v.
S., 15 Tex. Ap. 171. A similar prin-
ciple is recognized in cases of adul-
tery: P. v. Jenness, 5 Mich. 305; C.
v. Merriam, 14 Pick. 618; C. v.
Nichols, 114 Mass. 285; S. v. Stice, 88
444
Ja. 27. Evidence in a prosecution
for carnal knowledge of a girl under
the age of consent that defendant
took her to a house of prostitution
kept by himself is admissible, al-
though it proves his guilt of the
crime of keeping such a house:
Cross v. S., 188 Ind. 254.
4S. v. Bonsor, 49 Kan. 758; P. v.
Jenness, 5 Mich. 305. But evidence
that the act relied upon was at an-
other time and place than that tes-
tified to by the prosecution will not
constitute a defense: P. v. Ten Els-
hof, 92 Mich. 167. If the prosecu-
tion is for connection by consent
with a girl under the age of consent,
evidence of connection after she at-
tained the age of consent is inad-
missible: P. v. Etter, 81 Mich. 570.
5§. v. Parish, 104 N. C. 679; Reg.
v. Rearden. 4 F. & F. 76.
6P. v. Tyler, 36 Cal, 522,
.S
Cu. 20.] RAPE. [§ 461.
with reference to his carnal passion for prosecutrix and the be-
lief that she would not yield to his desires is admissible, and
also evidence that defendant had at previous times made im-
proper proposals to the prosecutrix.2 The prosecution should
establish the offense beyond a reasonable doubt,’ and has the
burden throughout.‘
1 Barnes v. S., 88 Ala. 204, ~ 3 Austine v. P., 51 Til. 236.
2P, v. Manahan, 32 Cal. 68. 4P, v. McWhorter, 93 Mich, 641,
445
CHAPTER 21.
ASSAULT WITH INTENT TO COMMIT RAPE; OR ATTEMPT TO
COMMIT RAPE.
§ 462. What acts necessary; included assault.— This of-
fense is one of the forms of assault with felonious intent which
have been elsewhere discussed in connection with the general
subject of assault;+ but the nature of the intent required con-
nects it so closely with the crime of rape that it seems better
to consider it here. As to the assault itself, little need be
added to the general doctrines of assault discussed in the chap-
ter on that subject. To constitute an assault with intent to
commit rape there must be an assault for that purpose upon
the person intended to be ravished.? If there is no intent to
use the force necessary to constitute rape there may be a con-
viction for an assault involved in the purpose of having sexual
connection, or for an aggravated assault, depending on the cir-
cumstances.’ Thus, a simple or an aggravated assault is an
included offense under the charge of an assault with intent to
commit rape Such a charge does not necessarily include
assault and battery,’ but by charging violence used a battery
may also be included. To what extent assault and battery
and assault with intent to commit rape are included in a charge
of rape itself has already been considered.’ There is in some
states provision for punishing
1 Supra, 8§ 263-272.
2Garrison v.P.,6 Neb. 274 A mere
attempt may not constitute an as-
sault: Preisker v. P., 47 IL. 382.
38. v. Priestley, 74 Mo. 24; Skinner
v. G, 28 Neb. 814; Outlaw v. S., 35
Tex. 481; Thompson v. 8, 43 Tex.
583; Irving v. S., 9 Tex. Ap. 66; San-
ford v. S., 12 Tex. Ap. 196; Shields v.
8., 32 Tex. Ap. 498; Porter v.S., 33
Tex. Ap. 385; Reg. v. Case, 1 Den.
580; Reg. v. Guthrie, L. R. 1 C. C.
attempts to commit crime, in-
241; Rex v. Nichol, Russ. & Ry. 130;
Reg. v. Folkes, 2 M. & R. 460; Reg.
v. Stanton, 1 C. & K. 415; Reg. v.
Williams, 8 C. & P. 286. And see
Alexander v. Blodgett, 44 Vt. 476.
‘Curry v.S., 4 Tex. Ap. 574; He-
manus v. 8., 7 Tex. Ap. 372.
58. v. McDevitt, 69 Ia. 549.
6S. v. Fontenette, 88 La. An. 61;
S. v. Keen, 10 Wash. 98; Barnard v.
C., 94 Ky. 285,
TSee supra, § 454,
446
Cu. 21.] ASSAULT WITH INTENT TO COMMIT RAPE. (§ 463.
cluding attempts to commit rape, and not necessarily involy-
ing an assault.!
§ 463. Intent.— The intent is an essential element of an as-
sault with intent to commit rape and must in some way appear.”
To warrant a conviction the jury must be satisfied, not only
that the prisoner intended to gratify his passion on the person
of the prosecutrix, but that he intended to do so at all events.
and notwithstanding any resistance on her part.? And the in-
tention must be to penetrate, otherwise the assault would not
be with intent to commit rape.‘ But according to the author-
ities hereafter to be discussed, which hold that an attempt to-
have carnal knowledge of a girl under the age of consent is.
an assault with intent to commit rape, even though she is a
consenting party, intent in such cases to overcome resistance is.
not essential.® Even in such case there must be an attempt
to have connection; mere solicitation will not constitute the
crime.’ If the purpose of the accused appears to have been
to procure consent, if possible, to the act, but upon resistance:
or outcry being made he abandon his purpose, the crime is
not assault with intent to commit rape.’ Butif it appears that.
P. v. Gardner, 98 Cal. 127; S. v.
Berzaman, 10 Wash. 277. And see
Rex v. Butler, 6 C. & P. 368; Reg. v.
Martin, 9 C. & P. 213; Reg. v. John-
son, L. & C. 632.
2Barr v. P., 118 IIL 471; Peterson
v. S., 14 Tex, Ap. 162; Hunter v. S.,
29 Fla. 486. Therefore the court
should instruct the jury as to the
constituents of the crime of rape:
Fulcher v. S., 41 Tex. 233. A hus-
band who by threats and violence
attempts to compel another person
to commit rape on the former’s wife
is guilty of assault with intent to
commit rape: 8. v. Dowell, 106 N. C.
722,
3 Rex v. Lioyd, 7 C. & P. 318; Reg.
v. Wright, 4 F. & F. 967; Joice v. S.,
53 Ga. 50; S. v. Cross, 12 Ia. 66; S. v.
Hagerman, 47 Ia. 151; S. v. Canada,
68 Ia. 397; White v. S., 186 Ind. 308;
Moore v. 8.. 79 Wis. 546; Hunter v.
S., 29 Fla. 486; Bradley v. 8., 82 Ark,
704; Walton v. S., 29 Tex. Ap. 163;
Brown v. §., 27 Tex. Ap. 330; Langan
v. S., 27 Tex. Ap. 498; Passmore v.S..
29 Tex. Ap. 241. The intent must
appear beyond a reasonable doubt:.
Krum v. S., 19 Neb. 728; House v.S.,
9 Tex. Ap. 567. Defendant’s testi-
mony as to his intent is admissible:
Lewellen v. S., 33 Tex. Ap. 412. The
court should instruct as to the force:
which must have been intended:
Shields v. S., 32 Tex. Ap. 498.
4McGee v. S, 21 Tex. Ap. 670;
Robertson v. &., 30 Tex. Ap. 498.
But it may be an assault: P. v.
Courier, 79 Mich. 366.
5P. v. Goulette, 82 Mich. 36. And
see cases infra, § 464.
6S, v. Harney, 101 Mo. 470; Toullet
v. S., 100 Ala. 72.
7P. v. Fleming, 94 Cal. 308; S. v.
Owsley, 102 Mo. 678; 8. v. Priestley,
74 Mo. 24; House v. S., 9 Tex. Ap. 53.
447
e
OFFENSES AGAINST THE PERSON, [Parr V.
§ 463.]
the intent was to have connection by force, regardless of con-
sent, the crime is complete, and the fact that the assailant sub-
sequently abandoned his purpose will not purge him of the
offense.1 There may be an assault with intent to commit rape
although, by reason of the subsequent consent of the female to
the completion of the act, the crime of rape is not committed.’
If the purpose is to have connection by personation of the hus-
band,? or while the woman is insensible,' or by fraud,* an assault
with intent to commit rape is not committed. It is even said
that where the attempt to secure connection is by threats there
is no assault although there may be an attempt to commit
rape. The question as to whether the assault was with in-
tent to have connection by force will be determined by the
circumstances under which the assault is made.’ Mere evi-
dence of violence alone will not be sufficient,’ or the mere
entry of the room of the female,’ or mere pursuit of the fe-
male where the words accompanying the act do not indicate
an intention to have sexual connection.” But it is not neces-
sary that the intent be shown by words accompanying the
1C. v. Roosnell, 143 Mass. 32;
Glover v. C., 86 Va. 382; Lewis v.
S., 35 Ala. 380; P. v. Stewart, 97 Cal.
238; S. v. Elick, 7 Jones, 58; Carter
v. §., 35 Ga. 263. The fact of relin-
quishment of purpose to have con-
nection upon outcry and resistance
being made is to be considered in
determining the question of intent:
Taylor v. S50 Ga, 79. The force
employed may be only constructive.
It is not necessary that there be in-
tention to inflict personal injury:
Norris v. S., 87 Ala. 85. But if the
act, though some force is used, is
with the woman’s consent, there is
no assault with intent to commit
rape: P, v. Bransby, 32 N. Y. 525.
And further as to consent to the
act as negativing an assault, see
infra, § 464.
28. v. Cross, 12 Ia. 66; S. v. Ather-
ton, 50 Ia. 189; S. v. Pilkington, —
Ia, —, 60 N. W. R..502; S. v. Bagan,
41 Minn, 285; S. v. Hartigan, 82 Vt.
607; Reg. v. Hallett, 9 C. & P. 748,
3 Reg. v. Williams, 8 C. & P. 286;
S. v. Brooks, 76 N. C. 1.
4C.v. Fields, 4 Leigh, 648; Saddler
v. 8, 12 Tex. Ap. 194,
5 Reg. v. Stanton, 1 C. & K. 415;
Milton v. S., 23 Tex. Ap. 204.
6 Burney v. S., 21 Tex. Ap. 565. In
such case there is an attempt, but
not an assault: Taylor v. S., 22 Tex.
Ap. 529. A conspiracy to abduct
does not constitute an assault with
intent to ravish: Jacques v. P., 66
Til. 84,
7 Hunter v. S., 29 Fla. 486; Skinner
v. §., 28 Neb. 814. Evidence of in-
toxication is admissible to negative
the intent: S. v. Donovan, 61 Ia:
369, so is evidence that accused
acted in jest: S. v. Warner, 25 Ia.
200. j
8Jones v. S., 18 Tex. Ap. 485;
Green v. S., 67 Miss. 356.
9 Carroll v. 8, 24 Tex: Ap. 366.
10S. v. Massey, 86 N. C. 658 (over-
ruling S. v. Neely, 74 N. C. 425); S,
v. Donovan, 61 Ia. 869. So pursuing
448
‘Cn. 21.] ASSAULT WITH INTENT TO COMMIT RAPE. [§ 464.
assault.! Acts may sufficiently indicate the intent to use vio-
lence though no violence on the person is actually used? And
-of course violence to the person of the female, otherwise unex-
plained, will be strong evidence of the intent to have connec-
tion by foree.2 Other cases in which the evidence is held
‘insufficient to show the intent are stated in the note. As
bearing on the intent, former intimacy and friendly relations
between the defendant and the prosecutrix are material.’ But
‘criminal intimacy of the defendant with others is not mate-
rial.6 Nor can previous assaults of the same character on oth-
ers be shown, but previous assaults on the prosecutrix are
:admissible.’
§ 464. Consent.— The general rule applicable in other as-
saults is applicable here, that there can be no assault where
‘the party complaining was assenting to what was proposed.’
In England this doctrine has been applied also to cases of at-
tempt to have carnal knowledge of a female child under the
cage of consent, it being considered that although, by statute,
such connection is criminal without regard to the consent of
the child, yet that the consent negatives the element of as-
sault.2 Therefore in England, where the age of consent being
a woman after solicitation, appar-
ently with a view merely to repeat
such solicitations, will not necessa-
rily show the intent to commit rape:
‘Thomas v. §., 16 Tex, Ap. 535.
1 Fitzpatrick v. P., 98 Ill. 269.
2S. v. Shroyer, 104 Mo. 441; S. v.
Chaims, 25 Oreg. 221; Dibrell v. S., 3
Tex. Ap. 456.
3Ware v. S., 67 Ga. 349; S. v.
‘Mitchell, 89 N. C. 521; S. v. Boon, 18
‘Tred. 244.
4 Johnson v. S., 27 Neb. 687; Skin-
ner v. S., 28 Neb. 814; S. v. McIntire,
66 Ia. 389,
5 Hall v. P., 47 Mich. 636. But of
-course prior liberties with the prose-
cutrix, taken by the defendant, will
mot necessarily show that he did
not have, on the occasion in ques-
ition, the intent to commit rape:
Rex v. Lloyd, 7 C. & P. 318,
6Sutton v. Johnson, 62 Ill, 209,
Nor are declarations of the defend-
ant ‘concerning misconduct with
other females admissible: P. v.
Bowen, 49 Cal. 654.
78. v. Walters, 45 Ia. 389. On the
whole subject of evidence in such
cases, see supra, §§ 456-461, where
cases of assault are given.
8P. v. Bransby, 32 N. Y. 525. But
consent to the act done, under pre-
tense of medical treatment, will not
be a defense in a charge of an as-
sault with intent to commit rape by
fraud, unless it appears that the
female consented with the knowl-
edge that the defendant was not
acting in good faith as a physician:
8. v. Nash, 109 N. C. 824
9Reg. v. Martin, 9 C. & P. 213;
Reg. v. Johnson, L. & C. 682; Reg. v.
Read, 2 C. & K. 957; Reg. v. Cock-
burn, 3 Cox, 543; Reg. v. Roadley, 14
Cox, 463.
29 449
f
OFFENSES AGAINST THE PERSON.
§ 464.] [Part V'.
fixed at ten years, but the age of puberty being recognized as
twelve years in the case of a female, the connection with a
female child between the ages of ten and twelve by ccnsent
was neither rape nor carnal abuse of a female child but a mis-
demeanor only, the attempt to commit such misdemeanor was
not punishable as an assault.'' This doctrine is recognized in
some of the states of the Union, and consent, even of a child,
will prevent the attempt to have carnal connection with -her
from being an assault although the completed act would be
criminal? In those states where the offense of having carnal
knowledge of a female child under the age of consent is re-
garded as a different crime from that of rape, the attempt to
have such connection is not an assault with intent to commit
rape. But where (as is the rule in most states) the connection
with a female child under the age of consent is considered as.
rape, it is almost universally held that an attempt to have
such connection is an assault with intent to commit rape, the
consent of the child being wholly immaterial.‘ In such a case,
according to other authorities, the doctrine that a child under
the age of consent cannot give a valid assent to an act of in-
tercourse is applicable also to the assault.5 And under this
1Reg. v. Martin, 9 C. & P.. 213;
Reg. v. Johnson, L. & C. 632; Reg.
v. Beale, L. R. 1 C. C. 10.
28, v. Pickett, 11 Nev.
Whitcher v. S., 2 Wash. 286.
Rhodes v. S., 1 Coldw. 350; Brown
v. S. 6 Baxt. 422; Hardwick v. S., 6
Lea, 103; Smith v. S., 12 Ohio St. 466.
4P. v. McDonald, 9 Mich. 150;
Crosswell v. P., 18 Mich. 427; P. v.
Courier, 79 Mich. 366; P. v. Ten Els-
hof, 92 Mich. 167; Fizell v. 8S. 25
Wis. 364; S. v. Meinhart, 73 Mo. 562;
S. v. Wray, 109 Mo. 594; S. v. Wheat,
63 Vt. 673; Davis v. S., 81 Neb. 247;
Murphy v.8., 120 Ind. 115; 8S. v. New-
ton, 44 Ta. 45; T. v. Keyes, 5 Dak.
244; S. v. Johnston, 76 N.C. 209; S.
v. Dancy, 83 N. C. 608; S. v. Staton,
88 N. C. 654; Glover v. C., 86 Va. 382;
McKinny v. S., 29 Fla. 565. The in-
dictment in such cases will be suffi-
cient although it does not designate
255;
the attempted crime as rape, if the
facts with reference to the intent to.
have carnal knowledge, etc., of the
female child which are alleged would
constitute rape if the act had beer
completed: S. y. Meinhart, 73 Mo: 562.
5Hays v. P., 1 Hill, 351; CG v.
Roosnell, 148 Mass. 82; Farrell v. 8.;
54.N. J. 416; Fizellv. 8., 25 Wis. 364;
S.v.Grossheim, 79 Ia. 75. And see
supra, § 443. But where the two of-
fenses of rape and carna] knowledge
of a female child are distinct, an in-
dictment for assault with intent to
commit rape charging force and not
alleging the female to be under the
age of consent, will not support a
conviction if it appears that she did
consent, although it is also shown
that she was under age: Moore v.S,,.
20 Tex. Ap. 275; Craig v. 8, 18 Tex..
Ap. 321,
450
Cu. 21.] | AssAULT WITH INTENT TO comMIT RAPE. [8§ 465, 466.
doctrine ignorance on the part of the defendant that the
female was under the age of consent is immaterial.!
§ 465. Effect of incapacity to commit rape.— Under the
doctrine that a boy under the age of fourteen is incapable of
the offense of rape, it has been questioned whether such a per-
son can be guilty of the crime of assault with intent to commit
rape. There is some authority that he may,’ but the weight of
authority seems to be to the contrary. But he may be con-
victed of an indecent assault.‘
§ 466. Indictment.— The indictment need not strictly fol-
low the words of the statute.® But it must show the essential
facts and that the act was with intention of accomplishing the
purpose by force and against the will of the female® Some
cases hold that it is not sufficient to allege the intent in general
terms, as, for instance, “ with intent to commit rape,” but that
the technical language necessary to charge the crime of rape
must be used.’ But in other cases it is held that the general
words “with intent to commit rape” or “with intent to rav-
ish” are sufficient. In charging an attempt, something more
than the general allegation of an attempt to commit the crime
should be set out; the physical acts done toward the commis-
sion of the crime should be specified? In an allegation of an
18. v. Newton, 44 Ia, 45, And see
further, as to want of knowledge in
such cases, supra, § 451.
2C, v. Green, 2 Pick. 380. So it is
said that impotency is no defense to
a charge of assault with intent to
commit rape: T. v. Keyes, 5 Dak. 244.
38. v. Sam, 1 Wins. i, 300; Mc-
Kinny v. S., 29 Fla. 565; Rex v.
Eldershaw, 3 C. & P. 395; Reg. v.
Philips, 8 C. & P. 736; Rex v. Groom-
bridge, 7 C.& P. 582. And see supra,
§ 449,
4Reg. v. Williams, 1 Q. B. D. (1893),
320,
5P, v. Girr, 53 Cal. 629; T. v. Keyes,
5 Dak. 244. Thus, “with intent to
rape” is sufficient: P. v. Girr, 53 Cal,
629. “Intention to ravish” may be
used in place of “intent to ravish:”
S. v. Tom, 2 Jones, 414
6. v. Powell, 106 N. C. 635; Mears
v. C., 2 Grant, 385; Stout v. C., 11
Serg. & R. 177; Hewitt v. S., 15 Tex.
Ap. 80; P. v. O’Neil, 48 Cal. 257.
Such an indictment may be suffi-
cient to support a conviction for
simple assault or for assault and
battery: Stout v. C., 11 Serg. & R.
177; P. v. O’Neil, 48 Cal. 257;. S. v.
Goldston, 103 N. C. 323.
7S. v. Blake, 39 Me. 822; S. v. Moore,
82 N. C. 659; S. v. Hooper, 82 N.C,
663; S. v. Benthall, 82 N. C. 664; Sul-
livant v. S., 8 Ark. 400.
8P, v. Mesa, 93 Cal. 580; S. v. Han-
lon, 62 Vt. 334; Witherby v. S., 39
Ala. 702; Green v. S., 23 Miss. 509;
S. v. Langford, 45 La. An. 1177.
Analogous cases as to other assaults
with intent to commit specific felo-
nies are discussed in connection with
felonious assaults: Supra, § 269.
98. v. Frazier, 53 Kan. 87. If the
451
OFFENSES AGAINST THE PERSON.
§ 467.] [Parr V.
assault with intent to have carnal knowledge of a female under
the age of consent, the age is material in those states where
that offense is a different one from the offense of rape.! Where
the assault is a felony the word “feloniously ” should be used.?
As in an indictment for rape,’ it is not essential to allege that
the accused is a male;‘ nor that the person assaulted is a fe-
male where that fact appears from the general tenor of the
language used;° nor that she was not the wife of defendant.®
§ 467. Forms.— The examples of indictments for assaults
with felonious intent’ will furnish a guide for charging this
form of felonious assault. But the following specific forms
may be noticed:
THE ORDINARY FORM.
That said A. B., in the county aforesaid, on ——, in and
upon the body of 8. A. feloniously an assault did make, and her,
the said S. A., did then and there beat, bruise, strike and wound,
with intent then and there her, the said 8. A., feloniously and
violently to ravish and carnally know by force and against
her will.
ASSAULT ON FEMALE CHILD.
That said A. B., in the county aforesaid, on » in and
upon one M. B., a female child under the age of ten years, to
wit, of the age of seven years, did unlawfully and feloniously
make an assault, and her, the said M. B., did then and there
beat, wound and ill-treat, with intent her, the said M. B., un-
lawfully, feloniously and carnally to know and abuse.
crime is that of abusing a female
child, something more than an “as-
sault with intent to carnally know”
must be charged: Toullet v. S., 100
Ala. 72.
1Mosely v. S., 9 Tex. Ap. 187; Hall
y. S., 40 Neb. 320.
28. v. Scott, 72 N.C. 461; Williams
S., 8 Humph. 584,
3 Supra, § 452.
4Greenlee v. S., 4 Tex. Ap. 845.
5 Battle v. S.,4 Tex. Ap. 595; Joice
8., 53 Ga. 50.
6P. v. Estrada, 58 Cal. 600,
1See supra, § 270.
8See C. v. Thompson, 116 Mass, 346.
It would of course be entirely proper
that the latter part should conform
exactly to the general indictment
45
v.
for rape given above: Supra, § 453.
But the exact form used in the case
cited is retained as illustrating an-
other form of allegation which is in
use in charging rape. Substantially
the same form of charging the as-
sault is found in O’Meara v. S., 17
Ohio St. 516, except that an aver-
ment is there found with reference
to the female not being the daughter
or sister of defendant, which is made
necessary by peculiar statutory pro-
visions in that state. In the form
here given, beating is alleged so that
there might be a conviction for as-
sault and battery as an included
crime if a felonious intent should
not appear.
9See P. v. McDonald, 9 Mich, 150,
2,
et
CHAPTER 22.
ROBBERY.
§ 468. Definition.— The offense is best described perhaps as
the felonious taking of the money or goods of another from |
his person by violence or putting him in fear.!. The elements
in the offense are either violence or putting in fear, and lar-
ceny committed thereby from the person of the owner? It
has been suggested that the crime might be described as lar-
ceny by an assault, as either actual violence or putting in fear
of violence constitutes an assault; and either form of assault
may be shown. The conjunctive allegation of both violence
and putting in fear will not render the count repugnant. But
where it was attempted to put this form of definition into the
statute, it was held that there were three separate modes — by
assault, by violence, and by putting in fear—in which the
offense might be committed.* It is not necessary that there
be both violence and putting in fear; either is sufficient, if
alleged and proven.’ Robbery is distinguished from forcible
trespass by the difference in the intent with which the act is
done;® and from larceny from the person by the violence or
! This definition is practically, al-
though not exactly, that found in
2 East, P. C. 707; 4 Bl Com, 242.
Bishop’s definition (2 Bish. Cr. L.
1156) is “larceny committed by vio-
Jence from the person of one put in
fear,” which seems not to be accu-
rate, in that it implies both violence
and fear; whereas it is not neces-
sary that each of these elements be
present, as will be seen in the subse-
quent discussion.
2 Houston v. C., 87 Va. 257; Acker
v. C., 94 Pa. St. 284; Stevens v. S., 19
Neb. 647; C. v. Brooks, 1 Duv. 150;
8. v. Davidson, 38 Mo. 874; McDaniel
v. 8., 8 Sm. & M. 401: Seymour v. &.,
15 Ind. 288; U. S. v. Jones, 3 Wash.
Cc. C. 209.
88. v. Gorham, 55 N. H. 152.
4 Bond v. S., 20 Tex. Ap. 421; Leon-
ard v. §., 20 Tex. Ap. 442. But these
modes do not constitute distinct
felonies: 8. v. Montgomery, 109 Mo.
645.
5C, v. Humphries, 7 Mass. 242; S.
v. Stinson, 124 Mo. 447; S. v. Brod-
erick, 59 Mo. 318; Young v. S., 50
Ark, 501; Clary v. S., 33 Ark. 561; 8.
v. Burke, 73 N. C. 83; Chappell v. S.,
52 Ala. 359, =:
69, v. Sowls, Phil. 151,
453
[Parr V.
§ 469.] OFFENSES AGAINST THE PERSON.
putting in fear! While robbery is usually defined by statute,
the definition remains practically the same as at common law.?
§ 469. The violence.— Where violence is relied upon as
constituting the offense there must be violence to the person,
something more than the mere force involved in the taking of
the property without resistance.’ But the degree of violence
is immaterial if the violence used is the means by which the
property is obtained.‘ Thus, if the taking of a watch is by
means of sufficient violence to break the guard,® or in any other
way any form of attachment of the property to the person or
any resistance is overcome, the offense is complete.® But the
mere snatching of property from the hand of another be-
fore any resistance is made is not sufficient.’’ If resistance,
however slight, is overcome, the violence is sufficient.? The
violence must precede or accompany the taking; if it is used
only in attempting to escape after the taking,’ or in resisting
the attempt of the owner to recover his property," it will not
constitute the offense. But if unlawful physical force is put
in motion by the assailant before the owner is fully deprived
of the control and possession of his property, it is sufficient."
As has been indicated in the preceding section, if violence is
used it is not necessary to show that such violence resulted in,
putting the owner of the property in fear.” :
1Burke v. S., 74 Ga. 872. taken with such force as to bruise
2 Houston v. C.,87 Va. 257; Turner
v.S.,1 Ohio St. 422; Crews v. S..3
Coldw. 350; P. v. Shuler, 28 Cal. 490.
?Brennon v. &., 25 Ind. 403; S. v.
Miller, 83 Ia. 291.
4Seymour v.S., 15 Ind. 288. Where
an officer handcuffed a prisoner to
convey him to jail and by means of
this violence extorted money, he
was held guilty of robbery: Rex v.
Gascoigne, 2 East, P. C. 709.
5S. v. McCune, 5 R. I. 60; 8. v. Brod-
erick, 59 Mo. 318; Rex v. Mason,
Russ. & Ry. 419.
®Rex v. Lapier, 2 East, P. C. 557,
708; Rex v. Moore, 1 Leach, 335; U.S.
v. Simms, 4 Cranch, C. C. 618. Where
a handbag carried on the arm was
the arm, the violence was held suf-
ficient: Klein v. P., 113 Ill. 596.
7Rex v. Baker, 2 East, P. C. 702;
Rex v. Gnosil, 1 C. & P. 804; Reg. v.
Hughes, 2 C. & K. 214; Rex v. Ma-
caulay, 1 Leach, 287; S. v. John, 5
Jones, 163; Fanning v. S., 66 Ga. 167.
Contra, S. v. Carr, 48 Ia. 418.
8 Evans v. S., 80 Ala. 4.
5 Hanson v. S., 48 Ohio St. 376. It
is sufficient if the violence is con-
temporaneous with the taking: S. v.
Miller, 53 Kan. 324.
10 Shinn v. S., 64 Ind. 18; Thomas v.
8.,91 Ala. 34,
NS. v. Gorham, 55 N. H. 152,
128, v. Broderick, 59 Mo, 818,
454
Ou. 22.) ROBBERY,
[§ 470.
§ 470. Putting in fear.— The putting in fear which will be
sufficient to constitute the crime where violence is not used
must be fear of personal harm. Threats of a criminal prosecu-
tion! or of a legal imprisonment? will not be sufficient; but
the English cases furnish an exception in holding that to ob-
tain money or property from another by threatening to charge
him with an unnatural offense is robbery.3 There are perhaps
no adjudications in this country directly supporting this excep-
tion to the general rule, although it is recognized in two or’
three cases in the definition of the crime.‘ But it is clearly
anomalous and out of harmony with the general theory as to
what constitutes robbery.> It seems that threats to cause the
destruction of one’s dwelling by a mob may be a sufficient
putting in fear to constitute robbery.’ It isnot necessary that
the object of the actual or threatened violence from which
fear results be to procure money; it is enough that money be
parted with to the assailant as the result of such fear;? but
the parting with the money or property must be in’ conse-
quence of the fear; if fear results afterwards in regard to the
detention of the property by the assailant it is not enough; ®
nor is it enough that there shall have been fear, provided suf-
1Britt v. §., 7 Humph. 45; Long v.
S., 12 Ga. 293.
2 Williams v.S., 12 Tex. Ap. 240;
Kimble v. S., 12 Tex. Ap. 420; Rex v.
Wood, 2 East, P. C. 732. But where
violence is threatened under the pre-
tense of being an officer, and money
is paid in consequence thereof, the
crime is complete: Bussey v.S., 71
‘Ga. 100; McCormick v. S., 26 Tex.
Ap. 678. So, if violence is used in
taking a person before a magistrate
to accuse him of an offense, it may
constitute an assault with intent to
rob, if the object was to extort
money: Reg. v. Stringer, 1 C. & K.
188,
3Rex v. Jones, 1 Leach, 139; Rex
v. Donnally, 2 East, P. C. 713, 783;
Rex v. Hickman, 2 East, P. C. 728;
Rex v. Gardner, 1 C. & P. 479; Rex
v. Edwards, 5 C. & P. 518; Rex v.
Cannon, Russ. & Ry. 146; Rex v.
Egerton, Russ. & Ry. 875; Reg v.
Fuller, Russ. & Ry. 408; Rex v. Elm-
stead, 2 Russ., C. & M. 128; Rex v.
Stringer, 2 Moody, 261; Rex v. Jack-
son, 1 East, P. C., Ad. xx
4Long v. S., 12 Ga. 293; Houston
v. C., 87 Va. 257; Britt v. S.,7 Humph.
45; P. v. McDaniels, 1 Park. Cr. R.
198.
52 Bishop, Cr. L., § 1172.
6 Rex v. Astley, 2 East, P. C. 729;
Rex v. Brown, 2 East, P. C. 731; Rex
v. Simons, 2 East, P. C. 781. So
where money was given to one of a
mob during the London riots upon
knocking at the prosecutor’s door in
a threatening manner, it was held
robbery: Rex v. Taplin, 2 East, P. C.
712,
7 Rex v. Blackham, 2 East, P. C. 711;
McCormick v. S., 26 Tex. Ap. 678.
8 Thomas v. 8., 91 Ala. 34
455
8 471.] [Parr V.
OFFENSES AGAINST THE PERSON.
ficient time has elapsed before the taking so that there has
been opportunity to deliberate and procure assistance.’ It is.
said that the taking must be under such circumstances as would
be likely to create an apprehension of danger in the mind of a
man of ordinary experience;? but on the other hand it has
been decided that the means used need not be such as would
put in fear one used to the ways of the world and that it.
is sufficient if actual fear is proved. If there is no actual
fear (and no violence) the offense is not robbery, even though
there is reasonable ground for fear.! The prosecuting witness
may testify as to whether or not he was put in fear.’
§ 471. The taking and carrying away.— Robbery is simply
an aggravated form of larceny, that is, larceny with an added
element of taking from the person by violence or putting in
fear, and so far as the taking and carrying away in relation to
the act of larceny are concerned, little need be said, as the
doctrines discussed under the head of larceny are applicable.*
Therefore, if the property is dropped by the person assaulted,
but is not carried away by the assailant, the offense of robbery
is not committed.? But the fact that the property is returned
to the owner after being taken does not prevent the offense:
being complete.® Ifthe property is taken by one with whom
the defendant is acting in concert, the defendant who has been
guilty of the violence and putting in fear may be convicted of
the robbery.
1Rex v. Jackson, 1 East, P. C., Ad.
xxi But if the taking is while the
fear or apprehension of danger still
continues it may be robbery: Long
v. S., 12 Ga. 293.
2Long v. §., 12 Ga, 298,
38. v. Carr, 43 Ia, 418.
4 Rex v. Reane, 2 East, P. ©. 7384.
5Long v. S., 12 Ga. 298; Dill v. S.,
6 Tex. Ap. 113.
6G. v. Clifford, 8 Cush. 215; Terry
v. &, 13 Ind. 70; Brennon v. §., 25
Ind. 403; 2 Bishop, Cr. L. 1158-1162,
Thus, the offense of receiving stolen
goods as defined by statute covers
goods taken by robbery as well as
larceny: Levi v.S., 14 Neb. 1; Shr‘ed-
ley v. S, 23 Ohio St. 180. And the-
charge of robbery necessarily in-
cludes that of larceny: See infra,
§ 484,
7 Rex v. Farrel, 2 East, P. C. 557;
Hale, P. C. 588. But it is said that
the averment of carrying away is.
not necessary where the allegation
shows a taking: Terry v. S., 13 Ind.
70. To remove an earring from the
curls of a lady’s hair, where it has-
accidentally lodged, is a sufficient
carrying away: Rex v. Lapier, 2
East, P. C. 557, 708,
8 Rex v. Peat, 2 East, P. C. 557.
9 Ashworth v. 8. 31 Tex, Ap. 419%.
456
. On. 22.]
=e
ROBBERY. 473..
[s§ 472,
§ 472. The value.— As in larceny, the value of the property
is immaterial, so that it have some value! There is no occa-
sion, as there is in larceny, for alleging the value, as the pun-
ishment is not made to depend on the value of the property
taken.? .
§ 473. The property of another.— As in larceny, it must
appear that the property taken was that of another than the
accused. And even where the statute does not expressly re-
quire that the property be that of another, but defines the tak-
ing required as of any property which may be the subject of
larceny, it must be alleged that the property was that of an-
other, as such a statute is merely affirmative of the common
law;‘ but a special property in the one from whom it is taken
is sufficient. And the property taken may be properly charged
as the property of the person from whom it was taken. In-
deed, it seems that the charge of taking property from another
sufficiently implies in him the ownership necessary to constitute
robbery.’ There is even some authority for the proposition
that it is immaterial whether the property taken is that of the
person from whom it is taken or of another person, if it is the
property of another than the accused.® But the indictment
must give the name of the person from whom the property
1 Rex v. Bingley, 5 C. & P. 602.
28, v. Howerton, 58 Mo. 581; S. v.
Perley, 86 Me. 427; Williams v. 8.,
10 Tex. Ap. 8; S. v. Brown, 113 N.C.
645; P. v. Chuey Ying Git, 100 Cal.
437. See infra, § 481.
3Smedly v. S., 30 Tex. 214; Barnes
v. 8, 9 Tex. Ap. 128. The owner of
property is not guilty of robbery in
taking it from one in possession: P.
v. Vice, 21 Cal. 344.
4C. v. Clifford, 8 Cush. 215. Under
such a statute, the taking of prop-
erty which is made the subject of
larceny by statute will be robbery,
although such property was not the
subject of larceny at common law:
S. v. Gorham, 55 N. H. 152.
5S. v. Ah Loi, 5 Nev. 99; P. v.
Clark, 106 Cal. 32. Possession and
apparent ownership in the person
described as owner are sufficient:
S. v. Hobgood, 46 La. An. 855. Pos-
session is prima facie evidence of
ownership, and may be proved to
show ownership: Bradley v. S., 108
Ala. 29,
6 Brooks v. P., 49 N. Y. 436.
7P. v. Hicks, 66 Cal. 108; P. v.
Shuler, 28 Cal. 490.
8P. v. Anderson, 80 Cal. 205; Clem-
ons v.8., 92 Tenn. 282. And it is said
that if the ownership is wrongfully
described, such description may be
rejected as surplusage under statu-
tory provision curing a variance
which does not prejudice the rights
of defendant: P. v. Anderson, 80 Cal.
205.
457
OFFENSES AGAINST THE PERSON. [Parr V.
§§ 474-476,]
is taken.! Ownership may be laid in the real owner or in the
person who is in custody as the servant of the real owner.’
§ 474, From the person.— Robbery involves not merely the
taking of the property of another, but the taking of it from
his person.? But it is not necessary that the property be in
any way attached to the owner’s person, and it is sufficient if
the taking is from his immediate personal presence.‘ Some
cases give a liberal construction to the expression “from the
presence of the owner,” and hold it sufficient that the taking
is effected by violent restraint of the owner, although the
property is not actually within his sight or manual custody at
the time it is taken.’
§ 475. Against the owner’s will— The taking must of
course be against the will of the owner in order to constitute
robbery;® and such a statement is sometimes embodied in the
statute describing the offense, but certainly there is no differ-
ent requirement in this respect than in case of larceny. It is
said that such an averment is not necessary where the taking
is charged to have been effected by force.’
§ 476. Participation.— If two or more associate together to
commit the offense and take different parts in the transaction,
each will be guilty; and if the offense is consummated through
1Smedly v. S., 30 Tex. 214. And
it must allege that the party robbed
was the party assailed and put in
fear: Trimble v. S., 16 Tex. Ap. 115.
A mistake in the name of the per-
son robbed is not material under
statutes curing immaterial variance
unless the accused has been preju-
diced: S. v. Carr, 43 Ia. 418.
28, v. Nelson, 11 Nev. 334. But if
the property in the possession of the
servant has been received by him
for the owner but not delivered to
the owner's possession, it should not
be charged as the property of the
owner, under the rule applicable in
cases of larceny: Reg. v. Rudick, 8
©, & P, 237.
3Kit v. S., 11 Humph. 167; P. v.
Beck, 21 Cal. 385; Rex v. Fallows, 5
Cc. & P. 508; Reg. v. Wilkins, 10 Cox,
363.
4Crews v. S., 3 Coldw. 350; Turner
v.S.,1 Ohio St. 422; Hill v. S, 42
Neb. 503; P. v. Ah Sing, 95 Cal. 654;
S. v. Davidson, 38 Mo. 374; 8S. v. Me-
Dowell, 1 Hawks, 449. And this is
true though the language of the
statute is “taking from the person: ”
Turner v. &., 1 Ohio St. 422; In re
Ezeta, 62 Fed. R. 672, Where the
robber was traveling with the owner
of the property, who had intrusted
such property to his custody, and
took it by violence, it was held that
the taking was sufficiently from the
owner’s presence: James v. S, 53
Ala. 380.
5S. v. Calhoun, 72 Ia. 482; Clem-
ents v. S&S. 84 Ga. 660, 8 Am. Cr. RB.
692, and note.
6 Kit v. S., 11 Humph. 167,
TP. v. Riley, 75 Cal. 98.
458
Cu. 22.] ROBBERY.
[3 477.
the act of one alone, the others will be deemed constructively
present and equally punishable.’ And if all act together, each
in his own way, all will be equally guilty, although they do
not actually meet and agree to commit the robbery.? But if
they all participate in the assault, while one only, without
agreement with the others, takes the property, he alone is
guilty of the robbery. One who stands by, without inter-
fering, there being no evidence of complicity, cannot be held
guilty of the crime committed in his presence;‘ nor will the
receipt of the goods taken render the party receiving guilty of
the robbery.? But one who is present, aiding and abetting,
may be guilty of the offense, though he does not participate in
the proceeds. As in case of larceny, recent possession of the
property is evidence of guilt.”
§ 477. Injury to different persons.— It has been said that
taking at the same time the several property of different per-
sons who are put in fear by the same act may be charged as
one crime of robbery.? But other cases hold, and apparently
%
_18. v. Heyward, 2 Nott & M. 312.
2Miller v. P., 39 Ill. 457. Where
all who act together are charged as
principals, it is not necessary to al-
lege a conspiracy: Bell v. S., 1 Tex.
Ap. 598. Defendant may be charged
in different counts with being prin-
cipal, and also with acting with
others in the commission of the of-
fense, and the prosecution should
not be required to elect: S. v. Cook,
20 La. An. 145. It seems, however,
that if one only is indicted and it is
‘sought to hold him for the acts of all,
it should be averred that he com-
mitted the offense together with
others: Raffety’s Case, 2 Lewin, 271.
But under a statute which specially
‘describes it as one method of com-
mitting the offense that it is done
‘by several persons acting together,
the defendant may be convicted for
having acted as one of several, al-
though the indictment charges a
cobbery by one: Farris v. S., 26 Tex.
Ap. 105.
3Rex v. Hawkins, 3 C. & P. 392,
But if the whole transaction is car-
ried out by all, it is immaterial that
those participating did not before-
hand have the intention to rob: Fer-
guson v. S., 32 Ga. 658,
4Golden v. S., 18 Tex. Ap. 637.
5P, v. Shepardson, 48 Cal. 189.
6S. v. Brown, 104 Mo. 365. Evi-
dence that defendant was seen in
company with other persons near
the scene of the crime may be ad-
missible to prove his connection
with the offense: Odle v. S., 13 Tex.
Ap. 612; but not to prove the cor-
pus delicti: 8. v. Davidson, 30 Vt.
377.
iS. v. Wyatt, 124 Mo. 587; infra, § 616.
&Reg. v. Giddins, Car. & M. 684,
And see 8. v. Christmas, 101 N. C.
749; Clark v. 8S. 28 Tex. Ap. 189.
If two offenses are charged in dif-
ferent indictments, one as to each
of the persons assailed, evidence
of the taking of property from
B.,, which is found on the pris-
459
§§ 478, 479.] OFFENSES AGAINST THE PERSON. {Part V.
with better reason, that where the assault is upon several
different persons there will be distinct offenses of robbery
committed as to each of them, although the transaction is con-
tinuous.!
§ 478. Degrees of the offense; aggravation.— Some statutes.
divide the offense into degrees, depending on whether the crime
is committed by violence or by putting in fear, or whether the
fear is of immediate injury or injury to be inflicted in the fut-
ure. By other statutes the crime is more severely punished
where the assailant is armed with a dangerous weapon;? or in
or near the public highway; or by killing or wounding.5
§ 479. The intent.— It is essential to allege and prove not
merely the violence or putting in fear and the taking of the
property from the person of defendant, but also that such tak-
ing was with intent to commit larceny.’ Thus, if the property
is taken under a bona fide claim of right, though it be done by
violence or putting in fear, the act will not be robbery.’ Nor
will it constitute robbery that by violence or putting in fear
one is compelled to pay over money which is due.’ So if the
taking is under supposed military command there will be no
robbery.’ The fact that the assailant compels the party from
whom the property is taken to receive pay therefor to an
oner, may be shown under the indict- White. 133 Pa. St. 182: S. v. O’Con-
ment charging robbery from A.; but
evidence of violence offered to B.
will not be admissible: Rex v.
Rooney, 7 C. & P. 517.
1Jn re Allison, 18 Colo. 525: Keeton
v. C., 92 Ky. 522.
2Lampkin v. S., 87 Ga. 516; Long.
v. S, 12 Ga. 293; S. v. Stoffel, 48
Kan. 364,
3U. S. v. Wood, 38 Wash. C. C. 440;
U. S. v. Wilson, Bald. 78; S. v. Cal-
houn, 72 Ia, 482; Rex v. Pelfryman,
2 East, P. C. 783.
48. v. Burke, 73 N. C. 88; S. v.
Anthony, 7 Ired. 234; S. v. Cowan, 7
Ired. 239; S. v. Johnson, Phill, 140.
5C. v. Gallagher, 6 Metc. 565; C. v.
Martin, 17 Mass, 359,
6 Matthews v. S., 4 Ohio St. 539;
Boose v. &, 10 Ohio St. 575; C. v.
nor, 105 Mo. 121; Chappell v. S., 52
Ala, 359; Ward v. C., 14 Bush, 233;
Reg. v. Edwards, 1 Cox, 32. If the
person committing the act is so.
much under the influence of liquor
as not to know what he is doing, he
will not be deemed to have taken
the property with felonious intent:
Keeton v. C., 92 Ky. 522, Other acts.
of robbery, in pursuance of the same
general plan, may be shown to prove
the intent: S. v. Lee, 91 Ia. 499.
7Reg. v. Boden, 1 C. & K. 895; Rex
v. Hall, 3 C. & P. 409; Brown v. S.,.
28 Ark, 126.
88. v. Hollyway, 41 Ia, 200; S. v.
Brown, 104 Mo. 865; Reg. v. Hem-
mings, 4 F. & F. 50.
9S. v. Sowls, Phill. 151; C. v. Hol-
land, 1 Duv. 182.
460
‘Cu. 22.] ROBBERY. [$$ 480, 481.
amount less than its value will not, however, prévent the act
being robbery by converting it into a sale.!
§ 480. Indictment.— The indictment must allege the offense
as committed either by violence or putting in fear;? but if vio-
lence is charged it is not necessary to charge also putting in
fear? The use of the word “forcibly” does not sufficiently
‘charge violence or putting in fear;* but the charge that the
property was taken “feloniously .and violently” sufficiently
alleges the putting in fear.’ It’ is not necessary to specially |
charge an assault if the putting in fear is otherwise alleged.®
The fear alleged must be of injury to the person.?’ The taking
of the property may be alleged as in larceny,’ and though it is
usual it is not necessary to employ the term “rob;”® but the
taking must be alleged as from the person.” It is not essential
to charge the taking as “against the will” if the larceny is
otherwise sufficiently charged." The word “steal” implies in-
tent to steal,” but it is not necessary where the indictment
alleges feloniously taking and carrying away." The putting
in fear need not be alleged as felonious where the assault is so
charged.
§ 481. Description of property; value.— No greater par-
ticularity is necessary in describing the property than in case
of larceny; but as in that case, ownership must be alleged.’
It is not necessary to allege the value of the property.” As to
1 Rex v. Simons, 2 East, P. C. 712;
Rex v. Spencer, 2 East, P. C. 712.
2 Collins v. P., 39 Ill. 233.
3 Houston v. C., 87 Va. 257.
4Landringham v. S., 49 Ind. 186.
58. v. Cowan, 7 Ired. 239. It is not
necessary, however, that the indict-
ment charge specifically that the
‘act was done “violently:” Rex v.
Smith, 2 East, P. C. 783.
68, v. Brewer, 53 Ia. 735.
79. v. Smith, 119 Mo. 439.
8S, v. Kegan,,62 Ia. 106; Houston
v. C, 87 Va. 257; Reg. v. Huxley,
‘Car. & M. 596.
99, v. Ready, 44 Kan. 697, 700;
‘8. v. Robinson, 29 La, An. 364; 8. v.
Kegan, 62 Ia. 106.
108, vy. Leighton, 56 Ia. 595.
llTerry v. S., 18 Ind. 70; S. v. Pat-
terson, 42 La. An. 934,
12 Turner v. S., 1 Ohio St. 422,
138. v. Brown, 113 N. C. 645.
M48, v. Brown, 104 Mo. 365.
15 Arnold v. S., 52 Ind. 281. Where
the property is unnecessarily de-
scribed, such description need not
be proven: Burke vy. P., 148 Ill. 70;
but the indictment ought to allege
the name of the person robbed:
Parker v. S., 9 Tex. Ap. 351. The
allegation tbat a more particular
description is unknown will cure in-
sufficiency: T. v. Bell, 5 Mont. 562.
16 Boles v. S., 58 Ark. 35.
178, v. Howerton, 58 Mo. 581; Will-
iams v. S., 10 Tex. Ap. 8 And see
supra, § 472. The same rules in
461
8§ 482-484.] OFFENSES AGAINST THE PERSON. [Parr V.
the method of describing and alleging the value of bank notes,
the same rules apply as in larceny, the cases cited in the note
serving as illustrations.!
§ 482. Statutory provisions.— While the requirements of
the common law as to the indictment are to some extent mod-
ified by statute,? yet the indictment must still state the essen-
tials of the crime as defined by the statute.2 But even where
there is a statutory form the common-law form will be suffi-
cient; and it will not render the indictment bad for duplicity
that it charges larceny, although the formal charge of larceny
is not necessary.>
§ 483. Form of indictment.—It is usual to charge the of-
fense both by violence and by putting in fear, in substantially
the following form:
That A. B.,on ——, in said county, in and upon C. D. feloni:
ously did make an assault, and then and there one gold watch
of the ee and chattels of him, the said C. D., from the per-
son and against the will of the said C. D., then and there feloni-
ously, forcibly and by violence, and by putting him, the said
C. D., in fear, did take, steal and carry away.
§ 484. Included offenses.— As the indictment for robbery
must allege everything necessary to constitute larceny, there
may be a conviction for larceny under an indictment for rob-
bery.”’ So there may be conviction for larceny from the per-
proving value are said to be appli- C. D.,in bodily fear did feloniously-
cable in robbery as in larceny: C. v.
Cahill, 12 Allen, 540.
1McEntee v. S., 24 Wis. 48; S. v.
Helvin, 65 Ia. 289; Terry v. S., 18
Ind. 70; McCarty v. S., 127 Ind. 223;
Taylor v. S., 180 Ind. 66; Wesley v.
S., 61 Ala. 282; Winston v. S., 9 Tex.
Ap. 148; Menear v. S., 30 Tex. Ap.
475; Coffelt v. 8. 27 Tex. Ap. 608,
28. v. Swafford, 3 Lea, 162.
3S. v. Cook, 20 La, An. 145.
‘Burns v. §., 12 Tex. Ap. 269.
5 McTigue v. S., 4 Baxt. 313,
8S. v. Gorham, 55 N. H. 152; Terry
v. S., 13 Ind. 70; S. v. Kegan, 62 Ia,
106; 2 Archbold, Cr. Pr. & Pl. 417;
2 Chitty, Cr. L. 807. The following
form of allegation is also used: “In
and upon one C. D. feloniously did
make an assault, and him, the said
put, and one (describe the article) of
the moneys, goods and chattels of
the said C. D. from the person and
against the will of the said C. D.
then and there feloniously and vio-
lently did steal, take and carry
away:” Houston v. C., 87 Va. 257: 1
Wharton, Prec. 375. Where this
form was used, but “seize” was sub-—
stituted for “steal,” it was held that
the intent was not sufficiently al-.
leged, there being no presumption
of criminal intent from the acts
charged, such as would have arisen
had the term “steal” been used:
Matthews v. 8, 4 Ohio St. 589. But
contra, see 8. v. Brown, 113 N. C.
645. ~
TP. v. Nelson, 56 Cal. 77; Stevens.
v. S&S, 19 Neb. 647; Tucker v. S., 3
462
Cu. 22.]
ROBBERY.
[§ 484.
son! Itseems that if the indictment, in setting out the violence
or putting in fear, does so in such form as to constitute a valid
charge of assault, there may be a conviction for assault under
an indictment for robbery.?
Heisk. 484; Haley v. S., 49 Ark. 147;
Morris v. S., 97 Ala. 82.
1 Brown v. S., 388 Neb. 354; S. v.
Graff, 66 Ia. 482,
2 Hardy v. C., 17 Grat. 592; Reg. v.
Mitchell, 8 C. & K. 181; Reg. v.
Greenwood, 2 C. & K. 339; Reg. v.
Birch, 2 C. & K. 193; Reg. v. Bar-
nett, 2C. & K. 594; Reg. v. Reid, 2
Den. 88. As to assault with intent
to rob, see Reg. v. Reid, 2 Den. 88;
Rex v. Edwards, 6 C. & P. 521. The
assault must be on the person in-
tended to be robbed: Rex v. Thomas,
1 East, P. C. 417; but must be coup-
led with demand of money or prop-
erty to constitute robbery: Rex v.
Parfait, 1 East, P. C. 416. An as-
sault with intent to steal, and the
misdemeanor of attempting to steal,
may be charged in different counts
of the same indictment: Reg. v. Fer-
guson, Dears, 427.
463
CHAPTER 23.
KIDNAPPING; FALSE IMPRISONMENT.
§ 485. Nature of offenses.—The offenses of kidnapping and
false imprisonment are violations of the right of liberty, and
also involve, presumptively at least, the crime of assault. An
offense somewhat analogous is that of abduction of a child,
which is an offense against the parent rather than the child.
The abduction of females for illicit purposes is considered else-
where.
§ 486. False imprisonment.— To unlawfully detain another,
thus interfering with his liberty, is not only a ground of action
for damages, but is also a common-law crime.‘ Every confine-
ment of the person is an imprisonment, whether it be in a prison,
in a private house, or even by forcible detention in the public
streets.” Thus, if persons without authority take and detain
one under pretended charge of a crime and not in pursuance of
lawful arrest, it is false imprisonment. Where the purpose is
to arrest without warrant, even though that would be justifi-
able, yet if the person arrested is detained an unreasonable
time before taking him to a magistrate, as is required in such
cases, there is false imprisonment.’ So it is false imprisonment
1Click v. S, 3 Tex. 282; Smith v.
S., 7 Humph. 48; 1 East, P. C. 428,
2 Burnsv. C., 129 Pa. St. 188; though
if the act is against the will of the
parent, it is deemed to be without
the child’s consent: C. v. Nickerson,
5 Allen, 518. And see infra, § 490.
Some statutes, however, specifically
provide for child-stealing: C. v.
Myers, 146 Pa, St. 24; P. v. Congdon,
77 Mich. 351; S. v. Angel, 42 Kan.
216, To constitute the latter offense
there must be intent to unlawfully
detain or conceal: Mays v. §., 43 Ohio
St. 567; P. v. Congdon, 77 Mich. 351.
Under such statutes one parent may
be guilty in taking the child from
another to whom possession has been
awarded: C. v. Nickerson, 5 Allen,
518; otherwise the taking by one
parent from another is not criminal:
Burns v. C., 129 Pa. St. 188,
3 Infra, 8§ 1100, 1106a.
44 Bl. Com. 218; 2 Bish. Cr. L,
§ 747. And see infra, § 906.
‘Floyd v. &, 12 Ark. 48; 1 East,
P. C. 428 Restraint of liberty, if
not justifiable, is false imprison-
ment: C. v. Nickerson, 5 Allen,
518.
6 Jones v. C., 1 Rob. (Va.) 748,
TLavina v. S., 63 Ga, 513.
464
‘Ox. 23.) KIDNAPPING; FALSE IMPRISONMENT.
[§ 487.
‘for persons acting under the military authority of one state to
-go into another state and forcibly seize and confine any person
there or carry him out of the state.!
§ 487. Unlawfulness.— In cases of arrest the question
‘whether the detention resulting therefrom constitutes false
imprisonment depends on the lawfulness of the arrest; if the
persons making it act without authority they will be guilty of
false imprisonment.” And in general the burden is on the de-
fendant to show that he acted under lawful authority ;* but
the indictment must allege the want of lawful authority. If
an officer acts under lawful warrant in making the arrest, he
is usually protected ;* and the mere fact that he delays to take
bail when he should do so will not render him criminally liable.®
‘But if he conspires with others to procure the process to be
wrongfully issued, and does not act in good faith thereunder,
‘he commits a crime although the process may be regular on its
face.” So if after making the arrest the officer makes an im-
‘proper disposition of the prisoner, or otherwise fails to properly
execute and return the process, he iscriminally liable. A mag-
istrate who exercises his authority entirely without jurisdiction,
and thereby causes persons to be unlawfully imprisoned, is pun-
ishable criminally.® An arrest under military authority, if
‘within the scope of the military power, will not be criminal.”
1C. v. Blodgett, 12 Met. 56.
2Kirbie v. 8. 5 Tex. Ap. 60. And
see cases cited to previous section.
But in mitigation the defendant
may show that he made the arrest
having reason to believe that it was
justifiable: Staples v. S., 14 Tex. Ap.
136. Where the arrest was on an
indorsed warrant, but the person
was taken before the magistrate issu-
ing the warrant in another county
instead of before the magistrate in-
-dorsing the warrant as required by
law, held, that the officer was pun-
‘ishable: Francisco v. §., 24 N. J. 30.
3Floyd v. S., 12 Ark. 48; Mitchell
v. S, 12 Ark. 50; P. v. McGrew, 77
‘Cal. 570.
4Barber v. S., 13 Fla. 675; Water-
man v. §., 13 Fla. 683; S. v. Kimmer-
‘ling, 124 Ind, 382. But it issufficient
30
to charge that defendant was un-
lawfully and feloniously imprisoned,
as that implies that it was without
legal authority: U.S. v. Lapoint, 1
Morris (Ia.), 146.
5 Ex parte Sternes, 82 Cal. 245.
6 Cargill v. S., 8 Tex. Ap. 41.
7Slomer v. P., 25 Ill. 70; P. v. Fick,
89 Cal. 144.
8P, v. Fick, 89 Cal. 144.
9Vanderpool v. S., 34 Ark. 174;
Campbell v. S., 48 Ga. 353. But
where a judge without jurisdiction
caused a person to be brought be-
fore him on habeas corpus, he was
held not punishable, for, the proceed-
ings being void, the detention was
proper under the original process:
S. v. Guest, 6 Ala. 778.
10 Oglesby v. S., 89 Tex. 53; Reg. v.
Lesley, Bell, 220.
465
§§ 488, 489.] [Parr V.
OFFENSES AGAINST THE PERSON.
A parent may properly exercise restraint over his minor child,
but if this power is wantonly and inhumanly exercised it may
amount to false imprisonment.
§ 488. Method of detention.— To constitute false imprison-
ment it is not necessary that there be any actual arrest or as-
sault. It is sufficient that the person be detained by threats
or violence, and prevented from going where he wishes by
reasonable apprehension of personal danger.’ Nor is it neces-
sary that the person be detained in one particular place. It
is enough to constitute false imprisonment if he is prevented
by force or threats of violence from going in any direction he
sees proper, this being a sufficient interference with his liberty
to constitute a crime.’
$489. Kidnapping.— The common-law offense of kidnapping
seems to consist in the “forcible abduction or stealing away of
a@ man, woman or child from their own country and sending
them into another.”* It isan aggravated species of false im-
prisonment.’ But by statutes in England and in the various
states, the offense has been extended to cover any transporta-
tion of a person against his will from one place to another.®
It is not necessary that there be any actual violence.’ It is
enough if the object is attained by exciting the fears, by
threats, fraud, etc., amounting substantially toa coercion of the
1Fletcher v. P., 52 Ill. 395.
2Smith v. &,7 Humph. 43; Pike
v. Hanson, 9 N. H. 491; Herring v.
S., 3 Tex. Ap. 108 And the threats
may be by acts or gestures as well
as by words: Maner v. 8., 8 Tex. Ap.
361; Reg. v. Jones, 11 Cox, 393. But
to fraudulently induce one to go
with persons who pretended they
were seeking another person in order
to make an arrest, the scheme being
merely a practical joke, was held not
criminal: S. v. Lunsford, 81 N.C. 528,
3Smith v. S, 7 Humph. 43; Har-
kins v. S., 6 Tex. Ap. 452; Woods v.
8., 3 Tex. Ap. 204.
44 Bl Com. 219. Where the stat-
ute punishes the transporting of any
person to parts beyond the sea, the
carrying must be to some foreign
country: Campbell v. Rankins, 11 Me.
103; C. v. Nickerson, 5 Allen, 518.
51 East, P. C. 429: 2 Bish. Cr. L.,.
§ 750; Click v. S., 8 Tex. 282; Ross v.
S., 15 Fla. 55; P. v. Fick, 89 Cal. 228.
6S. v. Rollins, 8 N. H. 550; S. v.
Backarow, 88 La. An. 316; P. v. Chu
Quong, 15 Cal. 832; Ex parte Keil,
85 Cal. 309; Smith v. S., 63 Wis, 453.
During the existence of slavery in
the southern states there were stat-
utes punishing the carrying of slaves
out of the state: Thomas v. C., 2
Leigh, 741; or the stealing for pur-
poses of sale of free negroes: Dav-
enport v. C., 1 Leigh, 588; S. v. Wha-
ley, 2 Har. (Del.) 588; S. v. Griffin,
8 Harr. (Del.) 5389; S. v. Weaver,
Busb, 9; 8. v. Watkins, 4 Humph. 256.
78, v. Rollins, 8 N. H. 550.
466
Cu. 23.) KIDNAPPING; FALSE IMPRISONMENT. [§§ 490, 491.
will! So where a woman was induced to go out of the
country by fraudulent representations of employment abroad,
the intent being to take her to a house of ill- fame, it was held
that the crime was committed.2?, So where a sailor, being first
made drunk, was induced while in that condition to go on
board a vessel, the intent being to take him out of the country
without his consent, it was held that the act was criminal.
But there must be some act of taking or detaining; a mere
solicitation or inducement will not be sufficient.
§ 490. Against the will.— It is implied that the detention
and transportation shall be against the will, or at least with-
out the consent, of the person taken, but consent on the part
of a child of such immature years as not to be competent to
give a valid consent will be immaterial;* and where the child
is in the custody of a parent or guardian, the taking without
the consent of such parent or guardian, even though the child
may be of considerable maturity and consent to the act, will
be criminal. But where there is consent on the part of the
person to be abducted, who is of sufficient maturity to give a
valid consent, the offense is not usually regarded as kidnapping,’
although the act might be a violation of some statutory provis-
ion against abduction.
§ 491. Intent.—Under most of the statutes the intent must
be to cause the person to be unlawfully transported, or in some
states concealed.® If an act is in pursuance of lawful author-
ity, such as taking an insane person to an asylum to which he
1Moody v. P., 20 Ill. 815.
2P, v. De Leon, 109 N. Y. 226. That
threats are enough without force,
see In re Kelly, 46 Fed. R. 653. The
crime is committed where the in-
veiglement takes place, not in the
county in which the transportation
is completed: Ib.
3 Hadden v. P., 25 N. Y. 373. As to
enticing persons out of the state for
enlistment, see C. v. Jacobs, 9 Allen,
274; C. v. McGovern, 10 Allen, 193.
4P, v. Parshall, 6 Park. Cr. R. 129,
This was a charge under a statute
punishing the taking, etc, of a
woman against her will, with intent
to have carnal knowledge of her.
Under a similar statute it was held
that the fact that the woman was
unconscious or insane would be im-
material: Malone v. C., 91 Ky. 307;
Higgins v. C., 94 Ky. 54.
58. v. Rollins, 8 N. H. 550; S. v.
Farrar, 41 N. H. 53; C. v. Nickerson,
5 Allen, 518; U. S. v. Aucarola, 17
Blatchf. 423,
6 Gravett v. S., 74 Ga. 191. In such
a case harsh treatment of the child
by the parent cannot be shown as an
excuse: Ibid.
TEberling v. S., 186 Ind. 117; Coch-
ran v. S., 91 Ga. 763.
8Smith v. 8, 63 Wis. 458; Mayo v,
S., 48 Ohio St. 567. _
467
§ 492.) OFFENSES AGAINST THE PERSON. .' [Parr V.
has been committed, there is no crime whether he is really in-
sane or not.) An unlawful intent must be alleged.
§ 492. Indictment; form.—As both of the offenses dis-
cussed in this chapter are practically regulated by statute, the
form of the indictment will be determined by the statutory
provisions? The following forms are under statutes of partic-
ular states and therefore are suggestive only:
FALSE IMPRISONMENT.
That A. B., in the county aforesaid, on ——, did then and
there unlawfully and wilfuily arrest and detain one W. M.
against his consent, and without any express warrant or au-
thority of law, the said detention being then and there effected
by the said A. B. by threats of violence, and the threats being
then and there of such a character as was calculated to operate
upon and to inspire the said W. M. with a just fear of serious
unry to his person, and then and there to restrain the said
. M. from removing from one place to another as he might
then and there see proper.*
KIDNAPPING.
That A. B., in the county aforesaid, on ——, did unlawfully
make an assault on one C. D., and him, the said C. D., did then
and there beat, bruise and ill-treat, and without lawful author-
-ity did then and there unlawfully, forcibly and feloniously, and
without any authority or lawful excuse, restrain and imprison
against his will, with intent that the said C. D. should be un-
lawfully and against his will carried and conveyed and sent
out of this state into another state, to wit, into the state of
——, against the will of the said C. D.; and that the said A. B.
did then and there without lawful authority forcibly and felo-
niously kidnap, carry and send the said O. D. out of this state
into another state, to wit, the said state of , against the
will of the said C. D?
1p, v. Camp, 139 N. Y. 87. out of the state, and finally kidnap-
28. v. Sutton, 116 Ind. 527. ing. It is believed, however, that
38. v. Sutton, 116 Ind. 527,8 Am. it isnot open to the charge of du-
Cr. R. 452, and note; S. v. McRoberts, plicity, inasmuch as'the various sub-
4 Blackf. 178; Boies v. 8S. 125 Ind, jects are all involved in the final act
255. charged, and that there might be
4Herring v. S., 3 Tex. Ap. 108. conviction of any one of the included
5 This form covers assault and bat- offenses in a prosecution for the
tery, false imprisonment, imprison- principal offense,
ment with intention to transport
468
Cu. 23.] KIDNAPPING; FALSE IMPRISONMENT, SS [§ 492..
ARREST WITH INTENT TO KIDNAP.
That A. B., in the county aforesaid, on the day of ——,
did then and there feloniously, forcibly and fraudulently arrest
J. R. with the felonious and fraudulent intention of carrying
him, the said J. R., forcibly and against his will from his place
of residence, the said forcible and fraudulent arrest not being
then and there made in pursuance of any law of this state or
of the United States.
18. v. Sutton, 116 Ind. 527,
469
PART VI.
OFFENSES AGAINST THE HABITATION.
—_—
CHAPTER 24,
BURGLARY AND STATUTORY BREAKINGS AND ENTERINGS,
§ 493. Definition.— Burglary is the breaking and entering
of the dwelling-house of another by night with intent to com-
mit a felony therein.’ All the authors use substantially the
same terms with slight variations in arrangement.
§ 494. The habitation.— Burglary is, like arson, an offense
especially against the habitation, that is, against the security
of the home. By the early law of England various forms of
breaking and entering seem to have been popularly known as
burglary, but the offense was, by the decisions of the court,
narrowed to that above defined.’ It is proper, therefore, to
first describe the offense with reference to the place where it
may be committed, that is, as to what is such a building as to
‘come Within the definition. The technical term of the common-
law description is “mansion-house.”* The technical term in
arson is “house;”* but whatever distinction there may formerly
have been between the two terms (and it is doubtful if there was
any) they are now apparently synonymous. At any rate the
term “dwelling” or “dwelling-house ” is sufficient in burglary.®
‘To constitute a dwelling-house the building must be used for
‘the purpose of a dwelling;’ and if it has never been slept in
1See S. v. McCall, 4 Ala. 643; 4C. v. Pennock, 3 8. & R. 199; 1
‘Stephen, Dig. Cr. L., art. 316; 2 Bish. Hawk. P. C., ch. 38, § 10. And see the
Cr. L., § 90. definitions already referred to as
21 Hawk. P. C., ch. 38: 2 East, P.C. given by Hale, East and Blackstone.
484; 1 Hale, P. C. 549; 4Bl. Com. 224; 5 See infra, § 518,
3 Inst. 68. And see Clarke v. C., 25 6 2 Bish. Cr. Proc., § 135,
Grat. 908; S. v. Wilson, 1 N. J. 439, 7Fuller v. S., 48 Ala, 273,
‘31 Hale, P. C. 547; 4 Bl. Com, 223.
471
§ 494.] OFFENSES AGAINST THE HABITATION. [Part VI-
by the person whose dwelling-house it is charged to be, or by
his family or servants, it is not a dwelling-house with respect.
to this crime.! It is the fact that the house is a place for
sleeping at night which fixes its character as adwelling?” Itis
not essential to the crime that some one should be in the house
at the time.? A house uninhabited because undergoing repairs
is not the dwelling-house of the owner, though part of his prop-
erty is still deposited therein;‘ but the fact that the owner
temporarily locks up his house and leaves it, even for some
months, with intention of returning, does not render it any less
a dwelling-house.®> The house may bea dwelling-house although
occupied only by the servants of the owner.’ But a building:
only occasionally and temporarily used as a lodging place is.
not a dwelling-house.? It is unnecessary, however, that the
building be solely or principally used as a dwelling; even
though its principal use is for other purposes, if it is also occu-
pied to sleep in, it is a dwelling-house in such sense that
burglary may be committed therein. It was so held with ref-
erence to a baker’s shop in a portion of which a workman and
his family resided;* and as to a workshop rented with a sleep-
ing-room attached and occupied by the renter;® also as to a
public building in which persons sleep; also as to the corner:
of a warehouse used as an office and to sleep in; and as to a
building used as a store-house in some rooms of which the
1The fact that it has been used for
meals and purposes of business is
not enough: Rex v. Martin, Russ. &
Ry. 108; or that goods have been
moved into it with the intention of
using it for a dwelling, it not yet
having been slept in: Rex v. Harris,
2 East, P. C. 498; Rex v. Thompson,
2 East, P.C. 498. But these cases are
doubted on the authority of an
earlier statement in 1 Hawk. P. C.,
ch, 38, § 11; and it is said that a
house, to which the owner has moved
his furniture with the purpose of
occupying it on his return from the
country, is hisdwelling: C. v. Brown,
3 Rawle, 207. The same person may
have two dwellings: U. 8. v. John-
son, 2 Cranch, C. C, 21.
2U.58, v. Johnson, 2 Cranch, C. C, 21.
38. v. Reid, 20 Ia. 413,
4 Rex v. Lyons, 2 East, P. C. 497.
58. v. Meerchouse, 34 Mo. 344; Har-
rison v. S., 74 Ga. 801.
6 Rex v. Gibbons, Russ, & Ry. 442;
Rex v. Westwood, Russ. & Ry. 495;.
Buchanan v. §., 24 Tex. Ap. 195.
78, v. Jenkins, 5 Jones, 480; Scott.
v. S., 62 Miss. ‘781.
8 Rex v. Stock, Russ. & Ry. 185.
9 Rex v. Carrell, 2 East, P. C. 506.
And see Rex v. Bailey, 1 Moody, 23..
10Rex v. Smith, 1 M. & Rob, 256.
Thus, a county jail in which the
keeper and his family reside is a.
dwelling-house: 8. v. Abbott, 16 N.
H. 507; so is a sheriff’s office simi-
larly used: Bigham v. S, 81 Tex.
Ap. 244.
ll Anderson v.S., 17 Tex, Ap. 305..
472
[§ 495...
Cu. 24.] BURGLARY AND STATUTORY BREAKINGS, ETO.
owner or his clerks sleep.!' But a building used as a store-
house in which a person sleeps merely as watchman to protect.
the premises or goods therein is not a dwelling-house.? It is
said, however, that if the store-house’ is used regularly as a
sleeping apartment, although for the sole purpose of protecting
the premises, it is a dwelling-house.* There are statutory pro-
visions in some states with reference to breaking and entering
which render it immaterial whether the building is inhabited.*
§ 495. House of another.— The house must be the dwelling
of another than the defendant, for one cannot be guilty of
burglary in breaking and entering his own building. There-
fore, it is necessary to allege the ownership of the house.’ The
sufficiency of the description as to ownership will be discussed
hereafter in the section relating to the indictment. But the
owner, within the meaning of the law with reference to burg-
lary, is the person occupying the premises as a dwelling, the
offense being one against the possession rather than against the
mere ownership; and it is proper, therefore, in alleging the
ownership, to lay it in the person who, as against the burglar,
is in rightful occupancy.’ Therefore, the allegation that the
house broken and entered was “the dwelling-house of A. B.”
is a sufficient allegation that it was at the time occupied by
A. B. as his dwelling-house.2 So in case of a tenant occupying
premises, the ownership should be laid in the tenant and not
in the landlord.® And it seems that a tenant of only a portion
of a house may be deemed the owner for this purpose of that
portion. But where the owner of the premises leases rooms.
only to lodgers, the whole premises are deemed the dwelling
1Ex parte Vincent, 26 Ala. 145;
U. 8S. v. Johnson, 2 Cranch, C. C. 21;
8. v. Leedy, 95 Mo. 76; Ashton v. S.,
68 Ga. 25; S. v. Frank, 41 La. An,
596.
28. v. Potts, 75 N.C. 129; Rex v.
Smith, 2 East, P. C. 497; Rex v.
Brown, 2 East, P. C. 501; Rex v.
Davis, 2 East, P. C. 499; Rex v. Flan-
nagan, Russ. & Ry. 187.
3S. v. Outlaw, 72 N.C. 598; S. v.
Williams, 90 N. C. 724.
4C. v. Reynolds, 122 Mass. 454; P.
v. Stickman, 34 Cal. 242; S. v. Dan,
18 Nev. 845. And see as to store-
houses and other buildings, infra,
'§ 499.
5C, v. Perris, 108 Mass. 1; Wilson.
v. 8., 34 Ohio St. 199.
6See infra, § 508.
7Smith v. P., 115 Ill. 17; S. v. Riv-
ers, 68 Ia. 611; Kennedy v.S., 81 Ind.
879; McCrillis v. S., 69 Ind. 159;
Houston v. S., 38 Ga. 165; Ducher v..
S., 18 Ohio, 308; Leslie v. S., 35 Fla.
171; Lenhart v. S., 33 Tex. Ap. 504.
8 Bell v. S., 20 Wis. 599,
9 Rex v. Collett, Russ. & Ry. 498.
10Smith v. P., 115 TL 17.
473
§ 496.] OFFENSES AGAINST THE HABITATION. [Part VI
of the owner who resides in a portion of the premises.' The
room of a guest in a hotel is not a dwelling-house. Where
the building is rented to different tenants, the landlord not oc-
cupying any portion of it, the tenants are to be regarded, with
respect to burglary, as owners of their respective portions,
although they use a common outer door;* and more so where
the outer doors are separate! Where the premises are occu-
pied by the husband and wife they are to be described as the
dwelling-house of the husband, even though the wife has the
legal title.® And the husband may be deemed to be in con-
structive possession of the premises occupied by his wife and
family although he is absent.’ Indeed, it is the doctrine of the
English cases that the dwelling-house in which the wife lives
separate from her husband is to be described as his dwelling.’
§ 496. Buildings connected with or appurtenant to the
dwelling; common roof.— The fact that portions of a build-
ing under a common roof are used for business or other pur-.
poses not incident to the occupation of the building as a
dwelling will not prevent the whole building being deemed
the dwelling, including the part used for other purposes.’ Thus,
a breaking and entering of a cellar may be burglary, although
the cellar is not used in connection with the dwelling and
18, v. Pressly, 90 N. C. 780. 216. Under statutory provisions in
2Rex v. Prosser, 2 East, P. C. 502.
And this is true whether the pro-
prietor of the hotel lives therein or
not: Rodgers v. P., 86 N. Y. 360. The
‘sample room in a hotel cannot be
-considcred a dwelling: Thomas v.8.,
‘97 Ala. 3. So apartments in a col-
lege, not occupied by the students, °
are to be laid in the indictment as
owned by the college: Rex v. May-
nard, 2 East, P. C. 501. In Georgia
4 room in an inn is deemed the
-dwelling of the guest who occupies
it: Jones v. S., 75 Ga. 825.
3 Mason v. P., 26 N. Y. 200; Rex v.
“‘Trapshaw, 2 East, P. C. 506. And it
is the same where the owner of the
whole building, not used principally
as a dwelling, occupies rooms therein
‘separate from rooms occupied by
other tenants: 8, v. Rand, 83 N. H.
California, the occupant of a room
or apartment is to be deemed the
owner thereof with respect to burg-
lary: P. v. St. Clair, 38 Cal. 187.
4Rex v. Rogers, 2 East, P. C. 506;
Rex v. Bailey, 1 Moody, 23; Rex v.'
Turner, 2 East, P. C. 492; Rex v.
Jones, 2 East, P. C. 604,
5S. v. Short, 54 Ia, 392; Yarborough
v. S., 86 Ga. 896; Morgan v. S., 63 Ga.
807; Young v. 8, 100 Ala. 126; Jack-
son v. S., 102 Ala. 167, Contra, S. v.
Trapp, 17 8. C. 467,
6C. v. Dailey, 110 Mass. 503.
TRex v. Smyth, 5 C. & P. 201; Rex
v. French, Russ. & Ry. 491; Rex v.
Wilford, Russ. & Ry. 617.
8P. v. Dupree, 98 Mich. 26; Rex v.
Lithgo, Russ. & Ry. 857; Reg. v.
Wenmouth, 8 Cox, 848, But see
Rex v. Jenkins, Russ, & Ry. 244,
474
Cu. 24.] [§ 497.
BURGLARY AND STATUTORY BREAKINGS, ETC.
has no internal communication with the other parts of the
building.’ Provision for such cases is sometimes made by stat-
ute? Although where the parts of the building having such
diverse use are under a common roof, internal communication
is, perhaps, not essential in order that the whole building shall
be deemed the dwelling,’ yet the fact of internal communica-
tion is often referred to as important in showing that all the
parts of the building are included in the dwelling, though they
are subjected to use for other purposes. And where there is
no internal communication, and the portion of the premises
used for other purposes than a dwelling is not, properly speak-
ing, a part of the dwelling, the breaking and entering of the
business part will not be a breaking and entering of the dwell-
ing.®
§ 497. Within the curtilage.— The common-law notion of
a mansion involved a common inclosure protected originally
by a surrounding wall for purposes of defense, or, later, by
some sort of fence for the purpose of excluding strangers and
securing privacy. This common inclosure is designated as the
curtilage, and all the buildings within it are considered as
parts of the mansion-house or dwelling® Thus, a barn, used
for purposes incident to the use of the dwelling and in the com-
mon inclosure, is a part of the dwelling in such sense that to
break and enter the barn with felonious intent may be burglary.’
- The same principle covers a goose-house,’ a smoke-house,’ a
And
1 Mitchell v. C., 88 Ky. 349.
2 Moore v. P., 47 Mich. 639; Mitchell
v. C., 88 Ky. 349; S. v. Hutchinson,
111 Mo. 257.
3 Rex v. Gibson, 2 East, P. C. 508;
Rex v. Chalking, Russ. & Ry. 334;
Rex v. Burrows, 1 Moody, 274.
4P, v. Griffin, 77 Mich. 585; Rex v.
Sefton, Russ. & Ry. 202; Rex v.
Stock, Russ. & Ry. 185.
5 Rex v. Eggington, 2 East, P. C.
494, 666. And as illustrating the
same principle, see Rex v. Paine, 7
C. & P. 185; Reg. v. Higgs, 2 C. &
K. 322,
6C. v. Barney, 10 Cush. 478; S. v.
Hecox, 83 Mo. 531, 5 Am, Cr. R. 98,
and note,
‘Pitcher v. P., 16 Mich. 142.
the statute defining the offense as
the breaking and entering of a
dwelling, etc., covers the offense of.
breaking and entering the barn:
Ibid. A building used for the pur-
poses of a barn comes within a stat-
utory definition of burglary which
embraces the barn: Ratekin v. S.,
26 Ohio St. 420; Barnett v. S., 38
Ohio St. 7% A charge of breaking
and entering the stable implies that
the stable was a building: Orrell
v. P., 94 Il, 456.
8 Rex v. Clayburn, Russ. & Ry. 360.
9Fletcher v. S., 10 Lea, 388; S. v.
White, 4 Jones, 349. But the smoke-
house must be appurtenant to the
4%5
§ 498.] OFFENSES AGAINST THE HABITATION. [Parr VI.
summer-house,) a store-house used also as a sleeping-room,’ and
other outhouses; that is, houses appurtenant to the mansion-
house but not a parcel of it.’ A building which has an en-~
trance inside the curtilage, and also one outside, is deemed
within the curtilage in such sense that a breaking and enter-
ing, even of that part outside, may be burglary. A breaking
and entry through the door of the wall or the fence itself sur-
rounding the curtilage, but not forming the entrance into any
building, does not constitute burglary.’ A division of the in-
closure by a fence or wall so as to separate it into yards for
purposes appropriate to the dwelling will not prevent a por-
tion of the general inclosure from being a part of the curti-
lage. Nor will the fact that the inclosure is appurtenant to
different dwellings and common to them prevent a barn or
other building therein, which is to some extent used as ap-
purtenant to one of the dwellings, from being deemed a part.
thereof.”
§ 498. Buildings adjacent.— The entire change from the
conditions of life under which the conception of a mansion-
house was formed has made necessary new notions of the house.
and common inclosure requisite to render the adjacent build-
ings parts of the dwelling, and it is believed that.at the present
time the question is twofold, depending, first, upon the nature
of the building, and second, upon the proximity to the dwell-
ing. If the building is not used for purposes incident to the
use of the principal building as a dwelling, it is not subject to.
burglary, though it may be near the dwelling, under common
ownership, and even in a common inclosure.’ Thus, it is held
that there cannot be burglary of a tobacco barn,’ or a mill-
house,” or a building used for the sale of goods." If the build-
dwelling-house: Palmer v. S., 7 Aplin, 86 Mich. 398. And see P. v.
Coldw. 82. Taylor, 2 Mich. 250.
1 Rex v. Norris, Russ. & Ry. 69. 7P. v. Aplin, 86 Mich. 893; Rex
28. v. Mordecai, 68 N. C. 207, v. Hancock, Russ. & Ry. 170; Rex v.
38. v. Bailey, 10 Conn. 144; Bry- Walters, 1 Moody, 18.
ant v. 8, 60 Ga. 858; Rex v. Han- See Mitchell v. C., 88 Ky. 849.
cock, Russ. & Ry. 170. § White v. C., 87 Ky. 454
‘Fisher v. 8., 43 Ala. 17; Washing- 198, v. Sampson, 12 S. C. 567.
ton v. 8., 82 Ala. 31. 11 Armour v. S., 3 Humph. 379; S. v.
+Rex v. Bennett, Russ. & Ry. 289; Langford, 1 Dev. 258; P. v. Parker,
Rex v. Davis, Russ. & Ry. 822. 4 Johns, 424; S. v. Ginns, 1 Nott &
6 Reg. v. Gilbert, 1 C. & K. 84; P.v. M. 583,
476
Cu. 24.] [§ 499.
BURGLARY AND STATUTORY BREAKINGS, ETC.
ing is thus appurtenant to the house, the fact of a common
inclosure is immaterial.! But remoteness from the dwelling-
house may deprive the building of the character of an appur-
tenance to the dwelling where not within a common inclosure.?
Thus, buildings separated from the dwelling by a public road
are said to be necessarily excluded from the category of build-
‘Ings appurtenant to the dwelling-place for the reason that they
could not be deemed even constructively within the curtilage?
In Missouri a division of the offense into degrees separates the
breaking and entering of the dwelling proper from the break-
ing and entering of the building appurtenant.‘
§ 499. Buildings not connected with a dwelling; statutory
provisions.— At common law the breaking and entering in
the night-time, with felonious intent, of a building not occupied
‘as a dwelling or appurtenant thereto, was not the crime of
burglary, although it was made punishable by various statu-
tory provisions.© Under the broader definition of burglary
suggested by Lord Hale, and already referred to, a walled
town or church might be subject to burglary.’ But there is
probably no modern authority making the breaking and entry
of a church burglary, aside from statutory provisions. Stat-
utes having specific reference to the breaking and entry of
churches are to be found, however, in England and some of the
states® Statutes have been generally passed in the various
states providing for the punishment, as crimes, of acts of break-
18, v. Wilson, 1 Hayw. 242; S. v.
‘Twitty, 1 Hayw. 102; Wait v. 8., 99
Ala. 164; S. v. Shaw, 31 Me. 523; Rex
v. Brown, 2 East, P. C. 498.
28. v. Sampson, 12 S. C. 567; S. v.
Jake, 1 Wins., ii, 80.
3Curkendall v. P., 86 Mich. 309;
S. v. Stewart, 6 Conn. 47; Rex v.
Westwood, Russ. & Ry. 495.
48. v. Hecox, 83 Mo. 531.
5 Hollister v. C., 60 Pa. St. 103;
Koster v. P., 8 Mich. 481; S. v. Do-
zier, 78 N. C. 117; Conners v. S., 45
N. J. 340.
6 See supra, § 494,
74 Bl Com. 224; 1 Hawk. P. C.,,
ch. 38, § 10; 2 East, P. C. 491. And
Lord Coke supports this doctrine as
to the church by the suggestion that
it is the mansion-house of God: 3
Inst. 64.
8 Under the English statute a dis-
senting meeting-house was not a
church within its terms: Rex v. Rich-
ardson, 6 C. & P. 385; Rex v. Nixon,
7 C. & P. 442. The vestry is held
to be a part of the church: Reg. v.
Evans, Car. & M. 298; so is the tower:
Rex v. Wheeler, 3 C. & P. 585. Where
the statute refers to breaking and
entering a church and stealing there-
from of some chattel, taking a fixt-
ure is not sufficient: Reg. v. Baker,
8 Cox, 581. A box containing money
is not deemed a fixture: Reg. v.
Wortly, 1 Den. 162. It is not neces-
477
[Part VI.
-§ 499.) OFFENSES AGAINST THE HABITATION.
ing and entering in the night-time buildings not used for dwell-
ing purposes nor appurtenant thereto. A provision for the
punishment of such breaking and entering of an outhouse,
whether appurtenant to the mansion-house or not, in which
goods, etc., are deposited, includes a barn in which animals
and produce are kept, irrespective of its distance from the
dwelling-house.! And where the statute defines the building
as one not adjacent to or occupied with a dwelling-house, such
description is intended to cover cases where the building is not
appurtenant to the dwelling, and the negative words need not.
be used in the indictment.’ A statute covering the breaking
and entering of a building in which goods, wares and merchan-
dise are deposited, includes an apartment so used, even the
cabin of a vessel.2 The indictment should describe the build-
ing as used for such purposes. Under such a statute, a “store
or building” includes an unfinished building where tools are
temporarily stored.’ A “store” is a place where merchandise
is kept for sale. The term “shop” is not synonymous with
“store,” 7 but, under the English statute, is a place for the sale
of goods, and not a work-shop.’ The term “store-house” may
include a room occupied as a news depot.2 The term “ ware-
house” may include a cellar, used merely for the deposit of
goods,” or a railroad depot." A railroad depot may also be in-
sary that the chattels be such as
are used in divine service: Rex v.
Rourke, Russ. & Ry. 386.
18. v. Brooks, 4 Conn. 446,
2Devoe v. C.,3 Met. 316; Larned
v. C., 12 Met. 240; S. v. Kane, 63 Wis.
260. But in Michigan, the fact that
the building is not adjoining, etc.,
seems to be deemed material to the
offense under the statute: Koster v.
P., 8 Mich. 431; the question being
for the jury: P. v. Shaughnessy, 89
Mich. 180.
38. v. Carrier, 5 Day, 131.
4Crawford v. &, 44 Ala. 3882;
Thomas v.S., 97 Ala. 3; Bearden v.
S., 95 Ga. 459. But such description
is not necessary under the Iowa stat-
ute: S. v. Emmons, 72 Ia. 265. As to
how the offense is to be charged so
as to distinguish it from burglary,
see S. v. Franks, 64 Ia, 39. As to the
description of the goods in such
cases, see infra, § 509.
5 Clark v. S., 69 Wis. 208. But the
indictment must allege that the
building was of the character de-
scribed by statute: S. v. Savage, 32
Me. 583.
6C. v. Whalen, 181 Mass. 419.
78. v. Canney, 19 N. H. 185.
8 Reg. v. Sanders, 9C.& P79 A
butcher shop does not necessarily
imply that animals are slaughtered
or dressed there: Green v. S., 56 Ark.
886. Under later English statutes, a
work-shop is covered by the term
“shop:” Reg. v. Carter, 1 C. & K.
173.
» Bauer v. S., 25 Ohio St. 70.
10 Reg. v. Hill, 2M. & Rob. 458,
18, v. Bishop, 51 Vt. 287.
478
Cu. 24.] BURGLARY AND STATUTORY BREAKINGS, ETo. [§ 500.
cluded in the term “ other building.”! Indeed, the term “ other
building” is broadly construed to cover an office,? a court-
house,’ a buggy-house,' or a granary ;° but where those words
in the statute followed “shop, store,” etc., it was held that they
must be limited to buildings of the same general character, and
would not cover a “chicken-house.”* orreyses acarnst Taz HaziTation. [Parr VI.
fact must be alleged or the conviction can be for burglary only.!
Where the aggravation is attempting to do personal violence
in connection with the commission of the offense, proof of
pointing a dangerous weapon at a person in the house is suffi-
cient to establish the crime.2 In California burglary is, by
statute, divided into degrees, breaking and entering in the day-
time with felonious intent being the second degree, and it is
held that the indictment should charge burglary only and leave
the degree to be determined on the trial. But in Kansas it is
held proper to charge expressly the first degree, and under
such an indictment the jury must find the degree or their ver-
dict will not support a judgment.*’ There may, of course, be a
conviction of the lower degree under an indictment for the
higher.
§ 513. Forms of indictment.— The language of the com-
mon-law indictment is definite and easily made use of in any
ordinary case, but statutory modifications of the crime have
necessitated the introduction of other forms which will be suf-
ficiently illustrated by those here given.
WITH INTENT TO STEAL.
That A. B., in the county aforesaid, on ——, about the hour
of eleven in the night of the same day, the dwelling-house of
C. D. there situate, feloniously and burgiariously did break
and enter, with intent the goods and chattels of the said C. D.
in said dwelling-house then and there being, then and there
feloniously and burglariously to steal, take and carry away,
and the said A. B., then in the said dwelling-house, thirty-nine
fleeces of wool of the goods and chattels of said O. D., then
and there being found, feloniously and burglariously did steal,
take and carry away.®
1§. v. Fleming, 107 N. C. 905.
2Seling v. S., 18 Neb. 548.
3P. v. Jefferson, 52 Cal. 452; P. v.
Barnhart, 59 Cal. 381.
48. v. Treadwell, 54 Kan. 513. But
itis said that such a judgment, while
erroneous, would not be a nullity:
In re Black, 52 Kan. 64.
5Moore v. Missouri, 159 U. S. 673.
6This follows substantially the
form in Archbold’s Criminal Prac-
tice and Pleading, and is also based
to some extent on the form found in
Pitcher v. P., 16 Mich. 142. In that
case, and in Fletcher v.S., 10 Lea,
838, the indictment states only that
the breaking and entering were “in
the night-time ” of said day, whereas
in the absence of statutory provis-
ions it is usual, if not necessary, to
allege the hour of night: See Shel-
ton v. C., 89 Va. 450; S. v. Seymour, 86
Me. 225; supra, $504. The cases first
cited also illustrate the proposition
that under the charge of breaking
and entering the dwelling or man-
500
Cu. 24.] BURGLARY AND STATUTORY BREAKINGS, ETC.
‘
WITH INTENT TO COMMIT RAPE.
[§ 513.
That A. B., in the county aforesaid, on , did unlawfully,
feloniously and burglariously, about the hour of eleven o’clock
at night of said day, break and enter the dwelling-house of
J. R., there situate, with intent then and there unlawfully, felo-
niously and burglariously, one F. R. violently to ravish and
carnally know by force and against her will.
FOR BREAKING AND ENTERING IN DAY-TIME.
That A. B., on ——, in the county aforesaid, a certain build- |
ing there situate, to wit, the dwelling-house of one I. 8., did
break and enter, with intent to commit the crime of larceny
therein.”
FOR BREAKING AND ENTERING BUILDING.
=
That A. B., on ——,, in the county aforesaid, the store build-
ing of H. K., there situate, in the night-time of the same day,
then and there unlawfully, feloniously and burglariously did
_ break and enter, with intent then and there the personal goods,
sion-house there may be a conviction
where the proof shows the breaking
and entering of a barn, smoke-house
or other such building connected
with the dwelling-house and situated
within the curtilage. A subsequent
form is for the statutory offense of
breaking and entering a building not
itself connected with and adjacent to
the dwelling-house.
1This follows to some extent in-
dictments found in Burke v. S., 5
Tex. Ap. 74,and Hamilton v. S., 11
Tex. Ap. 116. The latter part, charg-
ing the intent, is analogous to the
form given for assault with intent
to commit rape, supra, § 467. The
forms found in the cases here cited
charge the intent to have been “to
ravish and carnally know by force
and by assaulting the said,” etc., but
certainly the phrase “ by assaulting ”
is unnecessary: See 1 Whart. Prec.
377. The phrase “with force and
arms” as applied to the breaking,
used in the forms given in the cases
here referred to, are plainly super-
fluous, as they are everywhere: See
Bish. Direc. & Forms, § 43.
2 This form, found inC. v. Reynolds,
122 Mass. 454, was held sufficient for
the statutory offense of breaking
and entering in the day-time, on the
theory that the crime thus defined
was only a lower degree of the crime
of burglary, defined in a preceding
section of the same statute as break-
ing and entering in the night-time;
and that therefore the time became
immaterial so long as it was not in-
tended to charge the offense as com-
mitted in the night-time. The same
reasoning is recognized in Butler v.
P., 4 Denio, 68. But it is not safe,
perhaps, to omit the averment that
the act was done in the day-time, in
a state where there is no express au-
thority for it. The form given also
orsits the allegation that the act
was feloniously and burglariously
committed, which was necessary at
common law, and charges the intent
in a general way instead of specific-
ally, which is nota safe practice, un-,
less authorized by statute or decis-
ions in the particular state.
501
§ 513.] [Parr VI.
OFFENSES AGAINST THE HABITATION.
chattels and property of said H. K., then and there in the said
store building‘ being found, then and there feloniously and
burglariously to steal, take and carry away.!
FOR BREAKING AND ENTERING BUILDING IN WHICH GOODS, ETO.,
ARE KEPT.
That A. B., in the county aforesaid, on , in the night-
time of said day, unlawfully, feloniously and burglariously did
break and enter the store of one J. S. there situate, in which
store goods, merchandise and valuable things were then and
there kept for use, sale and deposit, with intent then and there
the personal goods, chattels, money and property of the said
J. S. in said store then and there being, then and there unlaw-
fully, feloniously and burglariously to steal, take and carry
away; and two caddies of tobacco of the value of twelve dol-
lars of the personal goods, chattels and property of the said
J.S.in the said store then and there being found, then and
there unlawfully, feloniously and burglariously did steal, take
and carry away.’
FOR BREAKING AND ENTERING A RAILROAD CAR, -
That A. B., on the , at the county of ——, in the night-
time of the same day, a freight railroad car of the Illinois Cen-
tral Railroad Company, incorporated as such railroad company’
under the laws of the state of Illinois by virtue of an act of
the General Assembly thereof, feloniously, wilfully, maliciously
and forcibly did then and there break and enter with intent
the goods and chattels of the said Illinois Central Railroad Com-
pany in the said freight railroad car then and there being,
feloniously to steal, take and carry away.
1In S. v. Kane, 63 Wis. 260, this
was held to be sufficient under a
statute defining the offense of break-
ing and entering in the night-time
an office, shop, etc., not adjoining or
occupied in connection with a dwell-
ing-house, etc., the context of the
statute showing that the breaking
and entering of a building not thus
situated was regarded as a lower of-
fense than the breaking and entering
of a building adjoining or occupied
in connection with a dwelling, and
therefore it was unnecessary to
eharge that the building was not
adjoining, etc. A similar indict-
ment was sustained under the same
reasoning in Larned v. C., 12 Met.
240; but a contrary conclusion under
a similar statute was reached in
Koster v. P., 8 Mich. 481, and it
would doubtless be wise to use the
language of the full statutory pro-
vision, unless the question has been
expressly settled otherwise.
2In §S. v. Ridley, 48 Ia. 370, it was
held that this indictment would not
sustain a conviction of larceny from
the store, the allegation of such lar-
ceny being only material as further
indicating the intent with which the
breaking and entering were effected.
The same form of indictment was
held sufficient for breaking and
entering in S. v. Hayden, 45 Ia, 11.
3 Lyons v. P., 68 Tl. 271.
502
Cu. 24.] | BURGLARY AND STATUTORY BREAKINGS, ETO. ([§ 514.
y
§ 514. Evidence; recent possession of stolen property.—
Tf the breaking and entering are charged as with the intent to
commit larceny, the possession by defendant, soon after the
crime, of goods shown to have been stolen from the premises
broken and entered tends to show that defendant is the one
-who committed the burglary, unless such possession is in some
way explained. Such recent possession is evidence of guilt of
larceny, as will be explained in connection with that offense; !
-and as proof of the commission of larceny by the person break-
ing and entering is evidence of his intent in breaking and enter-
ing, the finding of the goods in his possession is evidence of
the commission by him of the burglary.2 The authorities do
not agree, however, as to the weight to be given to such evi-
dence. The rule sustained by a preponderance of authority is
that it is prima facie or presumptive evidence of the guilt of
burglary,’ and will warrant conviction.‘ Indeed, it has been
said that proof of recent possession of the stolen goods casts
on the defendant, prosecuted for burglary, the burden of ex-
plaining such possession;* but this is an incorrect expression
of the rule, as the burden of proof does not shift, and it is not
correct to impose on the defendant the necessity of giving a
particular explanation.6 There are many cases which author-
ize the evidence of recent possession of stolen goods to be con-
sidered in determining the prisoner’s guilt without sanctioning
- the proposition that such proof is in itself presumptive evi-
1Infra, § 615.
2C. v. Millard, 1 Mass. 6; S. v.
Rivers, 68 Ia. 611; S. v. Frahm, 73
Ya. 355; S. v. Babb, 76 Mo. 501; Frank
v.S., 89 Miss. 705; Smith v. P., 115
Til. 17; P. v. Wood, 99 Mich. 620; P.
v. Jockinsky, 106 Cal. 638; Hays v.
&., 30 Tex. Ap. 472. Such evidence
4s admissible although the indict-
ment does not charge that any
goods were stolen: Stokes v. S., 84
Ga, 258.
3Reg. v. Exall, 4 F. & F. 922;
Magee v. P.. 189 Tl. 188; Harris v.
Ԥ, 61 Miss, 304; Lundy v. 8. 71 Ga.
360; S. v. Warford, 106 Mo. 55. Some
cases say it is presumptive evidence
of guilt if unexplained: Davis v. S.,
76 Ga. 16; S. v. Owens, 79 Mo. 619; S.
v. Golden, 49 Ia. 48.
4Morgan v.§&., 25 Tex. Ap. 513; S.
v. Owsley, 111 Mo. 450; P. v. Smith,
79 Cal. 554; Brown v.S., 61 Ga. 311;
Mangham v.S&., 87 Ga. 549; but other
Georgia cases do not go to the same
extent: Falvey v. S, 85 Ga. 157;
Bryan v. 8., 62 Ga. 179; Houser v.
S., 58 Ga. 78.
5Cooper v. S, 87 Ala. 185; S. v.
Edwards, 109 Mo. 315; S. v. Scott,
109 Mo. 226; Knickerbocker v. P., 43
N. Y. 177.
6S. v. Jennings, 79 Ta, 518; Falvey
v. &., 85 Ga. 157; Griffin v. S., 86 Ga,
257,
503
§ 514.] OFFENSES AGAINST THE HABITATION. [Part VI.
dence of guilt as to the burglary.!. The rule is perhaps best
stated by saying that the presumption arising from proof of
such recent possession is not conclusive, but is to be dealt with
by the jury only as the basis for a mere inference of fact,’ and
that the recent possession without other evidence of guilt of
the burglary is not of itself sufficient to warrant conviction.*
There must be other evidence of the fact that burglary has
been committed,! though the recent possession may be suffi-
cient to connect defendant with the crime,’ or to corrobo-
rate the testimony of an accomplice. A false or contradictory
or improbable account by defendant of how he obtained the
goods will tend to corroborate the inference drawn from mere
recent possession.’ Evidence explaining the possession consist-
ently with defendant’s innocence is to be received;* and some
cases say that, if reasonable, such explanation throws on the
state the burden of proving its falsity... The question as to.
how soon after the burglary the goods are found in defend-
ant’s possession is important as affecting the weight of the evi-
dence rather than its admissibility,” and also as affecting the
amount of evidence necessary to identify the goods as those
stolen at the time of the burglary." The possession must be
shown to have been in the defendant in order to make the
finding of the goods evidence against him. If it is jointly in
him and another, not charged with the burglary, it will not be
admissible,” or at least that fact will prevent the evidence being
conclusive.” But, of course, joint possession of two persons
1Gravely v. C., 86 Va. 396; Talia-
ferro v. C., 77 Va. 411; Walker v. C.,
28 Grat. 969; Hall’s Case, 3 Grat.
593; Ryan v. S., 83 Wis. 486; P. v.
Carroll, 54 Mich, 334; P. v. Beaver,
49 Cal. 57; S. v. Reid, 20 Ia. 418; S.
v. Jennings, 79 Ia. 518; Prince v. S.,
44 Tex. 480.
2C. v. McGorty, 114 Mass, 299.
38. v. Shaffer, 59 Ia. 290; S. v. Til-
ton, 63 Ia. 117; P. v. Bielfus, 59 Mich.
576; Methard v.S., 19 Ohio St. 363;
P. v. Hart, 10 Utah, 204.
4¥Fuller v. S,, 48 Ala. 278,
5 Neubrandt v. S., 58 Wis. 89.
6 Pritchett v. S., 92 Ga. 383; Boswell
v. S., 92 Ga, 581.
7TSmith v. S., 62 Ga. 663; Wynn v.
8., 81 Ga. 744; Magee v. P., 189 IIL
188; Gravely v. C., 86 Va. 396.
8 Henderson v. S., 70 Ala. 29; Shu-
ler v. S., 23 Tex. Ap. 182; Morgan v.
S., 25 Tex. Ap. 513.
9 Leslie v. S., 85 Fla. 171; Tarver v..
S., 95 Ga. 222,
10Smith v. P., 115 Il. 17.
ll Gravely v. C., 86 Va. 896.
128, v. Warford, 106 Mo. 55; S. v.
Owsley, 111 Mo. 450; Reg. v. Coots,
2 Cox, 188.
13 Shropshire v. 8., 69 Ga. 278..
£504
Cu. 24.] BURGLARY AND STATUTORY BREAKINGS, ETC. [$$ 515,516.
jointly implicated may be shown.’ It is not essential, how-
ever, that the fruits of the crime be traced to the defendant in
order to warrant his conviction of the burglary, if he is suffi-
ciently connected with it by other evidence. The various
phases of the rule relating to recent possession are more fully
discussed under the head of larceny.
§ 515. Other evidence.— Proof of the commission of other
crimes of burglary is admissible when the crimes are connected
together or the result of a general plan.’ Evidence is also ad-
missible to show the previous presence of the defendant in and
about the house, inquiries as to weapons kept in the house,
knowledge that there was money in the house, etc. The arti-
cles stolen, having been found in defendant’s possession, are
themselves admissible in evidence.®
§ 516. Possession of burglar’s tools.— The possession of
burglar’s tools soon after the commission of the crime may be
proven as tending to connect the defendant with it.’ The hav-
ing of burglar’s tools in possession is by statute made a sub-
stantive offense without proof of intention to use them in any
particular burglary;* and it is not essential that the intent
with which they are kept is to commit burglary in the state,
the place where they are intended to be used not being mate-
rial.° Indeed the intent to commit a felony with the instru-
ments is not an essential element of the crime of having them
in possession.” Keys are instruments of house breaking if the
1p, v. Arthur, 93 Cal. 536; Ryan v.
S., 83 Wis. 486; Murphy v. S., 86 Wis.
626; S. v. Harrison, 66 Vt. 523; Frazier
v. S., 185 Ind. 38; Jackson v. 8, 28
Tex. Ap. 370.
2Garrity v. P., 107 Til. 162.
3 Infra, §§ 616-620.
4Mason v. S., 42 Ala, 532; S. v.
Robinson, 35 S. C. 340; S. v. Valwell,
66 Vt. 558; Kelley v. S., 31 Tex. Ap.
211; Dawson v. S., 32 Tex. Ap. 585;
Reg. v. Cobden, 3 F. & F. 838; Reg.
v. Rearden, 4 F. & F. 76. But evi-
dence of a distinct and disconnected
crime is not admissible: S. v. John-
son, 88 La. An. 686.
5S. v. Ward, 103 N. C. 419; S. v.
Bill, 6 Jones, 34; P. v. Flynn, 73 Cal.
511. Where the crime charged was
breaking and entering a railway car
with intent to steal, the bill of goods
shipped in the car was held admissi-
ble to show that some of the goods
shipped were gone: §8. v. Russell, 90 .
Ja. 493.
6 Walker v. S., 97 Ala. 85.
78, v. Franks, 64 Ia. 39; P. v. Hope,
62 Cal, 291; P. v. Winters, 29 Cal. 658.
8C. v. Tivnon, 8 Gray, 375; P. v.
Edwards, 93 Mich. 636. Otherwise
under English statutes: Reg. v. Jar
rald, L, & C. 301.
Davis v. S., 87 Ala. 10.
10 Reg. v. Bailey, Dears. 244,
505
§ 516.) OFFENSES AGAINST THE HABITATION. [Part VI.
jury find that they are had in possession for that purpose in-
stead of a lawful purpose.! Several may be jointly guilty for
having such tools in possession, although they are actually in
the custody of but one of them;? and proof of the fact that a
confederate was a burglar and “safe-blower” was held compe-
tent in showing the intention with which defendant had such
tools in his possession.’
1Reg. v. Oldham, 2 Den. 472, 3P. v. Howard, 73 Mich. 10,
2Reg. v. Thompson, 11 Cox, 862;
Cc, v. Tivnon, 8 Gray, 875.
506
CHAPTER 25.
ARSON AND OTHER BURNINGS.
§ 517. Definition The common-law crime of arson con-
sists in the malicious burning of the house of another.!
§ 518. What constitutes “ the house.’’— Although the term
“house” is used in arson,’ while “dwelling-house” is the term
in burglary, yet, as already stated under the discussion of burg-
lary,® the meaning of the two terms is practically if not ex-
actly the same.‘ A building, in order to constitute a house
within the meaning of the definition of arson, must have been
not only finished and ready for occupancy,° but actually occu-
pied.£ It must be a building such as is usually occupied as a
dwelling.’ If, though it has been occupied, such occupancy
has terminated and it is vacant, the burning will not be arson?
But temporary absence of the occupants will not deprive it of
the character of a dwelling-house.’ A penitentiary or jail in
which officers and others are lodged isa dwelling-house.” The
1The definitions in the different
books are the same in effect with
slight variations in the terms used:
3 Inst. 66; 1 Hale, P. C. 566; 1 Hawk.
P. CG, ch. 89; 2 East, P. C. 1015; 4 BI.
Com. 220; 2 Bish. Cr. L., §8. Coke,
followed by Hale and Hawkins, adds
“by night or by day,” but this un-
mecessary phrase, probably used by
contrast to “in the night-time ” in
burglary, is omitted by East, Black-
stone and Bishop.
2C. v. Barney, 10 Cush. 478; and
see the definitions cited in the pre-
ceding note.
3 Supra, § 494.
4The term “house” used in an in-
dictment imports a dwelling-house
and is sufficient: C. v. Posey, 4 Call,
109; but in the forms for indictment,
“(dwelling-house” is commonly used
as in burglary: See infra, § 531.
5Reg. v. Edgell, 11 Cox, 182. A
structure not entirely completed
may nevertheless be a building;
whether it is or notis a question for
the jury. There are in some states
statutes as to the burning of build-
ings in the process of erection: Mc-
Gary v. P., 45 N. Y. 153; S. v. Wolf-
enberger, 20 Ind. 242.
6C, v. Barney, 10 Cush. 478; Els-
more v. St. Briavels, 8 B. & C. 461.
78. v. Warren, 33 Me. 30; P. v.
Handley, 93 Mich. 46; Reg. v. Eng-
land, 1 C. & K. 533,
39, v. Clark, 7 Jones, 167; Hooker
v. C., 13 Grat. 763,
9S. v. Warren, 33 Me. 30; Johnson
v. S., 48 Ga. 116,
108, v. Johnson, 93 Mo. 73; P. v.
Van Blarcum, 2 Johns. 105; Stevens
v. C., 4 Leigh, 683; Rex v. Donnevan,
2 W. BI. 682; but not a jail which
507
§ 519.] [Part VI.
OFFENSES AGAINST THE HABITATION.
description of the building in an indictment as a dwelling-house-
is sufficient without further allegation that it is used as a place
of abode.! Parts of the building not connected by internal
communication, nor used by the occupants of the dwelling, are:
not to be deemed parts of such dwelling;? and such separate-
and unconnected portion, if used for other purposes, is not a
dwelling at all for the purpose of arson, but the setting fire to
it would constitute one of the statutory crimes hereafter to be:
described.? If there are several lodgers in the building it may
be described as the dwelling of any one of them,* and, in gen-
eral, the ownership should be laid in the occupant, as in cases.
of burglary, without regard to the legal title.’ Ifthe owner
‘lets part of the building to lodgers it should be described as
the house of the owner although the portion set fire to is occu-
pied by a lodger.®
§ 519. Other buildings within the curtilage; adjacent
buildings; barns.— The same rule applies here as in burglary,
that buildings within the curtilage occupied in connection with
the house as a dwelling are deemed a part of the dwelling in
such sense that setting fire thereto is arson.’ There are some-
times statutory provisions as to the burning of outbuildings.
adjoining a dwelling-house; * and under a statute with reference
to outhouses not adjoining a dwelling nor under the same roof,
but in which some person usually lodges at night, it is not neces-
sary to show that a barn claimed to be under such description is
is occupied by none but prisoners:
Reg. v. Connor, 2 Cox, 65.
1McClaine v. T., 1 Wash. 345. The
word “house” imports the same
thing: C. v. Barney, 10 Cush. 478.
28. v. Sandy, 3 Ired. 570. And an
internal communication will not
make the portion occupied as a store
a part of the dwelling if itis used
by a different tenant and has a sepa-
rate outside entrance: P. v. Nolan,
22 Mich. 229. :
3P, v. Fairchild, 48 Mich. 31; S. v.
Biles, 6 Wash. 186.
4 Levy v. P., 80 N. Y. 827; Shepherd
v. P., 19 N. Y. 587, If a portion of
the house is let to tenants, and in
such portion fire is set, the indict-
ment may describe the dwelling as
that of the tenant: S. v. Toole, 29:
Conn. 842.
58. v. Toole, 29 Conn. 342. As to.
burglary see supra, § 508.
6 Rex v. Ball, 1 Moody, 30.
‘8S. v. Shaw, 31 Me. 528; C. v. Bar-
ney, 10 Cush. 480. But a barn sepa-
rated from the house by a highway
is not within the curtilage: S. v.
Stewart, 6 Conn. 47; Curkendall v.
P., 86 Mich. 809.
8But “adjoining” in such a stat-
ute was held to mean “contiguous
to,” and not merely “near to:” S.
v. Downs, 59 N. H. 320.
508
“On. 25.) ARSON AND OTHER BURNINGS. [§ 520.
within the curtilage! At common law it is said that the burn-
ing of a barn with hay and grain in it is arson;? and, of course,
-a barn within the curtilage and used in connection with the
-dwelling would be deemed a part thereof, as already suggested ;
but there are in many states provisions as to setting fire to
‘barns, stables, etc., and the question whether the barn is within
the curtilage, under such a statute, would be immaterial! The
‘burning of a barn so situated that its destruction would en-
‘danger the dwelling-house is the burning of any building “a par-
‘cel of, belonging to, or adjoining the dwelling-house,” within
-statutory description.
§ 520, Buildings not part of the dwelling; grain, hay, ete.
Aside from the common-law felony of arson consisting in the
burning of the dwelling-house or a building appurtenant thereto,
there are in all the states provisions for the punishment of the
burning of other buildings or chattels. There is scarcely any
harmony among these statutes, and all that can be done is to
mention some of the principal classes of buildings and property
‘with reference to which such provisions may be found. Where
‘the statute describes arson as the burning of a building with
‘intent to destroy it, the offense may be so alleged although the
statute elsewhere defines “building” as including a house, struct-
ure, vessel, etc.? Where the statute defined the crime as the
‘wilful burning of any house, and then defined “house” as any
‘building or structure inclosed with walls and covered, it was
held that a crib which had been torn down ceased to be a build-
ing or structure.’ An unfinished house substantially completed
.as to walls and roof, though not plastered or ready for occu-
250; Nabors v. S., 82 Ala. 8. And see
Gibson v. S., 54 Md. 447.
1Page v. C., 26 Grat. 943. If the
building is described, in accordance
with the statutory definition, as a
building not parcel of a dwelling, it
‘need ‘not appear that there is any
-dwelling-house owned by the person
owning the building: S. v. Price, 11
N. J. 203.
' 2Sampson v. C., 5 Watts & S. 385;
‘S. v. Porter, 90 N. C. 719.
3Statutes sometimes especially re-
fer to the burning of a barn within
ithe curtilage: P. v. Taylor, 2 Mich.
48. v. Taylor, 45 Me. 322. As to
what constitutes a barn, under such
statute, in North Carolina, see S. v.
Jim, 8 Jones, 459; S. v. Laughlin, 8
Jones, 455; S. v. Cherry, 63 N. C. 439,
5 Bill v. C., 98 Pa. St. 192,
6P. v. Giacamella, 71 Cal. 48; P. v.
Russell, 81 Cal. 616. In such a stat-
ute “house” may include other build-
ings than a dwelling-house: Pike v.
S., 8 Lea, 577.
7Mulligan v. S., 25 Tex. Ap. 199.
509
[Parr VE.
§ 520.] OFFENSES AGAINST THE HABITATION.
pancy, may be a building. The question whether a building
in the process of construction is sufficiently advanced to be:
termed a building is for the jury.? Statutory provisions as to:
buildings, houses, etc., are broad enough to cover a church or
school-house.’ Statutes frequently cover by special designation
the burning of “outhouses,” and it is held that this term is not
synonymous with “house,” * but is a technical term referring
to a building appurtenant in some way to a dwelling-house*
Other cases with reference to what particular buildings are, or
are not, within the description of an outhouse are given in the-
note’ Setting fire to barns, stables, sheds, etc., is also specially
provided for by statute. The cases are sufficiently collected in
the note.’ Statutes also refer to the burning of warehouses,
store-houses, etc. Where the offense would be greater if the-
building were adjacent to a dwelling-house or within the cur-
tilage, it is not necessary, in order to convict of the lower
offense of burning a building, structure, etc., to allege that it.
was not adjoining a dwelling-house, etc.2 There are statutes
‘Reg. v. Manning, L. R. 1 C. C. 338.
2C, v. Squire, 1 Met. 258.
3 Waitt v. S., 61 Ga. 66; Wallace v.
Young, 5 T. B. Mon. 155; S. v. O’Brien,
2 Root, 516; Jones v. Hungerford, 4
Gill & J. 402; S. v. Bedell, 65 Vt.
541; McDonald v. C., 86 Ky. 10.
4Whiteside v. S, 4 Coldw. 175;
Hester v. S., 17 Ga. 180.
5S. v. Roper, 88 N. C. 656; S. v.
Stewart, 6 Conn. 47,
6Rex v. Nash, 2 East, P. C. 1021;
Rex v. Haughton, 5 C. & P. 555; Rex
v. Parrott, 6 C. & P. 402; Rex v.
Winter, Russ. & Ry. 295; Rex v.
Stallion, 1 Moody, 398; Rex v. Elli-
son, 1 Moody, 336; Reg. v. Jones, 1 C.
& K. 303; Elsmore v. St. Briavels, 8
B, & C. 461; Reg. v. Munson, 2 Cox,
186; 8. v. O’Brien, 2 Root, 516.
7 As to what is a barn, see Elsmore
v. St. Briavels, 8 B. & C. 461; 9, v.
Thornton, 56 Vt. 85; a stable, see
Dugle v. S., 100 Ind. 259; Reg. v.
Munson, 2 Cox, 186; Reg. v. Haugh-
ton, 5 C. & P, 555. As to sheds, see
Reg. v. Munson, 2 Cox, 186; Reg. v.
Amos, 2 Den. 55. The charge of
burning a stable is not supported by
proof of burning a shed not used for
the purposes of a stable: Reg. v..
Colley, 2M. & Rob. 475. But under
an indictment for burning a certain
building “called a barn,” evidence-
that the building burned was only a
shed was held not to constitute a.
variance: S. v. Smith, 28 Ia. 565.
As to the burning of a corn-crib,.
see Brown v. S., 52 Ala, 345; 8 v..
Millican, 15 La, An, 557. A descrip-
tion of the building as a “barn or
stable,” or a “barn, house or build--
ing,” is defective: Horton v. S., 60:
Ala, 72,
8 As to a warehouse, see Allen v.
S., 10 Ohio St. 287; store-house, 8. v.
Sandy, 3 Ired. 570; cotton-house,
Washington v. 8. 68 Ala. 85; mill,.
S. v. Upchurch, 9 Ired. 454; 8. v.
Livermore, 44 N. H. 386; shop, S.
v. Morgan, 98 N. C, 641; S. v. O’Con--
nell, 26 Ind, 266.
9S. v. Emerson, 58 N. H. 6193.
Staeger v. C., 108 Pa, St. 469; C. v..
610
Ca. 25.) ARSON AND OTHER BURNINGS. | [§ 521.
with reference to the burning of railroad bridges.!. Although,
as will hereafter appear, the burning of personal property is
not arson, such burning is made criminal by various statutes.
Thus, it is made a crime to burn stacks of hay, grain, straw,
etc.? So it is made criminal to set fire to another’s grain,
grass, etc.,? or to another’s woods.‘
§ 521. The house of another.— In arson, as in burglary, the
offense consists in putting in danger another’s home, and there-
fore the house must be the dwelling of another than the ac-
cused. It is not common-law arson for one to burn his own
house;° nor for a wife to burn her husband’s house, she being
an occupant as well as he.® The element of wrong in arson
is the injury of another with reference to his dwelling, and
therefore one who burns the dwelling-house of another by
the owner’s procurement is not guilty.’’ The person in pos-
session is deemed the owner, and therefore a tenant is not
guilty of arson in burning the house occupied by him, injury
to the person occupying rather than to the holder of the title
being the criterion. But the landlord in such case may be
guilty of the crime, for he thereby does burn the dwelling of
Hamilton, 15 Gray, 480; S. v. Am-
bler, 56 Vt. 672; S. v. Gregory, 83
La. An. 737. Even though the build-
ing is actually a part of the dwelling
so that the common-law crime of
arson is committed, yet there may
be a conviction therefor under a
charge of burning a building or out-
house: C. v. Smith, 151 Mass, 491;
Rex v. North, 2 East, P. C. 1021. But
if the building is described as a
dwelling there cannot be a convic-
tion for the burning of a building
other than a dwelling; the descrip-
tion must be proved as laid: C. v.
Hayden, 150 Mass. 382.
1Duncan v. S., 29 Fla. 439.
28. v. Pope, 9 S. C. 273; Black v.
S., 2 Md. 876; Erskine v. C.,8 Grat.
624; Rex v. Judd, 2 East, P. C. 1018;
Rex v. Swatkins, 4 C. & P. 548; Rex
v. Reader, 4 C. & P. 245; Rex v. Aris,
6 C. & P. 348; Rex v. Tottenham, 7
C. & P. 237; Reg. v. Satchwell, L. R.
20. C. 21; Reg. v. Spencer, Dears. &
B. 181; Rex v. Woodward, 1 Moody,
823; Reg. v. Baldock, 2 Cox, 55; Reg.
v. Munson, 2 Cox, 186; Reg. v. Mc-
Keever, 5 Ir. R. C. L. 86.
8S. v. Lewis, 10 Rich. 20; S. v.
Avery, 109 N. C. 798.
4Hall v. Cranford, 5 Jones, 3; Ear-
hart v. C., 9 Leigh, 671; Reg. v. Price,
9C. & P. 729,
5 Roberts v. S.,7 Coliw. 359; Heard
v. S., 81 Ala. 55; P. v. De Winton, —
Cal. —,, 45 Pac. R. 708. But in Louisi-
ana the statute renders it immaterial
that the house is the property of the
accused: §S. v. Elder, 21 La. An. 157;
S. v. Rohfrischt, 12 La. An. 382.
6Snyder v. P., 26 Mich. 106; Rex
v. March, 1 Moody, 182.
78. v. Haynes, 66 Me. 307; C. v.
Makely, 181 Mass. 421; Heard v.6.,
81 Ala. 55.
8S. v. Fish, 27 N. J. 323. One in
possession, even by wrong, is not
guilty of arson in burning the house:
Sullivan v. S., 5 Stew. & P. 175.
511
§ 522.] [Parr VI.
OFFENSES AGAINST THE HABITATION.
another, that is, the tenant.! One who is in possession as a
mere servant of the owner, and not a tenant, is guilty of arson
in burning the house, for the house is that of another? The
ownership should be alleged as in the person in possession.’
These distinctions are, to a considerable extent, modified or
abolished by statutory provisions. Thus, it is made criminal
for a tenant in occupancy of premises to burn them, the injury
being deemed to be to the rights of the landlord.‘ If it is made
an offense to burn a building in which there is a living person
at the time,> this would include the burning of one’s own
house, another person being at the time therein. At common
law it is a misdemeanor, although not arson, to burn a build-
ing, even one’s own, whereby the dwelling of another is.en-
dangered,’ and statutes sometimes make this arson. Of course,
it would be arson, and not merely a statutory offense, if, as a
natural consequence of the setting fire to one’s own building or
property, the dwelling of another near by should be burned.’
§ 522. Intent to defraud insurance companies and others.
A further illustration of cases where the burning of one’s own
building, not being arson at common law, is made a crime by
statute because resulting in injury to others, is the case of
burning one’s own building with intent to defraud the insurer
of such building. Such a statutory provision is found in Eng-
land and most of the states. And thereunder it must be al-
leged that the building was insured and that the act was with
intent to injure the insurers, and the fact of insurance must
19, v. Fish, 27 N. J. 323; Erskine
vy. ©, 8 Grat. 624; Rex v. Harris, 2
East, P. C. 1023.
2 Rex v. Gowen, 2 East, P. C. 1027.
3 See infra, § 529.
4P. v. Fisher, 51 Cal. 319; P. v.
Simpson, 50 Cal. 304; Allen v. S., 10
Ohio St. 287; S. v. Fish, 27 N. J. 323.
5 Infra, § 524
6 Shepherd v. P., 19 N. Y. 537; Levy
v. P., 80 N. Y. 327; S. v. Hayes, 78
Mo. 807; Tuller v. 8., 8 Tex. Ap. 501;
Reg. v. McGrath, 14 Cox, 598.
7Rex v. Probert, 2 East, P. C. 1030;
Rex v. Isaac, 2 East, P. C. 1031; Rex
v. Scofield, 2 East, P. C. 1028; S. v.
51
Fish, 27 N. J. 823; Heard v.S.,81 Ala.
56.
8Gage v. Shelton, 3 Rich. 242;
Grimes v. S., 63 Ala. 166.
98. v. Lauglin, 8 Jones, 354; Early
v. C., 86 Va. 921; Rex v. Cooper, 5 C.
& P. 535. Whether the defendant
intended to burn another building
than that in which the combustibles
were placed is a question of fact:
C. v. Harney, 10 Met. 422. But it is
said in another case that the fire
must be set to the dwelling itself in
order to constitute common-law
arson: P, v. Fairchild, 48 Mich, 31,
10 Staaden v. P., 82 Ill. 482.
2
Cu. 25.] ARSON AND OTHER BURNINGS.
[§ 523.
have been known to the defendant, but it is immaterial that
the policy is invalid? It is immaterial also that the policy is
made payable to the mortgagee of the premises.? The offense
in this class of cases consists in the destruction or burning of the
building rather than in merely setting fire to it, but a partial
destruction is sufficient to constitute a burning! This offense
is a kind of fraud, and evidence tending to show or to negative
an intent to defraud is admissible.’ But the intent to defraud
need not be shown by the allegation of particular circumstances,
unless required by statute. As in other cases where the crime
‘consists in an intent to defraud, the name of the person or cor-
poration intended to be defrauded should be alleged, and in
case the fraud is against a corporation or partnership, with the
corporate or partnership capacity.’ But proof of the de facto
existence of the corporation is sufficient. This offense is dis-
tinct from the offense of arson, and a conviction therefor can-
not be had under an indictment for arson.°
§ 528. The burning.— If any part of the house be consumed
by fire there is such burning as to constitute the offense.” If
the wood of the house is charred so as to destroy its fiber, the
crime is completed though there is no blaze and the burning
‘does not proceed further." It is not necessary that some part
of the house be destroyed or consumed; burning is sufficient.”
But there must be something more than a mere scorching or
blackening.” The allegation should be that defendant did
“burn” the building, not merely set fire to it. The question
whether the house is actually burnt within the foregoing de-
1 Martin v. S., 28 Ala. 71.
2McDonald v. P., 47 Ill. 533.
88. v. Byrne, 45 Conn. 273.
48. v. Babcock, 51 Vt. 570.
5 Reg. v. Grant, 4 F. & F. 322; Reg.
v. Gray, 4 F. & F. 1102; Rogers v.&.,
26 Tex. Ap. 404.
6 Reg. v. Heseltine, 12 Cox, 404.
7P, v. Schwartz, 32 Cal. 160.
8P, v. Hughes, 29 Cal. 257; P. v.
Schwartz, 32 Cal. 160; S. v. Tucker,
84 Mo, 23; S. v. Byrne, 45 Conn. 273;
U.S. v. Amedy, 11 Wheat. 392.
9C. v. Makely, 131 Mass. 421; Rob-
erts v. S., 7 Coldw. 359.
33
10C, v. Van Schaack, 16 Mass. 105;
S. v. Sandy, 8 Ired. 570; S. v. Mitch-
ell, 5 Ired, 350; P. v. Butler, 16 Johns,
203.
1 P, v, Haggerty, 46 Cal. 354; S. v.
Taylor, 45 Me. 322; Reg. v. Parker, 9
C. & P.45; Rex v. Stallion, 1 Moody,
398.
12C, v. Tucker, 110 Mass. 403.
13 Woolsey v. S., 30 Tex. Ap. 346;
Reg. v. Russell, Car. & M. 541.
14 Howell v. C., 5 Grat. 664; Coch-
rane v. S., 6 Md. 400; Mary v. S., 24
Ark, 44; Polsten v. S., 14 Mo. 463.
513
[Parr VL.
§ 524.) OFFENSES AGAINST THE HABITATION.
scription is for the jury, even when a portion of the wood show-
ing the extent of the injury is introduced in evidence.' Some
of the statutory offenses of burning involve such destruction as
to cause injury and are not completed merely by setting the
building on fire? The burning must be of the building or
some part of it;* if the fire is set to and burns only chattel
property in the house, and no portion of the house itself, the
offense of arson is not committed! Setting fire to matter with
intent to cause a burning of the house is made a statutory
crime in the nature of an attempt,’ and under indictment there-
for the burning may be alleged, not as a distinct crime, but
as a statement showing the intent with which the fire was set.®
§ 524. Person in the building.— There are statutory pro-
visions in some states with reference to setting fire to a build-
ing in which there is at the time a human being, or which is.
used as a lodging place. Under such statute the presence of a
person in the building or its use as a lodging place is the im-
portant fact,’ and the ownership of the building is immaterial.®
In such case it is not necessary to allege the name of the per-
son nor that the accused knew of his presence in the building
at the time. But if the statute specifies that such person must
be lawfully in the building to constitute the crime, then that
fact must be specifically stated, and the mere identity of the
name with that of the owner of the building as alleged will
not be sufficient." The person must be actually in the building
when the fire is set.! The gist of this offense is the danger in-
volved to the person in the building and not the injury to the
building itself, and, therefore, if the presence of some person
1C. v. Betton, 5 Cush. 427. 68. v. Hull, 83 Ia. 112.
2Hester v.S., 17 Ga. 180; S. v. De
Bruhl, 10 Rich. 23; Rex v. Salmon,
Russ. & Ry. 26.
3 Pp, v. Simpson, 50 Cal. 304.
4Graham v. S., 40 Ala. 659; Rex v.
Taylor, 2 East, P. C. 1020; Reg. v.
Child, L. R. 1 C. C. 307; Reg. v. Bat-
stone, 10 Cox, 20; Reg. v. Harris, 15
Cox, 75; Reg. v. Nattrass, 15 Cox, 73;
Reg. v. Lyons, Bell, 38.
58. v. Dennin, 32 Vt. 158; S. v.
Johnson, 19 Ta, 280; 8. v. Clay, 12 La.
An, 431; Reg. v. Taylor, 1 F. & F. 611.
7Childress v. S., 86 Ala. 77; 8S. v-
Jones, 106 Mo. 302.
8S. v. Hayes, 78 Mo. 807. This.
crime can be committed by burning
one’s own house: See supra, § 521.
9S. v. Aguila, 14 Mo. 180.
10 Lacy v. S., 15 Wis, 13.
1G, v. Buzzell, 16 Pick. 158; Reg.
v. Fletcher, 2 C, & K. 215. But it is.
immaterial whether he had an op-
portunity to escape: Woodford v. P.,
62 N. Y¥. 117.
514
Cu. 25.] ARSON AND OTHER BURNINGS. [S§ 525, 526.
is not proven, it is said there can be no conviction for a burn-
ing with intent to injure or defraud,! though of course there
may be for arson. The offense provided for by such statutes
is usually made the first degree of arson where the crime is
divided into degrees;? but the burning of a dwelling-house is
also usually included in the first degree, in which case it is not
necessary to allege and prove that there was a person in the
house. There is an English statute with reference to the
damaging of any building by dynamite or other explosive sub-
stance whereby the lives of persons are endangered.!
§ 525. Other matters of aggravation; degrees; night-
time.— By statute the offense is sometimes divided into de-
grees, some elements of aggravation being taken into account
in determining the higher degrees.’ Setting fire to a building
in which there is any human being is sometimes made a higher
degree of the offense,’ and it is also sometimes made the first
degree of the offense that the house is set fire to in the night-
time;? but the common-law offense is committed either in the
day or night, and, therefore, if the allegation is not sufficient
to sustain a conviction for the aggravated offense of setting
fire in the night-time, there may be a conviction for setting
fire in the day-time. But to warrant a conviction of the ag-
gravated offense the facts constituting such offense should be
alleged.®
§ 526. The intent.— While the definitions usually speak of
the act as malicious and wilful,” yet arson is not a crime involv-
ing any specific intent in addition to the act done. The in-
tent to burn is the only intent required and that is necessarily
1Reg. v. Paice, 1 C. & K. 73.
2 Woodford v. P., 62 N. Y. 117.
3 Paine v. S., 89 Ala. 26.
4Reg. v. McGrath, 14 Cox, 598;
Reg. v. Brown, 3 F. & F. 821. Under
a statute punishing the throwing of
any explosive against a building, the
explosive must be in a condition to
explode when it is thrown, although
an actual explosion is not necessary:
Reg. v. Sheppard, 11 Cox, 302.
5 As to form of indictment for the
third degree, see Leonard v. S., 96
Ala. 108.
6See preceding section.
7S. v. Nolan, 48 Kan. 728.
8Curran’s Case, 7 Grat. 619;
Brown v.5S., 52 Ala. 345; Cheatham
v. S., 59 Ala. 40; Dick v. S., 53 Miss.
384; Brightwell v. S., 41 Ga. 482.
9Dick v.S., 53 Miss. 384; Davis v.
S., 52 Ala. 357. But this will depend
upon the statute, and under some
statutes the aggravation is a mere
matter of proof and not of allega-
tion: Brightwell v. S., 41 Ga. 482,
10 Jesse v. S., 28 Miss. 100; Young v.
C., 12 Bush, 243.
515
§ 526.) [Parr VI.
OFFENSES AGAINST THE HABITATION.
implied in the act,! unless some excuse, such as accident, ap-
pears? An intentional wrongful burning makes the act wilful
and malicious, and no special malice or ill-will toward the owner
is necessary.’ Nor is it necessary that there be an intent that
the building be destroyed, the wilful and malicious burning
being sufficient.! There must be an intent, however, to burn
the house which is burned in order to support an indictment
therefor, and if fire is set to another building and a dwelling-
house is thereby burned, to convict the accused of the burning
of the latter it must appear that such was the intent with which
the fire was set.2 But the intent to burn the building which
is burned may be inferred from the fact that such result is a
natural consequence of the burning of the building to which
the fire is set.6 So if an act is done with the purpose of caus-
ing a fire which will be criminal, and a fire naturally results
therefrom, the crime is committed.’ If there is a combination
to do an unlawful act, and in the prosecution of the design and
as a result and necessary consequence a house is burned, all
are guilty of arson.? Under some statutes, acts of burning
which would not constitute arson are, as has already been
seen,® criminal if done with intent to defraud, and in such case
the intent to defraud becomes material and must be alleged
and proven.” But such an allegation is supported by evidence
that the natural consequence of the burning of the building
would be injury to the owner." But an ordinary indictment
1S, v. Watson, 68 Me, 128; S. v.
Hill, 55 Me. 865. The co-operation
of a detective will not prevent the
act being criminal: P. v. Greening,
102 Cal. 884. And see supra, §§ 117,
118,
2Reg. v. Faulkner, 13 Cox, 550; S.
v. Carroll, 85 Ta. 1.
38, v. McCarter, 98 N. C. 687; Reg.
v. Davies, 1 F. & F. 69; Rex v. Sal-
mon, R, & R. 26.
4P. v. Fanshawe, 1387 N. Y. 68.
Thus, if the intention in setting fire
to a building wasto obtain a reward
for giving the earliest information
of the fire at the engine station, the
crime would be complete: Reg. v.
Regan, 4 Cox, 335.
5 Woodford v. P., 62 N. Y. 117; 8,
v. Watson, 63 Me. 128; S. v. Hill, 55
Me. 365; Combs v. C., 93 Ky. 313,
® Woodford v. P., 62 N. Y. 117.
7Overstreet v.S., 46 Ala. 30, which
was a case where matches were put
in cotton in a gin-house with the in-
tention and expectation that they
would be ignited in the necessary
and probable handling of the cotton,
and they were so ignited and the
gin-house was burned.
8 Lusk v. S., 64 Miss, 845,
9 Supra, § 522,
10 Rex v. Smith, 4 C. & P. 569; Reg.
v. Newboult, L. R.1 C. C, 344; Reg.
v. Connor, 2 Cox, 65.
Rex v. Farrington, Russ. & Ry.
516
Cu. 25.] ARSON AND OTHER BURNINGS. [§§ 527-529. |
for arson need not aver an intent thereby to injure and de-
fraud.’ It has been suggested that the setting fire by an in-
mate of a jail or poor-house with the intent to burn a hole
therein for the purpose of effecting escape would not be arson ;?
but in reason arid on authority this doctrine is not supported,
and it is immaterial what is the ultimate intent in the burning
if it is unlawful
§ 527. Indictment; venue.— It is not necessary to describe
the house or building with reference to any particular city,
town or village.* It is only essential that the offense be so de-
scribed in this respect as to show it to have been committed
within the jurisdiction of the court.’ A mistake as to the
name of the place is immaterial, the crime being transitory
and not local.$
§ 528. Description of property.— The allegation that the
house was “used as a dwelling-house” is sufficient to charge
that it was a dwelling-house;’ so to describe the building as
a “dwelling-house used as a shop” is a sufficient allegation to
bring it within the statute as to the burning of a shop.2 The
value is immaterial unless the punishment is in some way made
to depend upon value.’
§ 529. Description of ownership.— The indictment must
show that the house was that of another (except where circum-
stances are alleged showing the offense to be a crime when
committed with reference to one’s own house), and the indict-
ment must state the name of the owner and the proof must
correspond.” The name of the owner is a necessary part of the
207; Rex v. Newell, 1 Moody, 458.
Where the building set on fire was a
common jail kept in repair by rates
levied upon the inhabitants of the
liberty in and for which the jail was
kept, held, that an indictment for
setting fire to the jail should allege
it to be with intent to injure the
inhabitants of the liberty: Reg. v.
Connor, 2 Cox, 65.
1§. v. Thompson, 97 N. C. 496.
2P, v. Cotteral, 18 Johns. 115; Jenk-
ins v. S., 53 Ga. 33.
3 Lockett v. S., 63 Ala. 5; Smith v.
S., 23 Tex. Ap. 357 (overruling De-
lany v. S., 41 Tex. 601); Willis v. S.,
32 Tex. Ap. 534,
4Smith v. S., 64 Ga. 605.
5C. v. Lamb, 1 Gray, 498; C. v.
Barney, 10 Cush. 478; P. v. Wooley,
44 Cal. 494; Duncan v. S., 29 Fla. 489.
6 Rex v. Woodward, 1 Moody, 323.
7McLane v. S., 4 Ga. 335.
8S. v. Morgan, 98 N. C. 641.
9 Ritchey v. 8., 7 Blackf. 168.
10C, v. Mahar, 16 Pick. 120; Martha
v.S., 26 Ala. 72; S. v. Keena, 63 Conn.
829; Rex v. Rickman, 2 East, P. C.
1034,
517
§ 529.] OFFENSES AGAINST THE HABITATION. [Parr VI.
description, and cannot be rejected as surplusage,! and the alle-
gation as to ownership must be direct and certain.? Therefore,
an allegation of the burning of a building containing the prop-
erty of a person named, without allegation as to the ownership
of the building, is insufficient ; * and the allegation of the owner-
ship of the property in the building and its value is immaterial.
Under statutes with reference to the burning of public build-
ings, the ownership is sometimes not required to be stated.’
The form of alleging ownership is not essential, and the house
named may be described as “ belonging to” “ the property of,”
“owned by,” or “in possession of,” or simply “of,” a person
named.’ As already indicated, the house is to be described as
that of the person in possession of it, rather than as that of the
owner of the title,’ and if the indictment state the name of the
occupant that is sufficient.6 So ownership may be laid in
the widow of the deceased owner who occupies the premises,
although dower has not yet been assigned;® and while general
ownership is to be laid in the husband rather than in the wife,”
yet, where a wife occupied and cultivated the premises in the
husband’s absence and had a corn-pen built, it was held that an
indictment for the burning of the corn-pen properly laid owner-
ship in the wife." Ina charge of burning a jail, possession may
be laid in the jailer. Where the name of the occupant is
stated it is redundant, although not fatal, to allege also the
name of the general owner." But it is said that an allegation
showing property in one person, and that the house is the
dwelling of another, is fatally defective for uncertainty.“ The
question being as to the occupant and not as to the title, evi-
dence of title is immaterial.” The doctrine with reference to
1McGary v. P., 45 N. Y. 153, ‘Wooley, 44 Cal. 494; P. v. Handley,
2P. v. Myers, 20 Cal. 76. 100 Cal. 370.
3 Smoke v. S., 87 Ala. 1438. 9S. v. Gailor, 71 N. C. 88.
4C. v. Brailey, 134 Mass. 527. 10 Supra, § 495.
5 Mott v. S., 29 Ark. 147; S.v. Roe, May v. S., 85 Ala. 14.
12 Vt. 93. Otherwise it should be 1}? Reg. v. Connor, 2 Cox, 65.
described as the property of the 13 Rogers v. S., 26 Tex. Ap. 404; P.
public corporation to which it be- v. Shainwold, 51 Cal. 468; P. v. Hand-
longs: Lockett v. S.,63 Ala.5; Sands ley, 100 Cal. ‘370; S. v. McCarter, 98
v.8.,80 Ala. 201. N. C. 6387,
6 Woodford v. P., 62 N. Y. 117. 14 P, v. Myers, 20 Cal. 76.
-7 Supra, § 521, 15 P, v. Scott, 32 Cal. 200; S. v. Bur-
® Young vy. C., 12 Bush, 243; P. v. rows, 1 Houst. Cr. C. 74.
518
On. 25.] ARSON AND OTHER BURNINGS. ' [8§ 530, 531.
occupancy being sufficient is applicable to statutory offenses
of burning as well as to arson.! Where the premises are in the
occupation of a tenant, the house should be alleged as that of
the tenant and not of the landlord? So where the premises
are in possession of a servant, but as tenant during the con-
tinuance of the relation of servant, the ownership may be laid
in such servant.’ Proof of possession unquestioned will be suffi-
cient evidence of property, although the title is in another.‘
Where one of two tenants in common is in possession, the house
may be properly described as his;> and where it is described
as occupied by two persons as tenants, proof that one is a tenant
and the other a subtenant under him does not create a mate-
rial variance. Ifthe ownership is laid in a private corpora-
tion, proof of de facto existence is sufficient.”
§ 530. Allegation of intent.— The indictment should al-
lege the act as malicious in accordance with the definition,®
but as the malice which is required is simply the intent to do
the wrongful act, it is held sufficient to allege that the act was
wilfully done.® The allegation that the act was unlawful will
be sufficient without stating it to have been wilful, it being
charged as malicious and felonious.” But an allegation that
it was felonious, voluntary and malicious was held insufficient
where it was not charged that it was unlawful."
§ 531, Forms of indictment.— The form of indictment for
arson is simple, and the variations rendered necessary by stat-
utory provisions are usually plainly indicated by the language.
FOR COMMON-LAW ARSON.
That A. B., in the county aforesaid, on ——, the dwelling-
house of one C. D., there situate, did unlawfully, wilfully,
maliciously and feloniously set fire to and burn.”
1§. v. Kroscher, 24 Wis. 64. 5 Adams v. §., 62 Ala. 177.
28. v. Tennery, 9 Ia. 436; S. v. © Woolsey v. S., 30 Tex. Ap. 346.
Bradley, 1 Houst. Cr. C. 164; P. v. 7Duncan v. S., 29 Fla. 439.
Gates, 15 Wend. 159; C. v. Buckley, 8 Maxwell v. S., 68 Miss. 339,
148 Mass. 27. But held that under an 9Thomas v. S., 41 Tex. 27; S. v.
allegation of possession by a certain Nickleson, 45 La. An. 1172. Contra,
person, evidence of possession by his Kellenbeck v. 8., 10 Md. 481.
tenant will not constitutea variance: 1§. v. Thorne, 81 N. C. 555.
Harvey v. 8., 67 Ga. 689. ll Rex v. Reader, 4 C. & P. 245,
3 Davis v. S., 52 Ala. 357. 12.No exact precedent for the order
4S. v. Thompson, 97 N. C, 496, of arrangement of the terms in this
519
§§ 532, 533.] oFFENSES AGAINST THE HABITATION. [Part VI.
FOR BURNING DWELLING-HOUSE IN NIGHT-TIME, HUMAN BEING
THEREIN.
That A. B., in the county aforesaid, on ——, about the hour
of ten in the night-time of said day, unlawfully, maliciously and
feloniously did set fire to and burn the dwelling-house of T. H.
then and there situate, in which said dwelling-house there was.
then and there a human being.
FOR BURNING BUILDING TO DEFRAUD INSURER,
That A. B., in the county aforesaid, on ——, did set fire to
and burn the dwelling-house of him, the said A. B., there situ-
ate, with intent thereby to defraud a certain insurance company
called the , said dwelling-house then and there being in-
sured against loss or damage by fire by the said company for
the sum of one thousand dollars.
§ 532. Included offenses.— The burning of a building not
a dwelling is not included in the charge of burning a dwelling-
house; the term “dwelling-house,” being matter of descrip-
tion, must be proved as laid.* Neither is the crime of burning
insured property with intent to defraud included in a charge
of common-law arson.‘
§ 533. Evidence.— Prior difficulties between the defendant
and the owner may be shown for the purpose of supplying a
motive.’ So the presence in the building of property of a per-
son not the owner, against whom the defendant had malice,
indictment can be cited, but it cer-
tainly contains the essentials of all
the various forms.
1SeeS. v. Aguila, 14 Mo. 180; Wood-
ford v. P., 62 N. Y. 117. In Wiscon-
sin the statute requires that the
human being shall have been law-
fully in the house, and that fact
must be alleged to constitute the
first degree: Lacy v. S., 15 Wis. 13.
In the Wisconsin case the name of
the person who was in the house is
stated in the indictment, and Bishop
regards such a statement as essen-
tial: Bish. Direc. & Forms, § 188 and
note. Butin 8S. v. Aguila, supra, it
is expressly held not to be necessary,
and itis not found in the indictment
given in Woodford v. P., supra,
though the question is not there
passed upon.
2 This is substantially the form au-
thorized in Archbold’s Criminal
Practice and Pleading, with the ad-
dition, however, of the allegation
that the property was insured in
said company, which is necessary
under some statutory provisions.
3C. v. Hayden, 150 Mass. 382; P.
v. Handley, 93 Mich. 46,
4 Dedieu v. P., 22 N. Y. 178
5Hudson v.S., 61 Ala. 333; Oliver
v. S., 83 Tex. Ap. 541. In case of
burning a jail the indictments
against defendant and others under
which they were held in confine
ment in such jail may be shown:
Lockett v. S., 63 Ala. 5,
520
Cu. 25.] ARSON AND OTHER BURNINGS. [§ 533.
may be shown;! or that defendant had charged that his wife
was living in improper relations with the owner of the prop-
erty;? or that defendant charged with burning with intent to
defraud an insurance company had other insurance on the prop-
erty? Prior attempts of defendant to burn the same building
may be shown as indicating his intent;‘ and, indeed, it is said
that previous attempts to burn the premises may be shown
without evidence that such attempts were made by the defend-
ant,> and that the presence of the defendant at the time of such _
previous attempts, and his demeanor, may be shown; ‘ and also
the presence and demeanor of defendant at other similar fires.”
But it is not competent to show similar fires on other premises.®
A general conspiracy to burn houses entered into between de-
fendant and another, and a subsequent agreement to burn the
particular house, may be proven.’ Previous presence of the
defendant in a suspicious way about the premises may be shown,”
and in behalf of the defendant it may perhaps be shown that
another person had threatened to burn the house and was in
the vicinity at the time it was burned;" but threats alone,
made by a third person, are not admissible.” Where it appears
that the crime was committed in the absence of the occupant,
evidence that goods were found in defendant’s possession which
were in-the building just before the fire is admissible; and as
tending to show motive, the fact of the commission of larceny
may be proven.“ Before circumstantial evidence is admissible
to connect the prisoner with the burning, it must appear that
the building was feloniously and not accidentally burned.* Evi-
dence of experiments in order to show the way in which the
building was set on fire is admissible.”
1McAdory v. S., 62 Ala. 154, 9 Hall v. S., 3 Lea, 552.
28. v. Rhodes, 111 N. C. 647, 10S, v. Crawford, 99 Mo. 74.
3§. v. Cohn, 9 Nev. 179. 11 Hensley v. S., 9 Humph. 242,
4P, v. Shainwold, 51 Cal. 468; S.v. 12 Carlton v. P., 150 Ill. 181.
Ward, 61 Vt. 153. 138, v. Vatter, 71 Ia. 557. For a full
5 Reg. v. Bailey, 2 Cox, 311. And discussion of the question as to ad-
see Brock v. S., 26 Ala. 104; S. v. missibility and weight of evidence as
Rohfrischt, 12 La. An. 382. to recent possession of stolen goods,
6 Reg. v. Dossett,2 C. & K. 306; see supra, § 514, and infra, § 616.
but contra, see Reg. v. Harris,4 F.& 14 Jones v. S., 63 Ga. 395.
F, 342. 15 Phillips v. S., 29 Ga. 105.
7 Reg. v. Taylor, 5 Cox, 136. 16 Reg. v. Heseltine, 12 Cox, 404,
8 Reg. v. Regan, 4 Cox, 335.
521
PART VII.
OFFENSES AGAINST PROPERTY.
CHAPTER 26,
LARCENY.
L Derimirion. V. THE INTENT.
II. WHat PROPERTY SUBJECT OF | VI. ComPOUND LARCENIES.
LARCENY. VIL VaLuE as DETERMINING PUN-
{IL OWNERSHIP OF THE PROPERTY. ISHMENT; GRAND AND PETIT.
IV. THE Act: TAKING AND CAR- | VIII. PROCEDURE
RYING AWay. IX. EVIDENCE
I. Derinirion.
§ 534. Technical.— This offense is the most technical in its
distinctions of all the common-law felonies The reason for
this is perhaps to be found in the fact that, inasmuch as the
higher grade of the offense was, until since Blackstone’s time,
punishable capitally,? the courts were inclined to find technical
reasons to avoid the infliction of that penalty for mere wrong
done with reference to property. By reason of the deprecia-
tion of money, and the consequent appreciation of the money
value of property, which took place within about two centuries
and a half after the passage of the statute of Westminster I.
(A. D. 1275), chapter 15 of which made grand larceny to consist
of the stealing of property “above the value of twelve pence,”
cases of larceny became capital which would not have been
such at the time the statute was passed, and therefore Lord Coke
suggests that the valuation of property in determining whether
the offense was grand larceny ought to be “reasonable.” *
1¥For the origin of some of its in- 32 Inst. 189; 2 East, P. C. 736; 4 BL
tricacies, see 8 Stephen, Hist. Cr. L. Com. 237; Spelman, Gloss., s. v. Lar-
121. icintum; 1 Bish. Cr. L., § 679; 1
24 B). Com. 236; but with benefit Green, Cr. L. R. 339, note. Accord-
of clergy for the first offense: 4 Bl. ing to Coke, money had by his time
Com. 238 ; decreased to about one-third of its
523
[Paxr VII.
§§ 535, 536.] OFFENSES AGAINST PROPERTY.
§ 535. In brief.— It has been found by writers on the sub-
ject to be impossible to give any short description of the offense
which shall be accurate and at the same time embody the
various technical distinctions which have been recognized in
administering the law with reference to this crime. Inasmuch,
therefore, as no definition however elaborate can satisfactorily
present its peculiarities, it seems better to adhere to some sim-
ple and well-recognized form of statement which shall not be
inaccurate in itself, leaving the explanation and elaboration of
the definition to be presented in the discussion of the different
doctrines of the offense as they have been worked out by the
courts. For that purpose there is probably no definition which
is better than that of Blackstone, “the felonious taking and
carrying away of the personal goods of another.” }
II. Wuart Proverty Supyect or Larceny.
§ 536. Not realty.— The definition indicates that the crime
can be committed only with reference to personal property,
and therefore not as to anything which is a part of the realty.
But as the taking and carrying away would necessarily termi-
nate the character of the property as realty, even if it were
such before, the important point in this distinction is, that if the
severance from the realty of anything which is a part thereof,
or annexed thereto, so as to go with the realty by descent or
in case of conveyance, is made by the wrong-doer himself, so
value at the time the statute of
Westminster L was passed. As to
the depreciation of English money,
see Encyc. Brit. s. v. Money, 6.
14 Bl. Com. 229. For other analo-
gous short definitions substantially
the same in purport as that of Black-
stone, see 3 Inst. 107; 1 Hawk. P.C.,
ch. 33, § 1; 1 Hale, P. C. 503; 2 East,
P. C. 553. These definitions are
quoted in the following cases among
others: S. v. Chambers, 22 W. Va.
779; Holly v. S., 54 Ala. 238; Ed-
monds v. S., 70 Ala. 8; Johnson v. P.,
113 IIL 99; Mead v. S., 25 Neb, 444;
Thompson v. P., 4 Neb. 524; Dig-
nowitty v. S., 17 Tex. 521. For more
elaborate definitions, see Stephen,
5
Dig. Cr. Law, art. 295; 2 Bish. Cr.
L,, § 758; Grose, J., in Rex v. Ham-
mond, 2 Leach, 1083, 1089; and other
definitions collected in 2 Russ. Cr. 2;
3 Stephen, Hist. Cr. L. 129-141; 2
Bish. Cr. L. § 758, note. Under the
Texas statute, “theft” and “steal-
ing” are synonymous, and include
all unlawful acquisitions of per-
sonal property punishable by law:
Carr v. S., 9 Tex. Ap. 463; Martin v.
S.,9 Tex. Ap. 298; Quitzow v.S., 1
Tex. Ap. 65; Marshall v. 8. 4 Tex.
Ap. 549, But the mere fraudulent
taking is not enough; the statute
enumerates other elements of the
offense: Johnston v. §., 25 Tex. Ap.
731,
4,
Cu. 26.] [§ 536.
LARCENY.
that the taking and carrying away is a continuous act, the
offense is not larceny, because the taking and carrying away is
not of the personal property of another, that which was sev-
ered not having been in his possession as a chattel but only as
a portion of the realty. Thus, if ore which has not been mined
or otherwise severed so as to convert it into a chattel of
the owner is severed and carried away by a wrong-doer, the
offense is not larceny.! On. the same reasoning, water or ice
is not subject of larceny while remaining a part of the realty ;
but if the ice is cut and stored in an ice-house,? or the water is
pumped into supply pipes,’ it is subject of larceny like other
personal property. Seaweed lying ungathered on the shore is
a part of the realty and not subject of larceny.‘ So, it is
not larceny to wrongfully detach from a building and carry
away a portion of it, such as metal pipes or troughs or other
things attached to and part thereof But the courts have ex-
pressed their disapproval of doctrines so technical, even while
compelled to follow them;* and in cases where the annexation
is constructive, only, have held the taking and carrying away
to be larceny. It has been so held as to window sashes not
permanently annexed to the building,’ chandeliers,’ doors taker
from their hinges,’ rails in a fence,” belts belonging to a mill,"
18. v. Burt, 64 N. C. 619; S, v. Ber-
ryman, 8 Nev. 262. Where the in-
dictment charged that the defendant
did “unlawfully and _ feloniously
take, steal and carry away fifty-two
pounds of gold-bearing quartz of the
property, etc., of the value, etc.,”
held, that it did not appear but that
the ore had been first severed by the
wrong-doer in the act of carrying it
away and that the indictment was
bad: P. v. Williams, 35 Cal. 671.
But where the indictment was for
stealing a quantity of specimens of
gold and silver ore, etc., held, that
the description was sufficient to in-
dicate that the ores were personal
property: P. v. Freeman, 1 Idaho
(N. 8.), 322.
2 Ward v. P., 6 Hill, 144; S. v. Pott-
meyer, 33 Ind. 402.
3Ferens v. O’Brien, 11 Q. B. D. 21.
4Reg. v. Clinton, 4 Ir. B.C. L 6.
But where waste coal was carried
upon land by a stream, held, that
although it was realty as thus de
posited along the shore, one who
gathered it into a boat and appro-
priated it was guilty of larceny: C.
v. Steimling, 156 Pa. St. 400, 27 Atl. R.
297.
58. v. Hall, 5 Harr. 492; Smith v.
C.,14 Bush, 31; S. v. Davis, 22 La.
An. 77; Langston v. 8, 96 Ala. 44;
Lee v. Risdon, 3 Taunt. 188.
6P, v, Williams, 35 Cal. 671, And
see Holly v. S., 54 Ala, 238, and other
cases cited in the notes immediately
following.
7Rex v. Hedges, 1 Leach, 201.
8 Smith v. C., 14 Bush, 31.
9Ex parte Wilke, 34 Tex. 155.
10 Harberger v.S., 4 Tex. Ap. 26.
11 Jackson v. S., 11 Ohio St. 104,
525
OFFENSES AGAINST PROPERTY. [Parr VII.
§ 537]
valves in a portable pump,! and the key of a door.’ So, trees
and shrubs, or fruit thereon, or grass or crops growing upon or
still remaining attached to the soil, are realty, and one who
severs and carries away such portion of the realty is not guilty
of larceny The wrongful severing and carrying away of
metal attached in some way to the land, as pipes, etc.,* or prod-
ucts of the soil,> are made misdemeanors by statute in Eng-
land and some of the states. The stealing of grain, fruit, etc.,
remaining ungathered in some states is made larceny.’ In
other states the taking of the products of the soil is punishable
as malicious trespass, which will be elsewhere considered.’
§ 537. Where the severance and carrying away are not
continuous.— If, after the wrongful severance, in cases such
as are described in the preceding section, the wrong-doer aban-
dons the property, even for a short space of time, and subse-
quently carries it away, the offense is larceny because the aban-
donment has placed the property in the possession of the owner
of the realty as a chattel and the subsequent taking is the tak-
‘lLangston v. S., 96 Ala. 44.
2Hoskins v. Tarrence, 5 Blackf.
417,
33 Inst. 109; 4 Bl. Com. 232; Gregg
v. S., 55 Ala, 116; Pinckard v. 8., 62
Ala, 167; S. v- Foy, 82 N. GC. 679: C. v.
Steimling, 156 Pa. 400, 27 Atl. R. 297;
Bartlett v. Brown, 6 R. I. 37; S. v.
Prince, 42 La. An. 817. :
4Reg. v. Jones, Dears. & B. 655;
Reg. v. Rice, Bell, 87; Reg. v. Gooch,
8 C. & P. 293; Rex v. Davis, 2 East,
P. C. 593; Rex v. Blick, 4 C. & P.
277; Rex v. Richards, Russ. & Ry. 28;
Rex v. Finch, 1 Moody, 418.
5Rex v. Hodges, Moody & M. 341;
Rex v. Brumby, 3 C. & K. 315.
6S. v. Liles, 78 N. C. 496; S. v.
Thompson, 93 N. C. 587; 5. v. Wash-
ington, 26 8. C. 604; S. v. Nelson, 28
8S. C. 16; S. v. Fife, 2 Bailey, 337;
Wiswell v. S., 21 Ohio St. 658; S. v.
Sheppard, 33 La. An. 1216. Under
such astatute, peas are included in
the general term “other grain:” S.
v. Williams, 2 Strobh. 474; but it
will not cover a case of entering
upon the land and carrying away
money, such act not being within its
general purpose: S. v. Vosburg, 111
N.C. 718. In Alabama the offense
is described as the carrying away of
any outstanding crop: Schamberger
v. &, 68 Ala. 543; Harris v. S., 60
Ala. 50. But under an indictment
for that offense there cannot be a,
conviction for larceny: Pinckard v.
8., 62 Ala. 167; Gregg v.S., 55 Ala.
116; and to the same effect, see S. v.
Washington, 26 S. C. 604. Such a
statute, if it covers generally the
stealing of property from a field,
may cover also cases of petit larceny
where the taking from the field is of
a crop already severed: S. v. Shuler,
19 S. C, 140; S. v. Nelson, 28 S. C. 16.
As to the construction of a statute
with reference to larceny of corn,
etc., or other product “cultivated
for food or market, growing, stand-
ing or remaining ungathered,” see
8. v. Bragg, 86 N. C. 687; S. v. Ballard,
97 N.C. 443,
T Infra, § 828.
526
Cu. 26.] LARCENY. [§ 538.
ing of personal property from the possession of the owner
within the definition of larceny.! The question is whether the
severance and carrying away are parts of one continuous trans-
action.’ If there is no abandonment, but the thing severed is.
only temporarily placed on the ground with the continuous.
intention of taking it away,’ or even is concealed with the pur-
pose of returning for it,t the subsequent carrying away is
deemed a part of the same transaction and does not constitute
larceny; but the cases just cited indicate a reluctance on the
part of the courts to countenance so technical a rule, and in a
recent case of a similar character, where waste coal washed
upon land by a stream was gathered in small quantities and
subsequently taken away, the court refused to follow it and
held the act to be larceny.’ So where a trespasser caused tur-
pentine to flow from trees on the land of another and subse-
quently collected it and carried it away, it was said that the
act might be larceny, although as the indictment was for the
stealing of “two barrels” of turpentine, it was held that the
acts proved did not constitute the offense charged.
§ 538. Animals fere nature or without value.— Larceny
can only be committed of that which is a subject of ownership.
Wild animals running at large belong to no one, and therefore
to take them from the premises of another, either by capture
or by killing and taking away the carcasses, is not larceny.’
Where such animals are reduced to control by being killed or
\Holly v. S, 54 Ala. 238; S. v.
Parker, 34 Ark. 158; S. v. Berryman,
8 Nev. 262; S. v. Prince, 42 La. An.
817; Lee v. Risdon, 7 Taunt. 188;
Emmerson v, Annison, 1 Mod. 89;
Reg. v. Foley, 17 Cox, 142. Where
dead rabbits were concealed by one
intending to wrongfully take them
away, but the agent of the owner
discovered and marked them, for the
purpose of detecting the thief, held,
that the act was not such reduction
to possession of the owner as to
make the subsequent taking away
a larceny: Reg. v. Petch, 14 Cox, 17.
28. v. Hall, 5 Harr. 492; Bradford
v. S., 6 Lea, 684; Bell v. S. 4 Baxt.
426,
3Bradford v. S., 6 Lea, 634; Bell
v. S., 4 Baxt. 426; S. v. Bragg, 86
N. C. 687.
4Reg. v. Townley, L. R. 1 C. 0.315.
And see Reg. v. Petch, 14 Cox, 17.
5C. v. Steimling, 156 Pa. 400, 27 Atl.
R. 297. For a somewhat similar case
see S. v. Berryman, 3 Nev. 262.
6S, v. Moore, 11 Ired. 70. And see
S. v. King, 98 N. C. 648.
74 Bl. Com. 235; 1 Hale, P. C. 511;
Staundford, P. C., ch. 16; Pollock &
Maitland, Hist. Eng. L. 497; 2 Bish.
Cr. L., § 771; Aldrich v. Wright, 53
N. H. 398; Reg. v. Townley, L. R. 1
C. C. 315.
527
§ 538.] OFFENSES AGAINST PROPERTY. [Part VII.
captured and kept in confinement or tamed,’ another question
arises, that is, whether they are of value. If the flesh is suit-
able for food or the skin or fur is valuable,’ then they are sub-
ject of larceny when they have been thus reduced to control.
Thus, doves are subject of larceny if kept and fed under the
control of an owner in a pigeon-house or cote;* and so are
pigeons though they have liberty of ingress and egress from
the cote if they are so far tamed that they return to roost in
boxes provided for them. So partridges or pheasants reared
and kept in confinement, or so far tamed as to remain on the
owner’s premises, are subject of larceny.’ So fish are subject
of larceny if confined in a tank, but the facts showing their re-
duction to possession must appear.’ So oysters are subject of
‘larceny, and it is a sufficient reduction to possession that they
have been planted in a bed.’ Bees are fere natura, but they
become property by being reclaimed and hived and are then
subject of larceny, for while they are not fit for food them-
selves, their honey is. Animals which, though reclaimed by
18. v. House, 65 N. C, 815. And
the facts showing such reduction to
control must be averred: Harvey v.
C., 23 Grat. 941; Rex v. Rough, 2
East, P. C. 607; Rex v. Hundson, 2
East, P. C. 611; Reg. v. Cheafor, 2
Den. 361. A turkey may be subject
of larceny though not tamed: S. v.
Turner, 66 N. C. 618, As to what is
such reduction of a wild animal to
control by chasing and attempting
to capture it as that it becomes
property, see Pierson v. Post, 3
Caines, 175; Buster v. Newkirk, 20
Johns, 75; Taber v. Jenny, 1 Sprague,
315.
2An otter: S. v. House, 65 N. C,
315.
3C. v. Chace, 9 Pick. 15.
4 Rex v. Brooks, 4 C. & P. 131. But
these illustrations are of taking
from the cote. Where tame doves
were taken while at large as “free
tenants of the air,” held, that there
was no larceny: C. v. Chace, 9
Pick. 15.
5Reg. v. Head, 1 F. & F. 350; Reg,
v. Garnham, 2 F. & F. 347; Reg. v.
Cory, 10 Cox, 23; Reg. v. Shickle, L.
R. 1 C, C. 158, But where a wild
partridge was wounded, and in this
condition was taken by another, held,
that there could be no conviction
for larceny: Reg. v. Roe, 11 Cox,
554,
68. v. Krider, 78 N. C. 481; 5. w
Donovan, 1 Houst. Cr. C. 48; Reg. v.
Steer, 6 Mod. 183; Wickes v. Clutter-
buck, 2 Bing. 488; Rex v. Sadler, 2
Chitty, 519; Rex v. Caradice, Russ.
& Ry. 205; Rex v. Mallinson, 2 Burr.
679.
7Fleet v. Hegeman, 14 Wend. 42;
8S. v. Tayler, 27 N. J. 117. The tak-
ing of oysters from a private bed is
sometimes made an offense distinct
from that of larceny: S. v. Taylor,
13 R. I. 541.
8 Harvey v. C., 23 Grat. 941; S. v.
Murphy, 8 Blackf. 498. As to prop-
erty in bees, see, also, Rexroth v.
Coon, 15 R. I. 35; Gillet v. Mason, 7
Johns, 16; Wallis v. Mease, 8 Binn.
546,
528
‘Cx. 26.] LARCENY. [§ 539.
‘being tamed, confined, or killed, do not possess the elements of
value as above suggested, but are mere objects of fancy, are
not subject of larceny. Among these are enumerated ferrets,
’ squirrels, parrots, singing birds, martens and coons.! Appar-
‘ently contrary to this general statement it has been held that
a tame mocking-bird is subject of larceny.? Hawks, tamed and
‘trained for use in hunting, have been regarded in England of
such nature that the taking of them is larceny.2 The hides
-and fur of wild animals are subject of larceny, having been re-
“duced to possession.‘ -
§ 589. Dogs and cats.— The animals referred to in the pre-
-ceding section are by nature wild, but in the particular instance
‘reduced to control. Some animals which are by nature tame
-are still not regarded as subject of larceny. The principal ex-
amples of this class of animals are the dog and the cat.’ Though
dogs are regarded in civil suits as having value,® yet at common
‘law, recognized in practically all the cases where it is not modi-
‘fied by statute, the stealing of them is not criminal.’ Where
the definition of larceny has by statute been enlarged to cover
personal property in general, it has been held that a dog, being
property of value for other purposes, is subject of larceny ;* but
‘to the contrary itis held that, by the use of the term “ personal
‘property ” in defining larceny, it is not intended to include dogs,
11 Hawk. P. CG. ch. 38, § 23; 2
‘Bish. Cr. L., § 778. And see as to
‘ferrets: Rex v. Searing, Russ. & Ry.
-850; and coons: Warren v. S., 1
Greene (Ia.), 106. In Norton v. Ladd,
5 N. H. 203, a sable caught in a trap
was said not to be subject of larceny,
though it is difficult to see why in
‘such case the value of the fur would
not bring it within the description
-of an animal of value.
2Haywood v. 8., 41 Ark. 479.
33 Inst. 109; 1 Hale, P. C. 512; 1
Hawk. P. C., ch. 33, § 23.
4Pennsylvania v. Becomb, Addis.
-886; Norton v. Ladd, 5 N. H. 203;
Reg. v. Gallears, 1 Den. 501.
53 Inst. 109; 1 Hale, P. C. 512; 1
Hawk. P. C., ch. 38, § 23; 2 East, P.
"C. 614; 2 Bish, Cr. L., § 778.
34
6Findley v. Bear, 8 S. & R. 571;
Smith v. Forehand, 100 Mass. 136;
Railway Co. v. Hauks, 78 Tex. 300.
TReg. v. Robinson, Bell, 34; 8. v.
Holder, 81 N. C. 527; Ward v.5S., 48
Ala. 161; S. v. Doe, 79 Ind. 9; S. v.
Limus, 26 Ohio St. 400; S. v. Harri-
man, 75 Me. 562; S. v. Marshall, 18
Tex. 58,
8Mullaly v. P., 86 N. Y. 365; P. v.
Campbell, 4 Park. Cr. R. 386; P. v.
Maloney, 1 Park. Cr. R. 593; Har-
rington v. Miles, 11 Kan. 480; S. v.
Brown, 9 Baxt. 53; Hurley v.&., 30
Tex. Ap. 383. And itis said that a
statutory enlargement of the defini-
tion of larceny so as to include “any-
thing of value” is sufficient to render
a dog subject of larceny: S. v. Yates
(Ohio Com. Pl), 10 Cr. L. Mag. 439.
529
OFFENSES AGAINST PROPERTY.
§§ 540, 541.) [Parr VIL.
which at common law were not such property as could be stolen.?
In some cases it is suggested that, by subjecting dogs to taxa-
tion, the legislature so far recognizes them as property that.
they are made the subject of larceny under the description of
a thing of value;? but it has been well pointed out that taxes
on dogs are not imposed on the theory that they are property,
but as a police regulation, eee that such taxation does
not in itself render them subject of larceny.’ Dogs are so far
domestic animals as to be within statutes punishing malicious
mischief in injuring or destroying animalsof that kind.t By stat-
ute in England the taking of dogs was made punishable, but not
as larceny.’ This distinction as to dogs is generally reprobated,.
but in the absence of some statutory modification upon which
an intention to change the common-law rule can be predicated,
it is still upheld, as the cases above referred to clearly show.
§ 540. Domestic animals or fowl, and their products.—
The discussion in the second preceding section has no refer-
ence to animals or fowl generally recognized as domestic and
the subject of property. These are goods and chattels within
the strict terms of the definition of larceny.’ So it is larceny
to take wool from live sheep or milk from a cow.?’ Under an
indictment for larceny of eggs it was held that it should have ©
been stated of what species the eggs were, so as to show them
to be the subject of larceny.’
§ 541. Animals, alive or dead.— An indictment for stealing
an animal, naming it, will be construed. as charging the steal-
ing of a living animal. If the intent is to charge the stealing
of the carcass of a dead animal, proper descriptive words must
1 Ward v. §., 48 Ala. 161.
2C. v. Hazelwood, 84 Ky. 681; Mul-
laly v. P., 86 N. Y. 365. Such stat-
utes sometimes expressly make dogs
subject of larceny: C. v. Depuy, 148
Pa, St. 201. Such a statute declar-
ing the taking of a dog, registered
under the act, to be larceny, but not
expressly making dogs property, was
held invalid for uncertainty, because
not furnishing any basis for deter-
mining whether the offense would
be grand or petit larceny: Johnston
v. 8., 100 Ala. 82,
38. v. Doe, 79 Ind. 9; 8. v. Limas,
26 Ohio St. 400.
48. v. Sumner, 2 Ind. 377; 8. v..
Latham, 13 Ired. 33; S. v. McDuffie,
84 N. H. 528; Hurley v. S, 30 Tex.
Ap. 333. Contra, S. v. Harriman, 75.
Me. 562; S. v. Marshall, 13 Tex. 55.
51 Hawk. P. C., ch. 33, § 23.
61 Hale, P. C. 511; C. v. Beaman,
8 Gray, 497; S. v. Turner, 66 N. C.
618; Reg. v. Edwards, 13 Cox, 384.
TRex v. Martin, 2 East, P. C. 618.
8 Reg. v. Cox, 1C. & K. 494,
530
Cu. 26.] LARCENY. [§§ 542, 543.
be used.1 In England there are statutory provisions for the
punishment of the killing of an animal with intent to steal its’
carcass, but this is not larceny.’
§ 542. Other instances of property.— There is such prop-
erty in illuminating gas that it is subject of larceny.2 The
dead body of a human being is not subject of larceny,’ but the
clothing or shroud of such body' or the coffin® may be stolen.
By a statute, stealing letters or other matter from the mail is
punishable.” The fact that a person in possession of property
has no ownership therein because it is stolen property,® or that
he holds it for some unlawful purpose,* such as liquors, to be
unlawfully sold,” or chips for gambling," will not prevent such
thing being subject of larceny.
§ 543. Things of value; written instruments; choses in
action.— Smallness of value of the property will not prevent
the wrongful taking. of it from being larceny. It is not nec-
essary that it be of the value of some known coin,” and a mere
piece of paper is of such value that larceny may be committed
thereof." Thus, a paper containing a list of names of sub-
1C, v. Beaman, 8 Gray, 497: Kol-
lenberger v. P., 9 Colo. 233; Rex v.
Edwards, Russ. & Ry. 497; Rex v.
Halloway, 1 C. & P.127. The case
of Rex v. Puckering, 1 Moody, 242,
seems to be contrary to this, but is
probably not authority on the point.
2 Reg. v. Sutton, 8 C. & P. 201; Rex
v. Clay, Russ. & Ry. 887; Rex v.
Williams, 1 Moody, 107. And see
Beavers v. S., 14 Tex. Ap. 541, hold-
ing that the unlawfully killing alone
does not constitute larceny.
3C. v. Shaw, 4 Allen, 308; S. v.
Wellman, 34 Minn, 221; Reg. v.
White, 38 C. & K. 363; Reg. v. Firth,
L. R.1 0. C. 172.
42 East, P. C. 652.
5 Hayne’s Case, 12 Coke, 113; 1
Hale, P. C. 515; 1 Hawk. P.C., ch. 33, _
§ 29; Wonson v. Sayward, 13 Pick.
402,
68. v. Doepke, 68 Mo. 208.
7Farnum v. U.S., 1 Colo. 309; Beery
v. U.S., 2 Colo. 186; Reg. v. Wynn, 2
C. &K.859. Further as to robbing
the mails, see infra, § 1829.
81 Hale, P. C. 507. Larceny is an
offense against the possession: See
infra, § 546.
5C. v. Smith, 129 Mass. 104, dis-
tinguishing Reg. v. Hunt, 8 C. & P.
642, where it was held that an illegal
combination, being incapable of
owning property, a taking from it
was not larceny.
10S, v. May, 20 Ia. 305; C. v. Coffee,
9 Gray, 189; C. v. Rourke, 10 Cush.
397.
ll Bales v. S., 3 W. Va. 685.
12 Reg. v. Morris, 9 C. & P. 349.
Further as to value, see infra, $§ 581,
589.
13 For instance, a piece of paper on
which a void check is written, the
property being described in the
count on which the conviction is
had as a piece of paper and not as a
check: Reg. v. Perry, 10. & K. 725.
It was so held as to country bankers’
531
§ 543.] OFFENSES AGAINST PROPERTY. [Parr VIL.
scribers to a fund was held to be a chattel subject of larceny."
But if the value of the paper exists not in itself, but in the re-
lation which it bears to some other thing which cannot be
stolen, it is by common law not subject of larceny, being
only the evidence or representative of a right.? On this
theory and also because they were considered to pertain to the
realty, title deeds and other instruments representing owner-
ship of or an interest in the land were not subject of larceny,’
But this rule has been changed in England by statute. Writ-
ten instruments evidencing a right of action, usually called
choses in action, are not subject of larceny for the same rea-
son. The taking of the paper does not constitute a taking of
the right represented by it, and looked at as a mere instru-
ment of evidence the paper is not a thing of value, not being
essential to the existence of the right which it represents.
This principle of the common law is well settled and univers-
ally applied, where not changed by statute; but there are stat-
utes so extending the definition of larceny by general terms
as to include the ordinary forms of commercial paper,‘ or cov-
ering notes, bills and checks, etc., by special description in such
definition.’ Under such statutes the description of the prop-
erty stolen as one promissory note, or one due-bill, is sufficient.*
And it is not necessary to allege with reference to a promis-
sory note that it was “for the payment of money.”® A due-
bill is an “obligation” within such statutes. Checks are the
subject of larceny within the usual statutory description." A
notes which had been paid: Rex v. 356; Culp v. S., 1 Port. 83; C. v.
Vyse, 1 Moody, 218. And see Rexv. Eichelberger, 119 Pa. St. 254.
Mead, 4 C. & P. 585; Rex v. Clark, Garfield v.S., 74 Ind. 60; Turner
Russ. & Ry. 181; Reg. v. Godfrey, v.S., 1 Ohio St. 422,
Dears. & B. 426. 7 Rex v. Chard, Russ. & Ry. 488; C.
1S. v. James, 58 N. H. 67.
21 Hawk. P.C., ch. 33, § 22; 2 East,
P. C. 597; 4 Bl. Com. 234; 2 Bish. Cr.
L., § 768-770.
33 Inst. 109; 4 Bl. Com. 234; 1
Hale, P. C. 510, n.; Rex v. Westbeer,
2 Stra. 1133; S. C., 1 Leach, 12.
4Rex v. John, 7 C. & P. 324; Rex
v. Walker, 1 Moody, 155.
5 Reg. v. Morrison, Bell, 158; Reg.
v. Watts, Dears. 326; Reg. v. Powell,
2 Den. 403; U.S. v. Davis, 5 Mason,
v. Brettun, 100 Mass. 206; Payne v.
P.,6 Johns. 103; P. v. Wiley, 3 Hill
(N. Y.), 194; Moore v. C., 8 Pa. St. 260;
8. v. Campbell, 103 N. ©, 344,
8C. v. Henry, 2 Brewst. 556; C. v.
Byerly, 2 Brewst. 566.
9C..v. Brettun, 100 Mass. 206,
108, v. Campbell, 103 N. C. 344.
UC. v. Yerkes, 29 Leg. Int. 60; §. C.,
119 Pa, St. 266; Reg. v. Heath, 2
Moody, 38; Reg. v. Godfrey, Dears.
& B, 426,
532
Cu. 26.] [§ 543,
LARCENY.
postoffice order is within such a statute,! but not a county
order.2, The statutes expressly include valuable securities or
securities for the payment of money ;* and are broad enough
' to cover a mortgage of real estate.‘ Books of account are by
statute made the subject of larceny, and such description is not
confined to books of original entry, but includes any books in
which the owner keeps statements of his accounts with others.
The statutes also cover receipts and releases * and vouchers."
Public records would not be the subject of larceny under the
common-law rule, but are made so by statute. Bank-bills are
usually specified in the statutes.® Bank-bills although not
specified are covered by the general description of promissory
notes.” ‘Where the definition of larceny is extended to cover
personal property, treasury notes of the United States are in-
cluded without special designation," and such treasury notes
are also bank-notes under that description.” At common law,
money, according to the original meaning of the term, that is,
coin, hasalways been subject of larceny.” Buttheterm “money”
as used in the statutory definitions of larceny includes bank-
1 Reg. v. Gilchrist, Car. & M. 224.
2 Warner v. C., 1 Pa. St.:154.
3 Reg. v. Smith, Dears. 561; Reg. v.
Williams, 6 Cox, 49; Reg. v. Lowrie,
L, RB. 1. C. 61.
4C. v. Concannon, 5 Allen, 502.
5C. v. Williams, 9 Met. 273,
6C, v. Williams, 9 Met. 273.
78. v. Hickman, 8 N. J. 299.
8 Reg. v. Bailey, L. R. 1. C. 347;
Wilson v. S., 5 Ark. 513.
9C. v. Stebbins, 8 Gray, 492; Cum-
mings v. C., 2 Va. Cas. 128; Pomeroy
v. C., 2 Va. Cas. 842; S. v. Carr, 48 Ta.
418; Greeson v.S., 6 Miss. 33; Dame-
wood v. S., 2 Miss. 262; U.S. v. Moul-
ton, 5 Mason, 587; Ex parte Prince, 27
Fla. 196.
10S, v. Wilson, Treadw. Const. 495;
S. v. Tillery, 1 Nott & M. 9; 5S. v.
Casados, 1 Nott & M. 91: S. v. Wil-
son, 2 Brev. 196. But aside from
statutory provisions, paper money is
not subject of larceny: C. v. Mc-
Dowell, 1 Browne (Pa.), 359; C. v,
Boyer, 1 Binn. 201; S. v. Dill, 75 N.
C. 57, Further as to larceny of bank-
bills, see infra, 8§ 595, 598.
11 Collins v. P., 89 Ill. 283,
12 Ex parte Prince, 27 Fla. 196; Sally
v.8, 39 Ala. 691; Sansbury v. S., 4
Tex. Ap. 99.
13 Rex v. Fry, Russ. & Ry. 482; P.
v. Williams, 24 Mich. 156; Hall v.S.,
3 Ohio St. 575. The form of indict-
ment given in Archbold describes it
as “certain money of C. D.:” 2
Archbold, Cr. Pr. & Pl. 854. But it.
is said that the indictment should
describe the pieces: Rex v. Fry.
Russ. & Ry. 482; 8. v. Longbottom.
11 Humph. 39. It seems that coin is
not to be described as “goods and
chattels:” Reg. v.. Radley, 1 Den.
453. Butit is said in another case
that money is in general covered
by the words “ goods and chattels: ”
Hall v. S., 3 Ohio St. 575. Under an
English statute with reference to
the taking of goods, wares and mer-
chandise from a shop, it was held
that those terms did not include
533
§ 543.] [Parr VII.
OFFENSES AGAINST PROPERTY.
notes and other forms of paper money as well as coin! The
question as to how money is to be described in the indictment
will be considered in a subsequent section.? Under these stat-
utes extending the definition of larceny to include commercial
paper, bank-notes and other instruments in writing, the ques-
tion arises whether an instrument of such character which is
of no value can be the subject of larceny, and it has some-
times been said that if the instrument is invalid the crime can-
not be committed with reference thereto; * for instance, where
the instrument is still in the hands of the maker and has not
yet been executed and delivered.‘ But the reasonable doctrine
seems to be that if the instrument becomes of value when it
passes from the maker’s possession, that is, if when taken from
him it shows an apparent liability, the taking will be larceny.’
Thus bank-notes, before issue and not yet put in circulation,
are subject of larceny.’ But blank railroad tickets or passes,
not valid until countersigned, are not subject of larceny.’ An
instrument which has been paid or redeemed, if it would be
good in the hands of an innocent holder or valuable for re-
issue, is subject of larceny. There must be some evidence,
however, of the genuineness of the instrument to warrant a
conviction.» It seems that the doctrine in regard to written
money: Rex v. Leigh, 1 Leach, 52; which had been taken up and not
Rex v. Grimes, 2 East, P. C. 647. Un-
der the English statute as to receiv-
ing stolen goods, although the terms
used are “goods and chattels,” the
receiving of stolen money is not in- .
cluded: Guy’s Case and Morris’s
Case, 2 East, P. C. 748. And to the
same effect, see S. v. Calvin, 22 N. J.
207. Contra, Hall v. S., 8 Ohio St.
575.
1§. v. Moore, 66 Mo. 372; Ex parte
Prince, 27 Fla. 196; S. v. Carr, 43
Ta. 418; U. S. v. Moulton, 5 Mason
537. Contra, Pryor v. C., 2 Dana, 298.
2 Infra, §§ 596, 597.
8 Wilson v. §., 1 Porter, 118.
4P, v. Loomis, 4 Denio, 330; Rex
v. Hart, 6C. & P. 106; Rex v. Walsh,
Russ. & Ry. 215; Rex v. Phipoe, 2
East, P. C. 599. And this was de-
cided also as to reissuable notes
yet reissued: Rex v. Clark, Russ. &
Ry. 181. A mancannot be convicted .
of larceny of a deed made and exe-
cuted by himself: P. v. Mackinley,
9 Cal. 250.
58. v. Thatcher, 35 N. J. 445; C. v.
Rand, 7 Met. 475; Reg. v. Heath, 2
Moody, 33; Rex v. Metcalf, 1 Moody,
433; Rex v. Aslett, Russ. & Ry. 67.
And see with reference to fraudu-
lently securing a signature to an in-
strument: P. v. Genung, 11 Wend. 18.
®P. v. Wiley, 3 Hill (N. Y.), 194;
Reg. v. West, Dears. & B. 109.
78, v. Musgang, 51 Minn. 556; 8. v.
Hill, 1 Houst. Cr. C. 421.
8C. v. Rand, 4 Met. 475. Contra
as toa due-bill which has been paid:
8. v. Campbell, 103 N. C. 344,
98. v. Tillery, 1 Nott & M. 8; Cum-
mings v. C., 2 Va, Cas, 128; Collins v.
534
Cu. 26.] LARCENY,
[8§ 544, 545.
instruments evidencing a chose in action is not applicable to
an instrument which directly represents property and not
merely a right of action, and it is accordingly held that a
pawnbroker’s ticket is ihe subject of larceny inasmuch as it
stands for the goods themselves... And under analogous rea-
soning it is said that a railroad ticket is the gulfjeck of lar-
«ceny although such a ticket does not of course stand for any
specific property.’ But railway tickets are included by ex-
press designation or general terms in the statutory definitions
of larceny in most of the states? A ticket or pass stolen from
the company before issuance is not yet such a complete instru-
ment as to be the subject of larceny.‘
III. Ownersure or tar Property.
§ 544. Property without owner; abandoned.—It has al-
ready been said that some things are incapable of ownership,
and cannot, therefore, be subject of larceny.’ So, abandoned
property, having no owner, cannot be stolen.’ But the fact
that the owner makes his property public, to be taken by others
without compensation as they wish in a manner contemplated,
will not constitute an abandonment so that a taking in some
other way may not be larceny.’
§ 545. Property temporarily out of owner’s control; lost
or left in another’s custody.
section that possession may be constructive in the owner, so
P., 89 Il. 233; Hildreth v. P., 32 IIL
36; S. v. Dobson, 3 Harr. 563; Simp-
son v.8., 10 Tex. Ap. 681.. But the
production of the note itself is suffi-
cient proof of genuineness: U. S. v.
Byers, 4 Cranch, C, C. 171.
1 Reg. v. Morrison, Bell, 158.
2 Reg. v. Boulton, 1 Den. 508; Reg.
‘vy, Beecham, 6 Cox, 181; Millner v.
&., 15 Lea, 179,
3 McDaniels v. P., 118 Ill. 301; 8. v.
Musgang, 51 Minn. 556.
48. v. Musgang, 51 Minn. 556; 8. v.
Hill, 1 Houst. Cr. C. 421. This is in
accordance with the doctrine stated
4n the earlier part of this paragraph.
+See supra, 8§ 538, 539.
6U. S. v. Smiley, 6 Sawyer, 640;
Johnson v.&%., 86 Tex. 375; Ritcher
v. S., 38 Tex. 648; Debbs v.S., 43 Tex.
650. But where carcasses of ani-
mals were buried by the owner,
without intent to make use of them,
held, that they were, nevertheless,
not abandoned, and that the taking
of them might be larceny: Reg. v.
Edwards, 18 Cox, 384. By statute in
Arkansas it is not larceny to take
unbranded stock over a year of age
found running at large: Thompson
v. S., 60 Ark. 59.
7A box of matches set out on a
store counter for the use of purchas-
ers of cigars is subject of larceny;
Mitchum v. S., 45 Ala. 29,
5385
§ 546,
[Part VII.
OFFENSES AGAINST PROPERTY.
that a taking thereof may be larceny from him, although he is
not in immediate possession. An analogous rule is to be ap-
plied to property which, though not abandoned, has been
’ temporarily and unintentionally given to or left by the owner
on the premises or in the custody of another. Such property
is deemed still in the possession of the owner, and a wrongful
taking of it by the person on whose premises or in whose cus-
tody it is left,! or by a third person,’ will be larceny from the
owner. Cases of lost property, converted by the finder, are-
somewhat analogous, but are discussed under a subsequent sec-
tion relating to intent,’ where it will appear that the finder
who takes with the intent of appropriating is guilty of larceny.
It has been attempted to explain the doctrine as to lost goods
on the theory of constructive possession in the owner and tres-
pass by the finder, as in the case of property temporarily and
unintentionally left on another’s premises, and to limit the-
doctrine of larceny by the finder to such cases;‘* but such a
theory is not sustained.’ The difference is this: If the prop-
erty is temporarily left by the owner on another’s premises, a
third person taking it commits trespass and is guilty of larceny,.
but if the property is really lost, the finder does not commit.
trespass unless he has at the time the intention to wrongfully
convert.’ If there is originally a trespass, the subsequent con-
version, according to some cases, relates back and renders the
whole transaction larceny.”
§ 546. What sufficient ownership; special owner, bailee
or custodian; part owner.— As will appear in a subsequent
~ section under the head of indictment,’ the name of the owner
1p, v. McGarren, 17 Wend. 460;
Reg. v. West, Dears. 402; property
accidentally left in a coach and ap-
propriated by the driver: Rex v.
Wynne, 2 East, P. C. 664, 697; money
left in a bureau and appropriated
by the person into whose possession
the: bureau comes: Cartwright v.
Green, 2 Leach, C. C. 952; Merry v.
Green, 7 M. & W. 623; property
taken from a trunk purchased from
the owner’s clerk in ignorance of its
contents: Robinson v. 8., 11 Tex. Ap.
403; property left in a railway coach
and appropriated by a servant of the
company: Reg. v. Pierce, 6 Cox, 117.
2Pyland v. S., 4 Sneed, 357; S. v.
McCann, 19 Mo, 249; Brooks v. S.,
35 Ohio St. 46.
3 Infra, § 571.
4Porter v. S., Mart. & Yerg. 2265.
Lawrence v. S., 1 Humph. 228,
5 Tanner v. C., 14 Grat. 635.
®Griggs v. S., 58 Ala. 425; Roun-
tree v. S., 58 Ala. 381,
7See infra, § 550,
8 Infra, § 601.
536
Cu. 26.] LARCENY.
[§ 546.
of the property must be alleged and proven as alleged. It
cannot be charged as the property of a person who has never
had either actual or constructive possession of it.! But posses-
sion need not be actual, it may be constructive only.? Thus,
cattle at large may be deemed in the possession of the owner.*
The ownership which must be proven to support the indict-
ment charging that the property was that of the person named.
therein is not absolute or full ownership; for example, owner--
ship may be laid in one who is the part owner only, in posses-
sion of the property. A receiver has such ownership of prop--
erty in his possession that in an indictment for stealing the-
same it may be charged as his property.’ One who has taken
up an estray may be deemed the owner.’ Even a thief or per--
son wrongfully in possession may be deemed the owner in such.
sense that the taking from him may be properly charged and’
proven as larceny of his property."’ Where there is general:
ownership in one person and possession in another, as special:
owner, bailee or custodian, it is optional to charge the owner-
ship as in the real owner or in the person in possession. Thus,.
1Brooks v. S., 5 Baxt. 607; King v. 5S. v. Rivers, 60 Ia. 381. Though
S., 44 Ind. 285; Hite v. S., 9 Yerg. 197;
Rex v. Adams, Russ. & Ry. 225.
2Rex v. Remnant, Russ. & Ry. 136;
C. v. Lawless, 103 Mass. 425.
3Q0wen v.S., 6 Humph. 330; Bur-
ger v. S., 83 Ala. 36; Pritchett v. S.,
2 Sneed, 285; S. v. Martin, 28 Mo. 530;
8. v. Casteel,53 Mo. 124; Moore v. S.,
8 Tex. Ap. 496; McGrew v. S., 31 Tex.
Ap. 336; Bennett v. S., 32 Tex. Ap.
216; Trimble v. S., 33 Tex. Ap. 397;
S. v. Everage, 33 La. An. 120; S. v.
Kane, 33 La. An. 1269. Itis larceny
to take up and appropriate a tres-
passing animal: C. v. Mason, 105
Mass. 163. As to larceny of estrays
or other lost property, see infra,
§ 571.
4Reg. vy. Webster, L. & C. 77; Rex
v. Bramley, Russ. & Ry. 478; Reg. v.
Watts, 2 Den. 14. At least this is
so by statute in some states: C. v.
Arrance, 5 Allen, 517; Fairy v. 8., 18
Tex. Ap. 314; Samora v. 8., 4 Tex,
Ap. 508,
the receiver is appointed by a fed--
eral court the crime is punishable.
in a state court: S. v. Coss, 12 Wash..
673.
6 Quinn v. P., 123 Ill. 338; Jinks v..
S., 5 Tex. Ap. 68; Smith v. S., 7 Tex.
Ap. 382; Lowe v. S., 11 Tex. Ap. 2533.
Swink v.S., 32 Tex. Ap. 530.
7 Ward v. 8., 6 Hill (N. Y.), 144; C.
v. Rourke, 10 Cush. 397.
8S. v. Gorham, 55 N. H. 152; C. v:
Sullivan, 104 Mass. 552; C. v. O'Hara,
10 Gray, 469; C. v. Morse, 14 Mass
217; Norton v. P., 8 Cowen, 1387;
Phelps v. P., 72 N. Y. 334; S. v. Mul-
len, 30 Ia. 203; Quinn v. P., 123 Tl,
833; S. v.\Moore, 101 Mo. 316; Ken
nedy v. S., 31 Fla. 428; Fowler v. S..
100 Ala. 96; Langford v. S., 8 Tex.
115; Cox v.S., 43 Tex. 101; Rex v..
Todd, 1 Leach, 357, n.; Rex v. Wy-
mer, 4C. & P. 391; Reg. v. Vincent,
8C. & K. 246.
537
§ 546.] OFFENSES AGAINST PROPERTY, [Part VIL.
the property may be charged to be that of the real owner al-
though in the possession of another,! unless by virtue of stat-
utory provisions it is specially required that possession be
properly alleged; as, for instance, where it is made essential
that the taking be without the consent of the person in posses-
sion.2 Even at common law ownership only is alleged, and it
is not necessary to say that the owner was in possession or that
the taking was from his possession.’ It is entirely proper, how-
ever, and in accordance with the general practice, to describe the
property as that of the person who is in possession thereof, evi-
‘dence of the possession being sufficient to sustain the allegation.
So it is as to one who is in possession as bailee.* And evidence
‘of possession is sufficient proof of ownership under such an in-
dictment.> So chattels in the possession of an agent may be
1C. v. Lawless, 103 Mass. 425; U.S.
wv. Burroughs, 3 McLean, 405; Reg. v.
Kendall, 12 Cox, 598.
2Gadson v. S., 36 Tex. 350; Otero
v. S., 30 Tex. Ap. 450; Littleton v. 8.,
20 Tex. Ap. 168; Spruill v. &, 10
‘Tex. Ap. 695; White v. S., 33 Tex.
Ap. 94.
38. v. Leavitt, 66 Me. 440; Angel
v. C., 2 Va. Cas, 228; Thompson v. C.,
2 Va. Cas. 1385. In Texas, by virtue
of a statutory provision, the posses-
sion must be alleged, and if the prop-
erty is not in the possession of the
general owner, the ownership and
‘the possession should both be al-
leged: Garner v. S., 86 Tex. 693;
Johnson v. §., 4 Tex. Ap. 594; West
v. S., 6 Tex. Ap. 485; Watts v.S., 6
‘Tex. Ap. 263; Calloway v. S., 7 Tex.
Ap. 585; Hannahan v. 8,7 Tex. Ap.
664; Case v. S., 12 Tex. Ap, 228; Bai-
ley v. S., 20 Tex. Ap. 68; Briggs v.
§., 20 Tex. Ap. 106; Hall v. 8., 22 Tex.
Ap. 632; Alexander v. 8., 24 Tex. Ap.
126; Tinney v. S., 24 Tex. Ap. 112;
Connor v. 8., 24 Tex. Ap. 245. But
ownership and possession may be
‘charged asin the person who is actu-
ally in possession, although another
is the general owner: Gaines v. S.,
4Tex. Ap. 330; Crockett v. 8,, 5 Tex.
Ap. 526; Duren v. 8, 15 Tex. Ap.
624. As to the necessity, under the
Texas statute, of alleging. want of
consent by the person actually in
possession, see infra, § 557.
48. v. Ayer, 23 N. H. 301; S. v.
Gorham, 55 N. H. 152; 8. v. Allen,
103 N. C. 483; S. v. McRae, 111 N. C.
665; P. v. Buelna, 81 Cal. 135; S. v.
Fitzpatrick, 9 Houst. 385; Black-
burn v. S., 44 Tex. 457; Moseley v. S.,
42 Tex. 78; Yates v. S., 10 Yerg. 548;
Reg. v. Rowe, Bell, 93; Reg. v. Wort-
ley, 2 C, & K. 283; Rex v. Wymer, 4
C. & P. 391; 2 East, P. C. 653; so in
case of a lodger in furnished lodg-
ings: Rex v. Belstead, R. & R. 411;
Rex v. Brunswick, 1 Moody, 26. So
in case of larceny from a carrier the
property may be charged as that of
the carrier: 8. v. Casavant, 64 Vt.
405; Bruley v. Rose, 57 Ia. 657; but
it may be alleged in the consignee:
Walker v. 8..9 Tex. Ap. 88, And see
cases cited in the section following
with reference to larceny by the
owner from his bailee in possession.
with intent to charge such bailee.
58. v. Somerville, 21 Me. 14; Adams
v. 8., 45 N. J. 448; S. v. Hardison, 75:
N. C. 208; Morningstar v. S., 52 Ala.
405; U. S. v. Duffy, 1 Cranch, C. C.
538
Ox. 26.) LARCENY. [§ 546.
charged as his property.!_ But if the chattels are in the custody
of a servant they should be charged as the property of the
master.’ A general allegation as to ownership of the property
will be supported by proof of a conditional ownership.’ In
case of guardianship or other possession of the property of a
minor or other person under disability, the ownership may be
properly charged in the guardian or custodian in possession.*
Clothing furnished to a minor by his father may be laid as that
-of the minor, and this is usual;5 but it may be laid as that of
the father,’ unless furnished under some contract obligation, as
where the son is an apprentice of the father, and the clothing is
furnished according to the terms of the apprenticeship.’ Prop-
erty belonging to an estate may be charged as that of an heir
in possession.® The property of the wife in the husband’s pos-
‘session or control or management may be charged as his prop-
erty. The husband has a qualified ownership of the property
of the wife which is in the house or used in the family such as
to support a charge of the stealing of it.as his property.” And
164; S. v. Stanley, 48 Ia. 221; P. v. v. Jones, 71 Cal. 89; 8. v. Koch, 4
Nelson, 56 Cal. 77; P. v. Davis, 97
‘Cal. 194. And see other cases infra,
§ 603,
lArcia v. S., 28 Tex. Ap. 198; Reg.
v. Jennings, Dears. & B. 447; Reg. v.
Burgess, L. & C, 299. This is true in
embezzlement when it appears that
defendant was in the employ of the
agent and received the property by
such employment: Campbell v.58., 35
Ohio St. 70.
2C, v. Morse, 14 Mass. 217; Norton
v. P., 8 Cowen, 187; P. v. Bennett, 37
‘N. Y. 117; Murphy v. P., 104 IIL 528;
S. v. Jenkins, 78 N. C. 478; S. v. Ed-
«wards, 86 N. C. 666; Heygood v.8., 59
Ala. 49; S. v. Myers, 82 Mo. 558;
Clark y. S., 23 Tex. Ap. 612; Rex v.
Wilkins, 2 East, P. C. 673; Rex v.
Pearce, 2 East, P. C. 603; Reg. v.
Kay, Dears. & B, 231; Reg. v. Green,
Dears. & B. 118; Rex v. Hutchinson,
Russ. & Ry. 412.
38. v. Pettis, 63 Me. 124; Robinson
wv. S., 1 Ga. 563.
4Thomasson v. S., 22 Ga. 499; Jones
Harr. 570.
5 Rex v. Haynes, 12 Coke, 113; 2
East, P. C. 654; 2 Archb. Cr. Pr. & Pl.
357, n.; 2 Bish. Cr. Pr., § 721; S. v.
Koch, 4 Harr. 570; S. v. Williams, 2
Strob. 229.
6 Reg. v. Hughes, Car. & M. 593,
7Rex v. Forsgate, 1 Leach, 463.
8 Dreyer v.S., 11 Tex. Ap. 503. See,
also, 2 East, P. C. 655; Reg. v. Tippin,
Car. & M. 545; Reg. v. King, 4 F. &
F. 493; Rex v. Scott, Russ. & Ry. 13;
Rex v. Gaby, Russ. & Ry. 178. In
England, where there was no will
proved and before administration,
the property might be laid in the
ordinary: Rex v. Smith,?7 C. & P.
147; Reg. v. Johnson, Dears. & B.
340.
®9 Davis v. S., 17 Ala. 415; Lavender
v. 8. 60 Ala. 60; U.S. v. Murphy, 4
Cranch, C. C. 681; Alexander v. S., 9
Tex. Ap. 48; S. v. Jackson, 1 Houst.
Cr. C. 561.
10Petre v. S, 35 N. J. 64; P. v.
Swalm, 80 Cal. 46. It isso in Texas
539
§ 547.] OFFENSES AGAINST PROPERTY. [Parr VII.
this is so even as to separate property of the wife in her pos-
session, the husband being deemed to have presumptively the
possession and a qualified ownership thereof. An officer has.
sufficient possession of property levied upon by him so that
larceny from him may be charged as of his property.?_ In case-
of an unincorporated association, property may be laid in
trustees.
§ 547. One’s own property; intent to charge another.—
The definition of larceny indicates that the property taken
must be that of another, and it is evident that one cannot be
guilty of larceny in taking his own property. Yet that state-
ment is subject to many explanations, most of them to be here-
after considered in determining what is a taking and carrying
away. One principle may, however, be properly stated here,
though it is of application, also, under other headings; that is,
that one who takes property which is his own, but under such
circumstances that he thereby throws liability for the loss of
such property upon another, does, in effect, take the property
of another so as to constitute larceny.* But this proposition is
by statute: Merriweather v. S., 33
Tex. 789; Wilson v. S., 3 Tex. Ap.
206. Husband and wife may be
deemed in joint possession of prop-
erty in the custody of the wife:
Kennedy v. 8., 31 Fla. 428.
1C. v. Williams, 7 Gray, 387; C. v.
Cullins, 1 Mass. 116; Ellis v. S., 76
Ala. 90; Rex v. Roberts, 7 C. & P.
485. But it has been held otherwise
where the statute gives the wife
separate property: Rollins v. S., 98
Ala. 79; Johnson v. 8, 100 Ala. 55;
Pratt v. 8. 35 Ohio St. 514. A fe-
male minor may be deemed the
owner of clothing belonging to: and
used by her: Phillips v. S., 85 Tenn.
551.
2Hill v. S., 1 Head, 454; S, v. Har-
ris, 38 Ia, 242. But it may also be
charged as the property of the
owner: Rex v. Eastall, 2 Russ. C. &
M. 291, 382,
3 Reg. v. Cain, Car. & M. 309: Reg.
v. Webster, L. & C.7'7; Reg. v. Loose,
Bell, 259; Rex v. Sherrington, 1
Leach, 513: Reg. v. Atkinson, Car. &
M. 525; Rex v. Boulton, 5 C. & P.
587. ,
4Thus, one who, having made an.
assignment of his goods for the ben-
efit of creditors, but before deliver-
ing possession, removed them with
intent to deprive his creditors of
them, was held not guilty of lar-
ceny: Reg. v. Pratt, Dears. 360. For
a somewhat similar case, where the
purpose was only to prevent the
seizure of the property by creditors,
see C. v. Greene, 111 Mass. 3892.
Where there is a contract of sale,
but title has not passed, the prop-
erty is still that of the seller, so that
he cannot commit larceny thereof:
Love v. State, 78 Ga. 66. An indict-
ment will not lie against a‘ ten-
ant for larceny of crops belonging.
jointly to him and the landlord: S.
v. McCoy, 89 N. C. 466. And see
infra, § 550.
5Palmer v. P., 10 Wend. 165;
Adams v. S., 45 N. J. 448; P. v. Stone,
540
Cu. 26.) LARCENY.
[§ 548.
involved in another of more general application, to be discussed
in the next section, that a bailee of property is to be considered
the owner thereof with reference to larceny. In accordance
with that principle, the general owner may be guilty of the
offense in wrongfully taking the property from the possession
of such bailee.! So the owner of property which has been
levied upon and is in the possession of the officer under such
levy is guilty of larceny in wrongfully taking the property
from such officer? But if the owner only retakes a portion of
such property, leaving enough to satisfy the claim, his purpose
being to prevent the seizure of the remainder for other debts,
he does not commit larceny.? Another proposition which is
applicable here, but runs into one that must be discussed under
taking and carrying away, is that as to property in one’s own
possession he cannot commit larceny ;‘ therefore where one gets
another to write a receipt or obligation on stamped paper
which the former furnishes, he does not commit larceny by
misappropriating or misusing it, though he had the wrongful
purpose from the beginning, because the paper is his and he
cannot steal his own property.®
IV. Tue Act; Taxine anp Carryine Away.
§ 548, What sufficient asportation.— That the taking must
be wrongful, that is, with fraudulent intent, will hereafter ap-
pear in discussing intent.’ It is necessary now to consider what
acts will constitute such taking and carrying away as is con-
templated by the definition of larceny.’ A temporary taking
16 Cal. 369; P. v. Thompson, 34 Cal. larceny and embezzlement: See
‘671; S. v. Fitzpatrick, 9 Houst. 385;
2 East, P. C. 654. As to taking with
‘intention of returning and claiming
reward, see infra, § 567.
1Pp, v. Long, 50 Mich. 249; Kirksey
‘v. Fike, 29 Ala. 206; S. v. Stephens,
82 Tex. 155; Connell v.S., 2 Tex. Ap.
422; Rex v. Wilkinson, Russ. & Ry.
470. Contra, C. v. Tobin, 2 Brews.
570.
2C. v. Greene, 111 Mass. 392; Pal-
mer v. P., 10 Wend. 165.
IC. v. Greene, 111 Mass. 392.
4This is the distinction between
infra, § 554.
5Rex v. Hart, 6 C. & P. 106; Reg.
v. Smith, 2 Den. 449° Reg. v. Framp-
ton, 2C. & K. 47.
6 See infra, § 564.
7The words used in the indict-
ment to indicate the act are “steal,
take and carry away.” See, as to
indictment, infra, § 607. The omis-
sion of “away” is fatal: C. v. Adams,
7 Gray, 43; Rountree v. 8, 58 Ala.
881. Under some statutes “steal”
is enough: Barnes v. 8., 40 Neb. 545.
It is not essential that there be a
541
§ 548.] [Parr VII
OFFENSES AGAINST PROPERTY,
of wrongful possession and having the property under control,
even for a short space of time, is sufficient, although the prop-
erty is abandoned before being effectually appropriated by the
wrong-doer.! Thus, if a pickpocket thrusts his hand into the
pocket of another and seizes his pocket-book, partially remov-
ing it, and then is compelled to desist, he has committed lar-
ceny.2. There may be sufficient removal to constitute larceny,
even though the property which the thief is attempting to take
from the person of another remains to some extent attached,
as by a chain or otherwise.’ There must be at least a tem-
porary possession in the thief; and where the property is.
dropped by the owner as a result of fear or violence, but is not.
taken up by the intending thief, there is no larceny. Any re-
moval during which the thief has, though only for an instant,
entire and absolute possession of the property is sufficient.>
taking from the person: S. v. Pratt,
20 Ia. 267; and if the taker knows
that he has no authority to take he
is guilty of larceny: 8. v. Rivers, 60
Ta. 381.
18. v. Gray, 106 N.C. 784. To take
animals of another with intent to
fraudulently mark them with one’s
own brand and claim ownership
thereof is sufficient to constitute
larceny: Scott v. Harbor, 18 Cal.
705. The wrongful taking of an
animal may be larceny, though it is
not disposed of: Davis v. 8, 10 Lea,
707. But mere possession with in-
tent to steal, but without any wrong-
ful act, is not larceny: S. v. New-
man, 9 Nev. 48.
28. v. Chambers, 22 W. Va. 779.
So where the prisoner lifted a bag
from the boot of a coach and then
abandoned it, he was held guilty of
larceny: Rex v. Walsh, 1 Moody, 14.
So where money in a drawer was
taken into the hand of the thief but
was dropped back, held, that larceny
had been committed: Eckels v. S.,
20 Ohio St. 508. So one who had
taken a horse and was leading it
away, but before he had removed it
from the owner’s premises was com-
pelled to desist, was held guilty of
larceny: S. v. Gazell, 30 Mo. 92. So
the removal of money from the
money drawer to the floor was held
a sufficient taking and carrying.
away: S. v. Higgins, 88 Mo. 354,
3 Harrison v. P., 50 N. Y. 518; Reg.
v. Simpson, Dears. 421. But the of-
fense of larceny from the person
would not be committed in such
case: Harrison v. P., 50 N. Y. 5183.
Rex v. Thompson, 1 Moody, 78.
Where there was an attempt to
carry away goods fastened to the
counter and the string attaching
them was not broken, held, that the
offense of larceny was not commit-
ted: Anon., 2 East, P. C. 556; and
where a coat at a store door was re-
moved from the dummy, but still
remained fastened by a chain, it
was held there was no larceny: P.
v. Meyers, 75 Cal. 383.
4Rex v. Farrell, 1 Leach, 322, n.;
Thompson v. S., 94 Ala. 535. The
act may be an attempt, but if aban-
doned before a removal of the prop-
erty in pursuance of the act will
not be larceny: C. v. Luckis, 99
Mass. 431.
58. v. Jackson, 65 N. C. 805; Gar-
542
Ox. 26.] LARCENY. [§ 548.
Thus, it has been held, wherea package was removed from one
end of a wagon to another with intent to wrongfully take it.
away, the act was larceny;! or an animal from one portion of
the owner’s premises to another;? or goods from one part of a.
vessel to another;* or wheat from one bin into another;‘ or
wheat from the bin to sacks;*® or money from a drawer, though
afterward returned;® or a letter by a mail carrier from his.
pouch to his pocket.’ But there must be, though for an instant
only, complete possession. To set up a bale upon end in a
wagon and open it, yet without removing any portion of the
contents, was held not larceny. So the mere upsetting of a.
barrel of turpentine, although with felonious intent, was held
not sufficient asportation to constitute larceny.® Merely to.
kill a domestic animal, without in any way removing the car-
cass, is not larceny, but malicious mischief.” But there may be:
such taking possession of the carcass after the killing as to make.
the act larceny, although no part of it is actually carried away
and appropriated." Larceny of an animal may be committed
by taking or enticing it away with intent to appropriate it.’*
riss v. 8., 35 Ga. 247; Gettinger v. S.,
18 Neb. 308.
1Rex v. Cozlett, 2 East, P, C. 556.
2 Delk v. S., 64 Miss. 77.
3Nutzel v. S., 60 Ga. 264.
48, v. Craige, 89 N. C. 475.
58. v. Hecox, 83 Mo. 531.
68. v. Green, 81 N. C. 560.
7Reg. v. Poynton, L. & C. 247.
8 Rex v. Cherry, 2 East, P. C. 556.
9S. v. Jones, 65 N. C. 395. But
may be enough to show an intent to-
steal: Williams v. S., 63 Miss. 58.
11Croom v. S., 71 Ala. 14; Kemp v.
S., 89 Ala. 52; Coombes v. S., 17 Tex.
Ap. 258, So held where the defend-
ant partially skinned the carcass:
Lundy v. 8., 60 Ga. 143; McPhail v.
S. 9 Tex. Ap. 164. An indictment.
for stealing an animal is sustained
by proof of killing the animal and
taking the skin, although the car-
where the indictment was for steal-
ing five pints of porter, and it ap-
peared that the defendant had, by
boring a hole in the barrel, allowed
that quantity of the liquor to run
into a can on the ground, held, that
the asportation was sufficient: Reg.
vy. Wallis, 3 Cox, 67.
WP, v. Murphy, 47 Cal. 103; S. v.
Butler, 65 N. C. 309; S. v. Alexander,
74.N. C. 282; S. v. Seagler, 1 Rich. 30;
Williams v. 8.,63 Miss. 58; Molton v.
8., — Ala. —-, 16 So. R. 795; Minter
v.S., 26 Tex. Ap. 217; Beavers v.8., 14
Tex. Ap. 541. In such case there
cass is notremoved: Rex v. Rawlins,
2 East, P. C. 617.
12P, v. Smith, 15 Cal. 408; S. v. Wis-
dom, 8 Port. 511; S. v. Hawkins,
8 Port. 461; S. v. Whyte, 2 Nott
& McC. 174 ‘This form of taking
may be proven under the usual form
of allegations: P. v. Strong, 46 Cal.
3802. But where the animal was en-
ticed for a short distance and then
abandoned without being taken
from the owner’s premises, held, that
the crime was not committed: Ed-
monds v. S., 70 Ala. 8
543
§ 549.) [Parr VII.
OFFENSES AGAINST PROPERTY,
There may be larceny of gas by wrongfully drawing it off from
the mains or pipes,! and there may be larceny of water in the
same way. The taking and carrying away may be committed
by setting in motion an agency, innocent or otherwise, by which
the property is asported from the possession of the owner to
that of the thief or his accomplice. Thus, the change of a
check of another’s baggage, by which possession of it is se-
cured, is larceny. The criminal act may be done by an inno-
cent agent. Thus, where a thief at an inn stable pointed out
.an animal as his, directing the hostler to lead him out, which
‘was done, it was held that there was sufficient taking to con-
‘stitute larceny.t And it was so held where an auctioneer, em-
ployed to sell impounded animals, sold one of them as his own,
and it was taken away by the purchaser.’ But if the intending
thief merely points out an animal not in his possession, repre-
senting it to be his, and selling it to be taken away, the act is
_not larceny, as he has not taken possession of the animal.* The
‘Texas statute makes asportation unnecessary, a fraudulent
taking being sufficient;’ thus, to open a drawer in which there
is money, and take a part thereof with intent to take all, is
larceny as to all.
§ 549, Trespass necessary.— It is one of the early and thor-
oughly established doctrines of the law of larceny that. the act
must be such as to constitute a trespass, otherwise there is not
such wrongful taking as to be larceny.2 Many more cases
might be cited to the same proposition, but if they be exam-
ined the uselessness of further citations, and, indeed, the useless-
ness of the proposition itself, becomes at once apparent. As
1C. v. Shaw, 4 Allen, 308; Reg. v. v.S., 41 Tex. 226; Hall v. S., 41 Tex.
White, 3 C. & K. 363; Reg. v. Firth,
LR1C. 0. 172.
2¥Ferens v. O’Brien, 11 Q. B. D. 21.
3C. v. Barry, 125 Mass, 390.
4 Rex v. Pitman, 2 C. & P. 423.
5S, v. Hunt, 45 Ia. 673. In general
where one wrongfully sells property
-of another as his own, and it is taken
away by the purchaser, the act is
larceny: Dale v. S., 32 Tex. Ap. 78.
6 Hardeman v. §., 12 Tex. Ap. 207;
Madison v. 8., 16 Tex. Ap. 485; P. v.
Gillis, 6 Utah, 84,
7 Prim v. S., 82 Tex. 158; Musquez
287; Purtell v. S., 43 Tex. 483; Mar-
tindale v. S., 19 Tex. Ap. 383; Lott v.
8., 20 Tex. Ap. 280; Doss v.S., 21 Tex.
Ap. 505; Dukes v. &., 22 Tex. Ap. 192.
8 Harris v. 8., 29 Tex. Ap. 101.
9S. v. Braden, 2 Tenn. 68; 8. v.
Hite, 9 Yerg. 197; Robinson v. S.,
1 Coldw. 120; Morehead v. S., 9
Humph. 635; Thorne v. Turck, 94
N. Y. 90; Pennsylvania v. Campbell,
Addis, 232; Rex v. Raven, J. Kel. 24;
Rex v. Hart, 6 C. & P. 106; Reg. v.
Smith, 2 Den. 449; Rex v. Webb, 1
Moody, 481,
544
‘Cx. 26.] LARCENY. [§ 550.
these cases show, the general proposition is one incapable of
definite application and of no value as furnishing in itself a solu-
tion of any particular case. The more definite rules which are
generally derived from it, and a discussion of which is of im-
portance, are: First, that one who is in rightful possession of
the property of another does not commit larceny by a mis-
appropriation thereof, no matter how fraudulent and wrongful
such act may be in itself; second, that there is, however, a dis-
tinction in this respect between possession and mere custody,
and that a servant who has mere custody may commit larceny
-of the property of the master which he has within his control;
third, that as there can be no trespass against one who con-
sents to the act done, it is not larceny to obtain property from
an owner by his consent, even though he is induced by false
pretenses to part with the property. There are many other
ramifications of the general doctrine in regard to trespass as
an. essential element of larceny, but these three main divisions
are the controlling ones.
§ 550. What constitutes trespass.— The trespass necessary
te constitute larceny may be committed by various acts of»
wrongful taking and appropriating as already described.’ If
the original taking is wrongful, it constitutes a trespass even
though it is not with fraudulent intent, and subsequent appro-
‘priation and disposal with fraudulent interit will relate back,
-as.it were, and make the whole transaction felonious. And it
is said that a subsequent misuse and appropriation of property
obtained by false representations as to the purpose for which
it is to be used will constitute larceny.? But there must be
‘something more than a mere technical conversion without
disposal. In case of joint owners, each being equally en-
titled to possession, there can be no trespass by the one against .
the other, and a wrongful appropriation and disposal by one
‘of such joint owners will not constitute larceny.’ But if the
right of possession is in one of the joint owners to the exclusion
of the other, then a wrongful taking of possession by the other
would constitute larceny. Tenants or croppers who cultivate
land on shares are joint owners with the landlord who is
1See supra, §§ 545-548. 5 Pennsylvania v. Campbell, Addis.
2C. v. White, 11 Cush. 483. 282; Alfele v. Wright, 17 Ohio St. 238.
3. v. Coombs, 55 Me. 477. 6 Pennsylvania v. Campbell, Addis,
4 Berg v. S., 2 Tex. Ap, 148. 232; Bell v. S., 7 Tex. Ap. 25,
35 545
[Parr VIT-
§ 551.] OFFENSES AGAINST PROPERTY.
entitled to a share of the crop, and a wrongful appropriation
and disposal of a portion of the crop by the tenant will not
constitute larceny,! the crop being the joint property of the
tenant and landlord? But after delivery of the landlord’s.
share to him, or abandonment of the crop to the landlord, a
subsequent taking by the tenant may be larceny.* The cases
of a wrongful appropriation or disposal of property of which.
the wrong-doer has custody or possession will be considered
in the sections following, and it will appear that the instances
in which the person thus having control of the property can be
deemed to commit trespass with reference thereto, so as to be
guilty of larceny, are: (1) When he is the servant or other cus-
todian without a right to possession; (2) when his possession
has been obtained by fraud with the intent to deprive the
owner of his property; and (3) where there is such wrongful
act with reference to the property in possession as to constitute
a trespass against the owner notwithstanding such possession,
é. g.. breaking of bulk by carrier. In other cases of possession
acquired by the consent of the owner, a subsequent wrongful.
act with reference to the property will not be larceny.!
§ 551. Continuous trespass; distinct articles; different
owners.— Although several articles are involved which are
taken away successively but in one transaction and as the re-
sult of one intent, the whole will constitute but one larceny.*
So the wrongful taking of gas from time to time as needed, by
means of an unauthorized and secret connecting pipe, is but
one larceny.’ So there is but one trespass involved in taking
at the same time several articles belonging to the same owner
and therefore but one larceny.?’ And even if portions of the
property belong to different owners, if the whole is taken in
18, v. Copeland, 86 N. C. 691; S. v.
McCoy, 89 N.C. 466; Bell v.S., 7 Tex.
Ap. 25.
28. v. Frame, 4 Harr. 569; McNealy
v. S., 17 Fla. 198.
38. v. Webb, 87 N.C. 558; Bonham
v. S., 65 Ala. 456.
4 Johnson v. P., 113 Tl. 99. And see
infra, § 554.
58. v. Martin, 82 N. C. 672; S. v.
‘Weaver, 104 N. C. 758; S. v. Larson,
85 Ta. 659,
6 Reg. v. Firth, L. R. 1 C. C. 172,
7 Kelly v. S., 7 Baxt. 323; Fisher v.
C., 1 Bush, 211; S. v. Williams, 10:
Humph. 101; S. v. Daniels, 32 Mo.
558; S. v. Wagner, 118 Mo. 626; 8. v.
Johnson, 3 Hill (S. C.), 1; 8. v. McCor-
mack, 8 Oreg. 236; S. v. Faulkner, 82
La. An. 725; Quitzow v.S., 1 Tex. Ap..
47; T. v. Heywood, 2 Wash. T. 180;.
Reg. v. Brettel, Car. & M. 609.
R4R
Ca. 26.] LARCENY. [§ 552.
one act there is but a single larceny.! But if acts of taking
are not the same, although at about the same time, they will
not constitute a single larceny. In an English case it is held
that an interval of two minutes could not make two takings
distinct larcenies, but an interval of half an hour would? The
question of prosecution in one jurisdiction for larceny of prop-
erty stolen in and brought from another jurisdiction will be
discussed in the next section. By various statutory provisions
which will be referred to in the succeeding discussion, such as
those relating to larceny by bailees, those making embezzlement
larceny, and those making larceny out of obtaining property
by false pretenses, the doctrine as to the necessity of trespass
in order to constitute larceny has been, in some directions, bro-
ken down.'
§ 552. Taking goods from one county to another._-Where
goods have been stolen in one county and by the thief carried
into another, the continuing exercise of control over the goods
is considered a continuing trespass, and larceny is therefore
committed in the county into which the goods are brought as
well as in the county where the original wrongful taking was
committed.> The same reason has been applied where the act
of larceny was committed prior to the passing of a certain
statute with reference to the punishment of larceny and the
unlawful possession was continued until after the taking effect
of such act, and it was held that the prisoner might be pun-
ished under the new act on the theory of a continuing trespass.®
18, v. Hennessey, 23 Ohio St. 339;
S. v. Warren, 77 Md. 121; Alexander
v. C., 90 Va. 809; Hoiles v. U. S., 3
MacArthur, 370; Hudson v.S.,9 Tex.
Ap. 151; S. v. Larson, 85 Ia. 659.
That the prosecution may in such
cases elect to prosecute for a single
larceny of the entire goods or for
distinct larcenies of the property of
the several owners, see 8. v. Lam-
bert, 9 Nev. 821; Lorton v. S., 7 Mo.
55; S. v. Morphin, 37 Mo. 373; Reg.
v. Bleasdale, 2 C. & K. 765. Contra,
U.S. v. Beerman, 5 Cranch, ©. C, 412,
2Nichols v. C., 78 Ky. 180; S. v.
English, 14 Mont. 399; Reg. v. Lons-
dale, 4 F. & F. 56. If larceny of sev-
eral articles is charged in the indict-
ment on one day, and there is proof
that a part was stolen on that day,
it is not proper to prove that another
part was stolen on a subsequent day:
Fisher v. S., 83 Tex. 792.
3 Rex v. Birdseye, 4C. & P. 386.
4S, v. Brown, 25 Ia. 561.
5Stinson v. P., 43 Ill. 397; Myers
v. P., 26 IIL 178; S. v. McCoy, 42 La.
An. 228; S. v. Smith, 66 Mo. 61; S. v.
Grant, 76 Mo. 236.
6S. v. Somerville, 21 Me 14. On
the same principle of continuance
of possession it is held that a horse
borrowed in one state and unlaw-
fully sold in another might be con-
547
[Parr VII.
OFFENSES AGAINST PROPERTY.
§ 552.]
This rule as between counties originated with and has uni-
formly been followed by the English court,! and has been ac-
cepted without question in the United States.? In some states
the rule is made statutory. The indictment may properly
charge the larceny in the county to which the goods are brought
and in which the prosecution is commenced as though the
wrongful taking had been there committed ; * but it will not
render the indictment bad that it states the facts, that is, the
wrongful taking in another county and the bringing into the
county where the prosecution is commenced.’ The party who
commits larceny in one county and sends the goods to a con-
federate in another county is guilty of larceny in the second
county, because his constructive possession still continues and
his accountability is the same as though he himself had gone
with the goods into the second county. But there must be pos-
sidered as in the hands of the de-
fendant in the state where sold as
bailee, and the act therefore a lar-
ceny by bailee: Brooks v. S., 26 Tex.
Ap. 184,
1Rex v. Thompson, 2 Russ, C. &
M. 328; Rex v. Parkin, 1 Moody, 45;
Reg. v. Newland, 2 Cox, 283; 4 Bl.
Com. 305; 2 Russ, Cr. 116; 1 Hawk.
P. C., ch. 33, § 9; 2 East, P. C. 771.
2C. v. Rand, 7 Met. 475; ©. v.
Simpson, 9 Met. 138; C. v. Dewitt,
10 Mass. 154; Haskins v. P., 16 N. Y.
344; S. v. Douglas, 17 Me. 193; S. v.
Bryant, 9 Rich. 118; C. v. Cousins, 2
Leigh, 708; Myers v. P., 26 Ill. 173;
S. v. McCoy, 42 La. An. 228.
3 Aaron v. §., 39 Ala. 684; Kidd v.
S., 83 Ala. 58; S. v. Seay, 3 Stew.
123; S. v. Hunter, 50 Kan. 302; S. v.
Lillard, 59 Ia. 479; S. v. Williams, 35
Mo. 229; S. v. Smith, 66 Mo. 61; S. v.
Brown, 8 Nev. 208; Shubert v. 8., 20
Tex. Ap. 320; Clark v.S., 23 Tex. Ap.
612; Givens v. S., 82 Tex. Ap. 457,
Such a statutory provision is not un-
constitutional as depriving the ac-
cused of the right of trial by jury
of the county where the offense is
committed where such right is guar-
antied: S. v. Price, 55 Kan. 606,
4 Haskins v. P., 16 N. Y. 344; Mor-
issey v. P., 11 Mich, 827; P. v. Mellon,
40 Cal. 648; Johnson v.S., 47 Miss.
671. But if property stolen in an-
other county at different times is
held by defendant, he cannot be
prosecuted for larceny of the whole
of it under one indictment in the
latter county, but the prosecution
must elect between the two trans-
actions: Rex v. Smith, Russ. & M.
295.
5 Hurt v.S&., 26 Ind. 106; Jones v.
8., 58 Ind. 285; Connell v. 8., 2 Tex.
Ap. 422. Of course, if the indict-
ment shows the wrongful taking to
have been in another county, and
does not allege facts sufficient to
show larceny in the county where
the prosecution is commenced, it
cannot be maintained: Johnson v.
S., 47 Miss. 671. On the whole sub-
ject, see, as to venue, infra, § 590.
6C. v. Dewitt, 10 Mass. 154; Ferrill
v. ©, 1 Duv. 153; Lucas v. S., 62 Ala.
26; Reg. v. Rogers, L. R. 1 C. C. 186;
Reg. v. Cryer, Dears. & B. 324, But
the court of the county where the
goods are taken cannot inquire into
the guilt of the receiver in another.
county: P. v. Stakem, 40 Cal. 599,
548
Ox. 26.] LARCENY. [§ 553.
session by the thief in some form. If he is taken by an officer
with the property into another county, there will be no juris-
diction of the offense in the county to which he is thus taken;
nor will there be, if he disposes of the property in the county
where it is taken, and accompanies the purchaser into another
county. The value of the property in a case where a thief is
prosecuted in the county to which the property is taken is that
which it has in that county, or, if only a portion of the prop-
erty originally stolen is brought to that county, then the value
of that portion is alone to be considered? If the nature of
the property has been changed before being brought into the
county of the prosecution, it must be described in the form in
which it was brought into the county.‘
§ 553. Taking goods from one state or country to another.
The doctrine of the preceding section with reference to stolen
goods taken from one county to another was not recognized in
English courts as applicable to goods stolen out of the kingdom
and afterwards brought into England. The reason for this
failure to follow in such a case the theory that each subsequent
asportation was a new larceny is not apparent. The courts of
the different states do not agree as to whether they shall ad-
here to the doctrine of the English courts on this question, or
shall recognize as conclusive the reasoning which is universally
adopted with reference to goods stolen in one county and taken
into another. In some cases it is decided that where goods are
stolen in one state and carried into another, no larceny is com-
mitted in the latter. In other cases it is held that the thief
may be prosecuted for larceny in the state to which the stolen
1Rex v. Simmonds, 1 Moody, 408.
Where defendant was seen with the
stolen property in another county
taking it toward the county of his
residence, but it was not found in
his possession in the county of his
residence, held, that an indictment
for larceny in the latter county
could not be sustained: Moore v. &.,
55 Miss. 482.
2 Lucas v. S., 62 Ala. 26.
3 Roth v. 8, 10 Tex. Ap. 27; Clark
y. &., 23 Tex. Ap. 612.
4C, v. Beaman, 8 Gray, 497, a
éase where an animal was killed in
one county and its carcass was
brought into the other. See, also,
Rex v. Halloway, 1 C. & P. 127.
51 Hawk. P. C., ch. 33, § 9; 3
Inst. 118; 18 Co. 58; 2 East, P. C. 772;
2 Russ. Cr. 119; Rex v. Prowes, 4
Moody, 349; Reg. v. Madge, 9 C. & P.
29; Reg. v. Debruiel, 11 Cox, 207.
6P. v. Schenck, 2 Johns, 479; P. v.
Gardner, 2 Johns. 477; Simmons v.
C., 5 Bin. 617; S. v. Le Blanch, 31
N. J. 82; Stanley v. S&S, 24 Ohio St.
166; Beal v. S., 15 Ind. 378; Lee v.
S., 64 Ga. 2038; P. v. Loughridge, 1
Neb. 11; S. v. Newman, 9 Nev. 48; S.
549
§ 553.] OFFENSES AGAINST PROPERTY. [Parr VII.
goods are taken! The Massachusetts court hold that the states
of the Union are not foreign to each other, and that bringing
goods into one of them from another is not similar to bring-
ing goods into England from without the kingdom, but rather
like bringing them from one county of England into another,
and that the bringing of stolen goods into the state from a
foreign country is not larceny;* and the Ohio court has re-
fused to apply to goods brought from a foreign country the
rule applied by it in an earlier case to goods brought from an-
other state. But most courts place the bringing into the state
from a foreign country on the same basis as the bringing from
another state.» In many of the states statutes are passed regu-
lating this subject and providing for the punishment for larceny
of one who brings stolen goods into the state, and such statutes
are constitutional. The offense is deemed committed in the
county where the thief is in possession of the stolen goods, and
his trial in such county is not for an offense committed else-
where.’ Where the larceny is a compound one, it can be pun-
v. Reonnals, 14 La. An. 278; Simpson
v. 8.,4 Humph. 456; 8. v. Brown, 1
Hayw. 100.
1C.v- Cullins, 1 Mass. 116; C. v.
Andrews, 2 Mass. 14; C. v. Holder, 9
Gray, 7; S. v. Ellis, 3 Conn. 185; S. v.
Cummings, 33 Conn. 260; S. v. Un-
derwood, 49 Maine, 181; Watson v.
S., 36 Miss..598; Cummings v.S., 1
Harr. & J. 340; Hamilton v. S., 11
Ohio, 485; S. v. Bennett, 14 Ia. 479;
Worthington v. 8., 58 Md. 403; S. v.
Hill, 19 S. C. 485; S. v. Johnson, 2
Oreg. 115; Tippins v. 8., 14 Ga. 492;
U.S. v. Tolson, 1 Cranch, C. C. 269;
U.S. v. Haukey, 2 Cranch, C. C. 65.
2C. v. Holder, 9 Gray, 7; C. v. Rand,
7 Met. 475.
3C. v. Uprichard, 3 Gray, 484.
4 Stanley v. S., 24 Ohio St. 166.
5P, v. Burke, 11 Wend. 129; S. v.
Bartlett, 11 Vt. 650; S. v. Morrill, —
Vt. —, 33 Atl. R. 1070; S. v. Under-
wood, 49 Maine, 181.
§P, v. Williams, 24 Mich. 156; Mor-
rissey v. P., 11 Mich. 327; Tyler v.
P., 8 Mich. 320; P. v. Staples, 91 Cal.
23; Alsey v. S.,39 Ala. 664; S. v. Mat-
thews, 87 Tenn. 689; Henry v.S., 7
Coldw. 381; S. v. Butler, 67 Mo. 59;
Hemmaker v. S., 12 Mo. 458; S. v.
Johnson, 38 Ark. 568; Norris v. S., 33
Miss. 378; S. v. Kief, 12 Mont. 92;
McFarland v. S., 4 Kan. 68.
78. v. Johnson, 38 Ark. 568; Worth-
ington v.S., 58 Md. 403. Evidence
of the larceny out of the state is
admissible to show the possession
within the state to be felonious: Mc-
Farland v.S., 4 Kan. 68; Watson v.
S., 36 Miss. 598, But it is not neces-
sary to show the offense to have
been a felony by the laws of the state
where the goods were first taken,
the laws of that state being imma-
terial: Hemmaker v. S., 12 Mo. 453;
8. v. Kief, 12 Mont. 92. The nature
of the act in the other state is mate-
rial in determining whether contin-
uance in possession is in pursuance
of a crime: Alsey v.S., 39 Ala. 664.
In Texas the statute makes the crim-
inality depend upon the law of the
state where the goods were taken,
550
Cu. 26.] LARCENY.
[§ 554.
ished as such only where the original taking is committed. The
aggravation will not be deemed to constitute a part of the facts
in the county or state to which the stolen property is taken.!
§ 554. Misappropriation by bailee.— The fundamental prop-
osition that there can be no larceny by one who has already a
rightful possession before conceiving a fraudulent intent serves
as a line of distinction between larceny and embezzlement. It
is not necessary to cite many authorities as to this distinction.
Those which could be cited would be in the main illustrations
turning on details to be elsewhere considered rather than au-
thorities for the proposition itself. A few are given in the
note by way of illustration.?, While in both England and the
United States there are statutes for the punishment of embez-
zlement, and most cases of wrongful appropriation of property
of which one has rightful custody are covered by such statutes,
yet there are also statutes in England and in some of the states
making a misappropriation of property by a bailee larceny,’
thus obviating the technical difficulty as to trespass in such
cases.2 Such statutes relate to the misappropriation by a bailee
of property to be returned in specie;‘* and this distinguishes
larceny by a bailee from embezzlement under such statutes.
But where fungible property is delivered for storage, the fail-
ure to return it may be larceny by bailee although it was not
intended that the identical property be returned but only prop-
erty of thesame kind.’ Such statutory provision is not intended
which therefore becomes an issu- U.S., 160 U.S. 268. Money of which
able fact: Cummins v. S., 12 Tex. Ap.
121; Carmisales v. S., 11 Tex. Ap. 474;
Clark v. 8., 27 Tex. Ap. 405; Edwards
v. §., 29 Tex. Ap. 452.
1Smith v. S., 55 Ala. 59; Gage v.S.,
‘22 Tex. Ap. 123; Nichols v. S., 28 Tex.
Ap. 105: 1 Hale, P. C. 507, 536.
2 Rex v. Smith, 1 Moody, 473; Reg.
‘vy. Phristle, 2 C. & K. 842; Reg. v.
Hey, 2 C. & K. 983; Reg. v. Glass, 2
C. & K. 395; Reg. v. Marsh, 3 F. & F.
528; Reg. v. Saward, 5 Cox, 295;
“Wright v. Lindsay, 20 Ala. 428; S.
v. White, 2 Tyler, 352; S. v. Fann,
‘65 N.C. 817; S. v. England, 8 Jones,
399; S. v. Hayes, 111 N. C. 727; John-
gon v. P., 113 Ill. 99; Jones v. S., 59 Ind.
229; Hill v. S., 57 Wis. 377; Moore v.
the prisoner obtained possession
without intent to wrongfully appro-
priate is not subject of larceny:
S. v. McDougal, 20 Wis. 482; Shinn
v. C., 32 Grat. 899.
3 Truslow v. S., 95 Tenn. 189; S. v.
Turner, 10 Wash. 94; Torres v. S., 33
Tex. Ap. 125; Neel v. S., 33 Tex. Ap.
408; S. v. Lucas, 24 Oreg. 168. Such
a statute is constitutional: §. v.
Hopkins, 56 Vt. 250.
4Krause v. C., 93 Pa. St. 418; Dot-
son v. S.,51 Ark. 119; Reg. v. Hassall,
8 Cox, 491; Reg. v. Ashwell, 16 Q. B.
D. 190.
5 Hutchinson v. C., 82 Pa. St. 472.
The Pennsylvania statute was in-
tended to apply to carriers, so as to
551
§ 554.] OFFENSES AGAINST PROPERTY. [Part VIT.
to apply to cases which would be larceny at common law.»
The intent to steal is essential as in other larcenies.? A bail-
ment within such statute may arise by mere license without.
special contract,’ and thus may exist as to property received
for another as well as with reference to property received di-
rectly from the person for whom it is to be kept.‘ And so.
where money is to be delivered to be used in a certain way and
it is misappropriated, the offense is committed although the
specific money was not to be returned.2? The same princi-
ple applies to goods given to another for sale and which are by
him misappropriated. So there may be such misuse of bills of
exchange or other securities given to be used for a particular
purpose as to constitute larceny by bailee.’’ But property
which is in possession otherwise than as a bailment is not the
subject of this offense even though there is a perversion of it
from its intended and proper use. Furthermore, if the prop-
erty was received with an original wrongful intent to convert,
the crime is not larceny by bailee but simple larceny, the fraud-
ulent intent negativing the rightful possession.» Mere failure
by bailee to return property will not constitute the offense.
There must be something showing a conversion." And where
obviate the difficulties referred to in
the next section in regard to break-
ing bulk; but it is not limited in its
application to carrier cases: C. v.
Chathams, 50 Pa. St. 181.
1 Johnson v. P., 113 Ill. 99; Reg. v.
McDonald, 15 Q. B. D. 328. Contra,
S. v. Shirer, 20 8. C. 392; S. v. Taber-
ner, 14 R. I. 272. If constructive
possession is in the owner and the
wrong-doer has custody only, the
wrongful taking is larceny and not
embezzlement: Holebrook v. S., —
Ala. —, 18 So. R. 109. A conviction
for larceny as bailee cannot be had
under an indictment for larceny in
the usual form: Taylor v. S., 25 Tex.
Ap. 96; Huntsman v. 8, 12 Tex. Ap.
619; Williams v. S., 80 Tex. Ap. 153.
2 Phelps v. P., 55 Ill. 834,
3 Reg. v. Robson, L. & C. 93; Reg.
v. Reeves, 5 Jur. (N. 8.) 716.
4Reg. v. Bunkall, 9 Cox, 419; Reg.
v. De Banks, 13 Q. B. D. 29; Dotson
v. S., 51 Ark. 119; P. v. Sherman, 133.
N. Y. 349; Rucker v. S., 95 Ga. 465.
5 Reg. v. Wells, 1 F. & F. 109; Reg..
v. Aden, 12 Cox, 512; Reg. v. Dart-
nell, 20 L. T. 1020; Crofton v. S., 79
Ga. 584; S. v. Dale, 8 Oreg, 229.
6Reg. v. Henderson, 11 Cox, 593;
Reg. v. Richmond, 29 L. T. 408; Reg:
v. Hey, 2 C. & K. 983.
TReg. v. Casser, 18 Cox, 187; Reg.’
v. Oxenham, 18 Cox, 349; Reg. v.
Tonkinson, 14 Cox, 603.
8 Rex v. Palmer, 2 East, P. C. 586:
Reg. v. Mattheson, 5 Cox, 276; Reg..
v. Hoare, 1 F. & F. 647; Reg. v..
Marsh, 3 F. & F. 528; Zschocke v. P.,.
62 TL 127.
5 Reg. v. Waller, 10 Cox, 360; Rex
v. Banks, Russ. & Ry. 441. And see-
infra, § 562.
10 Rex v. Banks, Russ. & Ry..441;
Reg. v. Jackson, 9 Cox, 505. But the
552
Cu. 26.] LARCENY. [§ 555.
the duty is to account only on demand, there must be a demand
and failure to account in order to show the commission of the
crime.' Especially is this so where the case is not one of spe-
cific property, but, as is contemplated under some statutes, one
of obligation to account for funds which the bailee has a right
to mingle with his own.? Although an infant cannot make a
valid contract of bailment, yet, if over fourteen years of age,
he may be guilty of the offense of larceny as bailee, the valid-
ity of the contract of bailment being immaterial.? There has
been a question in England whether a married woman could
be a bailee so as to commit this offense, but clearly no such
question would arise under the law as to married women as it
now exists in most of the states. The offense is to be deemed
a statutory one and described as other statutory offenses.2 The
indictment must allege the facts showing a relation of trust,
either express or implied, and a conversion of the property
with intent to steal.
§ 555. Carriers or other bailees breaking bulk.— The
doctrine of the preceding paragraph, that a bailee does not
commit trespass in misappropriation of the property in his pos-
session, and therefore is not guilty of larceny, has an exception
of as great antiquity apparently as the rule itself, based also
on the technical doctrines of the common law as to trespass, to
the effect that if the bailee, instead of appropriating the prop-
erty as a whole, does an unauthorized act with reference
thereto, such as breaking open the package and removing a
portion of the contents, he has thereby committed trespass
against the owner and may be guilty of larceny. This doc-
trine seems to have been first applied to carriers, and the pe-
.culiarly technical nature of it is recognized in a discussion _
thereof, during the reign of Charles II, by Chief Justice Kelynge, |
who criticises a case in the time of Elizabeth in which the’
mere misappropriation may be made v. Denmour, 8 Cox, 440; Reg. v.
the crime without fraudulent in- Warren, 10 Cox, 359.
tent: S. v. Hopkins, 56 Vt. 250. 5 Johnson v. P., 113 Ill. 99; Kibs v.
1oule v. S., 71 Ga. 267; S. v. Chew P., 81 Ill. 599; Reg. v. Haigh, 7 Cox,
Muck You, 20 Oreg. 215. 403.
- 28nell v. §., 50 Ga. 219; Hoytv.S., 6 Wilbur v. T., 3 Wyo. 268; S. v.
50 Ga, 318. Kaspar, 5 Wash. 174; Sanders v. 8.,
3 Reg. v. McDonald, 15 Q. B. D. 323. 86 Ga. 717.
4 Reg. v. Robson, L. & C. 98; Reg.
553
§ 556.] OFFENSES AGAINST PROPERTY. [Parr VII,
proposition seems to have been laid down.' But this doctrine
has received modern recognition and is the rule of the common
law, except as it may have been modified by statute, and if
there has been a breaking of bulk the carrier is held guilty?
while, if there is no breaking of bulk, the offense of larceny is
not committed.’ Where the cargo is in bulk and not in pack-
ages, the taking of a portion thereof by the carrier is larceny.‘
The doctrine of this section, though usually laid down with
reference to carriers, is applicable to other bailees, for in-
stance, a miller misappropriating a part of a quantity of grain
delivered to him for grinding.’ So, where a warehouseman,
to whom sacks of wheat were intrusted for keeping, took the
wheat out of one bag, it was-held larceny.’ So, where a letter
or parcel is given to another to be mailed or delivered for
transportation, a breaking open of the letter or package and
appropriation of the contents will be larceny.’ So, when a per-
son employed to sell cloths, which were delivered to him in a
bundle, broke open the bundle with the fraudulent purpose of
pawning a part of them and subsequently misappropriated the
remainder, it was held that he was guilty of larceny® A.
fraudulent conversion after the privity of contract has termi-
nated will be larceny.®
§ 556. Larceny by servant or mere custodian.— There is a
well-recognized distinction between possession such as that of
a bailee and mere custody as that of a servant, and the doctrine
by which a bailee is held not guilty of larceny in misappropri-
ating goods in his possession does not apply to the act of a
servant in wrongfully converting or disposing of his master’s
property of which he has the mere custody. In such case
there is a trespass, for the possession is in the master and .
not in the servant, and the servant may be guilty of larceny in
1J, Kel. 81, 82. 4Nichols v. P., 17 N. Y. 114,
2C. v. Brown, 4 Mass. 580; S. v. 5C, v. James, 1 Pick. 375.
Fairclough, 29 Conn. 47; Nichols Rex v. Brazier, Russ. & Ry. 887.
v. P., 17 N.Y. 114; P. v. Poggi, 19 TRex v. Jones, 7 0. & P. 151; Reg.
Cal. 600; S. v. Thurston, 2 McMull. v. Jenkins, 9 C. & P. 38. ;
382; Rex v. Pratley, 5 C. & P. 588; 5 Reg. v. Poyser, 2 Den. 283.
Rex v. Howell, 7 C. & P. 325. 9Rex v. Charlewood, 2 East, P. C.
+ Rex v. Fletcher, 4 C. & P. 545; 689
Reg. v. Cornish, Dears, 425; Rex v.
Madox, Russ. & Ry. 92.
: 554
Ox, 26.] LARCENY. [§ 556.
the wrongful disposal of his master’s property even though he
has it at the time under his entire control.! And it is sufficient
that the servant forms the intent to misappropriate and at-
tempts to carry it out although he does not actually part with
the property.’ Itis sometimes difficult to distinguish a servant
from a bailee to whom property is given into possession for a
specific purpose. One who is employed to drive cattle gener-
ally or to a particular place, and misappropriates them, is guilty
of larceny.’ But if he is given general authority to dispose of
the property, he is something more than a mere servant, and
‘does not commit larceny in making a wrongful disposition.’ A
person who is engaged about the business of his employer, such
as a clerk or salesman, is a servant within the doctrine of this
section, and does not have possession of his employer’s prop-
erty, but only the custody of it, and therefore is guilty of
larceny in fraudulently misappropriating it.’ So one who is
employed in general labor, having control of his employer’s
property for that purpose, is guilty of larceny in wrongfully
taking such property.’ It is not necessary that the employ-
ment be continuous; it may be for a special purpose, and the
misappropriation of property received in pursuance of such
purpose, larceny.’ So, where a clerk authorized to pay out
money to workmen misappropriates the money given to him
1¢. v. Brown, 4 Mass. 580; C. v. v. Jones, Car. & M. 611; Reg. v. Evans,
‘Collins, 12 Allen, 181; C. v. Berry, 99 Car. & M. 682.
Mass. 428; Phelps v. P., 72 N. Y. 334;
S. v. McCartev. 17 Minn. 76; 8. v.
Schlingen, 20 Wis. 74; Smith v. S.,
28 Ind. 321; Powell v. S., 34 Ark.
6938; Brown v. P., 20 Colo. 161;
Crocheron v. 8., 86 Ala. 64; Case v.
S., 26 Ala, 17; Rex v. Bass, 2 East,
P. C. 566; Rex v. Somerton, 7 B. &
C. 463; Reg. v. White, 9 C. & P. 344;
‘Reg. v. Privett, 2 C. & K.114; 1 Hale,
P. C. 506; T. Kel. 35.
28. v. Schlingen, 20 Wis. 74. But
‘the mere formation of the purpose
is not enough: Reg. v. Roberts, 3
Cox, 74,
3Rex v. McNamee, 1 Moody, 368;
‘Reg. v. Jackson, 2 Moody, 32.
4Reg. v. Goodbody, 8 C. & P. 665;
Reg. v. Leppard, 4 F. & F. 51; Reg.
5 Jenkins v. S., 62 Wis. 49; Marcus
v. S&S, 26 Ind. 101; Walker v. C., 8
Leigh, 748; U. S. v. Clew, 4 Wash.
700; Rex v. Hammon, 4 Taunt. 304;
Reg. v. Harvey, 9 C. & P. 353; Rex
v. Chipchase, 2 Hast, P. C. 567; Reg.
v. Wright, Dears. & B, 431; Reg. v.
Flanagan, 10 Cox, 561.
6C. v. Brown, 4 Mass. 580; P. v.
Belden, 37 Cal. 51; Reg. v. Winbow,
5 Cox, 346.
7Reg. v. Goode, Car. & M. 582;
Reg. v. Beaman, Car. & M. 595; Reg.
v. Smith, 1 C. & K. 423; Reg. v. Haw-
kins, 4 Cox, 224. The driver of a
coach hired for the day is not the
servant of the person hiring: Rex v.
Haydon, 7 C. & P. 445.
555
fo
§ 556.] OFFENSES AGAINST PROPERTY. [Parr VII.
for that purpose, he is guilty of larceny.’ In order that the
servant shall be guilty of larceny of his master’s property, the
property must have been, up to the time of the wrongful tak-
ing by the servant, in the possession of the master; so that, as
to goods given to the servant by another to be delivered to his.
master, it is said that the servant cannot commit larceny, the
possession of the master not having yet attached? But where
coals had been received by the servant into his master’s cart, it
was held that they were so far in the master’s possession that
the servant was guilty of larceny in misappropriating them ;*
and where money was given to the servant by the agent of the
master for delivery to the master, it was held that the previous.
possession of the agent was that of the master in such sense
that the misappropriation by the servant was larceny.’ If,
however, the property is received from the master for delivery
to another, it continues in the master’s possession till such de-
livery is made, and therefore the servant misappropriating it
is guilty of larceny.’ There may be other custodians who stand
in the same relation to the property as that of a servant, and
who, therefore, may be guilty of larceny in misappropriating
the property, although they are not technically servants. Thus,
where an instrument is handed to one for indorsement, he does.
not have possession, but mere custody thereof, and may be
guilty of trespass in appropriating it, and if the act is with
1Reg. v. Cooke, L. R. 1 C. C. 295;
Reg. v. Low, 10 Cox, 168. But where
4P. v. McDonald, 48 N. Y. 61. So
where money was paid in the usual
the wages of several employees were
drawn by one and misappropriated,
it was held that he was not guilty
of larceny from the employer: Reg.
v. Barnes, L. R. 1 C. C. 45.
2C. v. Ryan, 155 Mass. 523. So
held as to cash received for a check
or change for a bill: C. v. King, 9
Cush. 284; Rex v. Sullens, 1 Moody, |
129; or money received for goods ©
sold: Reg. v. Betts, Bell, 90; Reg. v.
Brockett, 4 Cox, 274. And see infra,
§ 562,
3 Reg. v. Reed, Dears. 257. And
see Reg. v. Hayward, 1C. & K. 518;
Rex v. Harding, Russ. & Ry. 125; 2
East, P. C. 568.
course of business to the agent of a
partnership who misappropriated it,.
held, that he was not guilty of the
statutory offense of larceny by
breach of trust as to the party pay-
ing, as his relation to the money was.
solely that of clerk of the partner-
ship: McNish v. S., 88 Ga. 499.
5 Rex v. Metcalf, 1 Moody, 433; Reg..
v. Heath, 2 Moody, 33; Reg. v. Haw-
kins, 1 Den. 584.
6C. v. O'Malley, 97 Mass. 584; S. v.
Jarvis, 63 N. C. 556; S. v. Self, 1 Bay,
242; Gill v. Bright, 6 T. B. Mon. 130;
Robinson v. &., 1 Coldw. 120.
556
Ca. 26.] LARCENY.
[§ 557.
fraudulent intent he will be guilty of larceny.! A brakeman or
‘railway conductor will be guilty of larceny in the wrongful
taking of property in the possession of the company. He is
not a carrier.2 The assistant foreman of a warehouse, having
no authority to dispose of the property stored therein, but only
‘to deliver it upon orders, has been held guilty of larceny rather
‘than embezzlement in attempting to sell it.8 One who is in-
‘trusted with the custody of money for a special purpose may
‘commit larceny thereof although he is entitled to a portion of :
the money by way of compensation, such portion not having
been selected. Under statutes with reference to conversion
by a servant in connection with embezzlement, it is held that
such a conversion cannot be prosecuted as larceny, but only as
-a statutory offense, although in the absence of statute it might
be larceny.>
§ 557. Consent of owner ; collusion.— The essential element
-of trespass is absent where the taking is with the owner’s con-
sent.6 In view of this doctrine the question has sometimes
‘been raised whether, where the owner for the purpose of cap-
turing the thief takes no steps to prevent the intended larceny
-of which he has knowledge, he does not thereby so far consent
as that the act when committed is not larceny; but this view
“is not sustained, and the crime is committed although the
owner takes nosteps to prevent it.’ Thus, if marked money is
placed where it may be taken by one who is planning to com-
mit larceny, there will not be such consent as to prevent pun-
dshment for the felony.’ It is so where the marked money
1p. v. Call, 1 Denio, 120.
2Manson v. S, 24 Ohio St. 590;
‘Brown v. P., 20 Colo. 161.
3P, v. Perini, 94 Cal. 573.
4C. v. Lannan, 153 Mass. 287. And
see Reg. v. Wright, Dears. & B. 431.
5S. v. Wingo, 89 Ind. 204.
62 East, P. C. 665; 2 Bish. Cr. L.,
§ 811; Moye v. S., 65 Ga. 754; Dodd
v. Hamilton, 2 Tayl. 31; Marshall v.
S., 31 Tex. 471.
7Varner v. S., 72 Ga. 745; P. v.
Hanselman, 76 Cal. 460; Connor v.
S., 24 Tex. Ap. 245; Rex v. Egginton,
2 East, P. C. 494, 666. But the crime
sof receiving stolen goods is not com-
mitted where the goods are by pro-
curement of the owner delivered to
the receiver: See infra, § 717. In
general as to decoying to crime, see
supra, § 118.
8 Reg. v. Williams, 1 C. & K. 195.
Where rabbits had been killed and
concealed, with the purpose of after-
wards taking them away, it was held
that the discovery of the bodies by
the owner, and marking them for
subsequent ‘identification, was not
such taking into possession that a
subsequent taking, in continuance
of the original purpose, would be lar-
ceny: Reg. v. Petch, 14 Cox, 17.
557
§ 587.]
OFFENSES AGAINST PROPERTY.
[Parr VII.
is put in a letter which is stolen, the letter being sent for the
purpose of detecting larceny from the mails.!| And it will not
prevent the punishment of the criminal that one who acts in
the interest of the owner has pretended to join with the crim-
inal in committing the crime, not, however, having been in..
strumental in suggesting it. It is not necessary in general to.
negative the consent of the owner in the indictment,’ but under
the particular definition of larceny in the Texas statute it is.
required that such consent be directly negatived;‘ and if the
ownership is alleged to be in two, or ownership in one and
possession in another, the want of consent of both must be al-
leged and shown.’ “Where the question of want of consent of
the owner becomes material, it is not necessary to prove such
want of consent by the evidence of the owner himself. It may
be shown by others having knowledge of the facts.* But it is.
said that the rule as to the introduction of the best evidence
makes it necessary to introduce the evidence of the owner on
that question unless some reason for not doing so appears.”
Where the evidence of the owner is not obtainable, his want
of consent may be shown by circumstantial evidence.’
1 Reg. v. Rathbone, Carr. & M. 220;
Reg. v. Young, 2 C. & K. 466; though
it is said in some cases that such a
letter is not a post letter within the
English statute as to stealing letters
from the mails: Reg. v. Shepherd,
Dears. 606; Reg. v. Rathbone, supra;
Reg. v. Gardner. 1 C. & K. 628, But
the last case seems to be overruled
in Reg. v. Young, supra. As to lar-
ceny from the mails, see infra,§ 1330.
2?McAdams v. 8, 8 Lea, 456; Pigg
v. S., 43 Tex. 108.
3 Wedge v. S., 7 Lea, 687; P. v.
Davis, 97 Cal. 194,
4 Garcia v.S., 26 Tex. 209; Johnson
v. S., 39 Tex. 393; Bland v.S., 18 Tex.
Ap. 12; Jackson v.&., 7 Tex. Ap. 363;
Otero v. 8., 80 Tex. Ap. 450; McMa-
hon v. 8, 1 Tex. Ap. 102; Bowling v.
S., 18 Tex. Ap. 338,
5 Taylor v.S., 18 Tex. Ap. 449; Will-
iams v. S., 19 Tex. Ap. 276; Willey
v.S., 22 Tex. Ap. 408; Spruill v. S., 10
Tex. Ap. 695; Rains v. S., 7 Tex. Ap.
588; Jones v. S., 28 Tex. Ap. 423:
Swink v. S., 32 Tex. Ap. 530. Where
there is mere temporary custody in.
the person from whom the property
is taken, his consent need not be-
negatived: Burns v. S., 35 ‘Tex. 724;
Bailey v. 8. 18 Tex. Ap. 426. In case
of custody of property of an infant
by his guardian, it is sufficient to.
negative the consent of such guard-
ian: Frazier v. S, 18 Tex. Ap. 434.
Where the property is in possession ~
of bailee, want of consent of such
bailee is sufficient: Skipworth v. 8.,.
8 Tex. Ap. 135. It being permitted
by statute to allege ownership in one
of two joint owners, it is not neces-
sary to prove want of consent of the
other: Coates v. S., 81 Tex. Ap. 257.
As to consent, see, also, supra, § 546.
&P, v. Jack, 76 Mich. 218.
78. v. Osborne, 28 Ia. 9; Bubster v..
8., 83 Neb. 663; Perry v.S., 44 Neb.
414; S. v. Moon, 41 Wis. 684,
8Clayton v. S, 15 Tex. Ap. 348;
558
Cu. 26.] LARCENY. [§ 558.
§ 558. Consent of servant, or custodian, or wife.—The fact
that the servant, in whose possession the property is, consents
to its taking will not prevent the act being larceny, he having
no authority to consent and the wrong-doer being aware of
that fact.' So where the property was obtained from a bailee
“on the false representation that the owner consented, the act
was held larceny.? But the doctrine as to the necessity of tres-
pass, already stated, prevents the taking of the property of the
husband or wife by the other from being larceny, as they have
such joint possession that the wrongful act of the one is not a
trespass as against the other.’ And so where the wife elopes,
carrying with her the property of the husband, there is no lar-
ceny committed by one who subsequently obtains the property
from her. And one who assists the wife in taking the prop-
erty from her husband is not guilty of larceny, for the consent
of the wife prevents the act from being a trespass.> But this
doctrine is subject to a well-settled exception, that if the person
who assists the wife does so in pursuance of a mutual inten-
tion that they shall commit adultery, the consent of the wife is
no excuse, for the adulterer must have known that such taking
was without the husband’s consent. And this doctrine, that
Love v. 8., 15 Tex. Ap. 563; Schultz
v. S., 20 Tex. Ap. 308.
18. v. McCartey, 17 Minn. 76; P.v.
Griswold, 64 Mich. 722; S. v. Ed-
wards, 36 Mo, 394; Reg. v. Tuckwell,
Car. & M. 215; Rex v. Hench, Russ.
& Ry. 168; Reg. v. Sheppard, 9 C. &
P, 121; Reg. v. White, 9 C. & P. 344;
Reg. v. Robins, Dears. 418; Rex v.
Longstreeth, 1 Moody, 187; Reg. v.
Simpson, 2 Cox, 235; Reg. v. Webb,
5 Cox, 154; Reg. v. Little, 10 Cox,
559. These cases run into the doc-
trine of obtaining possession by
false pretenses with the purpose of
stealing, which will be discussed
hereafter: See infra, § 563.
2Reg. v. Steer, 2 C. & K. 988.
3Thomas v. Thomas, 51 Tl. 162;
Watkins v.5S., 60 Miss. 323; Reg. v.
Kenny, 2 Q. B. D. 307; Rex v. Wil-
lis, 1 Moody,.875. Contra, Beasley v.
S., 188 Ind. 552. The crime of lar-
ceny from a building cannot be com-
mitted by the wife of goods in a
building belonging to the husband;
but the court seems to have thought
that the wife in such case could be
convicted for the simple larceny: C..
v. Hartnett, 3 Gray, 450.
4Reg. v. Kenny, 2 Q. B. D. 207;
Reg. v. Fitch, Dears. & B. 87; Reg. v.
Rosenberg, 1 C. & K. 233; Reg. v.
Prince, 11 Cox, 145; Reg. v. Taylor,
12 Cox, 627.
5S, v. Banks, 48 Ind. 197; Lam-
phier v. 8., 70 Ind. 317; Rex v. Har-
rison, 2 East, P. C. 559; Reg. v. Avery,
Bell, 150; Rex v. Tolfree, 1 Moody,
248.
6P, v. Swalm, 80 Cal. 46; P. v.
Schuyler, 6 Cowen, 572; Reg. v. Tol-
lett, Car. & M. 112; Reg. v. Berry,
Bell, 95; Reg. v. Featherstone, Dears,
869; Reg. v. Thompson, 1 Den. 549;
Reg. v. Mutters, L, & C. 511; Reg. v.
559
§§ 559, 560.] OFFENSES AGAINST PROPERTY. [Part VII.
any knowledge on the part of the person assisting the wife
that the consent of the wife is not the consent of the husband,
is applicable to other cases where the person thus assisting has
knowledge that the wife is going away without the husband’s
consent, even though he is not intending to commit adultery
with her! The fact that property thus taken by the wife and
given to another without the husband’s consent is her own
wearing apparel will not, under the statutes as to separate.
property of the wife, give rise to any presumption that such
apparel does not belong to the husband.?
§ 559. Further as to consent; force, duress, fraud.— Where
the consent of the owner to the taking is procured only by
force or duress it does not, of course, prevent the act being a
crime.’ So a fraudulent taking is equivalent to a wrongful
taking and may constitute larceny.‘ But this line of reason-
ing leads to great difficulties, and some of the most intricate
distinctions in larceny are involved in cases where the property
is procured by fraud. These cases may perhaps be conven-
iently divided into three classes: First, where the property is
obtained by some trick or device; second, where the purpose:
of the owner is only to surrender possession, in which case the
party obtaining possession will be guilty of larceny if he obtained
such possession with the fraudulent purpose of appropriating
the property and depriving the owner thereof, but not if he
originally took possession for an innocent purpose, and subse-
quently appropriated the property wrongfully to his own use;
and third, where the owner intends to part with the title to
the property, such intention, however, being brought about by
fraud. These three classes of cases run into each other in so
many ways that it seems almost impossible to draw clear divid-
ing lines. The method conducing to clearness will be to dis-
cuss the three, bearing in mind under each heading the con-
trolling principle and seeking in the cases for its application.
§ 560. Property obtained by trick or fraud.— The general
proposition is a plain one, that where the owner does not in-
Harrison, 12 Cox, 19; Reg. v. Flat- Reg. v. Lovell, 8 Q. B. D. 185; Reg. v.
man, 14 Cox, 396, Hazell, 11 Cox, 597; S. v. Bryant, 74
1p, v. Cole, 43 N. Y. 508; P. v. N.C. 124,
Schuyler, 6 Cowen, 572, 4P. v. Shaw, 57 Mich. 403; CG. v.
2P. v. Swalm, 80 Cal. 46. Wilde, 5 Gray, 83; Shipply v. P., 86
3 Reg. v. McGrath, L, R.1 C. C.205; N. Y. 875.
560
Cu. 26. LARCENY. [$ 560.
tend to part with his property, but only with temporary pos-
session, and it is obtained from him by trick or fraud with the
intention of depriving him of it, the offense is larceny.! Thus,
if one obtains money by a pretended game of chance so art-
fully devised that the person from whom the money is obtained
has no chance of winning, the act constitutes larceny.2 An
early case in England held such an act not to be larceny, on the
theory that the owner voluntarily parted with his money, not
expecting to get it back if he should lose;* but the modern
‘cases cited in the last preceding note take a more reasonable
view of the transaction and consider that the fraud is a wrong-
ful taking, and that larceny is committed. Where the trick
consists in inducing another to make a wager, the owner in-
tending to part with his money if he loses the wager, but the
purpose of the wrong-doer being that, irrespective of the result
of the wager, the owner shall not have back his money, the
offense is larceny. Other frauds and tricks by which the owner
voluntarily parts with his money under an entire misapprehen-
sion brought about by fraud of the opposite party will make
the taking larceny ;° so, where one procured goods to be sent .
to him C. O. D., and then got the goods from the carrier by a
worthless check, that being a part of his original plan, it was
held that larceny was committed;* and it was so held where
‘one bought coal, but by covering it with slack got it at the
1C, v. Lannan, 153 Mass. 287; C. v. used being kept instead of being re-
Barry, 124 Mass. 325; Frazier v. §.,
‘85 Ala. 17; Wilson v. S., 1 Port. 118;
S. v. Lindenthall, 5 Rich. 237; Rex
v. Munday, 2 East, P. C. 594. But
the application of this doctrine
raises the questions, whether the
‘owner intended to part with his
property, and whether, if he intended
only to part with possession, there
was a fraudulent purpose in the
wrong-doer from the beginning,
which questions are for subsequent
discussion.
2 Miller v. C., 78 Ky. 15; Defrese
v. S., 3 Heisk. 58; Hall v. S., 6 Baxt.
522; U.S. v. Murphy, McA. & M. 375;
for instance, by a pretended illustra-
tion of lottery drawing, the money
86
561
turned: P. v. Johnson, 91 Cal. 265.
3Rex v. Nicholson, 2 East, P. C.
669; Reg. v. Wilson, 8 C. & P. 111.
4 Stinson v. P., 43 Ill. 397; Reg. v.
Buckmaster, 20 Q. B. D. 182.
5 Thus, where a cigarette was pro-
cured from a slot machine by put-
ting ina worthless brass disk instead
of a penny, held, that the act was
larceny: Reg. v. Hands, 16 Cox, 188;
8 Am. Cr. R. 469. Where money was
obtained under pretense that an act
had been done which defendant had
agreed to do, and for which the
money was to have been paid, but
the act had in fact not been done,
held, that there was larceny: P. v.
Berlin, 9 Utah, 383.
6Shipply v. P., 86 N. Y. 375.
[Parr VIL.
§ 560.] OFFENSES AGAINST PROPERTY.
price of slack instead of at the price of lump coal; also where
defendant, having intentionally killed and concealed a hog be-
longing to his neighbor, represented that the hog had died and
was only valuable for soap grease and obtained it as such.?
Where, by the assistance of a confederate, defendant procured
a loan from a traveling companion on pretended security, but
with the intention of appropriating the money, the act was.
held larceny. Where it appeared that the prisoner had ob-
tained a horse from the bailee of another by fraudulently rep-
resenting that it-was with the owner’s consent, well knowing
that the owner was not willing that the horse should be deliv-
ered to him, the act was held larceny.! There are other cases.
falling under the same doctrine involving a transaction in which
the owner is induced to part with his property by a pretended
exchange which is so fraudulently carried out that the owner
does not get in exchange the thing which wasintended.> In such
cases, although the owner intends to part with his property
and never get it back, yet the fraudulent plan of the wrong-
doer prevents the consent being voluntary, and the property is
therefore wrongfully taken. Cases similar to this and gov-
erned by the same principle are those where there is ostensible
purchase with pretended intent to pay at once, but the prop-
erty, having been got into custody by the pretense, is taken
without payment in pursuance of an original wrongful purpose.”
1 Rex v. Bramley, L. & C. 21.
2 Frazier v. S., 85 Ala. 17.
3P, v. Rae, 66 Cal. 423. So where
money is obtained on deposit as
security in case of a pretended em-
ployment, and is then retained
wrongfully, the act is larceny: P. v.
Tomlinson, 102 Cal. 19; P. v. Fehren-
back, 102 Cal. 394. So where money
is thus appropriated after being ob-
tained as security for a contract:
Devore v. T., 2 Okl, 562,
4 Reg. v. Steer, 2 C. & K. 988,
5 C. v. Hichelberger, 119 Pa. St. 254;
Grunson v. S., 89 Ind. 588; Huber v.
S., 57 Ind. 841; Taylor v. S., 32 Tex.
Ap. 110; Rex v. Oliver, 2 Russ., C. &
M. 122; Reg. v. Russett, 2 Q. B. D.
(1892) 312, 9 Am, Cr. R, 511 and note.
56
6 Reg. v. Rodway, 9 C. & P. 784.
This was a case of obtaining a re-
ceipt with the expectation on the
part of the person giving it that he
should receive the money called for,
which, however, was not paid. A
similar case was that where, by
means of fraudulent checks, an or-
der for property was secured, and
the property was thus obtained with-
out payment being actually made:
Reg. v. North, 8 Cox, 43, It is lar-
ceny to get money as compensation
under the false pretense of being
able to secure the return of stolen
property: Cantwell v. P., 188 Ill 602.
7Vaughn v.C., 10 Grat. 758; Blunt
v. C., 4 Leigh, 689; Hildebrand v. P.,
56 N.Y. 894; 8. v. Shoaf, 68 N. C.
2
Ca. 26.] LARCENY. [§ 560.
In such cases as these the question whether there was a bona
Jide intent to pay is material; if there was, a subsequent failure
to pay will not constitute larceny.' Thus, if a pretended buyer
gets possession of the goods for the purpose of inspection and
makes off with the property without payment, that being his
original intent, larceny is committed. Another class of cases
rests on the same principle, namely, where the owner gives
money to the wrong-doer with the expectation of having change
in return, and the wrong-doer takes the money and appropri-
ates it with the intention, from the first, of not returning the
expected change.’ The difficulty in these cases is in determin-
ing whether there was a wrongful purpose at the beginning or
only a subsequent wrongful conversion of the money intrusted,
and there is early English authority holding that under such
‘circumstances there is no larceny ;* but even by the older cases,
if the original intention was to deprive the owner of his prop-
erty, the crime was committed,’ and under the later cases there
is no doubt that, although the reasoning may not be entirely
in accord with the technical doctrines, a conviction will be sup-
ported.6 Somewhat analogous to these cases are those where,
by artfully “ringing the changes,” as it is called, the wrong-
doer confuses the person who attempts to make change, and
procures more money in exchange than he is entitled to.’
375; U.S. v. Rodgers, 1 Mackey, 419;
Rex v. Sharpless, 2 East, P. C. 675;
Rex v. Pratt, 1 Moody, 250; Rex v.
Gilbert, 1 Moody, 185; Reg. v. Mor-
gan, Dears. 395; Reg. v. Box, 9 C. &
P. 126; Reg. v. Slowly, 12 Cox, 269;
Rex v. Campbell, 1 Moody, 179; Reg.
v. Cohen, 2 Den. 249.
1Reg. v. Richardson, 1 F. & F. 488;
Rex v. Harvey, 2 East, P. C. 669; P.
v. Raschke, 73 Cal. 378.
28. v. Hall, 76 Ia. 85, 8 Am. Cr. 463
and note. So where one gets posses-
sion of a note under pretense of in-
tent to pay and then destroys it,
heis guilty of larceny: State v. Fenn,
41 Conn. 590, 1 Am. Cr. 378 and note.
One who gets permission to sample
cotton, but with intent to appropri-
ate the samples, is guilty of larceny.
8. v. McRae, 111 N. C. 665.
3 Murphy v. P., 120 Ill. 234; Farrell
v. P., 16 TL 506; Levy v. S., 79 Ala.
259; Walters v.S., 17 Tex. Ap. 226.
Where a child was allowed to pay a
gold piece fora small purchase and
given change for a dollar, the re-
ceiver was held guilty of swindling,
not larceny: Jones v. S., — Ga. —,
25S. E. R. 319.
Reg. v. Thomas, 9 C. & P. 741.
And see Reg. v. Bird, 12 Cox, 257.
5 Rex v. Aickles, 2 East, P. C. 675;
Rex v. Williams, 6 C. & P. 390. And
see Reg. v. Twist, 29 L. T. 546.
6 Justices v. P., 90 N. Y. 12; C. v.
Barry, 124 Mass. 325; Hildebrand v.
P., 56 N. Y. 394.
7 Reg. v. Johnson, 2 Den. 310; Reg.
v. McKale, L. R. 1 C. C. 125. And
see Fleming v. S., 186 Ind. 149,
563
ran?
[Parr VII.
§§ 561, 562.] OFFENSES AGAINST PROPERTY.
§ 561. Mutual mistake and subsequent wrongful appro-
priations.— Notwithstanding the well-recognized rule already
discussed,! that a subsequent wrongful appropriation of prop-
erty rightfully obtained is not larceny because there is no tres-
pass, that is, no taking from the owner, it is now well settled
that if by mutual mistake a bill or coin of a larger denomina-
tion than that intended is given and received, and the person
receiving it, on discovering the mistake, does not return the
money or the excess, he is guilty of larceny; the theory being
that, in such case, the owner does not really part with his
money, and that a trespass is committed when the person re-
ceiving it uses it as his own.? Unquestionably, also, one who
knowingly receives an overpayment made by mistake is guilty
of larceny of the excess, for there is no intention on the part of
the person making payment to transfer such excess, and the
acceptance and conversion are wrongful.’ But where the over-
payment was not known at the time and the excess was, on its
discovery by the person receiving, retained, it was held that
larceny had not been committed.
§ 562. Obtaining possession only, but with intent to ap-
propriate.— Notwithstanding the doctrine that, where the
wrong-doer already has lawful possession, there is no larceny
in a subsequent wrongful appropriation,® the principle that
fraud vitiates any transaction into which it enters would fur-
nish a theoretical reason for the rule that, where the wrong-
doer thus obtains possession for the purpose and with the intent
of appropriating the property, the act will be larceny; and this
doctrine is fully recognized by the cases, the older ones em-
phasizing the fact that the taking of possession in the first in-
1See supra, § 550.
2S. v. Ducker, 8 Oreg. 394; Bailey
v. S., 58 Ala. 414; S, v. Williamson, 1
Houst. Cr. C. 155; Reg. v. Ashwell,
16 Q. B. D. 190. The English court
does not, however, abandon the doc-
trine that the receipt and the wrong-
ful appropriation must be contempo-
raneous: Reg. v. Flowers, 16 Q. B. D.
648, Where a money order was de-
livered to the wrong person by mis-
take, and he, knowing the mistake,
had it cashed, held, that he was not
guilty of larceny of the order: Reg.
v. Davis, Dears. 640.
3 Reg. v. Middleton, L. R. 2 C.C.
38. In this case the judges were di-
vided in their views. This does not
constitute larceny by bailee under
Texas statute: Fulcher v. S., 32 Tex.
Ap. 621,
4 Reg. v. Flowers, 16 Q. B. D. 6438.
And see Reg. v. Hehir, 29 Ir. L, T.
323; Article 8 Harv. L. Rev. 317
5 Supra, § 550.
564
Cu. 26.] LARCENY. [§ 562.
stance by the wrong-doer must have been animo furandi, that
is, with intent to steal.! A typical illustration of this doctrine
is found in cases where property is ostensibly borrowed or
hired, but with the purpose on the part of the borrower of ap-
propriating instead of returning it.2 In such cases, the fact
that the owner consents to the delivery of possession to the
wrong-doer does not prevent the act being larceny, not only
because the consent is procured by fraud, but because it is not
the parting with title, but only the delivery of possession; and
the cases are thus distinguished from those to be discussed
in the next section, where the owner by fraudulent pretenses
or otherwise is induced to part with his property. In the cases
now being considered the title remains in the owner, and the
subsequent conversion and the original intent to deprive the
owner of his property supply the necessary elements of larceny.’
Obtaining possession of property by falsely personating an-
other, or false representation of authority to purchase or take
for another, is larceny.* It is evidently necessary, to bring a
case within this doctrine, that there should have been the orig-
inal wrongful intent to deprive the owner of his property, for
otherwise there is only a conversion after rightful possession,
which does not constitute the crime of larceny.’ If there is an
original wrongful but not felonious intent, as to make use of
1Rex v. Horner, 1 Leach, 270; Rex
v. Pear, 2 East, P. C. 685, 697; Rex
v. Tunnard, 2 East, P. C. 687; Rex v.
Semple, 2 Hast, P. C. 691; Reg. v.
Box, 9 C. & P.126; Rex v. Stock, 1
Moody, 87; Reg. v. Cole, 3 Cox, 340;
Reg. v. Janson, 4 Cox, 82; Reg. v.
Waller, 10 Cox, 860.
28. v. Humphrey, 32 Vt. 569; Loo-
mis v. P., 67 N. Y. 322; P. v. Jersey,
18 Cal. 337; Starkie v. C., 7 Leigh,
752; Richards v. C., 13 Grat. 803;
Quinn v. P., 123 IL. 333; Felter v.5S.,
9 Yerg. 397; Coldwell v. S., 59 Tenn.
429; S. v. Woodruff, 47 Kan. 151;
Dignowitty v. S., 17 Tex. 521; White
v. &., 11 Tex. 769; Rex v. Semple, 2
East, P. C. 691; Rex v. Pear, 2 East,
P. C. 685, 697; Reg. v. Bunce, 1 F. &
F. 523; Reg. v. Gillings, 1 F. & F. 36.
One who obtained property from
the minor son of the owner, intend-
ing to convert it to his own use, was
held guilty of larceny: P. v. Camp,
56 Mich, 548.
3C. v. Barry, 124 Mass. 325; Loomis
v. P., 67 N. Y. 822; Smith v. P., 53
N. Y. 111; S. v. Watson, 41 N. H. 583;
P. v. Raischke, 83 Cal. 501; S. v. Will-
iams, 35 Mo. 229; S. v. Gorman, 2
Nott & McC. 90.
4C. v. Collins, 12 Allen, 181; C. v.
Whitman, 121 Mass. 361; Harris v.
S., 81 Ga. 758; Madden v. S., 1 Tex.
Ap. 204. So by statute: 8. v. Brown,
25 Ia. 561; S. v. Smith, 9 Wash. 248,
5P, v. Cruger, 102 N. Y. 510; S. v.
Shermer, 55 Mo. 83; Johnson v. P.,
118 Ill. 99; Reg. v. Matthews, 28 L. T.
645. And see further cases collected
on this subject in relation to intent,
infra, § 569. That wrongful appro-
565
[Parr VIT.
§ 562.] OFFENSES AGAINST PROPERTY.
the property for an unauthorized purpose, a subsequent appro-
priation will be larceny, for there was not consent to the in-
tended use. But there must be a subsequent appropriation ; the
mere technical conversion involved in the misuse is not enough.?
The mere fact of the subsequent conversion is not, in itself,
sufficient evidence of the wrongful intent.’ It is not necessary,
however, to bring a case within the doctrine here discussed, to
show that the owner was to have back the identical property.
The person to whom it is delivered may have possession only
and not title, although he is intrusted with the property with
the purpose on the part of the owner that he shall dispose of
it; and if there is the intent to deprive the owner of his prop-
erty when it is taken under such an arrangement, the offense
is larceny.! Cases analogous to this have already been dis-
cussed under the section relating to larceny by trick.’ It is
necessary to bear in mind here also the distinction between
possession and custody; for, as already has been said in rela-
tion to larceny by servants and other custodians, if such mere
custodian wrongfully converts the property he is guilty of lar-
ceny, because he has not even possession, and is therefore guilty
of trespass in such misappropriation. If the original wrongful
intent exist at the time possession is taken, there may be suffi-
cient subsequent conversion in pursuance of such intent, al-
though the property is not actually disposed of, the wrong-doer
intending to appropriate it and treat it as his own.’ But there
must be something constituting a conversion.? In some states
the statute defining larceny is so drawn as to expressly cover
the class of cases considered in this section.’
priation after lawful possession is
not larceny has already been stated:
Supra, § 549.
1S, v. Coombs, 55 Me. 477. Soa
trespass not felonious in taking
property may become larceny by a
subsequent wrongful appropriation
and disposal: C. v. White, 11 Cush.
483.
2 Berg v. S., 2 Tex. Ap. 148.
8P, v. Carabin, 14 Cal. 438; Pitts
v.8., 3 Tex. Ap. 210. And see other
cases under the head of intent, infra,
§ 571.
4S. v. Watson, 41 N. H. 533; C. v.
Yerkes, 29 Leg. Int. 60, reported in
119 Pa. St. 266; Mitchell v. S, 92
Tenn. 668; Reg. v. Brown, Dears.
616; Reg. v. Thompson, 9 Cox, 244
5 Supra, § 560.
6 Reg. v. Jones, Car. & M. 611; Reg.
v. Evans, Car. & M632, and cases
supra, § 556.
78. v. Humphrey, 32 Vt. 569; Reg.
v. Janson, 4 Cox, 82.
§ Blunt v. C., 4 Leigh, 689; S. v.
Hayes, 111 N. C. 727; Berg v.S., 2
Tex. Ap. 148. ‘
6P. v. Laurence, 187 N. Y. 517;
Coldwell v. S., 59 Tenn, 429,
566
Ox. 26.]
LARCENY. [§ 563.
§ 563. Obtaining property by false pretenses.— Where the
owner of property delivers it to another intending to part with
title, there can be no trespass on the part of the person thus
obtaining the titie to the property, and therefore no larceny,
although the owner was induced to part with his property by
fraud or false pretenses. Such a case is plainly distinguishable
rom one where the owner intends to deliver the custody or
possession only to another, retaining the title.1_ Therefore the
well-known offense of obtaining property by false pretenses is
a distinct one from larceny.? Thus, if the owner parts with his
property not intending to have it back, but intending that it
shall become the property of the wrong-doer, the fact that he
was deceived as to the object or purpose for which the wrong-
‘doer obtained the property will not make the offense larceny ;°
nor will it where the owner is deceived as to what he is receiv-
ing for the property.! It has even been held that where one
fraudulently obtains property intended for another,’ or deliv-
ers property, expecting it to be paid for on delivery, and it is
fraudulently taken without payment,‘ there is no larceny; but
more recent cases do not carry the doctrine to this extent.’
If the property is obtained by duress, then no title passes, and
1Zink v. P., 77 N. Y. 114; Loomis
v. P., 67 N. Y. 322; Farrell v. P., 16
Ill. 506; Murphy v. P., 104 Ill. 528;
Kellogg v. S., 26 Ohio St. 15; Elliott
y. C., 12 Bush, 176; Hill v. S.,57 Wis.
377; C. v. Eichelberger, 119 Pa. St.
254; Pease v. S.,.94 Ga, 615; Reg. v.
Prince, L. R. 1 C. C. 150.
28, v. Porter, 25 W. Va. 685; Haley
y. 8, 49 Ark. 147; Williams v. S., 49
Ind. 867; Ross v. P., 5 Hill (N. Y.),
294; Pitts v.S.,5 Tex. Ap. 122; Tay-
lor v. S. 32 Tex. Ap. 110; Reg. v.
Wilson, 8 C./& M. 111; Reg. v.
Thompson, L. & C. 283; Reg. v.
Green, Dears. 323; Reg. v. Essex,
Dears. & B. 371; Reg. v. Barnes, 2
Den. 59; Reg. v. Hunt, 8 Cox, 495.
In some of these cases the facts are
such as would now be deemed to
constitute a trick or artifice render-
dng the wrong-doer guilty of larceny
under the principle stated supra,
§ 560, which see. Where a servant
induces his master to give him
money for a particular expenditure,
but intends to and does appropriate
the money to his own use, he is not
guilty of larceny, the offense being
false pretenses: Reg. v. Barnes, 2
Den. 59; ‘Reg. v. Green, Dears. 323;
Reg. v. Essex, Dears. & B. 371; Reg.
v. Hunt, 8 Cox, 495; Reg. v. Thomp-
son, L. & C, 233.
3 Collins v. S., 15 Lea, 68.
4 Reg. v. Adams, 1 Den. 38; Rex v.
Jackson, 1 Moody, 119.
5 Rex v. Adams, Russ. & Ry. 225.
6 Rex v. Parks, 2 East, P. C. 671.
7 Reg. v. Russett, 2 Q. B. D. (1892),
812; Harris v. S., 81 Ga. 758; S. v.
Hall, 76 Ia. 85. See supra, §§ 560,
562,
567
§ 564.) OFFENSES AGAINST PROPERTY. (Part VIL.
the offense is larceny.'' This very technical rule as to larceny,
the application of which has been found extremely difficult in
practice, is, in some states, abrogated by statute, making it lar-
ceny to obtain property by false pretenses, and abolishing the
distinction between the two offenses? But even under such a
statute, where it appeared that the property was delivered by
the agent of the owner under a false representation by the
wrong-doer that he had bought the property, it was held that
the offense was swindling and not theft.’ Where the statute
makes the obtaining of property by false pretenses larceny, the
false pretenses cannot be proven under a common-law indict-
ment for larceny, but the false pretenses must be averred.'
V. Intent.
§ 564, An essential element.— The mere unlawful taking
and carrying away of the property of another is not larceny
unless it is done with a criminal intent or animo furandi>
Even though the taking away is without the owner’s consent
and with the intention of converting the property, the act wilk
not be larceny unless it is done with intent to steal. In speak-
ing of this intent various terms are used, such as felonious,
fraudulent, etc., but no particular significance attaches to these
terms. The question is whether the intent is a criminal one.
There may be, therefore, such a wrongful taking as to consti-
1 Perkins v.S.,65 Ind. 317. And see
supra, § 559.
2Fay v.C., 28 Grat. 912; Davison
v. S.,12 Tex. Ap. 214; Atterberry v.
S., 19 Tex. Ap. 401; S. v. Vickery, 19
Tex. 326; Hornbeck v. S., 10 Tex.
Ap. 408. And proof of obtaining
property under false pretenses may
be introduced under an indictment
for larceny: Anable v. C., 24 Grat.
563; Leftwich v. C., 20 Grat. 716.
3 Frank v. S., 30 Tex, Ap. 381.
4P. v. Dumar, 106 N. Y. 502.
5 Williams v.5S., 44 Ala. 396; Phelps
v. P., 55 Ill. 384; Smith v. Shultz, 2
Ill. 490; Moore v. Watts, Beech. Bre.
42; 8. v. Campbell, 108 Mo. 611; S. v.
Fritchler, 54 Mo, 424; Hart v.8., 57
Ind. 102; Thompson v. P., 4 Neb. 524;
Waidley v.S., 34 Neb. 250; Barnes
v. S., 40 Neb. 545; S. v. Ledford, 67
N. C. 60; S. v. Butler, 21 S. C. 353;
Mullin v. S., 37 Tex. 337; Riojasv.S.,
8 Tex. Ap. 49; Landin v. S., 10 Tex.
Ap. 63; Taylor v. 8, 12 Tex. Ap.
489; Knutson v. S., 14 Tex. Ap. 570;
Fletcher v. S., 16 Tex. Ap. 685; Winn
v. 8. 17 Tex. Ap. 284; White v. S,
23 Tex. Ap. 643; Holsey v. S., 24 Tex.
Ap. 35. The question whether the
act is done animo furandt is for the
jury: Reg. v. Farnborough, 2 Q. B.
D. (1898), 484.
6Witt v. S, 9 Mo. 668; Pv.
Raschke, 73 Cal. 378
568
Cu. 26.] LARCENY. [§ 565.
tute trespass without the crime of larceny having been com-
mitted.' If the taking is under a bona fide claim of right there
is no larceny.? Thus, if the purpose of the taking is only to
test a right,’ or to protect one’s own property,‘ the act will not
be larceny.
§ 565. Under claim of right.— If the taking is under a bona
Jide belief on the part of the person taking that he has a right
to the property, the act will not constitute larceny, although
the belief is unfounded. Even if the facts would: not, if true, _
justify the taking, nevertheless if they give rise to a belief on
the part of defendant that he has a legal right to the property
they will disprove the crime of larceny.’ Any claim of right.
to the property may be shown as a defense if made in good
faith. Mistake as to the ownership of the property may be
shown in defendant’s behalf.7 Thus, it will disprove criminal
intent of defendant that the property was taken in pursuance
1 Adams v. S., 45 N. J. 448; Bray
v.S., 41 Tex. 203; Gooch v. S., 60
Ark, 5.
2 Miller v. P., 4 Colo. 182. And see
the next section.
3Kinnersley v. Orpe, 2 Doug. 517.
4Taylor v. Newman, 4 B. & S. 89;
McPhail v. 8., 9 Tex. Ap. 164.
5P, v, Eastman, 77 Cal. 171; P. v.
Hillhouse, 80 Mich. 580; P. v. Shultz,
— Mich. —, 38 N. W. R. 868; S. v.
Deal, 64 N. C. 270; Barnes v. S., 108
Ala. 44; Durrett v. S., 62 Ala. 484;
Morningstar v. S.,55 Ala. 148; Morn-
ingstar v. S., 59 Ala. 30; Kay v. S., 40
Tex. 29; Smith v. S., 42 Tex. 444;
Heath v. S.,7 Tex. Ap. 464. Payment
willexcusetaking by mortgagorfrom
mortgagee: P. v. Stone, 16 Cal. 369.
6S. v, Caddle, 35 W. Va. 73; P. v.
Devine, 95 Cal. 227; Baker v.S., 17
Fla. 406; Long v. S., 11 Fla. 295;
Mead v. S., 25 Neb. 444; S. v. Homes,
17 Mo. 379; Randle v. S., 49 Ala, 14;
Spivey v. S., 26 Ala. 90; 8. v. Larson,
85 Ia. 659; Fields v. &., 6 Coldw. 524;
Johnson v. S., 41 Tex. 608; Varas v.
S., 41 Tex. 527; Camplin v.S., 1 Tex.
Ap. 108; Miles v. S., 1 Tex. Ap. 510;
Vincent v. S.. 9 Tex. Ap. 803; Henry
v. 8. 9 Tex. Ap. 358; Sigler v. S., 9
Tex. Ap. 427; Evans v. S., 15 Tex.
Ap. 31; Harris v. S.,17 Tex. Ap. 177;
Small v. S., 18 Tex. Ap. 336; Boyd v.
S., 18 Tex. Ap. 339; Howard v. S., 25.
Tex. Ap. 602. Thus, declarations of
defendant, made while claiming to.
be in search of a lost animal, were
held admissible in his behalf in a
prosecution for taking an animal
which he claimed to have taken
under the belief that it was his own:
8. v. Daley, 53 Vt. 442, Where one
takes under leave of a pretended
agent of the owner, the question is
whether he believed such person to
be the agent: Heskew v. S., 18 Tex.
Ap, 275.
7 Long v.S., 11 Fla, 295; Parks v.8.,
29 Tex. Ap, 597; Reg. v. Halford, 11
Cox, 88. If one is charged with
wrongfully taking his own property
from the possession of another who-
has a right to possession, ignorance
of such right, or the belief that it
is terminated, will constitute a de-
fense: S. v. De Witt, 82 Mo. 571;
Taylor v. S., 7 Tex. Ap. 659,
569
[Parr VII.
§ 566.] OFFENSES AGAINST PROPERTY.
of a supposed purchase.! So if the prisoner believes the prop-
erty to have been delivered to him as his own,’ or that the
property was lost and abandoned,’ there will be no larceny.
One who disposes of the property of another under the well-
founded though erroneous belief that he is authorized so to do
is not guilty of larceny.‘ But the belief of ownership of right
which will constitute a defense must be an honest belief and
not a mere impression or pretense.’ It is said in one case that
the defendant might testify that he held a claim against the
owner of the property taken and took the property with the
belief that he could set off his claim against the action of
the owner for the value of the property.’ But with better
reason it is said that the supposition of the thief that the arti-
cle stolen belonged to one indebted to him, and the intention
to appropriate it to the payment of his debt, would not, even
if true, disprove larceny.’
§ 566. Intent to appropriate; temporary use.— The essen-
tial intent on the part of the wrong-doer must be to appropri-
ate the property to his own use. Though he interferes unlaw-
fully with the property, yet if his purpose is not to appropriate
it he is not guilty of larceny. Thus, where accused took and
carried away muskets to which he had no right, in order to
prevent others from using them against himself and his friends,
it was held that he was not guilty of larceny.® There must be
an intention to deprive the owner permanently of his property,
and taking for a mere temporary use will not constitute lar-
ceny.” Thus, it has been held that one who, for the purpose
Bond v. S., 23 Tex. Ap. 180; Ray
v. S., 18 Tex. Ap. 51; Dreyer v. S., 11
Tex. Ap. 631.
28. v. Shores, 31 W. Va. 491.
38. v. Swayze, 11 Oreg. 357.
4S. v. Barrackmore, 47 Ia. 684;
Chambers v. S., 62 Miss. 108.
5 Morrisette v. S., 77 Ala. 71; S. v.
Bond, 8 Ia. 540; S. v. Thompson, 95
N, C, 596; Peck v. S., 9 Tex. Ap. 70;
Reg. v. Wade, 11 Cox, 549. And the
claim must be of a present, not a
prospective, right: S. v. Jones, 2 Dev.
& B, 544,
6S. v. Williams, 95 Mo. 247.
7C. v. Stebbins, 8 Gray, 492; Get-
tinger v. S13 Neb. 308 As to
whether a mistake of law would
excuse, see the general discussion
under that head, supra, § 182.
8To take from an officer warrants
under which he has seized property,
with the purpose of thus depriving
him of his authority, does not consti-
tute larceny: Reg. v. Bailey, L. R. 1
C. C. 847.
9U. S. v. Durkee, 1 McAll. 196.
10 Rex v. Phillips, 2 East, P. C. 662;
Reg. v. Guernsey, 1 F. & F. 894; Reg.
v. Holloway, 2 C, & K. 942; Rex v.
570
Cu. 26.] LARCENY. ;
[§ 567.
of escaping with stolen property, takes a horse not intending
to keep it but only to use it temporarily, is not guilty of lar-
ceny of the horse.! So it has been held as to other similar
temporary appropriations.’ But some recent cases give to this
doctrine a more reasonable interpretation, and hold that if the
person taking the property does not intend that it shall be re-
turned to the owner, but to abandon it after his temporary use
is ended, thus, so far as he is. concerned, intending to -deprive
the owner permanently of his property, the act will be lar-
ceny, even though the owner subsequently recovers possession.’
And it may be stated as a general proposition that an ‘intent.
to deprive the owner permanently of his property is sufficient
to constitute the necessary criminal intent in larceny.
§ 567. Pecuniary advantage without permanent appro-
priation.— Although intent to appropriate is essential, yet
such appropriation may be made even though there is a pur-
pose to return the property to the owner, if the purpose is to
make use of the temporary possession and subsequent return
with a view to obtaining a pecuniary advantage. Thus, one
who takes another’s property intending to return it when
a reward shall be offered is guilty of larceny;* so is one who
Dickinson, Russ. & Ry. 420. Wrong-
fully pawning property of another,
intending to redeem and return it,
may not be larceny: Reg. v. Phe-
theon, 9 C. & P.552. But there must
be the ability as well as the intent
to redeem: Reg. v. Medland, 5 Cox,
292; Reg. v. Trebilcock, Dears. & B.
453, And if in consequence of the
wrongful act the property is lost to
the owner, the act is larceny: Trus-
low v. S., 95 Tenn. 189.
\1§chultz v. S., 30 Tex. Ap. 94; Rex
v. Crump, 1C. & P. 658; S. v. York,
5 Harr. 498. And see Mahoney v.5.,
33 Tex. Ap. 388.
2Dove v. S, 37 Ark. 261; In re
Mutchler, 55 Kan, 164; P. v. Brown,
105 Cal. 66; S. v. Ryan, 12 Nev. 401;
Umphrey v. S., 63 Ind. 223; Lucas v.
S, 38 Tex. Ap. 290; Bryant v. 8., 25
Tex. Ap. 75,8 S. W. R. 937; Reg. v.
Gardner, L. & C. 248.
38. v. Davis, 38 N. J. 176, 1 Am. Cr.
R. 398; S. v. South, 28 N. J. 28; P. v.
Flynn, 7 Utah, 378. In Alabama one
taking for temporary use without the
consent of the owner or person hav-
ing control may be convicted of lar-
ceny on complaint of the owner.
Consent must be negatived in the
indictment: Blackman v. &., 98 Ala.
77. But it is not necessary to allege
that the prosecution is on the own-
er’s complaint. That the prosecu-
tion is not by him is matter of de-
fense: Bellinger v. S., 92 Ala. 86;
Blackman v. S., 98 Ala. 77.
4 Williams v. 8., 52 Ala. 411.
5 Berry v. S., 31 Ohio St. 219; C. v.
Mason, 105 Mass. 163; Baker v. &.,
58 Ark. 513; P. v. Wiley, 3 Hill
(N. Y.), 194 But where defendant
took up a stray horse having heard
who was the owner, with intent to
return him to such owner, held, that
he was not guilty of larceny: Mich-.
eaux v. S., 30 Tex. Ap. 660. :
571
§ 568.] OFFENSES AGAINST PROPERTY. [Parr VIL.
takes property with the purpose of selling it back to the
owner.! So, the taking of property with the intent to assert.
a lien for work pretended to be done upon it, or to receive pay
for such work, is larceny.? But there must be a taking from
the possession of the owner in such case; and if the act is that
of a servant in removing the property of the owner from one
place to another without taking possession of it, larceny is
not committed, although there is an intent to fraudulently re-
ceive pay for work not really done? It has already been said
that one may be guilty of larceny in taking his own property
from another with intent to charge such other therewith.!
§ 568. For the thief’s benefit; lucri causa.— Some expres-'
sions have been used in text-books and opinions indicating that,
to constitute larceny, the taking must be with a view to the
benefit of the wrong-doer, or, as it is sometimes expressed, the
taking must be duert causa.s There may be some reason for
this doctrine in the attempt to distinguish between larceny and
malicious trespass, and for the purpose of making such distinc-
tion it may be proper to say that an intent merely to deprive
the owner of his property is not sufficient in larceny; but where
the intention of the wrong-doer is to deprive the owner of his
property by taking it from him, and such intention is carried
out by. an act which constitutes a taking and carrying away,
it certainly ought to be immaterial whether the motive of the
wrong-doer is benefit to himself or only injury to the owner, and
the great weight of authority supports such a proposition. For
instance, where the prisoner, for the purpose of preventing a
horse from being used in evidence against an accomplice, took
it from the prosecutor’s stable and killed it by backing it into
a coal pit, it was held that the offense was larceny;® and this
1Reg. v. Hall, 2 C. & K. 947; Reg. (Some of the judges, however, dis-
v. Manning, Dears. 21. sented, on the ground that there was
2Fort v. S., 82 Ala. 50; Reg. v. no intention on the part of the pris-
Richards, 1 C. & K. 532. oner to benefit himself.) And see
3 Reg. v. Poole, Dears. & B. 345; Reg. v. Jones, 2 C. & K. 286. Where
Rex v. Webb, 1 Moody, 431. a postal servant, to conceal a mis-
4 Supra, § 547. take in sorting letters, threw two
54 BL Com. 232; Reg. v. Godfrey, letters containing money into a
8 C. & P. 568; S. v. Hawkins, 8 Port. water-closet, held, that he was guilty :
461; U.S. v. Durkee, 1 McAll. 196; of larceny from the mails: Reg. v.
Pence v. S., 110 Ind. 95. Wynn, 2C. & K. 859. But see Reg. .
6 Rex v. Cabbage, Russ. & Ry. 292. v. Godfrey, 8 C. & P. 563,
572
Cu. 26.] [§ 569.
LAROENY.
doctrine has been generally followed in the United States.!
But it still is true that there must be an intent to take the
property and not merely to injure it.?
§ 569. Intent contemporaneous with act.— It is a general
principle already discussed under the head of criminal intent,
that the criminal intent must concur with the criminal act,
and that a subsequent criminal intent will not render criminal
an act which was not criminal when done. This principle
finds various applications in the law of larceny. Thus, it has
already been seen that if one having obtained possession of
property for a lawful purpose subsequently conceives the in-
tent to wrongfully appropriate it and does so, his act is not
larceny ;* while if, though he makes pretense of a lawful pur-
pose in obtaining possession, he really intends at that time to
wrongfully appropriate the property, larceny is committed.‘
The distinction hinges on whether at the time the possession
was taken there was an intent to steal.’ But if the criminal
intent is conceived at any time before the taking and carrying
away is completed, it is sufficient.’ Moreover, while the intent
must have existed when the act was done, it may be shown by
subsequent acts and conduct.7?/ Whether the felonious intent
was contemporaneous with the procuring of possession or sub-
sequently conceived is for the jury.’
1p, v. Jaurez, 28 Cal. 380; Warden Ark. 168; Quitzow v.S., 1 Tex. Ap.
v. S., 60 Miss. 638; Hamilton v.S.,35 65; Pitts v.S, 3 Tex. Ap. 210; Dow
Miss. 214; Delk v. S., 64 Miss. 77; 8.
v. Caddle, 35 W. Va. 73; Keely v. S.,
14 Ind. 36; Dignowitty v. 8., 17 Tex.
521; Stegall v. §., 32 Tex. Ap. 100.
28. v. Hawkins, 8 Port. 461; Mc-
Daniel v. S., 8 Smed. & M. 401; S. v.
Ware, 10 Ala. 814
3 Supra, § 549.
4 Supra, § 562.
5P, v. Cruger, 102 N. Y. 510; Wil-
son v. P., 39 N. Y. 459; P. v. Morino,
85 Cal. 515; P. v. Abbott, 58 Cal. 284;
Hill v. S., 57 Wis. 377; Lyon v. S., 61
Ala, 224; Weaver v. S., 77 Ala. 26;
Beatty. v. &, 61 Miss. 18; P. v.
Taugher, 102 Mich. 598; S. v. Sher-
mer, 55 Mo. 88; S. v. Stone, 68 Mo,
101; S. v. Larson, 85 Ia. 659; Ennis
v. SS. 8 Greene (Ia.), 67; Smith v.
Shultz, 2 IL 490; Fulton v. &, 18
v. S., 12 Tex. Ap. 3483; Wolf v. S., 14
Tex. Ap. 210; Morrison v. S., 17 Tex.
Ap. 34; Hernandez v. &, 20 Tex.
Ap. 151; Wilson v. S., 20 Tex. Ap.
662; Roberts v. S., 21 Tex. Ap. 460:
Porter v.S., 23 Tex. Ap. 295; Guest
v. &, 24 Tex. Ap. 235; Stokely v.
S., 24 Tex. Ap. 509; Boyd v. 8, 24
Tex. Ap. 570; Cunningham v. &., 27
Tex. Ap. 479; Rumbo v.S., 28 Tex. Ap.
80; Nichols v.S., 28 Tex. Ap. 105; Rex
v. Leigh, 2 East, P. C. 694; Rex v.
Charlewood, 2 East, P. C. 689; Reg. v.
Matthews, 28 L. T. 645; Rex v. Muck-
low, 1 Moody, 160. ;
6S, v. Anderson, 25 Minn. 66. |
78. v. Wood, 46 Ia, 116; C. v. Rubin,
— Mass. —, 48 N. E. R. 200.
8Hill v. S., 57 Wis. 377,
573
§§ 570, 571.] CFFENSES AGAINST PROPERTY. [Parr VII.
§ 570. Intent relating back.—There is authority for the
proposition that when the original taking is wrongful, though
without criminal intent, and subsequently, by reason of the
possession thus obtained, the wrong-doer is able to and does con-
vert the property to his own use, his subsequent wrongful in-
tent will be coupled with his original act so as to make the
original taking larceny.! But the cases cited in support of this
proposition can be better explained by the suggestion that the
original taking was not wrongful and was not a trespass, there
being some mistake or doubt as to the actual possession of the
property, and that the wrongful taking was after all contem-
poraneous with the formation of the wrongful intent.2 The
cases are thus rendered analogous with those where the wrong-
doer is a mere custodian, and subsequently is guilty of larceny
in the wrongful appropriation of the property which up to
such appropriation was deemed in the possession of the owner.*
In the same manner are to be explained the cases which hold
that one who, in taking property which he intends to steal,
also takes, without his knowledge, other property incident to
or contained in that which he intends to take, is guilty also
of larceny of the property thus unconsciously taken, by appro-
priating it when he finds it in his possession.‘
§ 571. Lost property.— The proposition of a preceding sec-
tion to the effect that the attempt to steal must be contempora-
neous with the taking is illustrated by the rule as to the taking
of lost property. The finder of such property, who takes pos-
session thereof, becomes a bailee, and as such his possession is
rightful. If, having thus a rightful possession, he subsequently
converts the property to his own use in derogation of the own-
er’s right, even though, upon learning who the owner is, he de-
cides to conceal the property and prevent the restoration of it,
he is not guilty of larceny, because there is no wrongful tak-
1C. v. White, 11 Cush. 483; S. v. Reg. v. Riley, Dears. 149. Taking
Coombs, 55 Me. 477. And see C.v. and carrying away, followed by felo-
Rubin, ——- Mass. —, 48 N. E. R. nious appropriation, is enough: S. v.
200. Thus, where one driving his Davenport, 38 S. C. 348.
own animals inadvertently drove 2P, v. Call, 1 Denio, 120,
away the animal of another, but %Supra, § 556.
when he discavered the fact appro- ‘C. v. Lawless, 103 Mass. 425; Ste-
priated the other animal to his own vens v. S., 19 Neb. 647.
use, he was held guilty of larceny:
574
Cu. 26.]. LARCENY. [§ 571.
ing;! and the proposition as generally stated is that, to make
the finder guilty of larceny, he must have conceived a fraudu-
lent purpose of converting the property to his own use at the
time he took possession of it.2. In determining whether there
was a contemporaneous intention to fraudulently. appropriate
in disregard of the rights of the owner, the fact that the finder
knew or had reasonable means of knowing the owner is im-
portant. There is no obligation on the part of the finder to
take steps to ascertain the owner and to restore the property
. to him, and a failure to do so will not constitute larceny. The
question whether or not the finder believes or has ground to
believe, when he takes possession of the property, that the
owner can be found, is important in determining whether there
is at that time a criminal intent. For, even if he then intends
to appropriate the property, yet if he has no reasonable means
of knowing the owner he is not guilty of larceny. But it is
immaterial that the finder does not know the name of the
owner if he knows the person or has reason to know that the
owner will appear or be ascertained. The intent.of the finder
is to be determined as a fact by the jury from all the circum-
stances and defendant’s conduct.”
1P, v. Anderson, 14 Johns. 294;
Tyler v. P., Beech. Bre. 293; Lane v.
P., 10 Ti, 305; Griggs v. 8., 58 Ala,
425; Allen v. S., 91 Ala. 19; Bailey v.
S., 52 Ind. 462; Starck v.S., 63 Ind.
285; S. v. Conway, 18 Mo. 821; S. v.
England, 8 Jones, 399.
2Ransom v. S., 22 Conn. 153;
Weaver v. 8., 77 Ala. 26; Smith v.S.,
108 Ala. 40; Beckham v. S., 100 Ala.
15; Lamb v.S., 40 Neb. 312; Martinez
v. 8,16 Tex. Ap. 122; Reg. v. Chris-
topher, Bell, 27; Reg. v. Yorke, 2 C.
& K. 841; Reg, v. Preston, 2 Den. 353.
3 Allen v.S., 91 Ala. 19; Lane v. P.,
10 Il. 305; S. v. Cummings, 33 Conn.
260; S. v. Taylor, 25 Ia. 278; Reg. v.
Mole, 1 C. & K. 417; Reg. v. Dixon,
Dears. 580.
48. v. Dean, 49 Ia. 73; Hunt v. C.,
13 Grat. 757 ; Perrin v. C., 87 Va.
554; Reg. v. Dixon, Dears. 580; Reg.
-v. Knight, 12 Cox, 102. By the law
But after allowing to the
of Vermont the finder is bound to:
advertise the property, and if he con-
ceals or converts it he commits lar-
ceny: 8. v. Jenkins, 2 Tyler, 377. By
the statute of Missouri it is made
larceny to convert the found prop-
erty within a year after posting no-
tice of it, and an indictment for
conversion before posting will not
be sustained: S. v. Casteel, 58 Mo.
124.
5 Reg. v. Glyde, L. R.1C. C, 189;
Reg. v. Thurborn, 1 Den. 387; Reg.
v. Deaves, 11 Cox, 227.
6 Brooks v. 8., 35 Ohio St. 46; S. v.
Martin, 28 Mo. 530; 8S. v. Casteel, 53
Mo, 124; S. v. McCann, 19 Mo. 249;
S. v. White, 126 Mo. 591; Reg. v.
West, Dears. 402.
7Ransom v. §., 22 Conn. 153. If
the found property is marked with
the owner’s name, and the finder
knows that some one has lost such
575
§ 572.) [Parr VIL.
OFFENSES AGAINST PROPERTY.
proposition, which requires that the wrongful intent shall be
contemporaneous with the taking, its full force, it still remains
true, as shown by many cases, that the finder of lost property
in converting it to his own use, having knowledge or reasonable
means of knowledge as to who is the owner, and with the in-
tention to deprive the owner thereof, is guilty of larceny.’
Where a father received from his children property found by
them, knowing it to be lost, he was held to have assumed the
same relations to the owner as the finder? The question of
knowledge or means of knowledge as to the owner is one of
fact, but there is no legal conclusion created by the fact as to
the guilt or innocence of the finder. The question of intent is
for the jury? The intent may be proved by acts after the find-
ing, so far as they are relevant for that purpose.* The differ-
ence between finding lost property and taking property not
lost, but only temporarily and inadvertently left by the owner,
has been already considered;° with a view to this distinction,
the place of finding is pabeeal as indicating whether the goods
were lost or only left by mistake.6 Statutes providing for the
taking up of estrays sometimes provide that after a certain
length of time and on certain conditions the title shall vest in
the party taking up; in such case larceny by such party may
be charged by alleging the conversion by him before the title
had vested in him according to law.’
§ 572. Intent; how charged and proved or disproved.—
In the absence of some statutory requirement (such as is found
in Texas), * it is not necessary to allege specifically the intent,
but the statement that the defendant feloniously did steal, take
property, he is sufficiently put on
notice of the ownership so as to
make the appropriation larceny:
Stepp v. S., 81 Tex. Ap. 349,
18. v. Roper, 8 Dev. 473; S. v. Fer-
guson, 2 McMull. 502; Baker v. 8., 29
Ohio St. 184; Brooks v. S., 85 Ohio
St. 46; S. v. Weston, 9 Conn. 527; S.
v Levy, 23 Minn. 104; 8. v. Boyd, 36
Minn. 538; P. v. Buelna, 81 Cal. 185;
Cc. v. Titus, 116 Mass. 42, 1 Am. Cr. R.
416 and note; Reg. v. Peters, 1 C. &
K. 245; Reg. v. Reed, Car. & M. 306;
S. v. Pratt, 20 Ia. 267; S. v. Bolander,
71 Ia, 706; S. v. Clifford, 14 Nev. 72;
Lawrence v. S., 20 Tex. Ap. 536;
Reed v. S., 8 Tex. Ap. 40; Neely v.S,,
8 Tex. Ap. 64; Reg. v. Kerr, 80. &
P. 176; Reg. v. Moore, L. & C. 1.
2 Allen v. S., 91 Ala. 19.
§ Ransom v. S., 22 Conn. 153.
4C. v. Titus, 116 Mass. 42; S, v.
Arkle, 116 N. C, 1017.
5 See cases supra, § 545,
®Griggs v. S., 58 Ala. 425; Roun-
tree v. S., 58 Ala, 381.
7TSmith v. S., 85 Ind. 558; S, v.
Williams, 19 Mo. 389,
8S. v. Sherlock, 26 Tex, 106; Ridge-
way v.S,, 41 Tex, 231; Muldrew v
576
Cu. 26.] LARCENY. [§ 572.
and carry away, etc., is sufficient.1_ The necessary formalities
-of the indictment in this respect will be discussed in another
‘section? In proving criminal intent the prosecution must go
further than to merely show a taking and an appropriation.
“Thus, where the evidence shows a trespass, but the circum-
stances do not indicate a felonious purpose, larceny is not es-
‘tablished.? The question whether there was a felonious intent
in the wrongful act is for the jury. While some cases seem
to require that the act must be clandestinely done, or accom-
panied with an effort of concealment in order to show fraudu-
Jent intent,> yet this is not the proper view. The fact that the
‘property is taken openly and in the presence of others may be
considered as tending to show want of criminal intent and as
indicating some claim or belief of right,’ but such conduct is
not conclusive.’ Subsequent acts of accused may be shown as
throwing light on the intention with which the property was
‘taken.2 Any evidence tending to show that defendant was
‘acting under supposed authority and in good faith may be re-
ceived.? It is sufficient evidence of intent that the felonious
taking is without color of right or excuse, and with the knowl-
edge by the person taking that he has no authority.” But the
mere fact of buying goods which are stolen, with notice of the
‘S12 Tex. Ap. 617; Tallant v. S., 14
Tex. Ap. 284; Peralto v. S.,17 Tex.
john v. S., 59 Miss, 278; S. v. Fitz-
patrick, 9 Houst. 385; McDaniel v.
Ap. 578,
1C, v. Butler, 144 Pa. St. 568; S. v.
‘Hackett, 47 Minn. 425; Gandolpho
-y. S., 83 Ind. 489; S. v Jones, 41 La.
An, 784,
2 Infra, § 608.
3 McCourt v. P., 64.N. Y. 583; Mason
-v. S., 82 Ark, 288; Winn v. S., 11 Tex.
Ap. 804
4P, v. Carabin, 14 Cal. 438; S. v.
Watson, 7 S. C. 63; S. v. Gaither, 72
N.C. 458; Reg. v. Hore, 3 F. & F. 315.
5 Long v.S., 11 Fla. 295; O’Bannon
vy. 8., 76 Ga. 29; Stuckey v.8., 7 Tex.
Ap. 174; Ainsworth v.8., 11 Tex. Ap.
339. And see cases in note 3, supra.
64 BL Com. 232; 3 Chit. Cr. L. 927;
‘Hall v. C., 78 Va. 678; Johnson v. S.,
73 Ala. 523; Causey v. S., 79 Ga. 564;
‘S. v. Shores, 31 W. Va. 491; Little-
37
S., 33 Tex. 419; Gardiner v. S., 33
Tex. 692; Herber v. S., 7 Tex. 69;
Seymore v. S., 12 Tex. Ap. 391.
7P, v. Hansen, 84 Cal. 291; Booth
v.C.,4 Grat. 525; Vaughn v. C., 10
Grat. 758; S. v. Fisher, 70 N. C. 78;
S. v. Powell, 103 N. C. 424; Barnes v.
S., 103 Ala. 44; McMullen v. S., 53
Ala. 531, It is not essential to show
an attempt to conceal: S. v. Hill,
114 N. C. 780.
8Quinn v. P., 123 Ill. 333; P. v.
Hansen, 84 Cal. 291; Duckett v. S.,
65 Ga. 369; S. v. Powell, 103 N. C.
424; §. v. Farrow, Phill. 161; Gard-
ner v. §., 55 N. J. 17.
9S. v. Matthews, 20 Mo. 55; S. v.
Gresser, 19 Mo, 247.
108, v. Rivers, 60 Ia. 381,
577
N
§ 578.] [Parr VIT.
OFFENSES AGAINST PROPERTY.
fact, is not sufficient to show criminal intent.'!| The fact of vol-
untarily returning the property, or offering to do so, may be
considered as tending to disprove felonious intent in the tak-
ing? But the circumstances may rebut any presumption in
defendant’s favor from such fact. And if larceny is committed
in the taking, a return of the property or payment therefor
will not purge the offense. But in Texas, by statute, a volun-
tary return of the property within a reasonable time will
reduce the punishment to that of a misdemeanor.’ Soin Mich-*
igan, restoration of or satisfaction for the property may be
shown, in case of a first offense, to reduce it to a misdémeanor.®
The poner doctrines as to how criminal intent is to be dis-
proven! are applicable here; for instance, intoxication such as
to show that defendant was incapable of entertaining a specific
criminal intent,’ or kleptomania,? may be shown. The doctrine
that a person taking provisions for the purpose of saving him-
self from starvation is acting under such legal necessity as to
excuse the act is wholly without support in adjudications, and
is mentioned by writers of text-books only to be condemned
as unfounded in law or morals.”
§ 573. Connection with the offense; principal and acces-
sory; receiver.— The general doctrines as to principal and ac-
cessory | are applicable here, except that, although petit larceny
was deemed a felony at common law,” no accessories therein
were recognized, the crime being in this, as in some other
1Parchman v. &., 2 Tex. Ap. 228, 347,
The return must be of the
2 Anderson v. 8, 25 Tex. Ap. 593;
Georgia v. Kepford, 45 Ia. 48,
3Stepp v. S., 31 Tex. Ap. 849; Har-
ris v. S., 29 Tex. Ap. 101.
48. v. Scott, 64 N. C. 586: Truslow
v. S, 95 Tenn. 189; Trafton v. S., 5
Tex. Ap. 480.
5Owen v.8., 44 Tex. 248; Ingle v.
S., 1 Tex. Ap. 307; Brill v. S., 1 Tex.
Ap. 572; Bennett v. 8S. 17 Tex. Ap.
143; Bennett v. S., 28 Tex. Ap. 842,
The return may be voluntary,
though induced by fear of prosecu-
tion and punishment: Allen v. 8., 12
Tex. Ap. 190; Bird v. S., 16 Tex. Ap.
528 (apparently overruling Stephen-
son v. 8, 4 Tex. Ap. 591). If the re-
turn is only on detection it is not
voluntary: Boze v. S., 81 Tex. Ap
678
property as taken, not in an altered
form: Horseman v. §S., 48 Tex. 353;
Grant v. 8.,2 Tex. Ap. 163. Where
the indictment was for larceny of
money, held, that a return of the
pocket-book need not be considered:
Wheeler v. &., 15 Tex. Ap. 607.
6P, Hubbard, 86 Mich. 440.
7 Supra, ch. 6.
8 Chatham v. S., 92 Ala. 47.
SLooney v. S, 10 Tex. Ap. 520;:
Harris v. §., 18 Tex. Ap. 287.
04 Bl. Com. 81; 1 Hale, P. C. 54,
565; 1 Hawk. P. C.,, ch. 83, § 20;
supra, § 186.
11 Supra, §§ 204-210.
12 Supra, § 581,
1B Ward v. P., 8 Hill (N. Y.), 8953.
Cu. 26.] LARCENY.
[§ 573.
respects, like a misdemeanor, even where it is not made a mis-
demeanor by statute. A few illustrations of the application
of the general principles on the subject may be mentioned
here. One may be principal in the offense though he does not
participate in the act, if present for the purpose of aiding and
abetting,' or if he joins in carrying out the criminal plan,
though not immediately present.? An employee who assists
his employer in the wrongful taking, with knowledge of the
purpose for which it is done, is liable as a principal. To bea
principal one must have taken the property or assisted in the
taking,‘ and all persons who counsel, aid and abet, or advise,
are equally guilty as accessories before the fact with those
who actually commit the offense.’ One who forms or com-
bines in the general plan and assists in receiving and disposing
of the property is a principal, though not present at the tak-
ing.6 But if he merely encourages the general object and
afterwards receives the property, he is guilty only as an ac-
cessory.' The receiver of stolen goods with knowledge that
they are stolen is guilty of a substantive offense, to be here-
after discussed;* but he is not guilty of larceny, not having
participated therein, although he had knowledge at the time
of receiving the goods that they were stolen. Nor in such
cases is the receiver of stolen goods an accessory after the
fact to the larceny.”
S. v. Barden, 1 Dev. 518; S. v. Stroud,
95 N. C. 626; S. v. Henderson, 35 La.
An. 45; Lasington’s Case, Cro. Eliz.
750; 1 Bish. Cr. L., § 680. And see
supra, § 210.
1C, v. Lucas, 2 Allen, 170; 8. v.
Wilson, 30 Conn. 500; Hogsertt v. 8.,
40 Miss. 522.
2 Wells v. S., 4 Tex. Ap. 20; Reg.
v. Murphy, 6 Cox, 340.
3 Taylor v. S.,5 Tex. Ap. 529; Han-
non v. &., 5 Tex. Ap. 549; Murphy v.
S., 6 Tex. Ap. 420.
4 Wright v. S., 18 Tex. Ap. 358. If
two are indicted as principals, one
only may be convicted, it appearing
that the other is accessory only: S.
v. Clayton, 11 Rich. 581.
58, v. Gaston, 78 N. C. 93. There
may be such guilt although the prop-
erty is recovered before division is
made and accused receives none of
it: C. v. Hollister, 157 Pa. St. 13.
68, v. Honig, 78 Mo. 249; Watson
v. 8., 21 Tex. Ap. 598.
TVincent v. 8., 9 Tex. Ap. 46.
8 Infra, § 713.
9P. v. Maxwell, 24 Cal. 14; S. v.
Calvin, 22 N. J. 207; Hall v. S,3
Ohio St. 575; S. v. Empey, 79 Ia. 460;
Cohea v. S., 9 Tex. Ap. 173; McAfee
v. S., 14 Tex. Ap. 668; Clayton v. S.,
15 Tex. Ap. 848; Prator v. S., 15 Tex.
Ap. 363; Trimble v. S., 18 Tex. Ap.
632; Phillips v. S, 19 Tex. Ap. 158;
Collins v. S., 24 Tex. Ap. 141; Boyd
v. S., 24 Tex. Ap. 570; Buchanan v.
S., 26 Tex. Ap. 52.
10P, v. Stakem, 40 Cal. 599. And
see full discussion of the question
579
OFFENSES AGAINST PROPERTY.
wm
coe
ot
~T
ie
mH
~T
Or
eu
[Part VII.
VI. Comeounp Larcenrss.
§ 574. Elements of aggravation.— Larceny is involved in.
other common-law crimes, such as robbery or burglary, which
are elsewhere discussed, and the relation of the stealing to
the higher offense is considered. But by statutory provisions
found in England and in most of the states, larceny, under cer-
tain specified circumstances of aggravation, is punishable to a
greater extent than where such circumstances do not exist, and
these statutory forms of larceny are designated as compound
larceny as distinguished from simple larceny.? The circum-
stances of aggravation usually mentioned are the taking from
the person, and the taking from a house, dwelling, building,
store-house or other place specially mentioned. These aggra-
vated larcenies are sometimes declared grand larceny without
regard to the value of the property stolen, and in other statutes
made punishable by heavier penalties than simple larceny.
§ 575. From the person.— To constitute larceny from the
person the property must have been under the protection of
the person. The fact that the one from whom the property is
taken is asleep does not prevent larceny being from the per-
son.‘ To constitute this offense it is not essential that any vio-
lence be used, nor fraud. The taking of the property from the
hand is enough, even if there is no resistance.’ The offense is
thus in some cases distinguished from robbery.’ To constitute
larceny from the person the article must be completely re-
moved from the person and all connection with the person
severed.’ The offense is sometimes described by statutes so
as to involve the idea of a secret taking without the owner’s
knowledge.’ The offense of stealing from the person is an in-
under the subject of receiving
stolen goods, infra, § 713.
1See as to robbery, § 466; and as
to burglary, § 505. A larceny com-
mitted in burglary is not a simple
but an aggravated larceny: Pitcher
w. P., 16 Mich. 142.
24 Bl. Com. 239; 2 Bish. Cr. L., § 892.
3 Reg. v. Hamilton, 8 C. & P. 49;
Reg. v. Selway, 8 Cox, 235.
4Hall v. P., 39 Mich. 717; Nichols
wv. S, 28 Tex. Ap. 105. And see
Reg. v. Hamilton, 8 C. & P. 49; Rex
v. Thomas, Car. C. L. 295.
5C. v. Dimond, 8 Cush. 235; John-
son v.-C., 24 Grat. 555; S. v. Chavis,
848. C. 182; Green v. S., 28 Tex. Ap.
493.
6 Reg. v. Hughes, 2 C. & K. 214.
7Harrison v. P., 50 N. Y. 518; Mc-
Lin v. S, 29 Tex. Ap. 171; Rex v.
Thompson, 1 Moody, 78; Reg. v. Simp-
son, Dears. 421.
88. v. Chavis, 34 S. C. 182; Powell
580
Cu. 26.] LARCENY. [§ 576.
dependent substantive offense, distinct from that of larceny,
and as such must be charged and proven,}! and, as usually de-
fined, it is a felony without regard to the value of the prop-
erty stolen.” The allegations of the indictment must show not
merely larceny, but the taking from the person by some of the:
means specified in the statute.? But it is sufficient, where the:
offense consists merely in the taking from the person, to say
that the property was on the person‘ or was taken from the per-
son,’ as the statute may provide. The offense being distinct
from that of larceny, it is not necessary to allege the felonious
stealing, taking and carrying away as required in the common-
law indictment for larceny, but it will be sufficient to charge
the act as described in the statute.? The offense necessarily in-
cludes, however, as usually described, the offense of larceny,’
and it is necessarily included in the offense of robbery.®
§ 576. From the dwelling-house.— The crime of larceny
from a dwelling-house may be committed in any dwelling which
would be so considered under the law with reference to burg-
lary; that is, the term includes any building occupied to dwelt
and sleep in, or any apartment connected therewith under the
same roof.® But perhaps it does not include buildings separate
from the dwelling, although within the curtilage.” Property
in the house is within its protection, although the owner is:
there, also, if he is asleep." But money in the pocket of a person
in the house is under the protection of the person and not of the
house, and therefore the stealing thereof would not be larceny
from the dwelling-house.” Clothing hanging on the railing of
the outer edge of the piazza is not within the protection of the
v. 8., 88 Ga. 32; or without resist-
ance: Woodard v. S., 9 Tex. Ap. 412.
In such case an indictment simply
charging stealing and carrying away
privately from the person is not suf-
ficient: Kerry v. S., 17 Tex. Ap. 178,
1King v. S., 54 Ga. 184; McEntee
v. S., 24 Wis. 48; Harris v.S., 17 Tex.
Ap. 132; Gage v. S., 22 Tex. Ap. 128;
Nichols v. §., 28 Tex. Ap. 105.
2Brown v. S., 34 Neb, 448.
38, v, Lawrence, 20 Oreg. 286,
4C. v. Bonner, 97 Mass. 587.
58, v. Lee Ping Bow, 10 Oreg. 27.
6 Randall v. S., 53 N. J. 485; Powell
v. S., 88 Ga. 32.
7Fanning v. S., 12 Lea, 651; S. v.
Gleason, 56 Ia. 203; S. v. Taylor, 3
Oreg. 10.
8S, v. Graff, 66 Ia. 482.
98. v. Clark, 89 Mo. 423.
10 Rex v. Turner, 6 C. & P. 407.
11 Reg. v. Hamilton, 8 C. & P. 49;
Rex v. Thomas, Car. C. L. 295. But
see Hall v. People, 39 Mich. 717.
12 Rex v. Owen, 2 East, P. C. 64%
And see Roberts v. S., 83 Ga, 369;
C. v. Lester, 129 Mass. 101,
581
8 577] OFFENSES AGAINST PROPERTY. [Part VIL.
house in such sense that stealing thereof is larceny from the
dwelling! If the goods are in the protection of the house,
the stealing of them by the owner or occupier of the house
may be larceny in the dwelling-house,’ and one who is stop-
ping in the house by invitation may be guilty of larceny in the
dwelling? But where the statute provides a punishment for
entering a dwelling and committing larceny, the entry must
be with a criminal intent.‘ If the statutory offense is stealing
in the dwelling-house, persons being therein and put in fear, it
must appear that the persons were put in fear by the prisoner.’
The indictment for the offense need not describe the particular
articles; a general allegation is sufficient under statutory pro-
visions.6 But if the articles are particularly described as to
ownership, the proof must correspond.’ The offense includes a
simple larceny.’ The degree of the offense is not usually made
to depend upon the value of the goods.
§ 577. From the house.— Some statutes provide a punish-
ment for larceny committed “from the house” or “in the
house; ” © and the term “house,” as thus used, is not limited to
a dwelling-house."" But where the statute refers to a house
within the curtilage, the rule is different." A tent is nota
house within the meaning of such a statute. It is sufficient if
the property is within the house," although it would seem that
if it is personally under the control of the owner it is not in
the protection of the house, but under the protection of the
1 Henry v. S., 39 Ala. 679. And see
Martinez v. S., cited under the next
section.
2Rex v. Taylor, Russ. & Ry. 418;
‘Rex v. Carroll, 1 Moody, 89; Reg. v.
Bowden, 1 C. & K. 147.
3 Point v. S., 87 Ala. 148.
48. v. Chambers, 6 Ala. 855; Parks
v. S., 66 Ga. 192.
5 Rex v. Ethrington, 2 East, P. C.
635.
6 Reg. v. Johnson, L. & C. 489.
7Reg. v. Ashley, 1 C. & K. 198.
Proof of taking of a portion of sev-
eral articles charged will be suffi-
cient: C. v. Byce, 8 Gray, 461.
8Moore v. &, 40 Ala. 49; 8S. v.
Mikesell, '70 Ia. 176.
8S. v. Ramelsburg, 30 Mo. 26; S.
v. Brown, 75 Mo. 317; S. v. Kennedy,
88 Mo. 341; S. v. Treadwell, 54 Kan.
518.
10 Stanley v. S., 58 Ga. 480.
USimmons v.8., 73 Ga. 609. The
term “dwelling” sufficiently indi-
cates a house: S. v. O'Neil, 21 Oreg.
170.
12Inman v. S., 54 Ga. 219; Middle-
ton v. S., 53 Ga. 248,
13 Callahan v. S., 41 Tex. 43.
MIrvin v. S., 87 Tex. 412. It is not
necessary that it belong to or be
under the control of the owner of
the house if the ownership of the ar-
ticle is charged as in another: Hill
v. 8, 41 Tex. 157,
582
Cu. 26.] LARCENY.
[§ 578.
person.’ But if it is even temporarily out of the personal con-
trol of the owner, it is within the protection of the house? If
the stolen property is taken while hanging outside of the house,
the larceny is not from the house.’ The offense is one as to the
property taken, rather than as to the building from which it is
taken.‘ In the indictment, the house should be described by
the name of the owner;* but possession and occupancy are suffi-
cient to support such allegation.® In Texas the statute with
reference to larceny from the house excepts cases of larceny
by domestic servants employed therein, and such offense is
simply theft.’ But a workman hired for a special service, not
having direct reference to the occupancy of the house, is not a
domestic servant within this statutory provision.’
§ 578. From a building, store-house, warehouse, vessel,
etc.— In order to constitute larceny from a building the goods
must be under the protection of the building and not within
the control of any one in the building.® But the fact that there
is a watchman in the building to catch the thief will not pre-
vent the larceny from being from the building rather than
from the person.” Under the Massachusetts statute the build-
ing must be other than the building of defendant, and larceny
committed from one’s own building, or by the wife from the
building of her husband, would not be within the statute." An
unfinished building which is so far completed as to be closed
and locked is a building within such statute;” and a church is
such building.“ The term “refreshment saloon” does not nec-
essarily imply a building, and the use of that description would
not, therefore, show a case within the statute.* This offense
includes simple larceny.” The value of the goods stolen need
1 Roberts v. S., 83 Ga. 369. And see
Rex v. Owen, 2 East, P. C. 645; C. v.
Lester, 129 Mass. 101.
2Simmons v. S., 73 Ga. 609.
3 Martinez v. S., 41 Tex. 126. And
see Henry v. S., cited under the pre-
ceding section.
4Simmons v. 8., 73 Ga. 609; Will-
dams v. S., 46 Ga. 212.
5 Lamkin v. §., 42 Tex. 415.
6 Markham v. 8., 25 Ga. 52.
7Taylor v. S.. 42 Tex. 387; Wake-
field v.S., 41 Tex. 556; Coleman v.
S., 44 Tex. 109; Ullman v.8., 1 Tex.
Ap. 220.
8 Williams v. S., 41 Tex. 649; Rich-
ardson v. S., 48 Tex. 456.
9C. v. Lester, 129 Mass. 101. And
see Roberts v. S., 83 Ga. 369; Rex v.
Owen, 2 East, P. C. 645.
WC, v. Nott, 185 Mass, 269.
1C, v. Hartnett, 3 Gray, 450.
12 Rex v. Worrall, 7 C. & P. 516.
13 Rex v. Hickman, 2 East, P. C. 593,
4C, v. Mahar, 8 Gray, 469.
15C, v, Lavery, 101 Mass. 207,
583
§ 579.] [Parr VIT.
OFFENSES AGAINST PROPERTY.
not be alleged or proven;! but the ownership should be proved
as alleged, and it should be shown that they were of some value.”
A building used for business purposes only, is within the stat-
ute as to larceny from a warehouse;* and an inclosure par-
tially covered over is a warehouse within such statute; and so-
is a granary built and used for keeping farming utensils, etc.
The term necessarily involves the idea of an inclosure of some:
sort— some kind of a structural barrier to the ingress of the-
public; and a place to which the public has free access and used:
as a common passage-way about a depot is not a warehouse.*
A “store-house” must be in use as such, and not simply built
for that purpose, to come within that term in the statute.’ To:
constitute a building used for manufacturing, the structure
must be made use of in the process of the manufacture of
goods.$ The description of the kind of building should be-
proved as alleged.? Under the statute as to larceny from a, car,.
making the offense grand larceny, the value of the property
need not be proven; but ownership of the car should be
alleged.™
§ 579. In night-time or day-time.— The fact of stealing
from a house in the night-time is sometimes made an aggra-
vated form of the offense, and the circumstance as to the time:
affects only the degree of the punishment,” the act committed:
in the day-time being still the offense of larceny from a dwell-
ing-house and punishable as such.8 But by the Massachusetts.
statute the two offenses are so described that larceny from the
house in the day-time is not an included offense in larceny from:
the house in the night-time, but the two are distinct and must.
be proven as alleged."
1C. v. Sego, 125 Mass. 210. 6Lynch v. S., 89 Ala. 18,
2 Hawkins v. S., 95 Ga. 458, 7 Jefferson v. 8., 100 Ala. 59, Lar.
3 Reg. v. Edmundson, 2 El. & EL 77%. ceny “from” a store-house is proved:
4 Bennett v.S., 52 Ala. 870; Hagan by showing larceny “in” such build-
v. S., 52 Ala. 873.
5Ray v. C, 12 Bush, 397. But
“warehouse” should not be con-
strued as including “granary,” but
rather as a place for storing goods
intended eventually for sale: S. v.
Wilson, 47 N. H. 101. Store-house
may include warehouse: Bailey v.
&., 99 Ala. 148,
ing: Bailey v. S., 99 Ala. 143,
8 Rex. v. Dixon, Russ. & Ry. 58.
9 Thompson v. &., 92 Ga. 448,
108. v. Sharp, 106 Mo, 106.
1 Cooper v. 8., 89 Ga, 222,
128, v. Elsham, 70 Ia. 531.
138. v. Dawson, 17 Ia. 584,
40, v. McLaughlin, 11 Cush, 6985:
Hopkins v. C., 3 Met. 460, 466,
584
Cu. 26.] LARCENY. [§§ 580, 581.
§ 580. Common thief,— It seems that at common law one
might be punished as a common thief, constant repetition of
the crime being in itself an offense somewhat distinct from
simple larceny and punishable more severely! But it was said’
not to be sufficient to charge in a general way the crime of
being a common thief without specifying the particular acts.?
Under the statute imposing a special penalty upon one who-
should be for the third time convicted of larceny or receiving’
stolen goods, the penalty not being greater than the maximum:
penalty for grand larceny, however, it was held that the pre--
scribed punishment could be inflicted when the facts authoriz--
ing it appeared on the trial, though not charged in the indict-
ment, the statute not creating a distinct crime but only providing
a special punishment.’ A prior conviction can be proven for the-
purpose of showing a second or other repeated offense only by
a judgment showing such conviction. Prior larcvenies com-:
mitted at such time that a prosecution therefor as ordinary
thefts would be barred cannot be shown to prove the crime in
connection with an act which is within the statutory period.*
VII. Vatur as Derermintne Ponispment; Granp anp Petit.
§ 581. Felony.— The common-law larceny is divided into-
grand and petit, depending upon the value of the property
stolen§ According to an early English statute,’ where the value-
of the property was over twelve pence the offense was grand
larceny; when the value did not exceed twelve pence it was
1See supra, § 28.
22 Hale, P. C. 182; 2 Hawk. P. C.,
ch, 25, § 59; 1 Bish. Cr. Pr. 530. The
indictment may charge a larceny
and a former conviction for another
larceny: S. v. Moore, 121 Mo. 514.
38. v. Riley, 28 Ia. 547.
48, v. Brown, 115 Mo. 409. Anda
material variance between the name
used in such judgment and the name
of defendant will exclude the judg-
ment: 8. v. Griffie, 118 Mo. 188.
5 World v.8., 50 Md. 49. Bad rep-
utation within a year may be shown
by evidence which goes back beyond
the statutory period, a continuance-
within the statutory period being
shown: Ibid.
6The term includes both grand:
and petit: S. v. Keyser, 56 Vt. 622.
The two divisions of the offense are:
not distinct crimes or degrees, but
are distinguished only with refer-
ence to the punishment: S. v. Mur-
ray, 55 Ia. 530; S. v. Hessian, 58 Ia.
68; Ex parte Bell, 19 Fla. 608. Thus,
one who is extradited for grand lar-
ceny may be tried for petit larceny:.
S. v. Walker, 119 Mo. 467.
7See supra, § 534.
585
[Parr VII.
§§ 582, 583.] OFFENSES AGAINST PROPERTY.
petit. But both grand and petit larcenies were felonies al-
though the punishment differed, grand larceny being punish-
able by death, while to the offense of petit larceny was affixed
some lesser punishment under various statutory provisions.”
The punishment for larceny has been so universally regulated
by statute in the United States that a further discussion as to
whether the lower branch is a felony and as to the punishment
imposed for the two branches respectively becomes necessary.
§ 582. Some value essential.— To sustain a conviction for
larceny there must be evidence that the property taken had
some value? But it is not necessary to prove that the property
was of value by direct evidence; the fact may be sufficiently
established by inference; for instance, from the declarations
-or admissions of the defendant showing that he treated or dealt
with the property as of value‘ Any intrinsic value whatever
is sufficient. Itis not necessary that the value be that of some
particular coin, even the smallest.®
§ 583. What essential for grand larceny.— The importance
-of the question of value, however, is in the fact that at com-
mon law, and almost universally by statute, if the goods are of
1The value which marks the dis-
tinction between grand and petit is
much higher as now fixed by stat-
ute in the various states. By Eng-
lish statute (7 and 8 Geo. 4, c.°29, § 2)
all distinction between grand and
petit larceny is now abolished: See
“2 Russ. Cr. 1.
24 Bl. Com. 229, 236-239; 1 Bish.
‘Cr. L., § 679; 1 Hale, P. C. 5380; 2 East,
P. C. 736; 2Inst. 189. In Pennsylva-
nia, by reason of peculiar colonial
regulations, neither grand nor petit
larceny was ever a felony: Lynch v.
‘C., 88 Pa. St. 189. Under the stat-
utes of the United States larceny'is
an infamous crime: Ex parte Mc-
Clusky, 40 Fed. R. 71. On this ques-
tion see, also, § 210.
3 Collins v. P., 89 Ill. 283; C. v. Ca-
hill, 12 Allen, 540; Whitehead v. S.,
20 Fla. 841; S. v. Krieger, 68 Mo. 98;
Radford v. §., 35 Tex. 15; Hall v. S.,,
15 Tex. Ap. 40; Sands v. S., 30 Tex.
Ap. 578; Rex v. Phipoe, 2 East, P. C.
599. Property which the owner con-
siders as of no value to him may still
have actual value: Reg. v. Edwards,
18 Cox, 384. As to whether notesand
bills not delivered or redeemed are
to be deemed as of value, see supra,
§ 543.
4S. v. Harris, 64 N. C.127; Vincent
v. S., 3 Heisk. 120; Houston v. S., 13
Ark. 66. One who steals a bank note
and passes it as genuine sufficiently
admits thereby that it had some
value: Cummings v. C., 2 Va. Cas.
128.
58. v. Slack, 1 Bailey, 330. It is
sufficient if the property be found
to have been of some value to the
owner at least: C. v. Riggs, 14 Gray,
376. The owner may state the value
of the property to him as furnishing
some evidence of its real value:
Cohen v. S., 50 Ala, 108.
6 Wolverton v, C., 75 Va. 909; Reg.
v. Morris, 9 C. & P. 349, In general,
as to value, see supra, § 543,
586
Cn. 26.] LARCENY.
[8§ 584, 585.
above a certain value the offense is grand larceny, while if
their value does not exceed such amount it is petit larceny,
the punishment in the two cases being different, the one usually
a felony and the other a misdemeanor. It is therefore impor-
tant to determine whether or not the value of the property is
such as to make the offense grand larceny. There cannot be
conviction of grand larceny without evidence of the value of
the property,! and to warrant such conviction the evidence
must satisfy the jury beyond a reasonable doubt that the value
of the property was such as to constitute that degree of the
offense.”
§ 584. Aggregate value.— Where there are two or more
‘distinct larcenies they cannot be aggregated so as to make the
value of the property stolen sufficient to constitute grand lar-
ceny, the value of the goods in each distinct larceny being in-
sufficient for that purpose.’ This is so, even if the goods
belong to the same owner, where they are taken in distinct
transactions. But if, though the larceny is of different arti-
cles, they are taken in substantially the same transaction,
their aggregate value may be considered in determining whether
the offense is grand larceny.’ Under a statute specifying lar-
ceny of money or goods and chattels as a distinct offense from
that of the larceny of bank bills, notes, etc., it is held that
where in one transaction goods and bank bills are stolen, the
value of the two classes of property cannot be aggregated for
the purpose of making the offense grand larceny.®
§ 585. Value, how estimated.— The basis for estimating the
value of property stolen is the value of such property on the
1Stokes v. 8., 58 Miss. 677; Moore
‘ w.S, 17 Tex. Ap. 176.
28, v. Wood, 46 Ia. 116; S. v. Mc-
Carty, 73 Ia. 51.
3Monoughan v. P., 24 Ill. 340.
4Scarver v. S., 53 Miss. 407; Cody
v. 8, 81 Tex. Ap. 183; Lacey v. S., 22
‘Tex. Ap. 657.
5Rex v. Jones, 4 C. & P. 217.
Where several trees are damaged in
the same transaction their aggre-
gate value may be considered in de-
the amount necessary to constitute
an offense by statute: Reg. v. Shep-
herd, L. R. 1 C. C. 118, If two de-
fendants are jointly indicted for
larceny of property of such aggre-
gate value as that the offense is
grand larceny, it will be immaterial
what portion in value was taken by
each: Clay v. S., 40 Tex. 67. As to
whether the indictment should state
the separate or the aggregate value,
see infra, § 586.
termining whether the damage ood 6 Johnson v. &., 11 Ohio St. 324,
7
§ 585.] [Parr VII.
OFFENSES AGAINST PROPERTY.
market and not its special value to the owner.! Where the prop-.
erty has no market value which would adequately represent its.
actual value, as, for instance, clothing which has been worn, the
jury is to determine its fair and reasonable value.’ For this
purpose they may consider the value of the goods when new,
allowing a reasonable deduction for the wear.* The price
which such goods would bring on the market is not to be con-
sidered their value, for such price does not represent their actual
worth.! The value is to be estimated as at the time of the
taking; but as the taking may be deemed a continuing one so-
long as the thief exercises control over the property,’ he cannot.
complain if its value is estimated as of the time and place of his.
disposal of it.6 Where the property has been damaged or par-
tially destroyed in the taking of it, its value is to be estimated
at the inception of the taking. Thus, where a thief broke up
a cast-iron balance wheel so as to make old iron out it, which
he carried away, it was suggested that he was properly indicted
and tried for the larceny of the balance wheel, and that it
could not properly be held that he ought to have been charged
only with the larceny of old iron.” Bank notes or coins, the
value of which is fixed by law, are to be estimated at their
face,’ and this is true, of course, of federal treasury notes.”
The value of a receipt or release is the sum of money rep-
resented as having been due to the owner as paid.” Soa
check is presumed to be of its
1S. v. Smith, 48 Ia. 595; S. v.
Doepke, 68 Mo. 208; S. v. James, 58
N. H. 67; Cannon v. S., 18 Tex. Ap.
172; Martinez v. S., 16 Tex. Ap. 122,
2Cooksie v. S., 26 Tex. Ap. 72
“Brood sows” not having a market
value, evidence of real value is ad-
missible: 8. v. Walker, 119 Mo. 467.
3 Pratt v. S., 35 Ohio St. 514.
4 Pratt v. S., 85 Ohio St. 514; Cook-
sie v. S., 26 Tex. Ap. 72,
5 Supra, § 551.
68. v. Brown, 55 Kan. 611.
7Gettinger v. S., 13 Neb. 808,
8 Whalen v. C., 90 Va. 544, But in
another case it is said that it cannot
be presumed, without evidence, that
a check has any value: Burrows v.
face value." Where an instru-
8., 187 Ind. 474. It cannot be as-
sumed that a railroad ticket charged
to have been stolen had any value
unless it is alleged that it was
‘stamped, dated and signed: S. v.
Holmes, 9 Wash. 528.
9 Adams v. C., 23 Grat. 949; S. v.
Cassel, Har. & G. 407; Grant v. S,
55 Ala. 201. And see Bagley v. S., 3
Tex. Ap. 163,
Collins v. P., 89 Ill. 238; S v.
Henry, 24 Kan, 457; C. v. Williams,
9 Met. 273; Duvall v. S., 63 Ala. 12.
But the value of a bank note may be
shown to be less than its face:
Broms v. C., 2 Duv, 851.
11C, v. Williams, 9 Met. 278. This
588
-
Ca. 26.] LARCENY.
[§ 586.
ment in writing is taken which is of value to the owner, though
‘it is not an obligation for the payment of money,— for instance,
where it is a soldier’s discharge which is essential to enable
him to draw a pension,— it is a thing of value, and the jury in
determining the value may take into account its worth as a
part of the documentary evidence necessary to obtain a right.!
§ 586. Allegation and proof of value.— The indictment
should allege the value of the property stolen in order to show
~whether the offense is grand or petit larceny.? If, however,
the charge is some form of aggravated larceny, in which the
punishment does not depend upon the value of the property,
allegation of the value is immaterial.’ But some courts hold
can allegation of value essential in all cases.4 It is sufficient,
where the charge is of the larceny of several articles, to allege
the aggregate value.’ But it is better to allege the value of
each article.’ If only the aggregate value is alleged, the value
of the different articles, if they are of the same kind, may still
‘be proven separately, and a conviction will be supported
whether the proof shows that all the articles were stolen, or
only a part of them.’ And even if the articles are of different
kinds, proof of the larceny of all of them, or of some of each
is sometimes provided by statute:
‘8S. v. Pierson, 59 Ia, 271.
1C, v. Lawless, 103 Mass. 425.
2Davis v. S., 40 Ga, 229; S. v.
Pedigo, 71 Mo. 443; Pittman v. S., 14
‘Tex. Ap. 576; Reg. v. Gamble, 16 M.
& W. 384. Uncertainty in the alle-
gation of value will render the in-
Aictment invalid: Williams v. S., 44
Ala. 396; Smitherman v. S., 63 Ala.
24; S. v. Holmes, 9 Wash. 528, But
such allegation is not a part of the
description and a variance will not
be fatal: -C. v. Garland, 8 Met. (Ky.)
478, Allegation of value as so many
dollars “current money” is suffi-
cient: Gardner v. S., 25 Md. 146. So
as an allegation of value in “dol-
Jars” alone: P. v. Winkler, 9 Cal.
234,
3 Sheppard v.S., 42 Ala. 531; Shaw
wv. S., 28 Tex. Ap. 493; Bennett v. S.,
16 Tex, Ap, 236; Lopez v. S., 20 Tex.
780. In such cases the description
of the articles stolen as goods and
chattels imports some value: Buntin
v. S., 68 Ind. 38. That allegation of
value is not necessary in charging
horse-stealing or kindred offense, see
infra, § 589. Nor is it necessary,
usually, in other crimes involving
personal property: S. v. Gillespie, 80
N. C. 396; Wilson v. 8., 43 Neb. 745.
4C. v. Smith, 1 Mass. 245; C. v.
Cahill, 12 Allen, 540; 8. v. Goodrich,
46 N. H. 186; Wilson v.S., 1 Port.
118; P. v. Belcher, 58 Mich, 325.
58. v. Mook, 40 Ohio St. 588; S. v.
Brew, 4 Wash. 95; Thompson v. &.,
43 Tex. 268.
6 Meyer v. S., 4 Tex. Ap. 121; Doyle
v. S., 4 Tex. Ap. 253.
78. v. Mook, 40 Ohio St. 588; S. v.
Buck, 46 Me. 531; S. v. Beatty, 90 Mo,
143,
589
§ 587.] [Part VII.
OFFENSES AGAINST PROPERTY.
kind, will warrant a conviction, although there is but an ag-
gregate value alleged.'! Or if the aggregate value of each of
two or more classes is alleged, proof of the larceny of some of
any class will be sufficient.? But proof of the larceny of some
of several different articles of which an aggregate value only
is given will not warrant a conviction, as it will not thereby
appear that the articles shown to have been stolen had any
value. 8 Such an objection may not be ground for arrest of
judgment, even though it would be on a motion to quash.*
In proving the value any evidence is competent from which
the value may be inferred.’ But witnesses called to testify as
to the value must show that they possess knowledge of the
value of such property.’ If two persons are indicted together
for stealing the same goods, one cannot be convicted of petit
larceny and the other of grand larceny.’
§ 587. Finding as to value.— The value of the property as
alleged determines whether the offense shall be tried as grand
or petit larceny.’ But there are not two degrees of the offense,.
the difference between the two forms being only as to the pun-
ishment,’ and it is not necessary to expressly designate the of-
fense as grand or petit larceny.” It is not necessary that the
value of the property be proven as alleged; and if the proof
shows the stealing of property of less than the maxim value
for petit larceny, there may be a conviction for that grade of
the offense, although grand larceny was charged." And there
may thus be a conviction for petit larceny under an indictment,
although petit larceny is not an offense triable on indictment,
18. v. Hood, 51 Me. 368; Clifton v. 78. v. Wilson, 3 McCord, 187; S. v.
8.,5 Blackf. 224; C. v. Cahill, 12 Allen,
540; Jackson v. S., 69 Ala. 249.
2C. v. Sawtelle, 11 Cush. 142,
3Hope v. C., 9 Met. 134; S. v. Ger-
rish, 78 Me. 20; S, v. Brew, 4 Wash.
95.
48. v. Murphy, 8 Blackf. 498.
5Saddler v. S., 20 Tex. Ap. 195.
6Engster v. S., 11 Neb. 539. Evi-
dence of value by at least one wit-
ness shown to be competent to tes-
tify with reference thereto is neces-
sary: Edmonds v. §., 42 Neb. 684.
Larumbo, Harper, 183.
88. v. Church, 8 Ta. 252.
98. v. Murray, 55 Ia. 580. And see
supra, § 581.
108, v. Powell, 28 La. An. 315; S. v.
. Lartigue, 29 La. An. 642.
McCorkle v. S., 14 Ind. 39; S. v.
Hessian, 58 Ia. 68. The jury may find
defendant guilty of petit larceny,
though the evidence shows the value
to be such as to authorize a convic-
tion for grand larceny: S, v. Ben-
nett, 2 Brev. 575.
590
Ox. 26.] LARCENY,
[§ 588.
but cognizable only before a justice of the peace! If the jury
has a reasonable doubt as to whether the value of the property
is such as to constitute grand larceny, they should convict only
of petit larceny. To warrant a judgment for grand larceny,
the finding of value showing that grade of the offense must be
definite.’
§ 588. What sufficient finding.— The verdict must either
state the value of the property taken or find the prisoner guilty
as charged, otherwise no judgment can be rendered thereon.*
There is a conflict in the cases as to whether a general verdict
without special finding of value is sufficient as to grand lar-
ceny. In some it is held that if the indictment charges the of-
fense in such form as to show grand larceny, and a general
verdict is returned of guilty, it is sufficient to support a con-
viction for grand larceny.® Others hold a finding essential to:
conviction of grand larceny. In some states the jury are
authorized to fix the punishment within the limit and under
the circumstances specified by statute.’ But, in general, the
power to fix the punishment is with the judge.®
18, v. Church, 8 Ia. 252; S. v. Sting-
ley, 10 Ia, 488; S. v. Miller, 45 Minn,
521; S. v. Wood, 1 Mill Const. 29.
28. v. Wood, 46 Ia. 116.
3 McCormick v. S., 42 Neb. 866.
4S. v. Coon, 18 Minn. 518. ‘
5C. v. Butler, 144 Pa. St. 568; Wil-
born v. S., 8 Smed. & M. 345; Cook
v. S., 49 Miss. 8; Jones v. S., 18 Ala.
153; S. v. Colwell, 43 Minn. 378; P. v.
Whitely, 64 Cal. 211; Mason v. P.,
2 Colo. 373; S. v. Bunten, 2 Nott &
McC. 441; Howell v. S., 1 Oreg. 241;
P, v. Gaugh, 2 Utah, 70. If the evi-
dence of value is conflicting, defend-
ant may request a special finding as
to value: Mason v. P., 2 Colo. 373.
6 Highland v. P., 2 Ill. 392; Collins
v. P., 39 IN. 233; Williams v. P., 44
Til, 478; Ruth v. P., 99 Ill. 185; Ray
v. &., 1 Greene (Ia.), 316; S. v. Red-
man, 17 Ia. 329; Shines v. &, 42
Miss. 821; Unger v. S., 42 Miss, 642;
Miles v. S., 8 Tex. Ap. 58 If the
jury finds only the aggregate value
instead of the value of each article,
it is an irregularity of which de-
fendant cannot take advantage after
the verdict is received: Case v. S.,.
26 Ala. 17. The finding of the lar-
ceny of so many dollars upon an in-
dictment charging the larceny of so
many dollars in bank-bills is suffi-
cient: Hildreth v. P., 82 Ill. 36. A
general verdict is not sufficient.
where part of the judgment may
consist in damages to the injured.
party according to the value of the
property taken: Locke v. 8., 32 N. H..
106. Where a special penalty is im-
posed for the stealing of animals ac-
cording to the number stolen, the
verdict must show the number, and
a general verdict will not be suffi-
cient: S. v. Bunten, 2 Nott & McC.
441,
iIrwin v. §., 25 Tex. Ap. 558; P. v.
Littlefield, 5 Cal. 355.
8 Moss v. S., 42 Ala. 546,
591
§ 589.] OFFENSES AGAINST PROPERTY. [Paxr VII.
§ 589. Cases where value immaterial ; horse-stealing, etc.
‘Some larcenies are punishable without regard to the value of
the property, the kind of property taken or the circumstances
under which it is taken being such as to justify the infliction of
the higher punishment. In such cases it is not necessary that
‘the indictment allege or that the jury find the value of the
property stolen! Horse-stealing is a crime thus usually pun-
ishable without regard to the value of the animal.? So cattle-
-stealing,? hog-stealing,* and larceny of any domestic animal,’
‘are sometimes provided for by special statutes. But the steal-
ing of an animal within such a statute means stealing the ani-
mal alive, and it does not apply to the larceny of the carcass
of the animal, unless it was killed by the defendant with the
intention of carrying it away and appropriating the body.’
‘One who steals an animal described in such special statutes
may, however, be prosecuted for simple larceny.’ Unless the
charge clearly appears to be under the special statute, even
though it be for the stealing of a horse, it will be deemed to be
for simple larceny ;* and if the
1P, v. Townsley, 39 Cal. 405; Mc-
Daniels v. P., 118 Ill. 301; Wilson v.
$., 43 Neb. 745; McDowell v. S., 61
Ala. 172; Adams v. S., 60 Ala. 52;
' Gregg v.S., 55 Ala. 116; Walker v.
$., 50 Ark. 582; S. v. Daniels, 32 Mo.
558; Green v. S. 28 Tex. Ap. 493;
Johnson v. 8., 29 Tex. 492; S. v. Hill,
46 La. An. 736.
2Hoge v. P., 117 Ill. 35; Wells v.
8., 11 Neb. 409; S. v. Small, 26 Kan.
209. If the verdict in such a case is
for petit larceny, it will not be valid:
8. v. Spurgin, 1 McCord, 252. Where
the indictment charges in two
counts larceny in general, and horse-
stealing, punishment may be im-
posed for the higher offense: P. v.
Morris, 80 Mich. 634. But where the
allegation is of larceny in general,
although the property is described
as a horse, conviction can be had
only for grand larceny when the
proper value is shown: P. v. Martin,
91 Mich. 650. Horse-stealing has
‘been made in some states punish-
charge is of stealing a horse
able capitally: Wilcox v.S., 3 Heisk.
110; Turner v. S., 3 Heisk. 452; S. v.
Putney, Phill. 548. The provisions
as to horse-stealing making the of-
fense of higher grade irrespective of
value are applicable also to embez-
zlement: S. v. Small, 26 Kan. 209;
but not, it is said, to conversion by
bailee: S. v. Hayes, 18 Mont. 116.
3 Johnson v. S.,58 Ga. 491; Adams v.
S., 60 Ala. 52; Davis v. S., 40 Tex. 184.
4McDowell v. S,, 61 Ala. 172;
Walker v. S., 50 Ark. 582.
5T. v, Pendry, 9 Mont. 67.
6 Hunt v.8., 55 Ala. 188; Golden v.
S., 63 Miss, 466.
7Quinn v. P., 123 Ill, 383; Chiles v.
C., 2 Va. Cas. 260. Contra, 8. v. Rip-
ley, 2 Brev. 300. The statute cre-
ating the special offense is not ex-
clusive of the general offense: Kol-
lenberger v. P., 9 Colo, 233; S. v.
Snyder, 50 N. H. 150 (overruling, on
this point, 8. v. Nelson, 8 N. H. 163).
8P, v. Jones, 49 Mich. 591; P v.
Martin, 91 Mich. 650,
592
Cu. 26.] LARCENY. [S$ 590, 591.
and other chattels, it will be presumed not to be for the aggra-
vated offense.| Even where the nature of the property makes
the case grand larceny without regard to value, it seems that
it must appear the property was of some value.?
VIII. Procepvure.
§ 590. Jurisdiction and venue.— Questions relating to the
jurisdiction and the venue in cases of goods brought into a
county after being stolen in another county, or in another
state, or in a foreign country, have already been discussed.°
In the federal court the jurisdiction in larceny depends on the
offense being committed at a place over which the United
States has jurisdiction in some form. Under the judiciary act
of 1790,‘ larceny was cognizable in the federal courts only when
committed in a place under the sole and exclusive jurisdiction
of the United States and not within the jurisdiction of any
state But by a later act® larceny may be punished in the
federal courts, though committed in a place not under the sole
and exclusive jurisdiction of the United States, if it is within
its admiralty jurisdiction.’ As to the venue as between differ-
ent counties, there is nothing peculiar in larceny as distinct
from any other crime. The verdict of guilty as charged suffi-
iently shows the offense to have been committed in the county
charged in the indictment.’ If the indictment is repugnant or.
uncertain as to the venue, it will be bad.®
§ 591. Indictment.— Some forms of indictment will be given
in another place.” The common-law indictment charges that
defendant, at the time and place named, “ feloniously did steal,
take, and carry away [certain property described] of the goods
and chattels of the said A. B.” The statutes of the various —
4
18. v. Nelson, 8 N. H. 163; S. v. West v.S, 27 Tex. Ap. 472;, West v.
Snyder, 50 N.H. 150; Boody v. P., 43 S., 28 Tex. Ap. 1.
Mich. 84; P. v. Seller, 58 Mich. 327. 4Ch. 9, § 16.
‘Contra, Williams v. Reg., 7 Q. B. 251. 5U. S. v. Coombs, 12 Pet. 72; U.S.
2 Lucas v. S., 96 Ala. 51. And see, v. Davis, 5 Mason, 356,
in general, § 582, supra. 6 Act of 1825, ch. 65.
3See supra, §§ 552, 553. Anacces- 7U.S. v. Davis, 5 Mason, 356.
‘sory to the larceny can only be prose- 8P. v. Magallones, 15 Cal, 426,
-cuted where the original taking was 9Cain v. 8., 18 Tex. 391.
‘committed unless he was also acces- 10 Infra, § 610.
sory to.taking into.another county:
38 593 ;
OFFENSES AGAINST PROPERTY. [Part VIT.
§ 592,]
states, either by general provisions with reference to indict-
ments, or by special provisions as to indictment for larceny,
have to some extent changed the common-law requirements,.
and in particular instances it may be that the common-law in-
dictment is not sufficient. It may be necessary under such
statutes to conclude “against the form of the statute” instead
of “against the peace and dignity,” etc? The elements of the
indictment will be considered in the following order: The de-
scription of the property, the act done, and the intent.
§ 592. Description of the property.— The description of
the property is material, and must be proved as aileged.*
Where the indictment charges the stealing of a black horse, it.
will not be supported by evidence of the stealing of a brown
horse.‘ Even if the articles are described with greater particu-
larity than necessary, some description being essential, that
given must be proved, and the portion which is unnecessarily
particular cannot be regarded as surplusage.? Thus, where a
revolver was described as a “Smith & Weston” revolver, it
was held that evidence of the stealing of a “Smith & Wesson”
revolver was not sufficient;* so an indictment for stealing one
pair of boots was held not to be supported by proof of the:
stealing of two boots, each being the right one of two different
pairs;’ and the proof of larceny of a pair of sheep-skin gloves
was held not to support the allegation of the larceny of buck-
skin gloves. But the particular description of the article in
the indictment is not necessary. It may be described by the
name usually applied to it.? Articles of clothing and house-
1 Johnson v. P., 113 IIL 99. 5 Alkenbrack v. P., 1 Denio, 80;.
28. v. Gray, 14 Rich. 174; S. v. Turner v. 8. 8 Heisk. 452, If the
Tuomas, 14 Rich. 163; S. v. Wheeler, indictment describes the animal as
15 Rich. 362. And see Chiles v.C.,2 a “beef-steer” or a “work-steer,”
Va. Cas. 260; 8. v. Ripley, 2 Brev.
300. 7
38. v. Noble, 15 Me. 476; S. v. Jack-
son, 30 Me. 29; S. v. Babb, 76 Mo. 501;
Alkenbrack v. P., 1 Denio, 80.
48. v. Jackson, 80 Me. 29. A de-
scription unnecessarily particular as
to color and markings of an animal
must be proven: Courtney v. S., 3
Tex. Ap. 257. But the color and
other particulars need not be alleged:
See infra, § 594,
these particulars must be proven:.
Cameron v. S., 9 Tex. Ap. 382; Gray
v. S., 11 Tex. Ap, 411,
§ Morgan v. S., 61 Ind. 447,
78. v. Harris, 8 Harr. 559.
8 McGee v. S., 4 Tex. Ap. 625. Al-
legation of larceny of a woolen sheet
is not supported by proof of larceny
of a sheet partly of wool: Alken-
brack v. P., 1 Denio, 80.
®Dignowitty v. S., 17 Tex. 621.
Where the article stolen was de-
594
,
Cn. 26.] LARCENY. 5938.
[$
hold goods may be described by number and kind. A more
particular description than is reasonably practicable is not re-
quired ;? but there must be such a description numerically and
specifically as to individualize the property with legal cer-
tainty, so that the jury can determine whether the property
proved to have been stolen is the same as that described in the
indictment. Moreover, the description should be such as to
show that the property is subject of larceny, enable the accused
to make defense if he have any, and protect him from another
prosecution for the same offense.t It will not constitute a
variance that the indictment does not sufficiently describe some
of the articles stolen if it is sufficient as to others, and the
proof as to the part sufficiently described is such as to support a
verdict.’ Thus, if the description of ownership of the property
is true only as to part of it,a proof as to that part will support
a verdict.6 If, however, the number is a part of the descrip-
tion as to each article or portion, it must be proven as alleged.
Thus, where defendant was charged with stealing five certifi-
cates of shares of stock of a certain number, and the proof
showed but one such certificate, and not a series of five, the
variance was held fatal.’
§ 593. Sufficiency of description in particular cases.— A
description of the property as “one book; ”® or “one parcel of
oats;”® or “twenty-three head of cattle;”! or “one bolt of
cotton domestic;”"™ or a certain number of yards of cloth of a
value named without further description;” or “eight cords
of wood;” or a part of an outstanding crop of corn; ora
scribed as a gold watch, held, that
proof of the stealing of a watch the
case of which was partly gold, being
such as is generally called gold by
the public, was sufficient: Pfister v.
S., 84 Ala. 482; Glover v. S., 22 Fla.
493.
1 Ware v. S., 2 Tex. Ap. 547.
28, v. Fenn, 41 Conn, 590.
38. v. Hoyer, 40 La. An. 744.
48. v. Nipper, 95 N. C. 653; Barnes
v. S&S, 40 Neb. 545; Glover v. S., 22
Fla. 493,
5C. v. Williams, 2 Cush. 582; C. v.
Eastman, 2 Gray, 76; C. v. Johnson,
133 Pa, St. 298; S. v. Kreps, 8 Ala.
951; Reid v. S., 88 Ala. 36. Contra,
S. v. Kersh, 1 Strobh. 352,
68. v. Evans, 23 S.C. 209, Under
an indictment for stealing two ani-
mals or articles, there may be a con-
viction on proof of stealing one of
them: Alderson v. 8., 2 Tex. Ap. 10;
Swinney v. 8., 8 Smed. & M. 576.
TP, v. Coon, 45 Cal. 672.
8 Turner v. S., 102 Ind. 425,
9S. v. Brown, 1 Dev. 137.
108. v. White, 129 Ind. 153.
11g, vy. Odum, 11 Tex, 12,
12, v. Campbell, 103 Mass. 436.
138, v. Labauve, 46 La. An, 548,
14 Harris v. S.,100 Ala. 129,
595
§ 593.] OFFENSES AGAINST’ PROPERTY, [Part VII.
certain number of pounds of seed cotton of a specified value;!
or a certain number of handkerchiefs, the proof showing the
larceny of a number of patterns of new handkerchiefs in the
piece;? or “a pair of pants;”* or “four pairs of shoes, four
pairs of pants, one lot of jewelry, one lot of shirts,” * is suffi-
cient. But “one case of merchandise” is not a sufficient de-
_ scription, at least unless there is some excuse for not giving
“a more particular one;° nor is “two ladies’ walking jackets; ” °
nor is a description as a certain lot of dry goods obtained from
a certain firm with which the defendant had many transactions,
the particular lot not being described.’ A description of the
stolen property as “meat” is not sufficient;* but the descrip-
tion “one ham” is sufficient, the word “ham” having acquired
a meaning which is universally understood.? A description of
the property stolen as “ six bottles of whiskey ” is not supported
by proof of the taking of a quantity of whiskey not in bot-
tles; the term “bottle” cannot be taken as a measure of quan-
tity.” An indictment for stealing a “plow” is not sustained
by proof of stealing a plow-share only; but where, under an
indictment for stealing a “shovel-plow,” it was proposed to
prove the stealing of the iron part of such a plow, it was held:
that it should have been left to the jury whether the thing
‘stolen was, according to common understanding, a shovel-plow
as alleged.” An indictment for stealing a “bull-tongue” was
held to sufficiently specify a peculiarly shaped plow-share usu-
ally known by that name." The stealing of ingots of tin or iron
may be charged as of so many pounds weight of tin or iron re-
spectively.4 The charge of theft of a “certain trunk or chest
containing various articles of clothing, jewelry,” etc., is insuffi-
cient as to the property contained in such trunk or chest; and
1Borum v.8., 66 Ala, 468, “Two
bales of cotton ” is sufficient: Peters
9 Reg. v. Gallears, 2 C. & K. 981.
10C, v. Gavin, 121 Mass. 54.
v. §., 100 Ala. 10.
2 Rex v. Nibbs, 1 Moody, 25.
38. v. Johnson, 30 La. An., part II,
904,
48, v. Curtis, 44 La, An. 320.
5S. v. Dawes, 75 Me. 51.
6 McCowan v. 8., 58 Ark. 17.
7Redmond v. S., 85 Ohio St. 81.
8S. v. Morey, 2 Wis. 494; S. v. Pat-:
rick, 79 N. C. 655,
11§. v. Cockfield, 15 Rich. 316.
128, v. Sansom, 3 Brev. 5.
138, v. Clark, 8 Ired. 226.
14 Reg. v. Mansfield, Car. & M. 140.
And see S. v. Horan, Phill. 571.
An indictment charging larceny of
“gold metal” of a certain value was-
held sufficient: U. S. v. Jones, 69
Fed. R. 978.
15 Potter v. S., 39 Tex. 388,
596
On..26.] LARCENY.
[§ 594
it was so held also as to an indictment charging the stealing of
a box containing watches and chains;! so an indictment charg-
ing the stealing of “a pocket-book and contents of the value,”
etc., does not charge the theft of the contents.? A description
of the property stolen as a “cast-iron balance wheel” is proper,
although, for the purpose of effecting the theft, the wheel has
been broken into pieces and become old iron.’
§ 594. Description of animals.— It is sufficient in alleging
the larceny of a domestic animal to name the kind of animal
and the ownership. No special description of the particular
animal aside from that of ownership is essential. Thus, the
allegation that defendant feloniously took “a horse, the per-
sonal property of” a person named, was held sufficient. It is
not necessary to describe any particular brand on the animal,
even though it is branded.* Where there are statutory provis-
ions in regard to branding, the brand furnishes some evidence
as to title. The difficulties in regard to animals have arisen
under statutes providing a special punishment for larcenies of
particular animals named, and the particularity pursued in the
statutes in the specification of the animals intended has led to
corresponding technicality with reference to their description
in indictments under such statutes, so that a minute accuracy
of description has been required which was not necessary
in the common-law indictment for larceny. Thus, where the
statute as to horse-stealing specifies the larceny of “one horse,
gelding, mare, colt, ass or mule,” it has been held that the
charge of the theft of a horse is not sustained by proof of the
see Brown v. S., 44 Ga. 300. The an-
imal may be said in the indictment
to be of “the goods and chattels” of
the owner: S. v. Gomer, 6 La. An.
18. v. Derst, 10 Nev. 443.
2 Johnson v. §., 32 Ark. 181.
3 Gettinger v. S., 18 Neb. 308.
4McBride v. C., 18 Bush, 337. So
held also where the description was
“one mare:” S. v. Friend, 47 Minn.
449; “one mule:” Gabriel v. S., 40
Ala. 357; S. v. King, 31 La. An. 179;
“one beef cattle:” Duval v. S, 8
Tex. Ap. 370; “one hog:” Grant v.
S., 2 Tex. Ap. 163; S. v. Mansfield, 33
Tex. 129; P. v. Stanford, 64 Cal. 27;
Matthews v. S., 24 Ark. 484; “three
hogs.about eleven months old,” etc.:
Barnes v. S., 40 Neb. 545. As to pigs,
311.
5Perry v. S., 37 Ark. 64 But if
the brand be described it must be
proved as alleged: Allen v.S., 8 Tex.
Ap. 360.
6Robertson v. S., 1 Tex. Ap. 311;
and the want of a brand may be.
shown as indicating that the taking
was not with wrongful intent: Perry
v. &., 87 Ark, 54,
597
OFFENSES AGAINST PROPERTY. [Part VII.
-§ 594.)
theft of a mare,! nor by proof of the theft of a gelding” So
under such a statute the indictment for stealing a steer will
not support a conviction on proof of stealing a bull;* but if
such a statute mentions merely cattle or neat cattle, an indict-
ment for stealing animals designated as “ cattle,” or for stealing
“a cow” or “a steer,” will be sufficient. Indeed, in California,
under a statute specifying among other animals “a cow, steer,
bull, calf,’ it was held that an indictment for the larceny of
“two head of cattle” was sufficient.’ Under such a statute it
is usually sufficient to charge the stealing of a hog without
further specification. On the contrary, in another case it is
said that as the statute provides only for larceny of a hog, an
indictment for stealing a pig will not come within the statute.’
Under statutes not using the same particularity in describing
the kinds of animals covered, the same particularity of descrip-
tion and proof is not essential. Thus, if the statute names adult
animals only, the young are included under the same descrip-
tion;® but where the young are enumerated with the adult
1Banks v. 8., 28 Tex. 644. Andsee v. S., 3 Humph. 323; Brisco v. S., 4
Taylor v. S., 44 Ga. 263.
2 Hooker v. S., 4 Ohio, 348; Turley
v. S.,8 Humph. 323; S. v. Buckles, 26
Kan. 237; Swindel v. S., 32 Tex. 102;
Gibbs v. S., 34 Tex. 134; Marshall v.
8., 31 Tex. 471; Persons v. S., 3 Tex.
Ap. 240; and vice versa: 8. v. Mc-
Donald, 10 Mont. 21. So proof of the
theft of a ridgling (a horse castrated
on one side only) does not support
the allegation of theft of a gelding:
Brisco v. S., 4 Tex. Ap. 219. But this
technical construction seems to have
been changed in Texas by statute:
Valesoo v. 8., 9 Tex. Ap. 76. Where
the larceny of a horse or mule was
made a capital offense, and a pre-
vious statute as to the larceny of a
horse, mule, colt, etc., was to that
extent repealed, held, that the lar-
ceny of a colt was not within the
new statute, and was therefore pun-
ishable under the old: S. v. Major,
14 Rich. 76. Ina statute specifying
“horse, mare, gelding,” etc., the term
“horse” indicates a stallion: Turley
Tex. Ap. 219. If the statute requires
a specification of the nature, char-
acter, sex, etc., the term “horse” is
not sufficiently descriptive: Brown
v. S., 86 Ga. 633.
38. v. Royster, 65 N. C. 539.
4Hubotter v. S., 82 Tex. 479; S. v.
Hoffman, 53 Kar. 700; S. v. Lawn, 86
Mo. 241: S. v. Crow, 107 Mo. 341;
P. v. Littlefield, 5 Cal. 355. But
“twenty-five head of cattle,” held
insufficient: S. v. Brookhouse, 16
‘Wash. 87. The term “cattle” under
such a statute means domesticated
animals of the bovine genus: Mac-
Intosh v. §., 18 Tex. Ap. 284 But
under such statute it must appear
that the animals stolen were cattle,
and that they were taken from the
possession of someone: Castello v. &.,
36 Tex. 324,
5P, v. Barnes, 65 Cal. 16,
6Grant v. S., 2 Tex. Ap. 163.
78. v. McLain, 2 Brev, 448.
‘8 Rex v. Welland, Russ. & Ry. 404;
P, v. Soto, 49 Cal. 67.
598
Cu. 26.] LAROENY. [§ 595.
they must be correctly described.1 If the statute uses only
the general names, without distinction of sex or age, then the
general term will be sufficient in the indictment.? In an indict-
ment for larceny under the common law, or under a general
statute defining that offense and not in regard to specific ani-
mals, a general description of the kind of animal is sufficient.
Thus, under an indictment for stealing a horse, proof of the
theft of a mare is admissible;* so proof of larceny of a gelding
may be introduced under the charge of stealing a horse;* so
an indictment charging theft of “certain neat cattle, to wit,
one beef,” or “one head of neat cattle,” has been held suffi-
cient;® so the allegation of theft of a “cow” covers theft of a
heifer;® so an indictment for stealing “one certain calf of the
neat cattle kind” is sufficient;’ but the description of the ani-
mal as “a yearling” is not. sufficient, as it does not designate
what kind of an animal was stolen. The charge of stealing a
hog is supported by proof of stealing a pig.’ So proof of steal-
ing hens supports a charge of stealing chickens.”
§ 595. Written instruments, bills and notes.— Where a
written instrument is the subject of larceny, it may be de-
scribed in the indictment by the term usually employed to de-
scribe it without stating its purport or giving a copy of it;" so
in an indictment for the larceny of a railroad ticket, a particu-
Jar description is not required;™ so'the description of a certain
1Rex v. Cook, 2 East, P. C. 616;
‘Rex v. Loom, 1 Moody, 160.
aWatson v. S., 55 Ala, 150; S. v.
Godet, 7 Ired. 210; P. v. Sensabaugh,
2 Utah, 473; S. v. Tootle, 2 Harr. 541;
Reg. v. Aldridge, 4 Cox, 143; Rex v.
Gillbrass, 7 C. & P. 444; Rex v.
Stroud, 6 C. & P. 585; Reg. v. Spicer,
1C. & K. 699; Reg. v. Jewett, 2 Cox,
227; Reg. v. McCulley, 2 Moody, 34;
Reg. v. Strange, 1 Cox, 58.
3P. v. Pico, 62 Cal. 50; Baldwin v.
P., 2 Ill. 304; Davis v. S., 23 Tex. Ap.
210; S. v. Gooch, 60 Ark. 218; but
mot proof as to a horse under a
charge as to a mare: Thrasher v. 8.,
Blackf. 460. ;
48. v. Donnegan, 34 Mo. 67; Hal-
d&kem v. C., 2 Va. Cas. 4, An indict-
ament charging larceny of “an ani-
mal of the horse species” is sufficient:
Smythe v. S., 17 Tex. Ap. 244.
5S, v. Garrett, 34 Tex. 674; S. v.
Murpby, 39 Tex. 46. An indictment
charging larceny of “a beef” is suf-
ficient: S. v. Baden, 42 La. An. 295;
and under such indictment testi-
mony showing theft of a cow is ad-
missible: Smith v.S., 24 Tex. Ap. 290.
“One beef steer” isa sufficient desig-
nation of the kind of animal: Short
v. S., 36 Tex. 644; so is “one head of
neat cattle:” S. v. Murphy, 39 Tex. 46.
6 P. v. Soto, 49 Cal. 67.
7Grant v. 8S. 3 Tex. Ap. 1.
8 Stollenwerk v. S., 55 Ala. 142.
® Washington v. S., 58 Ala. 355.
108. v, Bassett, 34 La, An. 1108,
11S, v, Hall, 85 Mo. 669.
128, v. Brin, 80 Minn, 522, But it
599
a
§ 595.] OFFENSES AGAINST PROPERTY. [Part VII.
stated number of county warrants drawn by the order of the
auditor, etc., on the treasury, etc., and stating the amounts for
which they were drawn, was held sufficient... Under statutes.
as to larceny of promissory notes, bills of exchange, etc., it is
not necessary to describe the instrument stolen more particu-
larly than in case of property, and the description of the in-
strument by its usual name, and the amount of the face thereof
and its value, is sufficient.2 The Pennsylvania cases seem to
require a greater particularity of description, and hold that
an indictment for larceny of “a certain promissory note of the
value,” etc., is not sufficient;* but, at any rate, the descrip-
tion need not give the particulars as to indorsements, etc., at
least where the indictment alleges inability to do so. Exact
accuracy as to the name of the payee in a check has been held
not necessary.’ The allegation of stealing United States bonds
was held not to be supported by evidence of the theft of a sil-
ver certificate,’ and the allegation of larceny of pieces of
printed paper “commonly called United States bonds, of the
value of,” etc., was held not sufficient under a statute provid-
ing a punishment for the stealing of such bonds, because it did
not state that such pieces of paper were bonds or certificates,
etc., within the language of the statute.’ Where bonds are
sufficiently described, the indictment for the larceny of coupons
from such bonds will be sufficient. For the purpose of show-
ing the instrument to be an instrument of value, it is not nec-
essary to specially set out the fact of liability thereunder, as.
!
should be described as stamped,
dated, signed, etc., so as to show it
to have been duly issued and some-
thing of value: S. v. Holmes, 9 Wash.
528,
1Engleman v. S., 2 Ind. 91. But
an indictment for larceny of “a cer-
tain writ of ji. fa. belonging to the
superior court,” or “a certain pro-
cess of and belonging to the superior
court,” or “a certain record of and
belonging to the superior court,” the
three descriptions being in three
counts, was held too vague to au-
thorize a conviction: S. v. McLeod,
5 Jones, 318.
2C. v. Brettun, 100. Mass. 206; S..
v. Pierson, 59 Ia. 271; Du Bois v.S&.,
50 Ala. 189. “One paper purporting.
to be a check” is sufficient: Whalen:
v. C., 90 Va, 544, 7
3 Stewart v. C., 4S. & R. 194; Cv.
Boyer, 1 Binn. 201.
48. v. Fenn, 41 Conn. 590.
5P. v. Arras, 89 Cal. 228.
6 Stewart v. S., 62 Md. 412.
7 Kearney v. S., 48 Md. 16,
5S. v. Wade, 7 Baxt. 22. Proof of
stealing an instrument not under
seal will not support an indictment
charging larceny of a bond: By.
Wiley, 3 Hill, 194,
600
Cu. 26.] LARCENY.
[§ 596.
liability will appear from the nature of the instrument. In-
struments described as “ bonds of the state,” etc., are by that
description designated as lawful and valid bonds.?, Where the
indictment alleges the value of a check, such allegation is to be
taken as equivalent to an allegation that the instrument called
for at least that amount of money.*
§ 596. Bank-notes, treasury notes, ete.— Larceny of bank-
notes is punishable under a general statute with reference to
stealing “promissory notes for the payment of money,” but to
bring a bank-bill within that description it is not sufficient
to describe it as a bank-note of a certain named bank, but the
indictment must show that it is a note for the payment of
money.‘ While it is true of bank-bills as it is of promissory
notes, as stated in the last section, that they need not be de-
scribed with particularity, yet it has been held necessary to
allege the number and value of each, and that the description
of them as “sundry bank-bills,” of an aggregate value named,
is not sufficient.’ In some cases it has been held that a descrip-
tion of bank-bills should specify the kind, number and denomi-
nation;® and if the description includes bills together with
other property, in the alternative, it will be insufficient.’ The
modern statutes usually specify bank-bills or bank-notes as sub-
jects of larceny, and it is not necessary, therefore, to describe
them as promissory notes, nor as money.® - It is not necessary.
19. v. Hickman, 8 N. J. 299; Phelps
v. P,, 72 N. Y. 384. But under stat-
ute of South Carolina it was held
that even in case of bank-bills it
was necessary to state a certain
sum as due thereon: S. v. Thomas, 2
McCord, 527.
28. v. Wade, 7 Baxt. 22.
88. v. Pierson, 59 Ia. 271.
4C. v. Boyer, 1 Binn. 201. “A
promissory note for the payment of
money, commonly called a bank-
note,” held sufficient: S. v. Bond, 8
Ta, 640. But that a bank-bill should
‘not be described as a promissory
note, see Damewood v. S., 2 Miss.
262,
5Hamblett v. S.,18 N. H. 384. But
this is sufficient in Massachusetts:
C. v. Stebbins, 8 Gray, 492; C. v.
Grimes, 10 Gray, 470; Larned v. C.,
12 Met. 240; C. v. Collins, 188 Mass.
483. Where the indictment alleged
the larceny of nine bank-notes
amounting in the whole to the sum ,
of £9 and of the value of £9, it was
held that this was an allegation of ;
the larceny of nine bank-notes for
£1 each and was sufficient: Rex v.
Johnson, 2 Russ. Cr. 110.
6 Hamblett v. S., 18 N. H. 384; U. S.
v. Barry, 4 Cranch, C. C, 606; T. v.
Shipley, 4 Mont. 468; S. v. Oakley, 51
Ark, 112.
TRhodus v. C., 2 Duv. 159; Lewis
v. S., 3 Heisk. 883; S. v. Cason, 20 La.
An. 48.
88, v. Gorham, 55 N. H. 152, Bank-'
601
§ 596.) [Parr VIL
OFFENSES AGAINST PROPERTY.
that bank-bills be minutely described! The description of the
note by the bank issuing it, and the denomination, is sufficient.?
Indeed, the weight of authority is that the name of the bank
is not essential, the number, denomination and value being suf-
ficient.2 There is some discrepancy in the cases as to how
United States treasury notes and national bank notes are to be
described. In one case it was said that, under a statute with
reference to the stealing of notes of any bank chartered by the
United States, or by an individual state, the indictment must
state by what authority the bank issuing the notes was char-
tered. It has also been held that, under an indictment for
taking money of a certain description designated as “lawful
money of the United States,” it was not proper to prove the
taking of national bank notes.» An indictment for larceny of
notes of the “national currency of the United States ” was held
sufficient under a statute which provided as to the larceny of
“United States currency.”® A description of such bills as
“United States treasury notes,” or as “ United States promis-
sory or bank-notes,” has been held sufficient;’ so the descrip-
tion of “bank-notes,” or “currency notes commonly called
bill and bank-note are terms that
may be used interchangeably: Roth
v. S, 10 Tex. Ap. 27. They may be
described as promissory notes, com-
monly called bank-notes: McLaugh-
lin v. C., 4 Rawle, 464,
1 Wilson v.S., 66 Ga. 591; P. v. Hol-
brook, 18 Johns. 90; S. v. Smart, 4
Rich. 356. Description in the lan-
guage of the statute is sufficient: S.
v. Cassel, 2 Har. & G. 407.
2Salisbury v. S., 6 Conn. 101; P. v.
Holbrook, 18 Johns. 90; Crawford v.
8., 2 Ind. 182. The proof must cor-
respond to the allegations as to the
bank issuing: Pomeroy v. C., 2 Va.
Cas, 342,
38. v. Stevens, 62 Me. 284; C. v.
Richards, 1 Mass. 837; S. v. Mahanna,
48 N. H. 377; Hart v. S., 55 Ind. 599;
Foster v. 8., 71 Md. 553; Baldwin v.
8, 1 Sneed, 411; Pyland v. 8, 4
Sneed, 857; P. v. Kent, 1 Doug, 42:
Carden v. 8., 89 Ala. 180; S. v. Evans,
60
15 Rich. 31; C. v. Moseley, 2 Va. Cas.
154; Pomeroy v. C., 2 Va. Cas. 342;
8. v. Anderson, 25 Minn. 66; & v.
Bond, 8 Ia. 540; S. v. Graham, 65 Ia.
617; Munson v.&., 4 Greene (Ia.), 483;
U. 8S. v. McDaniel, 4 Cranch, C. C.
721; C. v. Grimes, 10 Gray, 470; Lar-
ned v. C., 12 Met. 240.
4U. 8. v. Porte, 1 Cranch, C, C. 369.
5 Hamilton v. S., 60 Ind. 193. And
see 8. v. Collins, 72 N. C. 144. A de-
scription of the bill stolen as “one
ten-dollar United States national
bank note of the value,” etc., was held
sufficient: Wells v. S.,4 Tex. Ap. 20.
Dull v. C., 25 Grat. 965. So the
description of “one twenty-dollar
bill United States of America paper
currency money of the value,” etc.,
was held sufficient: Cook v.S., 4 Tex.
Ap. 265. e;
78, v. Thomason, 71 N. C. 146; Bell
v.5., 41 Ga. 589,
2,
r]
Cx. 26.] LARCENY. [§ 597.
greenbacks,” is sufficient. A gold certificate may properly be
described as a United States treasury note.2 These cases suf-
ficiently indicate that a special description beyond what would
be reasonably practicable in such a case is not required; but in-.
dictments sometimes excuse the want of greater particularity
by alleging that the names of the banks issuing the notes are
to the grand jury unknown.’ Failure to specify the number
and denomination may be excused in the same way;‘ so un-
certainty of description as to whether money stolen is in bank-
notes or coin may be excused,’ or in treasury notes or national
‘bank notes.6 But where there is a description, the evidence must
in some way identify the property stolen as that described.
§ 597. Money, coin.— At common law coin should be spe-
cifically described by the number, denomination and value,’
but this rule is not now observed, being changed either by stat-
ute or by the general tendency to more liberal construction
of indictments, and it is almost universally held that the de-
scription of the kind of coin (that is, gold, silver or copper),
and the value of the quantity stolen, is sufficient.2 Indeed,
the description of a certain sum of money has been held suffi-
éient, there being a statutory provision authorizing such de-
scription; but the allegation of the theft of so many “ dollars”
18, v. Hockenberry, 30 Ia. 504;
Levy v. S., 79 Ala. 259; Statum v.S.,
‘9 Tex. Ap. 278. And see S. v. Beebe,
17 Minn. 241.
2Randall v. S., 53 N. J. 485.
3C. v. Grimes, 10 Gray, 470.
49. v. Hoppe, 39 Ia. 468; C. v. Gal-
lagher, 126 Mass. 54; C. v. Griffiths,
126 Mass. 252.
5 Haskins v. P., 16 N. Y. 344; Davis
v. S., 82 Tex. Ap. 377.
6Duvall v. S. 63 Ala. 12. Under
such an indictment the jury may
acquit if the evidence shows that
the grand jury knew a more partic-
ular description of the money, but
not if it only appears that they
could have ascertained the more
particular description by reasonable
diligence: Duvall v. S., 63 Ala. 12.
7Vale v. P., 161 Ill. 309, 48 N. E.R.
1091.
8Lord v. S, 20 N. H. 404; S. v.
Murphy, 6 Ala. 845; Reg. v. Bond, 1
Den. 517; S. v. Hanshew, 3 Wash. 12.
§9C. v. Gallagher, 16 Gray, 240; C.
v. Sawtelle, 11 Cush. 142; C. v. Duffy,
11 Cush, 145; P. v. Green, 15 Cal.
512; P. v. Bogart, 36 Cal. 245; P. v.
Ball, 14 Cal. 101; McKane v. S, 11
Ind. 195; 8S. v. Jackson, 26 W. Va.
250: Porter v. S., 26 Fla. 56; Bryant
v. S., 16 Tex. Ap. 144; Bravo v. S., 20
Tex. Ap. 177; U. S. v. Kurtz, 4
Cranch, C. C. 674; U. S. v. Barry, 4
Cranch, C. C. 606. So the descrip-
tion of “a quantity of money of the
value of seventy-seven dollars,” etc.,
was held sufficient: S. v. Hanshew,
3 Wash. 12.
10 Brown v. P., 29 Mich. 232; Ham-
miond v. S., 121 Ind. 512; Graves v.
S., 121 Ind. 357; S. v. Walker, 22 La.
An, 425. So the description of a cer- _
tain number of “dollars” in money,
or “in lawful money of the United
603
[Parr VII:
§ 598.] OFFENSES AGAINST PROPERTY.
is not sufficient.! The allegation of the larceny of so many
“dollars in United States currency” has been held insufficient
for not specifying the kind of currency.? In other cases it has
been held that the description of “dollars in paper currency
of the United States,” or “national currency of the United
States,” was sufficient.? In the case of coins not legal tender,
or securities, the value should be specifically alleged ;* but where
the property stolen is described as money, a special allegation
of value is not necessary.’ Insufficiency of description as to
the kind of money and the denomination is excused by alleg-
ing that such description is to the grand jury unknown.’ An
indictment for theft of money will not cover theft of checks.’
§ 598. Money not goods and chattels.— Coin should not be
described as “of the goods and chattels” of the owner,’ but
the description of the coin as “of the goods and chattels” may
be omitted as surplusage if the balance of the description is
sufficient.’ Bank-bills are usually by statute made subject of
larceny in analogy with bills and notes, and are therefore prop-
erly described as “ of the goods and chattels.” ”
States,” is held sufficient: Randall
v. S., 182 Ind. 539; S. v. Freeman, 89
N. C. 469; Wofford v. S., 29 Tex. Ap.
536; S. v. Blanchard, 11 Wash. 116.
But under the Texas statute defin-
ing money as used in such an in-
dictment as meaning legal tender
currency of the United States, the
indictment charging the stealing of
money is not supported by evidence
that the money was a twenty-dollar
bill of American money: Otero v.S.,
30 Tex. Ap. 450.
1Merwin v. P., 26 Mich. 298;
Croker v. S., 47 Ala. 58; S. v. Long-
bottoms, 11 Humph. 39; Barton v.
S., 29 Ark. 68; Lavarre v. S., 1 Tex.
Ap. 685; Dukes v. 8., 22 Tex. Ap. 192.
Contra, S. v. Greene, 27 La. An. 598.
? Leftwich v. C., 20 Grat. 716; Mer-
rill v. S., 45 Miss. 657; Martinez v.
S., 41 Tex. 164; Ridgeway v. S., 41
Tex, 231. An indictment should show
the country of which the money is
the currency: Boyle v. 8, 37 Tex.
859; Williams v. 8.5 Tex. Ap. 116.
38, v. Ziord, 30 La, An., part II, 867;
Du Bois v. 8., 50 Ala. 189. “United
States paper currency money” in-
cludes silver certificates and na-
tional bank notes: Kimbrough v. 8.,
28 Tex. Ap. 367.
4C. v. Smith, 1 Mass, 245; P. v.
Donald, 48 Mich. 491.
58. v. King, 37 La. An. 91. Evi-
dence that the property stolen was
“good and lawful money of the
United States ” is not ground for re-
versal if not objected to: Graves v.
S., 121 Ind. 357.
§ Chisholm v. S., 45 Ala, 66.
7 Lancaster v. S., 9 Tex. Ap. 393.
88. v. Parker, 1 Houst. Cr. C. 9..
The stealing of coin is an offense at.
common law: S. v. Evans, 7 Gill &
J. 290. As to a similar question
arising under the statute as to re-
ceiving stolen goods, see infra, § 718-
9 Eastman v. C., 4 Gray, 416; C. v.
Moseley, 2 Va. Cas. 154; Reg. v. Rad-
ley, 2.C, & K. 974,
10 P. v. Holbrook, 13 Johns, 90; Boyd
604
Cn, 26.] LARCENY. [$$ 599-601.
-§ 599. Evidence of identity and value.—Coin cannot be
identified so strictly as other property, and such evidence as
satisfies the jury that the coin stolen was the same as that de-
scribed is sufficient. The value of bank-bills is sufficiently
shown by evidence that they were good money?
§ 600. “* Personal property,” ‘“‘goods and chattels.’’ —
The property need not be described as personal property if
ithat fact appears from the description used.’ It is usual to.
charge that the property described was “of the goods and l
chattels of” the person named as owner. Such description in-
dicates ownership even though the property is not strictly
within the common-law term of goods and chattels.t It is not
necessary to use the term “ personal” swith “ goods and chat-
tels,” 5 and it is not necessary to use the term “ goods and chat-
tels” at all where the description sufficiently indicates that the
thing stolen is of that character.
: $601. Ownership.— Itis essential, as has already been shown,’
that the property taken belong to another than the person
charged with the wrongful tates In order to make this es-
sential fact appear, the ownership of the property charged to
have been wrongfully taken must be alleged.® The description
of the property as the goods and chattels of a person named is
a, sufficient allegation of ownership in such person; and even if
‘the property is not goods and chattels, but is subject of larceny,
ithe ownership may nevertheless be sufficiently indicated by the
description of the property as of the goods.and chattels of a
y, C1 Rob. (Va.) 691. This is au- 7See supra, ‘8g 547,
thorized at common law: Reg. v.
Sadi, 2 East, P. C. 748.
1P, v. Linn, 23 Cal. 150; S. v. Free-
man, 72 N. C. 521; Roberts v. S., 83
‘Ga. 369,
' 28, v. Evans, 15 Rich. 81; Baldwin
y. S., 1 Sneed, 411.
_3Jones v. &, 51 Miss. 718; 8. v.
Gallinore, 7 Ired. 147.
48. v. Bartlett, 55 Me. 200; P. v.
Kent, 1 Doug. 42. The term “goods
and articles ” will include a horse:
8. vy. Ward, 49 Conn. 429.
“5 Choen v. S., 85 Ind. 209.
6S. v. Parker, 34 Ark. 158; S. v.
‘Bayonne, 36 La. An. 761,
8P. v. Hanselman, 76 Cal. 460; S. v.
McAloon, 40 Me. 133; Reg. v. Ward, 7
Cox, 421. The allegation of fraudu-
lent taking, etc., from the possession
of the person named, without the al-
legation of ownership in such per-
son, is not sufficient: Maddox v.&.,
14 Tex. Ap. 447; S. v. Ellis, 119 Mo.
437, Butifthe indictment describes
the person from whose possession
the property was taken as the owner
thereof, that is sufficient: Mathews
v. S., 17 Tex. Ap. 472.
9 Garber v. S., 94 Ind. 219,
605
§ 601.] OFFENSES AGAINST PROPERTY. [Part VII.
person named.! With reference to this requirement that the
property shall appear to have belonged to another than the
person wrongfully taking it, it has been said that ownership in
a particular person is not material,? and that therefore under
statutory provisions amendment of the indictment in this respect
may be made by the trial court;* but description of the prop-
erty by means of the ownership ‘thoreo? i is a proper means of
designating the property charged to have been stolen, and in
this respect it is generally regarded as very material, and there-
fore cannot be amended.! Without such allegation of owner-.
ship the description of the property is usually insufficient, and
the indictment defective,® and the ownership must be proven as
alleged.6 A failure to aver the ownership should be explained,’
as, for instance, by alleging the owner to be unknown to the-
grand jury.2 The fact that the ownership was unknown to.
the jurors is in such a case a material allegation ;® and if it ap-
pears that the name of the owner might have been discovered:
1Eastman v. C., 4 Gray, 416.
28, v. Bell, 65 N. C. 313.
3C, v. O’Brien, 2 Brews. 566; Baker
v. S&S. 88 Wis. 140; S. v. Hanks, 39
La. An. 234; S. v. Harris, 42 La. An.
980; S. v. Ware, 44 La, An, 954; Reg.
v. Fullarton, 6 Cox, 194; Reg. v.
Pritchard, L. & C. 34. Contra, 8. v.
Van Cleve, 5 Wash. 642; Reg. v. Ward,
Y Cox, 421.
48, v. Van Cleve, 5 Wash. 642.
58. v. Van Cleve, 5 Wash. 642;
Stone v. S., 12 Tex. Ap. 1938; S. v.
Sheppard, 33 La. An. 1216. Thus,
the allegation that the property be-
longed to the estate of a deceased
person is not sufficient: 8. v. Wood-
ley, 25 Ga. 235. The allegation of
ownership giving the surname only
of the alleged owner is not sufficient
without the averment that the Chris-
tian name is unknown: Morningstar
v. S., 52 Ala, 405.
6S. v. Dwyre, 2 Hill (S, C.), 287; 8. v.
Pitts, 12 8. C. 180; 8. v. Washington,
15 Rich. 39; Hughes v. C., 17 Grat. 565;
Jones v. C., 17 Grat. 663; King v. S.,
44 Ind. 285; Bell v. S., 46 Ind. 453;
Miller v. P., 18 Colo. 166; Clark v. S.,
29 Tex. Ap. 437, An indictment for
stealing a horse of A. cannot be sus--
tained by proof of stealing a horse
of B., unless the horse is otherwise
so described as to be identified with-
out regard to ownership: McBride v.
C., 13 Bush, 337. It is not essential
that proof of ownership be made by
the testimony of the owner himself;
the fact may be established by the
testimony of others cognizant of the-
fact: Lawrence v. S., 4 Yerg. 145.
7Reed v. C., 7 Bush, 641; Brewer
v.S., 18 Tex. Ap. 456.
8S. v. Bell, 65 N.C. 318; S. v. Pol-
land, 53 Me. 124; S. v. Haddock, 2
Hayw. 162; C. v. O’Brien, 2 Brewster,
566; Thompson v. §., 9 Tex. Ap. 301;
Mackey v.S&., 20 Tex. Ap. 608; McVey
v. 8., 23 Tex. Ap.659. An allegation
that the animal taken was an estray
sufficiently shows an unknown.
owner: 8. v. Anderson, 34 Tex. 611.
So, under allegation of unknown
ownership, proof that the animal
was an estray is sufficient: Wills v..
S., 40 Tex. 69,
9 Williamson v. S., 18 Tex. Ap. 514.
606
Cu. 26.] LARCENY. [§ 602.
by the grand jury in the exercise of reasonable diligence, a con-
viction cannot be sustained.! In case of robbery or stealing
from the person, ownership of the property taken is immate-
rial, the offense being one against the person rather than with
reference to the property.2 So, under a charge of horse-steal-
ing as a specific crime, ownership of the animal is not an es-
sential averment.®
§ 602. Joint ownership; several owners.— If the property
is alleged to be that of an individual named, evidence that it
belongs to that person and another or others jointly will not
support the indictment. An allegation of ownership in one
person is not supported by evidence of ownership by two per-
sons as partners. An allegation of ownership in A. and B.
will be supported by evidence of ownership by A. and B. as
partners;® but allegation of ownership in a firm by the firm
name only is sufficient.? An averment of ownership in two:
persons named is proper where the evidence supports the alle-
gation;® but if the evidence shows that the ownership is only
in one, the variance will be fatal;® so, under the allegation of
joint ownership, proof of ownership of different portions of the
lJorasco v. S., 6 Tex. Ap. 238; At-
kinson v. S., 19 Tex. Ap. 462; Lang-
ham v. S., 26 Tex. Ap. 583; Swink v.
8., 32 Tex. Ap. 530. Butif the owner
is charged to be unknown, the state
is not bound to elect as between two
or more possible owners, as shown
by the evidence, there being but one
act referred to: Black v. S., 83 Ala.
81.
2P. v. Watson, 72 Cal. 402.
3Halkem v. C.,2 Va. Cas. 4. So
under a statute punishing the steal-
ing or carrying away of corn, etc.,
from the land of another, it is not
necessary to allege the ownership of
the property taken: 8S. v. Schatz, 71
Mo. 502.
4McDowell v. S., 68 Miss. 348; S. v.
London, 8 S. C. 230; S. v. Burgess, 74
N. C. 272; Brown v. S.. 35 Tex. 689;
8. v. Wilson, 6 Oreg. 428. A statute
which authorizes ownership to be
laid in one of the owners, naming
him, “and another, or others, as the
case may be,” will cure such diffi-
culty: C. v. Arrance, 5 Allen, 517;
but will not authorize an indict-
ment alleging the property to be in
the person named, “and another, or
others,” such an allegation being
indefinite as in the alterative: 9. v.
Harper, 64 N. C, 129,
5C. v. Trimmer, 1 Mass. 476; Hogg
v. S. 3 Blackf. 326; S. v. Owens, 10
Rich. 169, To the contrary, under
statutory provisions as to indict-
ments, see 8. v. Cunningham, 21 Ia.
433; S. v. Connor, 5 Coldw. 311.
6P. v. Goggins, 80 Cal. 229; P, v.
Barnes, 65 Cal. 16. If the ownership
is laid in a partnership, giving the
full name of the members, it is nec-
essary to prove the names as laid:
Doan v. 8., 26 Ind. 495.
TP. v, Ah Sing, 19 Cal. 598.
8S. v. Scripture, 42 N. H. 485; Dodd
v. &., 10 Tex. Ap. 370.
5 Parmer v S., 41 Ala. 416; Widner
v. S., 25 Ind. 234,
607
§ 603.] OFFENSES AGAINST PROPERTY. (Parr VII.
property by the two persons named in severalty will consti-
tute a fatal variance.! Allegation of ownership in the same
count in A. and also in B. is fatal;? but it is proper to allege
ownership of the same. property in different persons in different
counts, and if the evidence supports the allegation of one count
it will authorize a conviction.* It is proper, however, to allege
in one count the larceny of different articles belonging to dif-
ferent persons named, where they are taken in one transaction.‘
But it must appear that the articles were stolen at the same
time, otherwise the indictment will be bad for duplicity.®
Where the taking of articles is properly charged in one count
as committed in the same transaction, there may be a convic-
tion, although the evidence shows different transactions, as the
validity of the indictment will not be affected by the evidence.
§ 603. What sufficient ownership.—It has already been
shown that the requirement of ownership in cases of larceny is
fulfilled by actual possession, and that the bailee or other per-
son in possession of the property may be treated as owner, and
the wrongful taking may be alleged as of his property; there-
fore, proof of possession by the person alleged as owner is suffi-
cient, although at the same time the evidence shows the real own-
ership to be in another.’ It has been already shown, also, that
ownership may be alleged in bailor, although the possession is
in bailee,® and under somewhat analogous reasoning it has been
held that where a draft forwarded by a county treasurer through
various channels to be paid into the state treasury was stolen,
the ownership might be alleged to be in the state, although the
draft had never reached the custody of the state treasurer, and
1§, v. Ellison, 58 N. H. 825.
2 Morton v. S., 1 Lea, 498.
3P, y. Connor, 17 Cal. 354; P. v.
Thompson, 28 Cal. 214; Butler v. S.,
91 Ala. 87; Mabry v. C., 2 Va. Cas.
396.
48. v. Merrill, 44 N. H. 624; Fulmer
v. C., 97 Pa. St, 503; Bushman v. C.,
188 Mass. 507; S. v. Newton, 42 Vt.
537; S. v. Simons, 70 N. C. 836; Lowe
v. S. 57 Ga. 171; P. v. Johnson, 81
Mich. 578; Hoiles v. U. S., 3 MacAr-
thur, 370.
5Joslyn v. S.,128 Ind. 160. If the
allegation shows that the different
articles were taken on the same day
it will be presumed that they were
taken in the same transaction: Bush-
man v. C., 188 Mass. 507.
6 Fulmer v. C., 97 Pa. St. 508, As
to larceny of different articles in
the same transaction, see, also,
supra, § 551.
7See supra, § 546,
8Kennedy v. S., 31 Fla, 428; S. v.:
Somerville, 21 Me. 14.
9 See supra, § 546,
608
Cu. 26.] LARCENY. [§ 604.
-also that the ownership might likewise be charged as in one
-of the officers through whose hands it should pass, who should
have the custody of it at the time it was taken.! Soin an in-
-dictment for the larceny of whiskey in a government ware-
‘house, ownership may be laid in the person having the right to
take the property on payment of the tax.2 So where a piece
of meat cut off for a customer was by the butcher laid on his
-counter, and payment therefor had been made by the customer,
larceny of the meat before it was taken up by the purchaser
was held properly charged as of the property of the purchaser.’
‘Where the indictment alleges not only ownership, but the tak-
‘ing from the possession of the person thus named as owner,
proof of taking from the possession of another who has tempo-
‘rary rightful possession will not support the allegation.‘
§ 604. Ownership in corporation.— Where ownership is laid
‘in a corporation, the fact of incorporation should be alleged; °
but by statute such allegation is sometimes made unnecessary.®
The proof must correspond with the allegation as to the cor-
porate name, and a variance will be fatal." But proof of ex-
‘istence de facto is enough.’ So if a corporation conducts its
business in a name different from its corporate name, a crime
-as to the corporate property may be charged with an allega-
‘tion of ownership of the property in the assumed name.? Al-
legation of ownership in a corporation, and taking thereof from
possession of the receiver of such corporation, is proper.” After
verdict it will be presumed that there was sufficient evidence
-of the corporate existence." Where the property is that of an
‘unincorporated company, it should be described as belonging
1Phelps v. P., 72 N. Y. 334.
28. v. Harmon, 104 N. C. 792.
38. v. Robinson, 35 La, An. 964.
4C. v. Williams, 1 Va. Cas. 14.
5 Wallace v. P., 63 Ill. 451; White
wy. 8, 24 Tex. Ap. 281; Thurmond v.
S., 30 Tex. Ap. 589; McCowan v.6&.,
incorporation need not be shown:
Reg. v. Langton, 2 Q. B. D. 296.
88. v. Habib, 18 R. 1.558; Smith v.
S., 28 Ind. 821; P. v. Barric, 49 Cal.
342. And as toa similar question in
regard to forgery, see infra, § —.
9 Jackson v. S., 93 Ga. 165.
58 Ark. 17.
6S. v. Grant, 104 N. C. 908.
78. v. Sharp, 106 Mo. 106; White v.
‘S., 24 Tex. Ap. 231. But proof of in-
‘corporation may be made by show-
ing the business carried on in the
corporate name. The certificate of
39
108. v. Coss, 12 Wash. 673. And
though the receiver is one appointed
by a federal court, the state court
will have jurisdiction of the crime:
Thid.
11 Lithgow v. C., 2 Va. Cas, 297. Proof
of the de facto existence of the cor-
609
[Parr VIT-
§ 605.] OFFENSES AGAINST PROPERTY.
to the persons composing the company.! Where the county is’
a municipal corporation for the purpose of holding property,
ownership of the stolen property may be alleged in it rather
than its officers.’
§ 605. Effect of mistake in name.— The Christian name of
the owner should be alleged, and an allegation giving the ini-
tial or initials only of the Christian name or names is not suffi-
cient;* but such an objection must be made to the indictment,
for if itis not urged until after verdict it will be too late.’
Under an indictment naming the owner by the initials only of
his Christian name, evidence is admissible that he was thus gen-
erally known, and such evidence will prevent the defendant.
being entitled to an acquittal on account of variance.’ Indeed,
the owner may be described by the name under which he is
generally known in his business, although such is not his real
name.’ The names alleged must be proven, and a variance:
will be fatal. Thus, where the ownership of the property was
laid in “ John Peter Sinish,” while the proof showed that it be-
longed to “ John Sinish,” it was held that the evidence did not
support the indictment.’ It was so held also where the owner
was named as “Gabriel Carter,’ while the proof showed his
name to be “Carter Gabriel.”® So held also where the owner
was named in the indictment “J. W. Flannagan,” while in the:
evidence he was referred to only as “ Major Flannagan.”*® So
held also where the owner was described by “N. J.,” as the
initials of his Christian name, while the evidence showed his
initials to be “M. J.” Where the indictment charged the
Christian name of the owner of the property to be “ Elizabeth
poration is sufficient: 8. v. Collens, Miss. 642; S. v. McMillan, 68 N. C..
87 La. An. 607. If the corporation is
foreign, it is not necessary to prove
that it was legally doing business in
the state: S. v. Hopkins, 56 Vt. 250.
1Wallace v. P., 63 Ill, 451. And
see supra, § 602.
2p, v. Bennett, 37 N. Y. 117; S. v.
Rollins, 28 Ind. 390; S. v. Gaffery, 12
La, An, 265,
38. v. Rook, 42 Kan. 419; Unger v.
S., 42 Miss. 642,
48. v. Rook, 42 Kan. 419; S. v.
Flack, 48 Kan. 146; Unger v.S., 42
440; S. v. Vanderlip, 4 La. An, 444,
5 Thompson v. §., 48 Ala. 165.
8P. v. Leong Quong, 60 Cal. 107.
And see Jackson v. S., 98 Ga. 165.
78. v. English, 67 Mo. 136.
8Collins v. S., 43 Tex. 577. Where:
the indictment gives the Christian
name and father’s name, it will be
sufficient, although the name by
which the owner is known is the
“ mother’s name: Young v.&., 30 Tex.
Ap. 808,
>Perry v.8., 4 Tex. Ap. 566.
10 Willis v. S., 24 Tex. Ap. 487.
610
Cu. 26.] LARCENY.
[§ 606.
M.,” while the evidence showed that the property belonged to
“Betsy M.,” it was held that the question whether the two
forms of the name described the same person was for the jury.!
Though the name given is not the real name, yet if it appears that
the owner is as well known by that as the other the variance will
be immaterial.? The general doctrine of zdem sonans is appli-
cable in indictments for this crime as in other cases. Where
the name is correctly recited in the indictment, but in another
place incorrectly recited, the erroneous name may be treated as
a merely clerical error. If there is a total variance or failure
of proof as to the ownership as alleged, the prosecution will
not bar another prosecution for stealing the same property
under a correct averment of the ownership.2 Acquittal under
a charge of ownership unknown, if properly made, will bar a
prosecution for larceny of the same property described as that
of a known owner.
§ 606. Defective indictment cured by verdict.— As has
been stated in the last section, a defect in the indictment as to
the name of the owner will be cured if no objection is taken
until after verdict. Other objections, as that the evidence
shows the ownership in two persons, whereas the indictment
lays ownership in only one,’ or that the corporate existence is
not sufficiently proven, where the ownership is laid in a corpo-
ration,’ are also cured by verdict, and cannot be afterwards
raised. Other objections to the description are similarly cured.®
Objection that an indictment for the statutory offense of horse-
18. v. Godet, 7 Ired. 210. 219. So, in the second indictment,
2C, v. Williams, 161 Mass. 442.
3Thus it was held that where the
name in the indictment was “ Anne
Fooley,” and the evidence showed
the name of the owner to be “ Anne
“Foley,” there was not a variance:
Underwood v. S., 72 Ala. 220. So
“Johnson” and “Johnston” are not
variant: Truslow v. S., 95 Tenn. 189.
See Rex v. Sulls, 2 Leach, 861.
4Greeson v. S., 6 Miss. 33.
58. v. Williams, 45 La, An. 936;
Price v. 8, 19 Ohio, 423; Reg. v.
Green, Dears. & B. 113; unless it ap-
pears that the two names mean the
same person: 8. v. Risher, 1 Rich.
the property may be described as
that of an unknown owner: §S. v.
Birmingham, Busbee, 120; S. v.
Revels, Busbee, 200. But in Georgia
itis held that a misdescription of
the property as to the owner will
not prevent the prosecution being a
bar to another: Buhler v. S., 64 Ga.
504; Goodev.S., 70 Ga. 752; Knox v.
S., 89 Ga. 259.
6¥enton v. S., 33 Tex. Ap. 683.
78. v. Burgess, 74 N. C. 272.
8 Lithgow v. C., 2 Va. Cas. 297.
98. v. Crow, 107 Mo. 341; P.v. Jim
Ti, 32 Cal. 60; S. v. Gilbert, 13 Vt.
647; S. v. Derst, 10. Nev. 443.
611
§ 607.] [Parr VII."
OFFENSES AGAINST PROPERTY.
stealing does not conclude “contrary to the form of the stat-
ute” cannot be raised after verdict.’
§ 607. Allegation of “ stealing, taking, and carrying away.”
As has already been said,’ the technical words for describing
the act in the indictment are “take, steal, and carry away.”
It has been held that the omission of the word “steal” is not
necessarily a fatal defect, the allegation of the feloniously tak-
ing and carrying away being sufficient;* but where the indict-
ment also omitted the word “away,” as well as the word “ steal,”
it was held to be fatally defective; *® and even where the three
verbs were used, “steal, take, and carry,” it was held that the
omission of “away” was fatal, as asportation is essential to
the offense;* but under a statute in Texas, the taking away
may be alleged generally without the technical words “carry
away.”? Where the statute uses the word “steal” alone in
describing the offense, that word implies the taking and carry-
ing away, and is sufficient in the indictment,’ at least after
verdict, the omission of the other words being deemed only a
formal defect. Under a Texas statute which requires allega-
tion of taking from possession of the owner, and with intent
to appropriate, the misspelling of “possession” and of “ ap-
propriate,” so as to destroy the identity of the words, has been
held fatal.° The indictment must state the facts in some form;
thus, it has been held that an allegation that defendant “con-
verted” with intent to steal was not sufficient." But a super-
fluous allegation of an immaterial fact, as that defendant stole
and carried away “and did kill” one beef ox, will not vitiate
the indictment.” The manner of taking, as by a conspiracy to
cheat at a game of cards, need not be alleged.
1Chiles v. C., 2 Va. Cas. 260.
2See supra, § 548,
88. v. Mann, 25 Ohio St. 668; Beery
v. U.S, 2 Colo. 186.
3The common-law form is suffi-
cient to charge what was larceny
at common law, although the stat-
ute makes other acts, such as wrong-
ful conversion, also larceny: S. v.
Friend, 47 Minn. 449.
48. v. Lee Yan Yan, 10 Oreg. 365;
Damewood v. S., 1 How. (Miss.) 262.
5 Rountree-v. S., 58 Ala. 381.
6C, v. Adams, 7 Gray, 43.
7 Austen v. S., 42 Tex, 845,
612
Green v. C.,111 Mass. 417.
10S. v. Williamson, 48 Tex. 500;
Jones v. §., 25 Tex. Ap. 621. Where
intent to defraud and intent to ap-
propriate are charged in the same
indictment, it is not necessary to re-
peat “then and there” as to each
intent: Harris v. S., 2 Tex. Ap. 102.
uP. v. Poggi, 19 Cal. 600.
128, v. Johnson, 30 La, An., part J,
3805.
138, v. Reis, 9 Wash. 329.
t
* Cu. 26.] LARCENY. [8§ 608, 609.
§ 608. Felonious intent.— A felonious intent is sufficiently
alleged by charging the act to have been feloniously done,' and
such allegation sufficiently indicates that the taking was un-
lawful.? At common law it is undoubtedly necessary to allege
the act as felonious;* but under statutory definitions of larceny,
the word “feloniously ” may not be necessary if other words
indicating the intent are used corresponding to the terms of
the‘statute. Where the offense is a misdemeanor, the word
“steal” sufficiently indicates that the intent was what at com-
mon law would be felonious. In Texas the statute describing
larceny requires a fraudulent taking, and the indictment must
therefore charge the act to be fraudulent; charging it to be
felonious is not sufficient.°
§ 609. As an included offense; joinder.—Larceny is included
in the offense of robbery ;* but it is not necessarily included in
that of burglary." The offense of larceny from the person
differs from robbery only in the element of force and violence,
or putting in fear;* and therefore there may be a conviction
of larceny from the person, although the evidence shows such
violence as to indicate robbery. For a similar reason, acquit-
tal of larceny from a dwelling-house in the night-time prevents
a prosecution for robbery in the same transaction, as the offense
of larceny is included in each.” Thus, also, a prior prosecution
for larceny will be a bar to a prosecution of larceny from the per-
son." Under an indictment for larceny from the person there
may be a conviction for larceny.” An indictment for larceny
from a dwelling-house also includes simple larceny.” Ina prose-
1P, v. Willet, 102 N. Y. 251; P. v.
Brown, 27 Cal. 500.
28. v. Jones, 7 Nev. 408; Barker v.
C., 2 Va. Cas, 122; Reg. v. Butter-
worth, 12 Cox, 182.
3Smith v. S, 93 Ind. 67; P. v.
Cheong Foon Ark, 61 Cal. 527.
4Gardiner v. S., 55 N. J. 17.
5Muldrew v. S., 12 Tex. Ap. 617
(overruling Mosquez v. S., 41 Tex.
226); Sloan v. S&S, 18 Tex. Ap. 225;
Ortis v. 8, 18 Tex. Ap. 282; Ware v.
§.,19 Tex. Ap. 13; Spain v.S.,19 Tex.
Ap. 469; McPherson v. S., 20 Tex.
Ap. 194.
, §P. v. Jones, 53 Cal. 58; Allen v.8.,
58 Ala. 98; S. v. Keeland, 90 Mo, 237;
supra, § 511. And there may be a
conviction for larceny although the
evidence is such as would have sus-
tained a prosecution for robbery:
Skipworth v. 8., 8 Tex. Ap. 185.
7P. v. Parrow, 80 Mich. 567; P. v.
Garnett, 29 Cal. 622. And see supra,
§ 511.
88, v. Miller, 83 Ia. 291.
9S. v. Graff, 66 Ia. 482.
10S, v. Mikesell, 70 Ia. 176.
118, v. Gleason, 56 Ia, 203.
128, v. Taylor, 3 Oreg. 10; Fanning
v. S., 12 Lea, 651.
13 Moore v. S., 40 Ala. 49.
613
8 609.] [Parr VIL.
OFFENSES AGAINST PROPERTY.
cution for grand larceny there may of course be a conviction for
petit larceny... These are not two degrees of crime, but only
of punishment, and a conviction for petit larceny bars a subse-
quent prosecution for grand larceny.’ Ifan indictment charges
-a compound larceny, there may be a conviction for simple lar-
ceny.? Larceny includes the crime of driving stock from its
accustomed range without the owner’s consent.! Under an
indictment for the offense, there may be conviction for an at-
tempt, although no taking or carrying away is shown.’ The
offense of receiving stolen goods is a distinct one from that of
larceny, and under an indictment for larceny a conviction for
receiving the stolen property cannot be had;® so the charge of
larceny does not include embezzlement.’ But although the
offense of receiving stolen goods or that of embezzlement can-
not be charged in the same count with larceny, yet as at com-
mon law different offenses may be charged in different counts
of the same indictment, there will be no objection to thus charg-
ing the receiving of stolen goods,’ or embezzlement,? together
with larceny, in distinct counts, either where the common law
remains unmodified in this respect, or where, although by stat-
1P. v. Jack, 76 Mich. 218. v. &, 12 Tex. Ap. 619 (overruling
28. v. Murray, 55 Ia. 530, And see
supra, § 581.
3 Hall v. S., 7 Lea, 685.
4 Counts v. S., 37 Tex. 593; Powell
v. &, 7 Tex. Ap. 467; Turner v.S., 7
Tex. Ap. 596.
5Wolf v. S., 41 Ala. 412. And
further as to attempts, see that sub-
ject, supra, § 229.
6 Ross v. S., 1 Blackf. 390; Alexan-
der v. 8. 60 Miss. 953; S. v. Whita-
ker, 89 N. C. 472; S. v. Moultrie, 33
La. An. 1146; Gaither v. S., 21 Tex.
Ap. 527; McCampbell v. S.,9 Tex.
Ap. 124; Johnson v. 8, 13 Tex. Ap.
378; Brown v. S., 15 Tex. Ap. 581
(overruling Parchman vv. S., 2 Tex.
Ap. 228; Vincent v.8., 10 Tex. Ap.
830). So, under indictment for re-
ceiving, there can be no conviction
for theft: Gonzales v. §,, 18 Tex.
Ap. 48,
7C. v. Simpson, 9 Met. 188; P. v.
De Coursey, 61 Cal. 184; Huntsman
Whitworth v. 8, 11 Tex. Ap. 414).
Otherwise in Missouri by statute: S.
v. Broderick, 70 Mo. 622; S. v. Owen,
78 Mo. 367.
88. v. Stimpson, 45 Me. 608; C. v.
O’Connell, 12 Allen, 451; 8S. v. Law-
rence, 81 N. C, 522; S. v. Morrison, 85
N. C. 561; S. v. Baker, 70 N.C. 530;
S. v. Carter, 113 N.C. 689; Redman
v. 8., 1 Blackf, 429; Maynard v.S., 14
Ind. 427; Janeway v. S., 1 Head, 130;
Hampton v. S.,8 Humph. 69; Ayrs
v. S., 5 Coldw. 26; Cook v.S., 16 La,
461; S. v. Posey, 7 Rich. 484; S. v.
Blakesley, 43 Kan. 250; Reg. v.
Ward, 2 F. & F. 18; Rex v. Wheeler,
7C. & P. 170; Reg. v. Beeton, 20. &
K. 960; Reg. v. Huntley, Bell, 238;
Reg. v. Craddock, 2 Den. 81; Reg. v.
Holman, L. & C. 177; Reg. v. Sars-
field, 6 Cox, 12.
® Murphy v. P., 104 Il 528, 4 Am.
Cr. R. 823 and note.
614
©x. 26.] LAROENY.
[§ 610.
ute different offenses cannot be charged in the same indictment,
an exception is made in regard to this particular case. So, by
statute, counts for larceny and burglary may be joined, even
where the joinder of different offenses is prohibited by statute.
-Of course, unless there is some statutory prohibition, distinct
Jarcenies may be charged in separate counts of the same indict-
‘ment.? Where joinder in different counts of larceny and of re-
ceiving the goods stolen is allowed, different defendants may
be convicted under the same indictment, one for the larceny,
and another for the receiving.®
§ 610. Form of indictment.— The indictment for larceny in
common use is modeled quite definitely after the form in Latin
early used in England. It is applicable to all cases except
those under special statutes; and even to those it may be ap-
plied with but slight change. It will not be necessary, there-
fore, to give many examples.
OF GOODS AND CHATTELS.
That A. B., at ——, on , one silver spoon of the value
of five dollars, one hat of the value of one dollar, one gold watch
of the value of fifty dollars, two oxen of the value of one hun-
dred and eighty dollars, one horse of the value of one hundred
dollars, one certain riding wagon of the value of ninety dollars,
and one harness of the value of twenty dollars, of the goods
and chattels of one C. D. for stating the ownership of each ar-
ticle separately if they belong to different owners], then and
there being found, feloniously did steal, take and carry away.‘
‘1 McCullough v. S., 182 Ind. 427.
28, y. Lockwood, 68 Vt. 378.
3Rex v. Wheeler, 7 C. & P. 170.
4See S. v. Leavitt, 66 Me. 440; Bish.
‘Direc. & F., § 582; 1 Whart. Prec.
415. “There being tound ” is omitted
in late English precedents and many
of the precedents in the various
-states: See 2 Archbold, Cr. Pl. &
Pr. 354; Moore, Cr. L. 842; Maxwell,
Cr. Pr, 376. Some forms, instead of
simply “then and there being found,”
-say, “then and there in the posses-
sion of said C. D. being found:”
Lewis, Cr. Law, 660; Heard, Mass.
Cr. L. 783. But this allegation as to
possession is unnecessary: S, v. Leav-
‘itt, supra. While the old forms of
indictment for larceny of living an-
imals charge that accused “did take
and lead away ” in case of a horse, or
“did take and drive away” in case
of cattle, sheep, etc. (1 Hale, P. C.
504), instead of “did steal, take and
carry away,” as in case of other
goods and chattels, yet this distinc-
tion is now wholly disregarded, and
the general form is used in such
cases. In none of the authorities
cited in this note is any such varia-
tion recognized. That the animals
are here described with sufficient
definiteness, see supra, § 594,
615
§ 611.] OFFENSES AGAINST PROPERTY. [Parr VII.
OF MONEY, FROM THE PERSON.
That A. B., in the county aforesaid, on ——, sundry gold
coins, current as money in this state, of the aggregate value of
twenty-nine dollars, and sundry bank-bills usually known and’
described as national bank notes, of the value of one hundred’
and eighty dollars, of the money of C. D., then and there being
upon the person of said C. D. [or then and there eo from:
the person of said C. D.], feloniously did steal, take and carry
away.}
OF PROMISSORY NOTE.
That A. B., in the county aforesaid, on , one promissory”
note of the value of three hundred dollars, and one piece of
paper of the value of three hundred dollars [or, one paper pur-
porting to be a check for the payment of one hundred and
twenty-five dollars, of the value of one hundred and twenty--
five dollars], of the goods and chattels of one C. D., feloniously
did steal, take and carry away.”
§ 611. Restitution of property.— At common law a writ-
for the restitution of stolen property could be given only on
an appeal of felony for the theft;* but by statute 21 Henry 8,.
chapter 11, a writ or order of restitution was authorized on con-
viction in criminal proceedings. This statute, which is old!
1That this is a sufficient descrip-
tion of money and bank-bills, see
C. v. Sawtelle, 11 Cush. 142; C. v.
Gallagher, 16 Gray, 240; S. v. Hoppe,
389 Ia. 468; S. v. Hockenberry, 30 Ia.
504; McEntee v.S., 24 Wis. 48. But
such an allegation has been held in-
sufficient in Hamblett v. S., 18 N. H
384, in which it is said that the
number of the coins or bills, and the
value of each, should be stated. This
particularity of description, where it
is required, can be obviated by the
allegation that the number and
value of the particular coins or bills
is to the grand jury unknown: C. v.
Sawtelle, 11 Cush. 142. The indict-
saent will not be bad for alleging
that the coins or bills are “of the
goods and chattels of, etc.,” rather
than “of the money of, etc.:” See
supra, § 598. As to the method of
alleging that the larceny is from the
person so as to bring the case within
a statute making that a form of
compound larceny, see Whalen v. C.,.
90 Va. 544; 1 Whart. Prec. 442; Heard,.
Mass. Cr. L. 738.
2 As to the promissory note, see C..
v. Brettun, 100 Mass. 206. As to the
check, see Whalen v. C., 90 Va. 544;
S. v. Pierson, 59 Ia. 271. In the lat-
ter case the check is further de-
scribed by giving the name of the
signer and of the bank. At common.
law choses in action are properly de-
scribed as “personal property” in-
stead of “goods and chattels;” but
the form here used is undoubtly suffi-
cient in that respect and in accord-
ance with present usage: See supra,.
§ 595.
3 Reg. v. London, L. R. 4 Q. B. 871..
42 Bish. Cr. Pr., §§ 755-763; Abbott,.
Cr. Brief, §§ 877-883; Am. & Eng..
Ency. of Law, “Restitution; ” 4 Bl..
Com, 362; 2 Russ. Cr. 180; 1 Hale,
P. C, 541; 1 Arch. Cr. Pr. & Pl. [192];-
616
Cu. 26.] LARCENY.
[§ 611.
enough to be common law in this country, is generally super-
seded both in this country and in England by other statutory
provisions,! under which the court on the conviction of the
defendant may properly enter an order for the restitution to.
the owner of the property stolen.? But the court has no ju-
risdiction to render judgment against the prisoner, nor award
execution in favor of the owner.’ Before property can be:
thus ordered returned it must appear that it is stolen prop-
erty, and the property involved in the larceny for which the
defendant is on trial‘ When restitution is to be a part of
the judgment, the verdict should find what property was taken.*
Restitution of the proceeds of the stolen property in the hands.
of the thief may be ordered if he has parted with the prop-
erty itself.6 The court has no authority to determine the right
of a third person to the property, but can only make an order:
for its restoration to the person from whom it was stolen.”
This procedure with reference
2 East, P. C. 787; 2 Hawk. P. C., ch.
28, 88 49-57; 1 Rosc. Cr. Ev. 281.
1Jn England the present statute
on the subject is 24 and 25 Victoria,
chapter 96, section 100, replacing 7
and 8 George 4, chapter 29, section
57. These statutes do not confer
upon the court of Queen’s Bench any
authority to award a writ of restitu-
tion, except in case of a conviction
before that court: Reg. v. London,
L. R. 4 Q. B. 871. The order of res-
titution may be enforced by attach-
ment for contempt: Reg. v. Wollez,
8 Cox, 337. Restitution is not to be
made of bank-notes, negotiable se-
curities, etc., which have passed into
the hands of an innocent purchaser:
Rex v. Stanton, 7 C. & P. 431; Chi-
chester v. Hill, 15 Cox, 258. This is
a general principle, without regard
to statutory provisions: Saltus v.
Everett, 20 Wend. 267; McMahon v.
Sloan, 12 Pa. St. 229.
2Lance v. Cowan, 1 Dana, 195; S.
v. Williams, 61 Ia. 517.
3C. v. Henley, 1 Va. Cas. 145,
4Reg. v. Smith, 12 Cox, 597; Reg.
v. Goldsmith, 12 Cox, 594; Reg. v.
to restitution does not affect
London, 27 L. J. M. C, 231; Josephs.
v. Atkins, 2 Stark. 76; Sullivan v.
Robinson, 39 Ala. 618; Huntzinger:
v. C., 97 Pa. St. 8386. Where there is-
a charge of larceny of money and a
larger sum is found on the prisoner,.
but none of it is identified as that.
stolen, there is no right to retain
therefrom the amount claimed as:
stolen: Ferguson v. U. S., 64 Fed. R.
88.
5S, v. Somerville, 21 Me. 20.
6Lance v. Cowan, 1 Dana, 195;
Rex v. Powell, 7 C. & P. 640; Rex v.
Rooney, 7 C. & P. 515. Contra, C. v.
Boudrie, 4 Gray, 418.
78. v. Williams,.61 Ia, 517; Reg. v.
London, E. B. & E. 509; but there
are English cases which seem to
intimate that the court may con-
sider the rights of third persons:
Reg. v. Macklin, 5 Cox, 216; Reg. v.
Horan, 6 Ir. R. C. L. 293, Although,.
in England, anything stolen from
the mails is charged as the property
of the postmaster-general, he is not.
entitled to an order of restitution:
Reg. v. Jones, 14 Cox, 528,
617
[Parr VII.
§ 612.) OFFENSES AGAINST PROPERTY.
the owner’s right to retake the property otherwise,’ and he
may of course follow it into the hands of an innocent pur-
chaser;? but while the property is in the possession of the
court through its officers, pending the trial of the case, no ac-
tion can be maintained against them for its recovery.’ If the
defendant is acquitted, he is entitled to the return of the prop-
erty which has been taken from him by the officers under the
charge of larceny, and may maintain an action against the
officer who fails to make such return, even though the prop-
erty has been seized for his debts.‘ These provisions as to res-
titution of stolen property are not applicable in case of prop-
erty obtained by false pretenses, except as they are made
applicable by statutory provisions.® In such a case the pur-
chaser from the wrong-doer gets good title, and therefore res-
titution as against him cannot be ordered.
IX. Evipence.
§ 612. Corpus delicti.— To support a conviction there must
‘be evidence that the property in question was actually stolen.
Mere suspicious circumstances connected with the possession
of the property by defendant, or opportunity on his part to
commit the larceny, will not be sufficient.’ In other words,
‘there must be proof of a particular larceny. The evidence of
possession of stolen property, as will appear in a subsequent
section, tends to connect defendant with the larceny when
proven, but it does not establish the fact of larceny having been
committed.? The question of the identification of the property
lLance v. Cowan, 1 Dana, 195;
Reifsnyder v. Lee, 44 Ia. 101; Scat-
tergood v. Sylvester, 15 C. B. 506;
Golightly v. Reynolds, Lofft, 88, 90.
2 Bassett v. Spofford, 45 N. Y. 387;
Barton v. Faherty, 3 Greene (Ia.), 327;
Walker v. Matthews, 8 Q. B. D. 109;
Binns v. Piggott, 9 C. & P. 208; Reg.
v. Stancliffe, 11 Cox, 318; Reg. v.
Wollez, 8 Cox, 337.
3 Simpson v. St. John, 93 N. Y. 868;
Weller v. Ely, 45 Conn. 647. But
garnishment of the officer by the
owner was sustained: Reifsnyder v.
Lee, 44 Ia. 101.
4Vitzgerald v. Jordan, 11 Allen,
128, Thus, property taken from the
prisoner on his arrest is not subject
to levy: Commercial Exch. Bank v.
McLeod, 65 Ia. 665.
5 See infra, § 712.
6 Rex v. Devaux, 2 East, P. C. 789,
839; Moyce v. Newington, 4Q. B. D.
82.
78. v. Furlong, 19 Me. 225; Tyner
v. 8., 5 Humph. 383; Burton v. March,
6 Jones, 409; Jorasco v.8., 8 Tex. Ap.
540.
8P. v. Williams, 57 Cal. 108.
®P. v. Williams, 57 Cal. 108,
see infra, § 616.
And
618
On. 26.] LARCENY. [§ 613.
is not of any importance until the actual commission of the
larceny is shown! But the corpus delicti need not be shown
by direct evidence; that is, there need not necessarily be proof
-of loss of property by theft, distinct from the facts showing
that property found in the defendant’s possession was wrong-
fully taken from the owner thereof.’ Proof of the act is not
necessary where the circumstances can only be explained by
a felonious act.’ ;
§ 613. Identification of property.— For the purpose of con-
necting the defendant with the crime, the owner of the prop-
erty stolen should be able to identify the property which it is
charged the defendant took, with that stolen;‘ but identifica-
tion by memory is not essential. The owner may for that
purpose use a description in a written list of property,’ and
only such identification will be required as is reasonable, con-
sidering the nature of the property.6 The defendant may be
sufficiently connected with the larceny in other ways, although
the stolen article may not be identified or even found.’ In case
of cattle or other animals, a brand or mark is often proven for
the purpose of identification. In Texas, by statute, ownership
cannot be established by proof of a mark or brand in such cases,
unless such mark or brand has been recorded.®
18. v. McGowan, 18. C, 14.
2Roberts v. S., 61 Ala. 401; Reg. v.
Burton, Dears. 282; Reg. v. Mock-
ford, 11 Cox, 16.
3S. v. Rodman, 62 Ia. 456; Johnson
v. S., 47 Ala. 62; Kemp v. S., 89 Ala.
52; Smiley v. S., 66 Ga. 754,
48. v. Furlong, 19 Me. 225.
59, v. Lull, 37 Me. 246.
6. v. Babb, 76 Mo. 501. So heldas
to money: Jenkins v. S., 62 Wis. 49;
‘8. v. Hoppe, 89 Ia. 468; S. v. Buckley,
60 Ia, 471; S. v. Graham, 65 Ia. 617.
And further, as to money, see
note to § 616.
78. v. Kent, 65 N.C. 311.
8S. v. Poag, 40 Tex. 151; Allen v.
§., 42 Tex. 517; Wyers v.S., 21 Tex.
Ap. 448; Romero v. S., 24 Tex. Ap.
180. Buta witness may testify as to
identity and ownership from brands
or other marks, although unre-
corded: Tittle v. S., 30 Tex. Ap. 597;
Alexander v. S., 24 Tex. Ap. 126;
Coffelt v. S., 19 Tex. Ap. 486; Poage
v. S., 48 Tex. 454. The rule that the
state must show a recorded brand
applies only where the brand alone
is relied upon as showing ownership:
Hutto v. S., 7 Tex. Ap. 44; Fisher v.
S., 4 Tex. Ap. 181; Wolf v.S., 4 Tex.
Ap. 832, Although an indictment
need not describe the brand, yet if
the brand be described it must be
proven in accordance with the al-
legation: Allen v.8., 8 Tex. Ap. 360;
Sweat v.S., 4 Tex. Ap. 617. As to
driving stock out of the county for
sale without leaving on record a list
of marks and brands, see Senterfit v.
S., 41 Tex. 186.
619
§ 614] OFFENSES AGAINST PROPERTY. [Parr VII.
§ 614. Identification of defendant; declarations; cireum-
stantial evidence.— Aside from the effect of recent possession.
of the stolen property which will be considered in a subsequent
section, the rules of evidence relating to the identification of
the criminal in cases of larceny are not different from those
applicable in other crimes; but a few illustrations of them may
be here given. As to circumstantial evidence, it is essential in
order to support a conviction that it shall be so conclusive in
character as to prove beyond a reasonable doubt that the ac-
cused and no other person committed the offense charged.'
But circumstantial evidence may be sufficient.? Acts or dec-
larations of defendant may tend to identify him as the person
who committed the crime. Thus, if it appears that defendant
made statements leading to the discovery of the stolen prop-
erty or produced the property, such a fact, without an explana-
tion of how he became aware of its location, would tend to-
implicate him in the theft.’ Contradictory statements with ref-
erence to facts tending to throw suspicion on defendant may be
shown as indicating his guilt.‘ Admissions or acts of a third
person tending to show him to have committed the larceny are
not admissible in behalf of defendant, as they are hearsay evi-
dence.> Bad character of others who might have committed
the offense cannot be shown in defendant’s behalf.
1 Kaiser v. 8., 35 Neb. 704. Circum- But as tending to establish defend-
stantial evidence in particular cases ant’s innocence it may be shown
held not sufficient to support acon- that he himself put the officer in
viction: Hines v. 8., 51 Ga. 301; S.v. pursuit of the stolen property: Mc-
Carter, 72 N. C, 99; S. v. Wilkerson, Intosh v. S., 52 Ala, 355; Pinkard v.
72 N.C. 876; Powers v. S., 16 Tex. S., 30 Ga. 757.
546. The court should instruct the 48. v. White, 89 N. C. 462; S. v.
jury as to the law of circumstantial Cameron, 40 Vt. 555; White v. S., 11
evidence, if such evidence is relied Tex. 769. But false statements by
on for conviction: Howell v.S.,16 the wife of the thief made with ref-
Tex. Ap. 938; Bryant v. S., 16 Tex. erence to the stolen property were
Ap. 144; Allen v. 8., 16 Tex. Ap.237; held not sufficient to establish her
Kenneda v. S&S, 16 Tex. Ap. 258; guilt, there being no proof of par-
Ramirez v. S., 20 Tex. Ap. 133. ticipation in the crime itself: Por-
28. v. Brady, 27 Ia. 126; Stevens ter v. S., 43 Tex. 367.
v. 8S. 77 Ga. 310; Kemp v. S, 89 5C, v. Chabbock, 1 Mass. 144; Rhea
Ala. 52; 8. v. Cameron, 40 Vt. 555. v. 8, 10 Yerg. 257; S. v. White, 6S
38, v. Lindsey, 78 N. C. 499; S. v. N.C. 158
Clark, 4 Strobh. 311; Belote v. S,, 36 6 Bennett v. S, 52 Ala. 87h
Miss. 96; Hudson v. 8., 9 Yerg. 407.
620
On. 26.] LARCENY.
[$ 615.
§ 615. Other crimes.— Other distinct larcenies committed
by the defendant cannot be shown for the purpose of identify-
ing him as the one who committed the larceny in question;
but other crimes of the same character and forming a part of
the same transaction may be shown.? Thus, where other prop-
erty is stolen at the same time as the property in question, and
is found with the property in question in possession of defend-
ant, that fact may be shown as a part of the res geste, although
such evidence might also establish an independent crime.’ For
the purpose of showing criminal intent, if the intent is in con-
troversy, other criminal acts of the same character as the one
charged may be proven. Evidence of general bad character
of defendant’s family is of course not admissible.®
1P. v. Hartman, 62 Cal. 562; P. v.
‘Tucker, 104 Cal. 440; S. v. Goetz, 34
Mo. 85; Miller v. C., 78 Ky. 15; 8. v.
Kelley, 65 Vt. 531; Barton v. S., 18
‘Ohio, 221; S. v. Wisdom, 8 Port. 511;
Endaly v. S., 39 Ark. 278; Walker v.
C., 1 Leigh, 628; S. v. Vinson, 63 N. C.
335; Gilbraith v. 8., 41 Tex. 567; Kel-
ley v.S., 18 Tex. Ap. 262; Williams
v. S., 24 Tex. Ap. 412; Nixon v. S., 31
Tex. Ap. 205.
2Sartin v. S.,'7 Lea, 679; Links v.
S, 18 Lea, 701. Such testimony
should not be received unless the
court can plainly see the connection
bet ween the two offenses: S. v. Bates,
46 La. An. 849,
3P, v. Robles, 384 Cal. 591; P. v.
Ross, 65 Cal. 104; P. v. Walker, 38
Mich. 156; Yarborough v. S., 41 Ala.
405; Griffin v. S., 86 Ga. 257; S. v.
Ditton, 48 Ia, 677; S. v. Flynn, 124
Mo. 480; Speights v. S, 1 Tex. Ap.
551; Satterwhite v. S. 6 Tex. Ap.
609; Ivey v. S., 43 Tex. 425; Mus-
grave v. S., 28 Tex. Ap. 57. In the
same way all the acts of defendant
connected with the transaction may
be shown, although they would tend
to indicate an attempt to commit
another felony: Burr v. C., 4 Grat.
534, Possession of other stolen prop-
erty, together with that in question,
may be shown as strengthening
other inculpatory evidence: Webb
v.8., 8 Tex. Ap. 115; at least where
the other property tends to identify
the property stolen: Tyler v. S., 13
Tex. Ap. 205. The object for which
such evidence is admitted should
be explained to the jury: Long v.S.,
11 Tex. Ap. 3881; Barnes v.S., 28 Tex.
Ap. 29; Hanley v. S., 28 Tex. Ap. 375.
But in general possession of other
stolen property at the time or pre-
viously cannot be shown: Reg. v.
Oddy, T. & M. 593; unless authorized
by statute: Reg. v. Jones, 14 Cox, 3:
Reg. v. Drage, 14 Cox, 83; unless its
possession tends to connect defend-
ant with the property which is in
question; then possession may be
shown, even though it tends to prove
another crime: Reed v.S., 54 Ark.
621.
4Holmes v. §., 20 Tex. Ap. 509; P.
v. Fehrenbach, 102 Cal. 394; P. v.
Tomlinson, 102 Cal. 19; Copperman
v. P., 56 N. Y. 591; Reg. v. Bleasdale,
2C. & K. 765. For instance, it may
be shown that defendant was con-
nected witha band of thieves: Hinds
v. 8., 11 Tex. Ap. 238.
5 McClure v. C., 81 Ky. 448.
621
§ 616.] OFFENSES AGAINST PROPERTY. [Parr VII_
§ 616. Recent possession of stolen goods.— The fact that
the person charged with larceny is found in possession of the:
stolen goods soon after the commission of the larceny may be
considered as tending to identify him as the person who com-
mitted the crime.’ Such fact furnishes circumstantial evidence:
of guilt But this doctrine is one involving numerous explana-
tions and qualifications as well as some conflict in the author-
ities, and must be discussed in various phases. In the first place
such recent possession does not in itself prove any crime what-
ever, and the corpus delictti must be otherwise established.*
‘Moreover, in order that recent possession of goods shall be ad-
missible as against the defendant, the goods must be identified
as those stolen. But circumstantial evidence is admissible to
show the defendant to have been in possession of the stolen
goods.’ In order that this recent possession shall be considered
- as any evidence whatever connecting the defendant with the
crime, it must be personal, recent, unexplained, and such as
to involve a conscious assertion of claim to the property.®
These characteristics will be considered in subsequent sections;
but if the evidence of recent possession is such as to make it
admissible against defendant, it is still subject to explanation
12 Hale, P. C. 289; 2 Arch. Cr. Pr.
& Pl. [869]; Roscoe, Crim. Ev. 912;
3 Greenl. Ev., §§ 31-33; 2 Bish. Crim.
Proc., § 739; Whart. Crim. Ev., § 758;
Best, Ev., §§ 211-214.
2Sullivan v. S.,18 Tex. Ap. 623;
Hyden v. §., 31 Tex. Ap. 401; Bald-
win v.S., 31 Tex. Ap. 589. And the
court should instruct as to the
weight of circumstantial evidence:
Taylor v. §., 27 Tex. Ap. 463. The
presumption is that the crime was
committed in the jurisdiction where
the goods are found: Simpson v. 8,
4 Humph. 456. Contra, Williams v.
S., 11 Tex. Ap. 275.
38. v. Furlong, 19 Me. 225; Smath-
ers v. 8., 46 Ind. 447; 8S, v. Taylor, 25
Ta. 273; S. v. Tucker, 76 Ia. 232; Hunt
v C, 18 Grat. 757; Garcia v. S., 26
Tex. 209. Further as to corpus de-
licti, see supra, § 612.
48. v. Osborne, 45 Ia. 425; C. v.
Slate, 11 Gray, 60; Garcia v. S., 26
Tex. 209; U. S. v. Candler, 65 Fed.
R. 808. In case of money the iden-
tification need not be so complete;
it may be shown that defendant had
money after the crime and had had
none before for some time: 8. v.
Bruce, 106 N. C. 792; Jenkins v. S.,
62 Wis. 49; C. v. Montgomery, 11
Met. 534; Boston & W. R. Co. v.
Dana, 1 Gray, 83, 102; 8. v. Grebe, 17
Kan. 458. And see supra, § 618, and
infra, § 619.
5 Eckels v. S., 20 Ohio St. 508.
SLehman v. §&, 18 Tex. Ap. 174;
Robinson v. §., 22 Tex. Ap. 129; Mo-
reno v. S., 24 Tex. Ap. 401; Jackson
v. S., 28 Tex. Ap. 143; Jackson v. 8.,
28 Tex. Ap. 370; Williamson v. 8,
80 Tex. Ap. 830; Clark v. S., 30 Tex.
Ap. 402; S. v. Scott, 109 Mo. 226; 8.
v. Castor, 98 Mo, 242,
622
a
Cua. 26.) LARCENY. [§ 617.
by him, and this point will also demand further explanation.
Before passing to a discussion of the effect of such evidence, it.
is proper to say that it is admissible, not only with reference
to the charge of larceny, but in any case where defendant is.
found in possession of property which apparently could have
come into his possession only by reason of his connection with
a specific crime for which he is on trial, the corpus delicti-of
such crime having been otherwise proven. Thus, recent pos-
session of the fruits of the crime may be shown to establish
murder accompanied with robbery,? or to show burglary’ or
arson.‘ Recent possession of a part of the stolen property may
be considered as tending to show defendant guilty of steal-
ing all.
§ 617. Effect of such evidence; presumption; burden of
-proof.— The most general statement as to the effect of proof
of recent possession by defendant of the stolen property is.
that it may be considered as evidence of his guilt of the crime
charged. The more common statement, however, is that such
evidence is presumptive or prima facie evidence of guilt.’ By
saying that such evidence is presumptive or prima facie evi-
dence of guilt, the courts usually mean that it will support a
conviction in the absence of anything explaining or contradict-
ing it;* but many courts refuse to give so great effect to such
1 Knickerbocker v. P., 48 N. Y.177. 49 Ia. 48; Knickerbocker v. P., 43.
2 Williams v. C., 29 Pa. St. 102. N.Y. 177; S. v. Lawn, 80 Mo. 241;
3 See supra, § 514. 8. v. White, 126 Mo. 591; Young v.
4S. v. Owens, 79 Mo. 619; S. v. Vat- S., 24 Fla, 147; Unger v. S., 42 Miss..
ter, 71 Ta. 557.
5C. v. Millard, 1 Mass. 6; 8S. v.
Owens, 79 Mo. 619; S. v. Beatty, 90
Mo. 148; Snowden v. S., 62 Miss. 100.
But it is error to say that such evi-
dence gives rise to the presumption
of guilt as to all: Gonzales v. S., 18
Tex. Ap. 449.
6S, v. Williams, 2 Jones, 194; S. v.
Shaw, 4 Jones, 480; Graves v. S., 12
Wis. 591; Matthews v. S., 61 Miss.
155; P. v. Fagan, 66 Cal 534; S. v.
En, 10 Nev. 277, That the produc-
tion of the property, or pointing out
its location, tends to connect defend-
ant with the crime, see supra, § 614.
78. v. Brady, 27 Ia. 126; S. v. Golden,
642; Snowden v. S., 62 Miss. 100;
Foster v. S., 52 Miss. 695; S. v. Ben-
net, 3 Brev. 514; S. v. Jones, 3 Dev..
& B, 122; S. v. Smith, 2 Ired. 402;
Tucker v. §., 57 Ga. 503; S. v. Turner,
65 N.C, 592; U.S. v. Jones, 31 Fed.
R. 718; Reg. v. Langmead, L. & C.
427,
8C. v. Randall, 119 Mass, 107; C. v.
Millard, 1 Mass. 6; Thompson v. S., 6
Neb. 102; S. v. Hessians, 50 Ia. 135;
Johnson v. Miller, 63 fa. 529; Jones
v. P., 12 Ill. 259; Comfort v. P., 54
Ill. 404; Smith v. P., 103 Ill. 82; S.v.
Hill, 65 Mo. 84; S. v. Creson, 38 Mo..
872; S. v. Bruin, 34 Mo. 537; S. v.
Gray, 37 Mo. 463; S. v. Cassady, 12
623
§ 617.] [Parr VII.
OFFENSES AGAINST PROPERTY.
evidence, and declare that it is not in itself prima facie or ,
presumptive evidence of guilt, but that it is a circumstance
only to be taken into account with other facts.' As to the
effect of the evidence, a few courts say that if there is no evi-
‘dence to explain or overcome the presumption arising there-
from, the jury ought to convict; that is, they regard the evidence
‘as conclusive;? but this statement of the law seems entirely
untenable, and is doubtless made through inadvertence. No
evidence can be said to be conclusive. Some courts say that
the evidence of recent possession throws upon defendant the
burden of explaining such possession consistently with his in-
nocence,‘ and others say in a slightly different form that such
Kan. 550, 1 Am. Cr. R. 567, and note;
8. v. Hoffman, 53 Kan. 700; Pennsyl-
vania v. Myers, Addis. 320; Taliaferro
v. C.,77 Va. 411; Belote v. S., 36 Miss.
96; Branson v. C., 92 Ky. 330; Tilly
vy. S., 21 Fla. 242; Robinson v. 8., 22
‘Tex. Ap. 129; Emerson v. S., 33 Tex.
Ap. 89.
1P. v. Chambers, 18 Cal. 382; P. v.
Ah Ki, 20 Cal. 177; P. v. Gassaway,
23 Cal. 51; P. v. Antonio, 27 Cal. 404;
P. v. Brown, 48 Cal. 253; P. Swin-
ford, 57 Cal. 86; Stuart v. P., 42
“Mich. 255; Ryan v. S., 83 Wis. 486;
Ingalls v. S., 48 Wis. 647; S. v. Reece,
27 W. Va. 375; Matthews v. 8., 61
Miss. 155; Harper v. S., 71 Miss. 202;
Conkwright v. P., 35 Ill, 204; 8. v.
Graves, 72 N. C. 482; Boykin v.5S.,
34 Ark. 443; S. v. Hale, — Oreg. -—, 7
Pac. R. 523;S. v. Walters, 7 Wash. 246;
Yates v. S., 37 Tex. 202; Barnes v. 8., 43
‘Tox. 98; Thompson v. S., 43 Tex. 268;
McUoy v. S., 44 Tex. 616; Foster v.
$., 1 Tex. Ap. 363; Hernandez v.S.,9
‘Tex. Ap. 288; Dreyer v. S., 11 Tex.
Ap. 508; Pettigrew v. 8., 12 Tex. Ap.
225; Truax v. S&S. 12 Tex. Ap. 230.
In Roberts v.8., 17 Tex. 82, the court
-overrules earlier cases on this sub-
ject and holds that the presumption
if explained will support a convic-
‘tion, and this doctrine seems to be
followed in Robinson v. §., 22 Tex.
Ap. 129; but in later cases the same
court seems to re-affirm the earlier
doctrine: Boyd v. S., 24 Tex. Ap.
570; Cooper v. S., 29 Tex. Ap. 8;
and itis held error to say that proof
of such recent possession is presump-
tive evidence of guilt; such an in-
struction is improper as being on the
weight of the evidence: Lee v. S., 27
Tex. Ap. 475; Lockhart v. S., 29
Tex. Ap. 35. The court is not justi-
fied in saying that the fact is a
strong circumstance tending to show
guilt, as the court should not in-
struct as to the weight to be given
to evidence: Denmark v. S., 58 Ark,
576.
2 Hughes v.8., 8 Humph. 75; Fields
v. 8, 6 Coldw. 524; S. v. Gray, 37 Mo.
463; S. v. Kelly, 73 Mo. 608; S. v.
Owens, 79 Mo. 619; S. v. Phelps, 91
Mo. 478.
88. v. Jones, 33 Ia. 9; S. v. Jordan,
69 Ia. 506; S. v. Snell, 46 Wis. 524; P.
v. Gutierrez, 74 Cal. 81; Fisher v. S.,
46 Ala. 717; Curtis v. S., 6 Coldw.
9; Wilcox v. S., 3 Heisk. 110; Billard
v. S., 30 Tex. 867, And see cases in
note below, to the effect that the
question is one of fact for the jury.
4P. v. Kelly, 28 Cal. 423; P. v. Ab-
bott, 101 Cal. 645; S. v. Weston, 9
Conn. 527; S. v. Kelly, 73 Mo. 608;
Williams v. S., 30 Tex. Ap. 330; Mon-
dragon v. S., 83 Tex. 481; S. v. Whit-
mer, 77 Ia. 557.
624
Ca. 26.] LARCENY.
[§ 617.
evidence throws upon defendant the burden of overcoming by
other evidence the presumption arising therefrom, and allow
the defendant to show, as overcoming the presumption against
him, not merely an explanation of his possession, but any fact
ending to establish his innocence; such, for instance, as his
good character or an alibi But a statement of the rule in
any form which throws the burden of proof upon the defend-
ant is objected to by other courts, which hold that the burden
of proof does not shift, and under this view it is not incum-
bent upon defendant to make out a case of innocence by over-
coming the presumption of recent possession by a preponderance
of evidence, but evidence for the defendant, whether consist-.
ing of an explanation of the recent possession, or other evi-
dence tending to show his innocence, which raises a reasonable
doubt of his guilt as against the evidence of recent possession,
is sufficient. The latter doctrine seems to be sounder in prin-
ciple than that which requires the defendant in some form to
overcome the presumption, and establish his innocence,> and
this doctrine is supported by many cases in which it is said that
the question whether the evidence of recent possession is sufli-
cient to require a conviction is one for the jury. The pre-
sumption from recent possession is one of fact, not of law.’
1Knickerbocker v. P., 43 N. Y. 177;
‘Goldstein v. P., 82 N. Y. 231; Waters
v. P., 104 Il 544; Sahlinger v. P., 102
Ill. 241; 8. v. Raymond, 46 Conn. 345;
§. v. Cassady, 12 Kan. 550; S. v.
Turner, 65 N. C. 592; S. v. Daly, 37
La. An. 576; T. v. Casio, 1 Ariz. 485.
2Conkwright v. P., 35 IH. 204;
Clackner v. S., 33 Ind. 412; S. v.
Kelly, 57 Ia. 644; S. v. Richart, 57
Ta, 245; S. v. Bruin, 34 Mo. 5387; S. v.
Williams, 54 Mo. 170; S. v. Sidney,
74 Mo. 390; S. v. Crank, 75 Mo. 406;
S. v. North, 95 Mo. 615. To the con-
trary as to good character, see S. v.
Hogard, 12 Minn. 293.
38. v. Hodge, 50 N. H. 510; Stover
v. P., 56 N. Y. 315; S. v. Merrick, 19
Me. 898; Robb v. S., 35 Neb. 285;
Hoge v. P., 117 Ill. 35. It is error to
make conviction depend upon the
truth or falsity of the explanation
40
rather than upon defendant’s guilt:
Pollard v. S., 33 Tex. Ap. 197.
4S. v. Richart, 57 Ia. 245; S. v. Em-
erson, 48 Ia. 172; S. v. Peterson, 67
Ta. 564; S. v. Kirkpatrick, 72 Ia. 500,
7 Am. Cr. R. 334, and note; S. v.
Manley, 74 Ia. 561; Thompson v. P.,
4 Neb. 524; Hoge v. P., 117 Ill. 35;
P. v. Walters, 76 Mich. 195; S. we
Merrick, 19 Me. 398; Taylor v. S., 15
Tex. Ap. 356; Hays v. S., 30 Tex. Ap.
472.
5S. v. Hodge, 50 N. H. 510.
6P, v. Titherington, 59 Cal. 598;
Hill v. 8., 63 Ga. 578; Griffin v. S., 86
Ga, 257.
78. v. Raymond, 46 Conn. 345; S.
v. Hodge, 50 N. H. 510; Robb v.&.,
85 Neb. 285; Young v.6., 24 Fla. 147;
S. v. Heaton, 23 W. Va. 773; S. v.
Hale, 12 Oreg. 352; Stover v. P., 56
'N. Y. 315; Graves v. S., 12 Wis. 591;
625
§ 618.] OFFENSES AGAINST PROPERTY. [Parr VIT.
§ 618. Sufficiency of explanation.— It is recent possession
unexplained, that is, without circumstances appearing which
indicate that such possession is consistent with defendant’s in-
nocence, which constitutes evidence against him. Thus, if it
appears that the possession of defendant had its inception sub-
sequently to the time of the commission of the crime, such ex-
planation will obviate the effect of the possession as tending to
show criminality. As showing the nature of the possession,
any explanation thereof made by the defendant is admissible in
evidence either for or against him. Thus, explanations made
by defendant contemporaneously with or when first required
to account for his possession of stolen property may be shown
in his behalf,’ and so may statements by defendant made when
first arrested;‘ but in either event such declarations are not
admissible in evidence unless possession and acts of ownership
at the time they are made are first proved.’ The declarations.
are to be shown in connection with the possession as explan-
atory of it, and as therefore a part of the res gestew;® but it
seems that declarations made on the first occasion for expla-
nation may be shown although defendant had already parted
with possession.’ An explanation made by another at defend-
Crilley v. S., 20 Wis. 231; S. v. Kelly,
57 Ia. 644; Smith v. S., 58 Ind. 340;
Bellamy v. S., 35 Fla. 242; Watkins
v. &,.2 Tex. Ap. 73; Ayres v. S., 21
Tex. Ap. 399; Lockhart v. 8., 29 Tex.
Ap. 35.
lHesd v. S., 25 Wis. 421; S. v.
Jackson, 126 Mo. 521; Williams v. 8.,
11 Tex. Ap. 275; S. v. Humason, 5
‘Wash. 499. If the possession of de-
fendant is traced to a finding of the
stolen goods after the larceny, with
no evidence that he placed the goods
where found, this will not tend to
show his guilt: S. v. Scott, 109 Mo.
226.
2 Perry v. S., 41 Tex. 483; Ward v.
S., 41 Tex. 611; Shackleford v. S., 2
Tex. Ap. 385; Eads v. S., 26 Tex. Ap.
69.
3 Payne v. S., 57 Miss. 348; Walker
v. S., 28 Ga. 254; and, much more,
statements made by defendant be-
fore suspicion attached to him: Reg.
v. Abraham, 2 C. & K. 550; but, con-
trary to what seems to be the al-
most universally accepted doctrine,
it is said in one case that defendant
cannot prove declarations made by
him as to how the goods came into:
his possession: 8. v. Slack, 1 Bailey,
330. Contemporaneous statements
are more effectual than explanations
made when called as a witness: §. v-
Moore, 101 Mo. 316.
‘Shackelford v. S., 43 Tex. 188;
Darnell v. S., 43 Tex. 147; Castellow
v. §., 15 Tex. Ap. 551.
5 Cameron v. &., 44 Tex. 652; Child-
ress v. S., 10 Tex. Ap. 698; Lewis v. 8.,
17 Tex. Ap. 140; Heskew v.-S., 17
Tex. Ap. 161; Smith v. S., 103 Ala. 40.
6 Walker v. S., 28 Ga. 254; Shack-
elford v. S., 43 Tex. 138.
7Hampton v.85 Tex. Ap. 463;
Anderson v. &, 11 Tex. Ap. 576;
626
Cu. 26.) LARCENY. [§ 618.
ant’s request is entitled to the same weight as though made by
himself! and what is said to defendant at the time of his ac-
quiring possession may be shown by him in the same way as
what is said by him.? It is plain that the prosecution may
show, as against him, defendant’s explanation with regard to
his possession of the stolen property;* and it may thus be
shown that the explanation given is contradictory,‘ or unrea-
sonable or incredible;* or the prosecution may by other evi-
dence show that the explanation is false,’ and as indicating its
falsity inconsistent circumstances may be proven;‘ but proof
of the falsity of the explanation will not be sufficient in itself
to sustain a conviction where the other evidence of guilt is in-
sufficient.’ The effect of the proof of recent possession may be
overcome by proof of an open public purchase free from circum-
stances of suspicion,’ or by proof of purchase from a real per-
son named, or even from the thief without collusion; but it
seems that an explanation of purchase from a stranger is not
sufficient to overcome the presumption of guilt from the recent
possession." If the explanation of defendant is reasonable and
probable, the burden is on the prosecution to prove its falsity,”
Taylor v. S., 15 Tex. Ap. 356. Where
the witnesses differed in their state-
ments as to defendant’s first explana-
tion, held, that his statements on the
following day might be shown in
corroboration of what he claimed to
be his first statements: Andrews v.
S., 25 Tex. Ap. 339. Evidence that
defendant, on first meeting the
owner of property which defendant
had sold, offered to pay for it, was
held not admissible as an explana-
tion: Brooks v. S., 26 Tex. Ap. 184.
1 Windham v. S., 19 Tex. Ap. 413.
28. v. Jordan, 69 Ia. 506; S. v. Kelly,
57 Ta. 644,
38. v. Weaver, 104 N. C. 758.
*Reg. v. Dibley, 2 C. & K. 818.
5 Reg. v. Exall, 4 F. & F. 922; Reg.
v. Wilson, Dears. & B. 157.
68. v. Hallet, 63 Ia. 259; S. v. Camp-
bell, 108 Mo. 611.
7C. v. Grose, 99 Mass, 423; P. v.
Cunningham, 66 Cal. 668,
8 Norwood v. &., 20 Tex. Ap. 306.
9 Jones v. P., 12 Ill. 259. In Texas
proof of recent possession of stolen
cattle is made prima facie evidence
of guilt, unless defendant has a bill
of sale for such cattle; but this pre-
sumption is not conclusive: Flores
v. 8. 13 Tex. Ap. 665; Gomez v.5S.,
15 Tex. Ap. 64; Schindler v. S,
15 Tex. Ap. 394. Defendant may
thus show a purchase from one
claiming to be agent of the owner
of stray cattle, although he has no
bill of sale: Smith v. S., 41 Tex. 168.
10S, v. Brown, 25 Ia. 561. Contra, 8.
v. Boone, 70 Mo. 649.
118. v. Brown, 25 Ia. 561.
12 Reg. v. Crowhurst, 1C. & K. 370;
Reg. v. Smith, 2C. & K. 207; Garcia
v. S., 26 Tex. 209; Irvine v. S., 18 Tex.
Ap. 499; Harris v. 8., 15 Tex. Ap. 411;
Ross v. 8., 16 Tex. Ap. 554; Schultz v.
S., 20 Tex. Ap. 315; Brothers v. S., 22
Tex. Ap. 447; Clark v. S., 22 Tex. Ap.
627
§ 619.] OFFENSES AGAINST PROPERTY. [Parr VII.
which must be established beyond a reasonable doubt;' and if
there is no evidence of its falsity, the evidence of recent posses-
sion must be regarded as overcome, and a conviction based on
such evidence alone will not be warranted? If defendant’s ex-
planation is unreasonable or improbable on the face of it, it is
not incumbent upon the prosecution, in order to secure convic-
tion, to assume the burden of showing the falsity of the expla-
nation. The question as to the sufficiency and credibility of
the explanation is for the jury.‘
§ 619. When possession deemed sufficiently recent.— It is
not the possession of the stolen goods at any time after the
commission of the crime that constitutes evidence of guilt, but
it is the recent possession of such goods.’ The possession is
only evidence of guilt when it appears that the possessor could
not well have come by such property except by stealing it
What is recent possession will depend somewhat upon the
nature of the property.’ Thus, if the property is such as to
pass readily from hand to hand, the possession, in order to be
evidence of guilt, should be much more recent than if it is of a
599; Arispe v. S., 26 Tex. Ap. 581;
Clark v. S., 27 Tex. Ap. 405; White
v. S., 28 Tex. Ap. 71; Ewing v. §., 29
Tex. Ap. 434,
1§, v. Kirkpatrick, 72 Ia. 500, 7 Am.
Cr. R. 334 and note.
2Johnson v. S., 12 Tex. Ap. 385;
‘York v. S., 17 Tex. Ap.441; Brothersv.
&., 22 Tex, Ap. 447; Tarin v.S., 25 Tex.
Ap. 360; Hyatt v. S., 32 Tex. Ap. 580;
Bellamy v. S., 35 Fla. 242. When de-
‘fendant has made a reasonable and
probable statement with regard to
_his possession, he is entitled to have
the law applicable thereto stated to
‘the jury: Miller v. S.; 18 Tex. Ap. 34;
but he is not entitled to have the
court say to the jury that they can
acquit if the state fails to show de-
fendant’s explanation to be false,
because there are usually other
criminative facts besides the recent
“possession: Hart v. 8., 22 Tex. Ap.
563.
3 Reg. v. Harmer, 3 Cox, 487; Reg.
v. Crowhurst, 1 C, & K. 870; Reg. v.
Smith, 2C. & K. 207. But the evi-
dence of possession may be consid-
ered for what it is worth, even if it
is explained or though the explana-
nation is unreasonable: Payne v. S.,
21 Tex. Ap. 184.
4P. v. Cline, 74 Cal. 575; Grentzin-
ger v. S., 31 Neb. 460; Hays v. S, 30
Tex. Ap. 472; P. v. Walters, 76 Mich.
195; P. v. Hawksley, 82 Mich. 71; 8.
v. Kimble, 34 La. An. 392.
5Warren v.S., 1 Greene (Ia.), 106;
8. v. Wolff, 15 Mo. 168; S. v. Floyd,
15 Mo. 349; Shepherd v. S., 44 Ark.
39; Jones v. S., 26 Miss. 247; White
v. &, 72 Ala, 195. And the court
should describe the possession which
may be taken into consideration as
recent; but omission to do so will
be immaterial where the fact that
the possession was recent affirma-
tively appears: Young v. S., 95 Ga.
456.
6 Gregory v. Richards, 8 Jones, 410.
_ 18. v. Floyd, 15 Mo. 849; Rex v.
‘Partridge, 7 C. & P. 551,
628
Cu. 26.]
LARCENY.
[§ 619.
class which circulates more slowly or is rarely transmitted ;!
and the evidence is strong or weak depending on the length of
time which has elapsed and the character of the property? In
some cases the court has considered the length of time elapsing
between the crime and the possession to have been so great, in
view of the nature of the property, that it would not support a
conviction based upon the evidence of possession alone. In
general, however, the length
18. v. Walker, 41 Ia. 217
S., 26 Miss. 247.
2Gablick v. P., 40 Mich. 292; S. v.
Rights, 82 N. C. 675; Florez v. S., 26
Tex. Ap. 477. Thus, the possession
of money recently stolen is usually
of slight weight; yet, if it is of a
kind rarely seen. in circulation, the
weight of the evidence is greatly
increased: P. v. Getty, 49 Cal. 581.
But recent possession of current
money may nevertheless be suffi-
cient evidence of guilt: Jenkins v.
S., 62 Wis. 49; S. v. Bruce, 106 N. C.
792; S. v. Grebe, 17 Kan. 458; C. v.
Montgomery, 11 Met. 534; Boston &
W. R. Co. v. Dana, 1 Gray, 83, 102.
And see supra, § 616.
3For instance, where the stolen
goods, the nature of which is not
stated, were found in defendant’s pos-
session sixteen months after the
theft, the judge directed an acquit-
tal: Anon., 2 C. & P. 459; and so
where tools were found in defend-
ant’s possession three months after
they were missed, an acquittal was
likewise directed: Rex v. Adams, 3
C. & P. 600; and the same result
was reached in a similar case where
the possession was six or seven
months after the theft: Reg. v. Crut-
tenden, 6 Jur. 267. Possession by a
letter carrier of a bank-note some
months after it had been lost in the
mail was held not sufficient evi-
dence: Reg. v. Smith, 3 F. & F. 123.
Possession of a stolen horse six
months after the commission of the
crime was held not to constitute
6
; Jones v.
2
a
of time elapsing between the
sufficient evidence to go to the jury:
Reg. v. Cooper, 8 C. & K.318, Where
sheep were lost in September and
found in defendant’s possession in
March following, held, that there
was no case for the jury: Reg. v.
Harris, 8 Cox, 333. And see, as hold-
ing that in particular cases the pos-
session was too remote from the.
crime to support a conviction, §. v.
Jennett, 88 N. C. 665; Jones v. S., 26
Miss. 247; S. v. Wallace, 47 Ia. 660;
Beck v. §., 44 Tex. 480; Bragg v. S.,
17 Tex. Ap. 219; Romero v. 8, 25
Tex. Ap. 394. But where pieces of
cloth were stolen and were found
in the possession of defendant two
months afterward, still in the same
condition, it was held that the pos-
session was sufficiently recent to call
on the prisoner for an explanation: _
Rex v. Partridge, 7 C. & P. 551. So
possession of stolen goods a day and
a half after the theft without ex-
planation was held sufficient to sup-
port a conviction: Brown v.S., 59 Ga.
456; and possession of a cow nearly
ten months after she was last known
to have been on the owner’s ranch
was held to raise a question for the:
jury: Willis v. S., 24 Tex. Ap. 586.
And see Reg. v. Knight, L. & C. 378.
Where defendant claims to have
owned the property prior to the lar-
ceny, so that the question is one as
to identity of the property, the in-
terval between the crime and the
possession will be immaterial: Reg:
y. Evans, 2 Cox, 270.
1
9
[Parr VII.
§ 620.] OFFENSES AGAINST PROPERTY. -
crime and the possession goes only to the weight of the testi-
mony, and is to be taken into consideration by the jury for
that purpose,! and the sufficiency of the evidence is to be left
to the jury under proper instructions.’
§ 620. Possession exclusive.— In order that the recent pos-
session shall be evidence of guilt, it must be exclusive in the
defendant; that is, it must be such as to indicate that the de-
fendant and not some one else took the property. Ifthe place
where the property is found is such that others have access
thereto as well as defendant, the property cannot be said to be
in the exclusive possession of defendant, and the circumstance
would: not be evidence of his guilt.2 Some cases sanction a
broader rule in this respect, and allow the evidence to be consid-
ered although it appears that the goods are found in a place not
exclusively occupied or controlled by defendant, the fact that
other persons had access to the place weakening, but not destroy-
ing, the effect of the evidence; * but evidence of finding the prop-
erty in a house belonging to and under the control of another,
with whom defendant is acquainted, and where he has been stay-
ing, has been held not admissible. Where two persons have such
possession of property as implies control in them jointly, they
may each be said to have exclusive possession ;° and where there
1P, v. Weldon, 111 N. Y. 569; C. v.
Montgomery, 11 Met. 534; S. v. Mil-
ler, 45 Minn. 521.
28. v. Walker, 41 Ta. 217; Price v.
C., 21 Grat. 846; Florez v. S., 26 Tex.
Ap. 477.
3P. v. Hurley, 60 Cal. 74; Gablick
v. P., 40 Mich. 292; S. v. Castor, 93
Mo. 242; Turbeville v. S., 42 Ind. 490;
Casas v. S., 12 Tex. Ap. 59; Warren
v.S., 1 Greene (Ia.), 106; Reg. v. Coots,
2 Cox, 188; evidence that defend-
ant clandestinely visited the place
where the goods are found is a cir-
cumstance only, and not sufficient
alone to support a verdict: Smath-
ers v. S., 46 Ind. 447; 8S. v. Rice, 83
N. C. 661; and the finding of the
stolen property in defendant’s place
of business, there being other in-
mates of the place, will not alone be
evidence of guilt unless it appears
that he is the person who brought
the property there: 8. v. Griffin, 71
Ta. 372.
4C. v. Parmenter, 101 Mass. 211;
Padfield v. P., 146 Ill 660. Part of
the stolen goods having been found
in the exclusive possession of de-
fendant, evidence that the remain-
der were found where defendant had
an opportunity to conceal them is
admissible: S. v. Phelps, 91 Mo. 478.
+P. v. Williams, 24 Mich. 156. But
evidence that stolen cattle were
found on the premises of defend-
ant’s father, where defendant made
his home, was held proper to go to
the jury: 8. v. Van Winkle, 80 Ia. 15.
6S. v. Raymond, 46 Conn. 345.
Thus, where property was found in
a house occupied exclusively by de-
fendant and his wife, it was held
that such possession was evidence
630
‘Cu. 26.] LARCENY. [§ 620.
is evidence tending to implicate two persons in the crime, evi-
dence of recent possession by one is criminating against the
other.! But possession by one defendant is not presumptive
against another, even where they reside in the same house, if
the latter is a lodger or hired man of the former, unless there
is some further evidence to connect the latter with the posses-
sion of the property.?, The question whether the property is
‘in defendant’s possession is for the jury.’
as against defendant: S. v. Johnson, 18. v. Phelps, 91 Mo. 478; S. v.
1 Winst., i, 238. Thus, also, where Wohlman, 84 Mo. 482.
.a stolen horse was found soon after 28, v. Wolff, 15 Mo. 168; Ivey v. S.,
the larceny, and being ridden bya 43 Tex. 425. ;
companion of defendant, such fact 38. v. Van Winkle, 80 Ia. 15; Gab-
was held a circumstance tending lick v. P., 40 Mich. 292; Gelvin v. S.,
to prove defendant’s guilt: 8. v. 93 Ind. 550.
Pennyman, 68 Ia. 216.
631
4
t
CHAPTER 27.
EMBEZZLEMENT.
I NATURE OF THE OFFENSE. III By CaRRIeR OR OTHER BAILER.
IL By SERVANT, CLERK, AGENT, | IV. By PuBLic OFFICER.
ETC, V. PROCEDURE,
I. Narure or THE OFFENSE.
§ 621. What constitutes.— In the discussion of larceny it
has already appeared ! that trespass is necessary to constitute
that offense, and if the person who wrongfully converts a
chattel already had possession of it before such conversion, the
crime of larceny is not committed. In the same connection?
it has been stated that custody by a servant is distinguishable
from possession, and that the servant may be guilty of larceny
of his master’s property of which he has the custody at the
time of the conversion to his own use. In regard to these cases
of conversion by a servant, but more especially in regard to
cases where the property comes into the hands of the servant
for the master without having yet actually reached the mas-
ter’s possession, there was at common law much difficulty, and
the various statutes passed from time to time providing for the
punishment of embezzlement seem to have had their origin in
a desire to extend by statute the scope of the crime of larceny
in this direction? The popular significatién of the word “em-
bezzle” seems originally to have been “to steal, pilfer or pur-
loin,’ ‘ and accordingly the statute of Elizabeth provides for
the punishment of one who embezzles the king’s army stores.’
The original statute for the punishment of embezzlement cov-
ers the appropriation by servants of the property of their
masters in violation of the trust and confidence reposed in
them.* Subsequent English statutes extended the offense to
1 Supra, §§ 549, 554. 531 Eliz, ch, 4; 1 Hawk. P. C.,
2 Supra, § 556. ch. 18, § 18.
33 Stephen’s Hist. Cr. L, 151. 621 Henry 8, ch. 7,
4 Jacob, Law Dictionary, s. v. “Im-
bezzle.”
632
Cu. 27.] EMBEZZLEMENT. [§§ 622, 623.
cover cases of misappropriation by servants of property re-
ceived by them for their masters. The English statutes and
the statutes of the various states make prominent also the mis-
appropriation of funds, although the statute of Henry likewise
covered money as well as caskets, jewels, goods and chattels.
In the United States another class of cases of breach of trust
is made a distinct form of embezzlement, to wit: misappropria-
tion of public funds by officers. This latter branch of embez-
zlement seems to be of recent origin. The English statutes
above named have no reference to public officers? At com-
mon law a public officer is subject to discretionary fine and im-
prisonment for this offense;* with us, however, it has, by stat-
utes, become an important part of the law of embezzlement.
§ 622. Definition.— These offenses cannot be defined with
the accuracy which is possible with reference to the ordinary
common-law felonies. Being statutory in origin and regulated
by statute in all the states, the definition must depend upon
the terms of the particular statute in question‘ The word
“embezzle” in itself implies the wrongful appropriation by the
defendant of the money or property of another to his own use.®
The only general essential is the fraudulent conversion or mis-
appropriation by the defendant of property received by him
in some fiduciary capacity. The difficult question as to what
constitutes a conversion must be considered hereafter.
§ 623. How distinguished from larceny.— Cases which
are not larceny because there is no trespass on the owner's
possession have been considered under the head of larceny,
and it there appeared that this was the distinguishing differ-
ence between the two offenses. 7 There are, however, two’
139 Geo. 3, ch. 85; 7 and 8 Geo. 4,
ch. 29, § 47; 24 and 25 Vict., ch. 96,
34 Bl. Com. 122; Hellings v. C., 5
Rawle, 63.
§ 68; 2 Russ. Cr. 167; 2 Bish. Cr. L.,
$8 318-323. The statute of Geo. 8 is
held not to be a part of the common
law in this country: T. v. Maxwell,
2.N. Mex. 250.
2 There are, of course, provisions in '
the English statutes for punishment
of public servants for breaches of
trust as to the public funds, but such
offenses are not caled embezzle-
ment,
49, v. Walton, 62 Me. 106; Ker v.
P., 110 Ill. 627; S. v. Trolson, 21 Nev.
419, 9 Am. Cr. R. 243 and note; S. v.
Wolff, 34 La. An. 1153; Note in 98
Am. Dec. 126.
5S. v. Wolff, 34 La. An. 1153,
6S. v. Walton, 62 Me. 106; S. v. ;
Mason, 108 Ind. 48; 2 Bish. Cr. L.,
§ 325.
7See supra, § 554; S. v. Baldwin, '
70 Ia. 180.
633
§ 623.) [Parr VII.
OFFENSES AGAINST PROPERTY.
classes of cases which are not larceny on account of the absence
of the element of trespass. The first of these is where the
wrong-doer is the servant of the owner, but the property has
been received from another for the owner, and has not yet
passed into such owner’s actual possession. Thus, a clerk in a
store who receives money for his employer, and at once con-
verts it to his own use, is guilty of embezzlement and not lar-
ceny.1 So where a servant, employed to haul his master’s
goods from the cars to the master’s sheds, received the goods
from the railroad company and sold them before he delivered
them to the master, he was held to be guilty of embezzlement
and not of theft.? Other pertinent illustrations with reference
to this point are given in connection with the discussion of lar-
ceny ;* but on the other hand, where the goods are in the pos-
session of the master and the servant has the custody only, the
offense is larceny and not embezzlement.‘ Thus, where the
money is delivered to a servant to carry from the owner to an-
other, the taking is larceny,’ and in such case it is immaterial
whether the felonious intent was formed by the servant before
or after the receipt of the money.’ The teller of a bank who
at night opens the vault and takes money therefrom with in-
tent to defraud the bank is guilty of larceny and not embezzle-
1C. v. Ryan, 155 Mass. 523. This
-case goes even further than the state-
ment in the text would indicate.
The clerk had put the money re-
‘ceived into the cash register with-
out registering it, and had with-
drawn it a moment afterward and
appropriated it to his own use, and
the court decided that the question
was whether the clerk had depos-
ited the money in the cash register
with the intention of abandoning
his control over it and had subse-
quently formed the purpose of tak-
ing it. The early English cases re-
lating to larceny by a servant are
cited and considered.
2 Cody v. S., 31 Tex. Ap. 183. Simi-
jar illustrations of the distinction
between receiving goods from an-
other for the master, and from the
master to be delivered to another,
are found in Rex v. Sullens, 1 Moody,
129; Reg. v. Betts, Bell, 90; Reg. v.
Hawkins, 1 Den. 584. But where
coal was received by the servant
into the master’s cart, it was held to
have passed into the master’s pos-
session and that the taking thereof
by the servant was not embezzle-
ment: Reg. v. Reid, Dears. 257. And
see Reg. v. Hayward, 1 C. & K. 518;
Reg. v. Hawkins, 4 Cox, 224,
See supra, § 556.
4Warmoth v. C., 81 Ky. 183; Cob-
letz v. S., 86 Tex. 353; Reg. v. Read,
3Q.B.D.131,
5C, v. Berry, 99 Mass. 428. But if
the servant is intrusted with the
expenditure of the money and mis-
appropriates it the offense is not
larceny: Reg. v. Goodenough, Dears.
210,
8C. v. O'Malley, 97 Mass. 584.
634
Cu. 27.) EMBEZZLEMENT.
[§ 624.
ment, for, having the keys and the right to access, the property
is in his custody as servant, and it is by virtue of that relation
that he wrongfully takes it,' and in such case it is not neces-
sary that the money shall have been specially deposited with
or intrusted to the officer.2. The other class of cases where
there is such absence of interference with possession as to make
the act embezzlement instead of larceny includes cases in which.
property delivered by the owner to another for a purpose not
involving transfer of title is by the person to whom it is deliv-
ered, in violation of such trust reposed in him, appropriated to
his own use; and here it becomes important to know the inten-
tion with which the bailee received the property; for, if he in-
tended from the first to apply it to his own use in violation of
the trust, then his offense is larceny, because his fraudulent pur-
pose prevents the possession which is given to him from being
lawful;* but if the intention to misappropriate was formed
after possession was lawfully received, then the wrongful act
will be embezzlement and not larceny.'
§ 624. Whether statute exclusive.— The statutes in regard
to embezzlement having been passed for the purpose of cover-
ing cases which were not punishable as larceny at common law,
there has been a tendency to limit their application to cases
not covered by the law of larceny,° and in construing the Eng-
lish statutes the courts seem to have considered that if the
offense was larceny it could not be embezzlement, and vice
versa.’ But under the more liberal construction of these statutes
which has generally prevailed in the United States, the weight
1C, v. Barry, 116 Mass. 1.
28, v. Tuller, 34 Conn. 280.
3See supra, § 562.
48. v. Stone, 68 Mo. 101; P. v. Sa-
both: S. v. Wingo, 89 Ind. 204; Pul-
lam v. S., 78 Ala. 31. But this con-
struction has not always prevailed,
and in a New York case it is said
lorse, 62 Cal. 139; C. v. O’Malley, 97
Mass. 584; Ennis v. S., 3 Greene (Ia.),
67; Moore v. U. S., 160 U. S. 268.
5Smith v. S., 28 Ind. 321; Quinn v.
P., 123 Ill. 388; Kibs v. P., 81 IL. 599;
Wharton, Cr. L. (8th ed.), § 1050.
Thus, where there are two different
statutes relating to different forms
of embezzlement, it has been said
that they are to be so construed that
the same act will not fall within.
that it is competent for the legis-
lature, if it sees fit, to include in the
new statute offenses punishable
under a previous one: Bork v. P., 91
N. Y. 5.
6Rex v. Murray, 1 Moody, 276;
Reg. v. Hawkins, 1 Den. 584; Rex v.
Smith, Russ. & Ry. 267; 2 Russ. Cr.
180. To the same effect see C. v.
King, 9 Cush, 284; C. v. Doherty, 127
Mass. 20.
635
§ 625.] OFFENSES AGAINST PROPERTY. [Parr VII.
of authority seems to be that the statutory offense of embezzle-
ment is not necessarily limited to acts which would not be lar-
ceny, and, indeed, there seems no reason for considering the
offenses exclusive, especially where the punishment for em-
bezzlement is substantially the same as that for larceny; as
the same act may constitute different offenses, and may be
prosecuted as either at the election of the state.’
§ 625. Whether embezzlement is a form of larceny.—The
language of the statutes in some instances is such as to indicate
that the offense described is larceny. In other words, they
seem to contemplate an extension of the crime of larceny to
cover acts of embezzlement which without a statute would
not be larceny ;? but, notwithstanding language to this effect,
it is uniformly held that there cannot be a conviction of em-
bezzlement under an indictment, in the ordinary form, for lar-
ceny.’ The offenses are distinct in that they possess different
characteristics; and to warrant a conviction of embezzlement,
an act constituting embezzlement within the language of the
statute must be alleged. However, by statute, a conviction
of embezzlement under an indictment for larceny is sometimes
allowed?
1§. v. Shirer, 20 S. C. 392; S. v.
Taberner, 14 R. I. 272; Lowenthal v.
Allen, 5 Denio, 76; S. v. Mason, 108
Ind. 48; Fulton v. 8.,13 Ark. 168. By
S., 832 Ala. 589; Planters’ Ins. Co. v.
Tuntstall, 72 Ala. 142; Ker v. P., 110
Ill. 627; 2 Bish. Cr. L., § 328.
2 Rex v. Johnson, 3 Mau. & S. 539;
S. v. Tracey, 73 Md. 447; S. v. Brod-
erick, 70 Mo. 622; Terry v.S., 1 Wash.
277. Thus, it has been held in Eng-,
land that one who knowingly re-
ceives goods which have been em-
bezzled is guilty of receiving stolen
goods: Reg. v. Frampton, Dears. &
B. 585. And to same effect see C. v.
Leonard, 140 Mass. 473. But contra,
on this point, see Leal v. S., 12 Tex.
Ap. 279. But even where the statu-
tory name is still larceny, it is not.
improper to describe the offense in
the indictment as embezzlement:
S. v. Sweet, 2 Oreg. 127.
3C, v. Simpson, 9 Met. 138; P. v.
Louisiana statute the crimes are dis-
tinct, and the requirements as to the
indictment in case of larceny are
not applicable in case of embezzle-
ment: S. v. Fricker, 45 La. An. 646.
4C. v. King, 9 Cush. 284; C. v.
O’Malley, 97 Mass. 584: C. v. Berry,
99 Mass. 428; C. v. Doherty, 127 Mass.
20. By a special statute it may be
provided that proof of larceny will
sustain a charge of embezzlement:
S. v. Broderick, 70 Mo. 622; S. v. Po-
land, 33 La. An. 1161. But even
under such a statute proof of em-
bezzlement will not sustain a con-
viction for larceny: Reg. v. Gorbutt, .
Dears. & B. 166.
5 Whitworth v. S., 11 Tex. Ap. 414;
Reg. v. Rudge, 18 Cox, 17.
'
636
Cx. 27.] EMBEZZLEMENT.
[$ 626.
II. By Servant, Crerx, Agent, To.
§ 626. Who deemed servant or clerk.— As has already been
suggested, the statutory offense of embezzlement had its origin
in an attempt to provide a punishment for wrongful acts of
servants with reference to their master’s property, which did
not come within the scope of larceny; and it will be necessary
to consider who, under the statutes on the subject, comes within’
the definition of a servant or clerk, and afterwards who comes
within the meaning of the other terms respectively which have
been employed in defining the offense. As to the term “serv-
ant,” it is said that it designates one who is directly answerable
to and under the immediate direction and control of an em-
ployer in the discharge of his duties! It seems that the term
is not limited to general servants, but includes persons who act
in that capacity occasionally or in one instance only.? Thus,
a stage-driver employed to carry packages for his employer,
incidentally to his employment as stage-driver, is a servant with
reference to such packages.’ But there must be some employ-
ment to constitute the relation of master and servant; one who
acts for another on request without any obligation to do so
does not become a servant so as to be guilty of embezzlement.‘
Exclusive employment by the prosecutor is, however, not im-
portant. There may be employment in other capacities than
1Gravatt v. S. 25 Ohio St. 162.
The cashier of a partnership bank is
a servant or clerk: S. v. Yeiter, 54
Kan. 277.
2Reg. v. Hughes, 1 Moody, 370;
Reg. v. Winnall, 5 Cox, 326; Reg. v.
Tongue, Bell, 289; Reg. v. Hastie.
L. & C. 269; Rex v. Spencer, Russ. &
Ry. 299. Thus, where defendant was
employed by a merchant to sweep
out the store, etc., but not as clerk,
and on a particular occasion was au-
thorized to take merchandise and
sell it at a neighboring town, and he
converted the proceeds of such sale,
held, that he was indictable for lar-
ceny as servant: S. v. Costin, 89 N.
Cc. 511,4 Am. Cr. R. 169, and note.
One employed only on temporary oc-
637
casions is, within the language of the
English statute, “employed in the
capacity of clerk or servant:” Reg.
v. Woolley, 4 Cox, 251; Reg. v..
Foulkes, L. R. 2 C. C. 150. One who
assumes to act as agent, and is recog-
nized as such, may’ commit the of-
fense: S. v. Ezzard, 40S. C. 312.
3P. v. Sherman, 10 Wend. 298. But
in another case it is said that one
cannot be convicted of embezzle-
ment as servant who is not regularly
in the employ of another, but who
merely goes on errands for him occa-
sionally: Johnson v. 8, 9 Baxt. 279.:
4Rex v. Freeman, 5 C. & P. 584;
Rex v. Nettleton, 1 Moody, 259; Reg.
v. Hoare, 1 F. & F. 647.
5 Reg. v. Batty, 2 Moody, 257; Rex:
OFFENSES AGAINST PROPERTY.
§ 627.] [Parr VII,
that of servant, so that the person employed, though autHorized
to deal with his employer’s property, is not a servant within
the meaning of the embezzlement statutes.1 One who receives
material as a mechanic, to be worked upon, is not a servant.”
One who acts as agent in the sale of goods or collection of debts
on commission is not a servant or clerk within the language of
the English statute.’ But if the employee is to devote his entire
time to the service of the employer, he is a clerk or a servant,
even though his compensation is given in the way of commis-
sions. No abuse of confidence other than that resulting from
the relation of servant is necessary.’
§ 627. Who deemed agent.— The term “agent” as used in
the statutes is broader than servant or clerk, and, if the indict-
ment charges embezzlement by agent, it is not sustained by
proof that defendant was a servant or aclerk.6 Where the stat-
ute uses the term “agent” generally, it includes special as well
as general agents, whether employed regularly or only for the
single or special case, and it is immaterial whether there is re-
muneration or not.’ But where there is an enumeration of
certain classes of agents, such as bankers, brokers, attorneys,
v. Carr, Russ. & Ry. 198. A servant
of partners is the servant of each:
Rex v. Leech, 3 Stark. 70; Reg. v.
Frankland, L. & C. 276. Where the
servant was to account to one part-
ner who was accountable to the
partnership, it was held that he was
properly described as the servant of
such partner: Reg. v. White, 8 C. &
P. 742. One may be a servant
jointly of two or more companies:
Reg. v. Bayley, Dears. & B. 121.
1 Rex v. Hartley, Russ. & Ry. 189;
Reg. v. Goodbody, 8 C. & P. 665; Reg.
v. Walker, Dears. & B. 600; Reg. v.
Barnes, 8 Cox, 129; Rex v. Burton, 1
Moody, 237. But one may be u serv-
ant although his rendering the serv-
ice in question is optional with him-
self: Reg. v. Thomas, 6 Cox, 403.
One who receives money as servant
is to be deemed a servant with ref-
erence to the embezzlement of such
money: Rex v. Beacall, 1 C. & P.
312; Rex v. Wellings,1C. & P. 454;
Reg. v. Welch, 2 C. & K. 296; Ex
parte Ricord, 11 Nev. 287.
2C. v. Young, 9 Gray, 5.
’Reg. v. Bowers, L. R. 1 C. C. 415
Reg. v. Negus, L. R. 2 C. C. 34; Reg.
v. Mayle, 11 Cox, 150; Reg. v. May,
L. & C. 13."
4Reg. v. Bailey, 12 Cox, 56. Even
where he was not to give his entire
time to one employer and was to be
paid by commissions, it was held
that there was such evidence of his.
being servant of the prosecutor as.
might go to the jury: Reg. v. Tite,
L. &C, 29.
58. v. Wilson, 101 N. C. 7380.
6 P. v. Allen, 5 Denio, 76.
78. v. Barter, 58 N. H. 604. Thus,
the manipulator of a pool to whom
money is intrusted in that capacity
is sufficiently an agent to be in-
cluded within the statute of embez-
zlement: S. v. Shadd, 80 Mo, 358,
638
Cu. 27.] EMBEZZLEMENT. [S$ 628, 629.
etc., and the words “other agent” follow such enumeration,
these words are to be limited to agents of the classes named,
and do not include an ordinary agent, not within any of such
classes, to whom property is intrusted.!. Under some statutes.
it is held that one who acts on commission, having therefore
an interest in the money or property coming into his hands by
virtue of his employment, is not an agent with reference to the
proceeds of sales or the moneys collected;? but under other
statutes there may be embezzlement in such cases if the prop-
erty is not received by virtue of a distinct business such as
that of attorney or factor.’ Where the agent has no right to-
the goods or money intrusted to or received by him, he may
be guilty of embezzlement although his compensation is in the
form of a commission.‘ The question whether the agency still
continued at the time of the receipt of the money is for the
jury.
§ 628. For hire.— Where the statute specifies agents, clerks,
servants, or persons to whom property is intrusted for hire, it
has been held that the limiting words “for hire” apply to-
agents, clerks, etc., as well as persons intrusted, and such ele-
ment must be charged in the indictment.®
§ 629. Trustees, attorneys, collectors, etc.— There are
classes of persons who receive money or property in a fiduciary
capacity who still do not come under the designation of serv-
ant, clerk or agent. Thus, trustees of various kinds, brokers,
etc., are held not to be included within the terms “agent or
servant.”7? So it has been held that an attorney is not an agent
in such sense as to be guilty of embezzlement under such pro-
visions. But it is held, on the other hand, that an attorney
1 Reg. v. Portugal, 16 Q. B. D. 487. money as security for the faithful
2C. v. Libbey, 11 Met. 64; S. v. discharge of his duties, it was held
Kent, 22 Minn, 41. that the employer was not guilty of
3 Campbell v. 8., 35 Ohio St. 70. embezzlement in failing to return
4C. v. Smith, 129 Mass. 104 the money, as the transaction gave
5 Thomas v. S., 33 Fla. 464. rise to a debt and not to a bailment:
6 Terry v. S., 1 Wash. 277. Mulford v. P., 189 Tll. 586.
7Rex v. White, 4 C. & P. 46; Reg. 8 Reg. v. Gibson, 8 Cox, 436; Reg.
v. Tatlock, 2 Q. B. D. 157; Reg. v. v. Cooper, L. R. 2 C. C, 123. Nor
Gibbs, Dears. 445; Reg. v. Cosser, 18 can a solicitor, to whom money is
Cox, 187. Thus, where a clerk de- intrusted for investment, be con-
posited with his employer a sum of victed of embezzling such money
: 639
[Parr VII.
§§ 630, 631.] OFFENSES AGAINST PROPERTY.
may be convicted as agent,' and in some of the states there are
statutes especially applicable to attorneys.’ Under such a stat-
ute, the relation of attorney and client must be directly charged.’
The statute may also include collectors and other persons who
receive money in that capacity ;‘ but such a provision does not
cover the case of a constable who receives money for property
sold under execution.» There are sometimes special provisions
applicable to trustees,’ administrators’ and guardians.°
§ 680. Custodian.— To cover cases of trust where money or
property has been left with a custodian to be invested or man-
aged as may be directed there have been special statutes.? But
such a statute does not cover the case of clerk, business man-
ager or other employee who acts for the employer in such sense
that money paid to him may be deemed to have been given
into the possession of the employer. Thus, where one was au-
thorized by the officers and members of a church to solicit and
collect contributions therefor, it was held that he could not be
convicted under such statute for embezzlement.” Such a stat-
ute applies only to persons to whom securities are intrusted in
the exercise of their function or business." ;
§ 631. Partnerships and associations,— Where there is a
right of ownership in the money or property, the case does
not fall within the original idea of embezzlement. Thus, the
misappropriation by a partner of partnership funds is not the
crime of embezzlement.” But the mere fact that compensation
is to be paid on the basis of a sharing in the profits does not
constitute a partnership in this sense, and the employee may,
under the charge of misappropriat-
ing property received for safe cus-
tody: Reg. v. Newman, 8 Q. B, D. 706.
1p, v. Converse, 74 Mich, 478; In re
Converse, 42 Fed. R. 217.
2Stoker v. P., 114 Til. 320; Sv.
Brooks, 83 Ia. 366; S, v. Belden, 35
La. An, 823.
3P, v. Tryon, 4 Mich. 665; Zink v.
S., 34 Neb. 37.
48. v. Brooks, 85 Ia. 366.
5 Stoker v. P., 114 Ill. 820.
6 Reg. v. Fletcher, L. & C. 180,
78. v. Borowsky, 11 Nev. 119.
8Ex parte Blumer, 86 Pa. St. 371,
9Rex v. White, 4C. & P. 46; Reg.
v. Golde, 2 M. & Rob. 425; Reg. v.
Christian, L. R. 2 C. C. 94; Reg. v.
Fullagar, 14 Cox, 370.
10Shelburn v. C., 85 Ky. 173. And
see Rex v. Burton, 1 Moody, 287.
11 Rex v. Prince, 2 C. & P. 517.
Gary v. Northwestern Masonic
Aid Ass’n, 87 Ia. 25; Napoleon v. 8,
3 Tex. Ap. 522, Though the partner
is deemed for some purposes the
agent of the other partners, he is
not an agent within the terms of the
statutes relating to embezzlement:
S. v. Butman, 61 N. H. 511; S. v. Red-
‘dick, 2S. Dak, 124.
640 ‘
Cu. 27.] [$ 682.
EMBEZZLEMENT.
notwithstanding such an arrangement, be liable for embezzle-
ment of the funds received in pursuance of such employment.'
The surviving partner, authorized by statute to settle the part-
nership affairs, is a person acting in a fiduciary capacity within
the terms of some statutes relating to embezzlement.? In Eng-
land there have been many cases relating to the officers of
mutual benefit or friendly societies, and 1t has been held that
where they were as members interested in the funds, they
could not be convicted of embezzlement; * but where the person
charged with embezzlement receives and holds money which
he embezzles, not as a member of the society, but as servant of
the trustees or other officers, he may be convicted notwith-
‘standing his membership, the ownership of the money being
laid in such trustees! Under a statute providing for the pun-
ishment of a partner embezzling partnership funds, it has been
held that a voluntary association for mutual improvement
does not constitute a partnership within the meaning of such
statute, there being no participation in profits possible, and
therefore no partnership.’ As to corporations it is immaterial,
therefore, that the person charged with embezzlement of their
funds is a member or has an interest, provided he has received
the money by virtue of his employment, and not by virtue of
‘his membership ;° at least this is true where the statute in de-
fining embezzlement does not in describing it make use of the
‘term “property of another.” ?
§ 632. Officers or agents of corporations.— Some statutes
in defining the offense mention, in addition to the agent, clerk
-or servant of any private person, the officer, agent or servant
-of any incorporated company,® but such terms are intended to
1C, v. Bennett, 118 Mass. 448; Reg.
‘v. McDonald, L. & C. 85; Reg. v.
Wortley, 2 Den. 333.
28. v. Matthews, 129 Ind. 281.
*Reg. v. Bren, L. & C. 346; Reg. v.
Marsh, 3 F. & F. 5283; Reg. v. Tyree,
L. R10. C. 177.
4Reg. v. Proud, L. & C. 97; Rex v.
Hall, 1 Moody, 474; Reg. v. Miller, 2
Moody, 249; Reg. v. Woolley, 4 Cox,
251; Reg. v. Redford, 11 Cox, 367;
Rex v. Jenson, 1 Moody, 434; Reg. v.
“‘Diprose, 11 Cox, 185. An unincor-
41
porated association having chari-
table features is not a partnership, -
and a member may be guilty of em-
bezzlement of the funds thereof:
Laycock v. S., 186 Ind. 217.
5 Reg. v. Robson, 16 Q. B. D. 137.
6 Reg. v. Atkinson, 2 Moody, 278.
78, v. Kusnick, 45 Ohio St. 535; P.
v. Mahlman, 82 Cal. 585.
8The treasurer of a railroad com-
pany is an officer thereof, and though
he has control of its funds he may
embezzle them without the consent
641
§ 633.] [Part VII.
OFFENSES AGAINST PROPERTY.
cover private corporations only and not public or municipal
corporations.! Where the term employed was “corporation,”
it was held that the statute covered officers of a municipal cor-
poration as well? It has even been held that one employed
by another who occupies a position as a public officer, in dis-
charging the duties of the office, is not within the statute relat-
ing to agents, clerks, etc.;° but this is not in accordance with
English cases which have held collectors of poor rates and as-
sistant overseers to be servants of the overseers or guardians.
of the poor or the inhabitants of the parish. The president
and directors of a bank are included in the terms “cashier or
other officer,” but not in the terms “clerk, servant or agent.” ®
A statute with reference to embezzlement by officers, etc., of
an incorporated bank has been held applicable to national banks.
within the state,’ but this point has also been decided the other
way.’ While the crime of embezzlement by officers or agents
of a national bank is punishable under federal statute, yet there
may be an embezzlement by such officer or agent of property
of private persons in the possession of the bank which shall be
punishable under the state law.’ The fact that a national bank
has no authority to take liens on personal property does not.
constitute a defense in a prosecution of the officer or agent.of
such a bank for embezzling such property.
§ 633. Persons under the age of sixteen years.— In some
statutes the definition of agent, clerk or servant expressly ex:
cludes persons under the age of sixteen years. But under such
of his employer, the directors being
his employers in that sense: C. v.
Tuckerman, 10 Gray, 173. Suchstat-
ute covers a de facto officer: P. v.
Leonard, 106 Cal. 302.
1Coats v. P., 22 N. Y. 245.
28. v. Smith, 138 Kan. 274, And in
the same state it is held that the
term “agent” used generally in such
a statute is applicable to officers or
servants of the state: S. v. Bancroft,
22 Kan. 170. Where the statute re-
ferred to officers of a public or pri-
vate corporation, held, that the se-
lectmen of a county were included:
S. v. Boody, 53 N. H.610. The words
“agent, clerk or officer” cover a
municipal officer: S. v. Isensee, 12
Wash, 254,
3 Coats v. P., 22 N. Y. 245.
‘Reg. v. Adey, 1 Den. 571; Reg. v,
Townsend, 2 C. & K. 168; Reg. v.
Welch, 2 C. & K. 296; Reg. v. Car-
penter, L. R.1C. C. 29; Rex v. Squire,
Russ, & Ry. 349. But a bailiff of a
county court was held not to be a
servant of the high bailiff: Reg, v.
Glover, L. & C. 466,
5C, v. Wyman, 8 Met. 247.
6C. v. Tenney, 97 Mass, 50; S. v.
Fuller, 34 Conn. 280.
7C, v. Ketner, 92 Pa. St. 372.
8C. v. Tenney, 97 Mass. 50,
® Leonard v. S., 7 Tex. Ap, 417.
642
Cu. 27.] EMBEZZLEMENT, [§ 634.
a statute it has been held that the language of the exception
made it applicable to clerks, agents or servants of a private
person or copartnership and not to officers, agents and clerks
of an incorporated company.!
§ 634. Property received by virtue of employment.— It
will be seen hereafter that in some states there are statutes
broad enough to cover any case of misappropriation by persons
to whom the property of another is intrusted; but the statutes
which have been considered above, relating to agent, clerk or
servant, evidently contemplate that the misappropriation is to
be of something received in consequence of some employment
instead of as bailee,? and is also to be of funds or property re-
ceived by virtue of the employment.’ Therefore, a servant is
not guilty of embezzling money which he was not authorized
to receive! But the word “employment” is not to receive a
strict construction in such cases, and if the receipt of the money
is within the general scope of the agent’s authority, he is to be
held answerable therefor, although beyond the limits of ex-
press authority in a particular case;* and the money may be
received by virtue of the employment, although the employer
has only a temporary right thereto, and is not the ultimate
owner.’ If the money is received in the course of the employ-
ment, the crime of embezzlement of such money may be com-
mitted after the employment has terminated.’ It is not neces-
18. v. Goode, 68 Ia. 593.
28. v. Foster, 37 Ia. 404, 1 Am. Cr.
R. 146 and note.
38, v. Johnson, 49 Ia. 141; S. v.
Roubles, 48 La. An. 200; S. v. John-
son, 21 Tex. 775; Taylor v.S., 29 Tex.
Ap. 466; Griffin v. S., 4 Tex. Ap. 390;
Reg. v. Cullum, L. R. 2 C. C. 28
Even where the statute covers the
case of one to whom “money shall
have been delivered,” such delivery
must be by virtue of some trust or
employment, and the statute does
not cover a delivery by mistake: C.
v. Hays, 14 Gray, 62. The indict-
ment should allege receipt of the
money or property by defendant as
clerk or employee: Moore v. U. &.,
160 U. 8, 268.
4Rex v. Thorley, 1 Moody, 348;
Rex v. Snowley, 4 C. & P. 390; Reg.
v. Harris, Dears. 344; Reg. v. Arman,
Dears. 575.
5 Rex v. Beechey, Russ. & Ry. 319;
Reg. v. Adey, 3C. & K. 339; Rex v.
Smith, Russ. & Ry. 516. Where an
agent drew money without author-
ity, though within the scope of his
business, and appropriated it, he was
held to have received it by virtue of
his employment: Ex parte Hedley,
31 Cal. 108; P. v. Gallagher, 100 Cal.
466.
6Reg. v. Beaumont, Dears. 270;
Reg. v. Thorpe, Dears. & B. 562; Reg.
y. Gale, 2 Q. B. D, 141.
7Rex v. Lovell, 2 M. & Rob. 286;
S. v. Jennings, 98 Mo. 493.
643
§ 635.] [Parr VII.
OFFENSES AGAINST PROPERTY.
sary that at the time of the conversion the money be held by
defendant by virtue of his employment.! Under some statutes
it seems to be necessary to allege that the employee received the
money from his employer.? Under statutes using language
which makes the offense consist in misappropriating the money
or property of any other person which shall have come into the
custody of the employee by virtue of his employment, it is not
necessary that the money shall have been received from some
one other than the employer, “other person” being construed
to mean some other person than the employee.’ For the purpose
of showing a fiduciary relation as to the money, the indictment
must positively allege the money to be the property of the em-
ployer.’ Where the property is not received by the defendant
by virtue of the employment and as the property of the em-
ployer, the offense is not committed. But it is not necessary
that there be further possession or custody than that involved
in- the relation of employer and employee. Thus, where a
bank clerk, having access, by virtue of his employment, to the
funds and securities of the bank in its vault, misappropriated
such property, it was held that he was guilty of embezzle-
ment.’
§ 635. Illegally received.— The fact that the money or
property is illegally received,’ or received under an illegal em-
1Taylor v. S., 29 Tex. Ap. 466. A
trustee holding property after the
termination of the transaction in
which it was intrusted to him may
be guilty of embezzlement thereof:
Cc. v. Butterick, 100 Mass, 1.
2P. v. Bailey, 23 Cal. 577. But
even under such a statute it is not
necessary that the money be re-
ceived directly from the employer;
it may be received from another
servant: 8S. v. Fournier, 12 Mont. 235;
and see Reg. v. Masters, 1 Den. 332;
or it may be received by the party
charged through his agent: S. v.
Hinckley, 38 Me. 31.
3C. v. Stearns, 2 Met. 348; P. v. Hen-
nessey, 15 Wend. 147; S, v. Porter,
26 Mo. 201; 'T. v. Maxwell, 2 N. Mex.
250; Fleener v. S., 58 Ark. 98,
4Rex v. McGregor, 3 Bos. & P. 106;
Rex v. Beacall, 1 Moody, 15; Griffin
v.S., 4 Tex. Ap. 390; Washington v.
S., 72 Ala. 272: Ricord v. Central Pa-
cific R. Co., 15 Nev. 167.
5 Thus, a mail rider stealing money
sent in a registered letter is not the
agent of the person sending the let-
ter so as to be punishable for embez-
zlement by an agent: Brewer v.S.,
83 Ala. 113. So where a husband
converted to his own use money de-
posited with the wife by a third per-
son, held, that the husband was not
guilty of embezzlement: Pullam v.
S., 78 Ala, 31.
68. v. Ezzard, 40S. C. 812,
7Ker v. P., 110 Ill. 627.
8Thus, money received by virtue
of a state appropriation was held
subject of embezzlement, although
the order therefor was improperly
644
Ca. 27.] EMBEZZLEMENT. [§ 636.
ployment, will not render the embezzlement thereof any the
less punishable.' So the fact that the money is received as offi-
cer of a club not organized according to law,’ or as agent of a
foreign corporation which has not filed its articles as required
by state statute,’ will not prevent the conversion thereof being
punishable. But if the money or property is not that of an-
other there can be no embezzlement. Thus, to receive wages
which have been assigned by a transfer which is invalid, and
has therefore not passed the right to them, is not criminal.‘
§ 636. What property subject to embezzlement; value.—
Where the statute as to embezzlement refers to “money or
property,” the term “ property ” means the same as it does under
an indictment for larceny using the same term. Indeed most
of the cases relating to the question as to what is a subject of
larceny would be applicable here.’ But cases relating specially
to embezzlement may properly be referred to in this connec-
tion. Where the statute includes in the enumeration of prop-
erty subject to embezzlement “ bank bills or notes,” the word
“notes” must be considered to mean bank notes, and not
promissory notes.’ A negotiable bond, bill, or note, which has
not yet been put in circulation by the maker, may neverthe-
less be subject of embezzlement by one who converts it to his
own use by putting it into circulation and obtaining a consid-
eration therefor. Shares of stock constitute property and
drawn- by the governor instead of
the state treasurer: P. v. Royce, 106
Cal. 173.
1C. v. Cooper, 180 Mass. 285; 8. v.
Tumey, 81 Ind. 559; Rex v. Beacall,
1C. & P. 312; Rex v. Wellings, 1 C.
& P. 454. So irregularity in the or-
ganization of a society will not pre-
vent punishment of its servants for
embezzlement: Reg. v. Miller, 2
Moody, 249; Reg. v. Stainer, L. R. 1
C. C. 280; Reg. v. Frankland, L. & C.
276; otherwise, if the organization
is an unlawful combination: Reg. v.
Hunt, 8 C. & P. 642.
2Reg. v. Tankard, 1 Q. B. D. (1894),
548.
38, v. O’Brien, 94 Tenn. 79.
4S, v. Williamson, 118 Mo. 146; St.
Clair v. S., 100 Ala. 61.
5S. v. Orwig, 24 Ia. 102. This case
holds that bills of exchange are in-
cluded under such a statute.
6 See §§ 586-5438, supra. A charge
of embezzling money is not sustained
by proof of embezzling a check with-
out evidence that it had been con-
verted into money: Reg. v. Keena,
L, R. 1 C. C. 118.
78. v. Stimson, 24 N. J. 9. Halves
of bank-notes sent in a letter were
held to be goods and chattels: Rex
v. Mead, 4 C. & P. 535.
89. v. White, 66 Wis. 343. So
where defendant procured accept-
ance of bills which he was after-
wards to sign as drawer, and which
he subsequently negotiated, misap-
propriating the proceeds, held, that
he was guilty of embezzling securi-
645
OFFENSES AGAINST PROPERTY.
§ 636.] [Parr VIL
may be embezzled! Where the statute includes the embezzle-
ment of “any instrument being the act of another,” it does not
include a chattel mortgage executed by defendant himself.?
There may be an embezzlement involved in the unauthorized
assignment of an instrument held as agent or trustee, al-
though the holder is unable by means of such assignment to
convey a title tothe property represented by such instrument.*
Where the description of the offense is analogous to that of
larceny, the statutes generally make use of the term “ property
of another.”4 As has already been explained, this means of
another than the agent, clerk or servant who is charged with
embezzlement.’ Such a statutory definition prevents there
being any embezzlement in the case of auctioneers or commis-
sion men who lawfully receive the proceeds of property sold
and mingle them with their own, such proceeds not being the
property of another because their duty is only to account, and
not to turn over the identical funds received. In order to show
that the property is that of another, it is necessary to name the
owner in the indictment.’ In analogy with the rule in larceny
it has been held necessary to allege that the property embez-
zled was of some value;® but these statutes as to embezzlement
do not in all cases divide the offense as to the punishment into
two degrees or branches, depending upon the value of the
property.’ Sometimes, however, the value is essential to de-
termine the punishment, as in larceny, and must be alleged.”
ties: Reg. v. Bowerman, 1 Q. B. D.
(1891), 112. But where the charge
was of embezzling exchequer bills,
it was held that bills not signed by
a person duly authorized did not
come within that description: Rex
v. Aslett, Russ. & Ry. 67.
Ip, v. Williams, 60 Cal. 1.
28. v. Grisham, 90 Mo. 163.
3C. v. Pratt, 137 Mass, 98.
4Embezzlement cannot be predi-
cated on a disposition of money
which is the absolute property of
accused, even though he fraudu-
Jently conceal it from his creditors:
Parli v. Reed, 30 Kan. 534,
5See § 634, supra,
6C, v. Stearns, 2 Met. 343. See,
also, infra, § 639.
7S, v. Lyon, 45 N. J. 272,
8S. v. Stimson, 24 N. J. 9.
9P. v. Salorse, 62 Cal. 189; S. v.
Weydeman, 3 Wash. 399.
10P, v. Schultz, 85 Mich. 114; Grant
v. §., 35 Fla. 581; Cooksie v. S., 26
Tex. Ap. 72; Aldrich v.S., 29 Tex.
Ap. 894, "Where the stealing of cer-
tain kinds of property is punishable
as larceny without regard to value,
the value is immaterial in a prose-
cution for embezzlement of such
property: Washington v. S., 72 Ala.
272,
646
’
“On. 27.]
EMBEZZLEMENT. [§§ 687, 638.
§ 637. What acts sufficient.—So long as the person in-
trusted with money or property acts with reference thereto in
accordance with the terms of the trust, whether as servant,
clerk, agent, or trustee, he evidently cannot be guilty of em-
bezzlement. The question as to what acts shall be sufficient to
‘show the commission of the crime is, in many classes of cases,
one of great difficulty. Some of these classes must be discussed
‘separately.
§ 638. Conversion of property.— With regard to property,
not money, it is necessary that some adverse use or holding
‘be shown depriving the owner of his property.! But there is
no prescribed set of circumstances which will be necessary or
sufficient to show a fraudulent conversion. The question is
one of fact.2. For instance, it was held sufficient evidence of
the embezzlement of a piano that defendant sold it with that
“purpose and took a note for the proceeds in hisown name.’ So
where one, pretending to have a customer for diamonds, pro-
cured diamonds from a broker with the agreement that he
would return the proceeds of the sale or the diamonds if not
‘sold, and, instead of doing so, pawned the diamonds, it was held
that embezzlement was sufficiently established.t Wherea clerk
‘in charge of an elevator issued fictitious grain orders, and de-
livered grain upon such orders, appropriating the money paid
therefor, he was held to be guilty of embezzlement.> But, in
general, an agent authorized to sell is not guilty of embezzle-
ment in selling, though he may be guilty with reference to the
misappropriation of the proceeds.® Indeed, the fact of conver-
sion alone does not establish embezzlement,’ but the question
1 Chaplin v. Lee, 18 Neb. 440.
3P. v. Dalton, 15 Wend. 581, where
it is said that conversion of a letter
containing money does not neces-
sarily involve the opening of the
letter and the extracting of the
money therefrom.
39, v. Adams, 108 Mo. 208.
48, v. Samuels, 111 Mo. 566; S. v.
Foley, 81 Ia. 36. So, in general, an
agent receiving property for sale on
commission is guilty of conversion
ain pledging it for money borrowed
for his own use, with the intent to
deprive the owner of his property:
Morehouse v. S., 35 Neb. 643.
5 Calkins v. S., 18 Ohio St. 366.
6P, v. Doane, 77 Cal. 560; Carter
v. 8., 53 Ga. 326; S. v. Wallick, 87 Ia.
869. Where, however, one author-
ized to sell bonds for a city delivered
them to a broker for sale, directing
the proceeds to be placed to his own
or another’s credit and not to the
credit of the city, he was held guilty
of conversion of the bonds: Bork v.
PB, OLN. Y. 5.
78. v. Wallick, 87 Ia. 369.
647
[Part VII.
4
of authority and intent must also be considered. The con-
version necessary in embezzlement is the taking the property
of another for the defendant’s own purposes, knowing that such
taking is without right, and without the consent of the owner,
by concealment, such concealment implying an affirmative
deception or preconceived and intentional fraud? The fraud-
ulent concealment alone under some statutes amounts to em-
bezzlement where it is with intent to convert.’ Refusal to:
account for the property on demand may be evidence of em-
bezzlement,* but conversion may be otherwise shown than by
demand and refusal. Demand is not essential where there has
been an actual conversion.°
§ 639. Conversion of money; demand and refusal.— The
most difficult question in determining whether there has been
a conversion of money depends upon the determination as to
whether the money has been in the custody of the servant,
clerk, or agent for the master or employer, or whether the re-
lation between the parties has been that of debtor and creditor.
It is evident that the mere failure of one who ought to pay
money to his creditor to do so does not constitute embézzle-
ment, but is a mere breach of contract. Thus, if one intrusted:
with property for sale, and who is to account for the proceeds
thereof, but has the right to mingle such proceeds with his own:
money, and pay for the property under the terms of a contract
with reference to the sale thereof, as is proper in the case-
of auctioneers and commission men, fails to account for such
proceeds, he will not under the ordinary statutes relating to-
§ 639.] OFFENSES AGAINST PROPERTY.
1 As to intent see infra, § 641.
2C. v. Tuckerman, 10 Gray, 173,
202; S. v. Pierce, 77 Ia. 245; Fleener
v. 8, 58 Ark. 98; P. v. O’Brien, 106
Cal. 104; S. v. Ezzard, 40 S. C. 312,
3 Spaulding v. Cook, 48 Vt. 145; S.
v. Goode, 68 Ia. 593. But where one
who hauled bales of cotton for the
owner of a gin mill marked one of
the bales with his son’s name, and
took a receipt for it in that name,
but afterward turned the receipt
over to the owner on being ques-
tioned, held, that he was not guilty
of fraudulent secreting with intent
to convert: Penny v. §., 88 Ala, 105.
48. v. Foley, 81 Ia. 36.
5C. v. Hussey, 111 Mass, 482; S. v.
New, 22 Minn. 76.
6 Keeller v. S., 4 Tex. Ap. 527; Reg..
v. Barnes, 8 Cox, 129. But the fact
that a party has given bond for the
discharge of his duties as trustee
will be no defense in a prosecution
for embezzlement of trust funds:
P. v. De Lay, 80 Cal. 52. The fact
that the money has been paid over
by a guaranty company will not.
prevent prosecution for the crime:
Fleener v. S., 58 Ark. 98,
648
Cx. 27.) EMBEZZLEMENT. [§ 639.
embezzlement be guilty of the crime.! In such cases the money
received cannot be said to be that of another within the terms
of the usual embezzlement statutes.?, There may be special
statutory provisions, however, which render a factor or com-
mission merchant criminally liable for not accounting for the
proceeds of sales of the principal’s property on demand being
made therefor? The question whether he was acting as a
broker in the transaction and therefore authorized to mix the
proceeds with his own property and thus become a debtor, or
whether he was merely agent for the transfer of the property
and handing over the proceeds, is for the jury, and the fact
that he gives his own notes to secure the payment of the pro-
ceeds is not conclusive.* An agent or the officer of a corpora-
tion may become liable for embezzlement, although as agent
or officer he has authority to handle such funds in the course
of his employment.? Thus, where the treasurer of a corpora-
tion had the right to pay the funds of the corporation into the
bank to his account as treasurer, and to draw the same in the
course of the business, it was held that he might be guilty of
embezzlement of such funds, and did not occupy the relation
of a mere debtor.6 Where one intrusts money to another to be
used or invested in a particular way, there may be embezzle-
ment by misappropriation although the money was never to
be returned to the owner.’ In England the statutes applicable
1C. v. Stearns, 2 Met. 343. So held
where the defendant was agent of
the manufacturer of agricultural im-
plements, and the contract author-
ized time settlements with the em-
ployer for the machinery sold:
Miler v. S., 16 Neb. 179; S. v. Wal-
lick, 87 Ia. 369. And see supra, § 636.
2C, v. Stearns, 2 Met. 843. So where
defendant was furnished sewing ma-
chines for sale on terms requiring
him to account in money or in notes
payable to his principal, but by a
subsequent contract he was author-
ized to trade machines for live-stock,
and to convert the stock into money
and account therefor, held, that the
authority thus conferred changed
the character of the contract, so
that neither the stock taken nor the
proceeds of such stock constituted
the property of the principal, and
there could be no embezzlement:
Webb v. S., 8 Tex. Ap. 310.
3 Wright v. P., 61 Ill. 382; War-
riner v. P., 74 IIL 346; C. v. Harris,
168 Pa. St. 619.
4C. v. Foster, 107 Mass. 221.
5C. v. Smith, 129 Mass. 104,
€C. v. Tuckerman, 10 Gray, 173.
The mere fact that the money held
by a bailee is deposited in bank, and
the money drawn on that account
is afterwards converted, will not pre-
vent the act being embezzlement:
C. v. Mead, 160 Mass. 319.
7Kribs v. P., 82 Ill. 425, 2 Am. Cr.
R. 109, and note. A broker to whom
money is sent to be invested in cer-
tain stocks on margin is guilty of
649
AS apa
2
OFFENSES AGAINST PROPERTY. [Parr VII.
§ 640.]
to such cases require, in order that the failure to use the money
for the purpose intended shall be embezzlement, that there shall
have been a direction in writing as to the use to be made of it.!
Aside from a special duty with reference to funds received by
an agent or trustee, the mere fact that he is intrusted with
funds and fails to account for them, even where he has ex-
pended the money as his own, will not conclusively show em-
bezzlement, but the question will be whether such disposition
was with intention to defraud But if the failure to account
for funds so received is found to have been fraudulent, there is
sufficient ground for the conviction of embezzlement.> If one
who has money for another has a lien thereon, as, for instance,
for services as attorney, embezzlement will not be committed
in failing to pay over the funds until there has been a, set-
' tlement.! Mere proof of the receipt of funds and failure to
account therefor is not, in general, sufficient to show embez-
zlement by an agent or servant; the fact of conversion mast
be proven.’ Demand and refusal may be evidence of conver-
sion. But the fact may be shown otherwise than by demand
and refusal.’ The embezzlement is complete if the funds are
by the agent turned into his own account with fraudulent in-
tent,’ the intent being the important element in such cases.
§ 640. Failure to account or pay over.— In regard to money
it is sometimes difficult to determine just when the embezzle-
102 Cal. 552; P. v. Royce, 106 Cal
embezzlement if he retains the
money assuming the contract him-
self. The custom of assuming the
contract by the broker is illegal: C.
v. Cooper, 130 Mass. 285. And see
Reg. v. Christian, L. R. 2 C. C. 94.
1Rex v. White, 4 C. & P. 46; Reg.
v. Christian, L. R. 2 C. C. 94; Reg. v.
‘Golde, 2 M. & Rob. 425.
2P, v. Galland, 55 Mich. 628; P. v.
Hurst, 62 Mich. 276; P. v. Wads-
worth, 63 Mich. 500; Fitzgerald v. S.,
50 N. J. 475; P. v. Gale, 77 Cal. 120.
3P. v. De Lay, 80 Cal. 52; Fitz-
gerald v. S., 50 N. J. 475.
4Van Etten v. S., 24 Neb. 734. And
further as to embezzlement by at-
torneys, see supra, § 629.
58, v. Bryan, 40 Ia. 379; Thomas v.
Dunaway, 30 Ill. 373; P. v. Wyman,
173; Fleener v. S., 58 Ark. 98; & v.
O’Kean, 35 La. An. 901. And see
supra, § 639.
6S. v. Bryan, 40 Ia. 379; & v.
Brooks, 85 Ia, 366.
7C. v. Tuckerman, 10 Gray, 173;
C. v. Mead, 160 Mass. 319; S. v. Tomp-
kins, 32 La, An. 620; S. v. Porter, 26
Mo. 201. See supra, § 638. It is not
necessary to allege demand: & v.
Flournoy, 46 La. An. 1518 There
may be conversion although the
time for paying over has not arrived:
P. v. Royce, 106 Cal. 173,
8C. v. Butterick, 100 Mass. 1.
5C. v. Este, 140 Mass. 279. But
there must be an adverse holding or
use: Ibid. And further on the sub-
ject of intent, see infra, § 641.
650
Ox. 27.) EMBEZZLEMENT. [§ 640.
ment takes place. Under earlier English statutes it seems to
have been held that a mere failure to pay over, where there
had been no omission to enter up the amount received on the
proper books, did not constitute an embezzlement.' Mere re-
ceipt, however, and a failure to account, where it appears to
have been wilful, is sufficient to show embezzlement.2 Entries
‘on account books are not conclusive on the person making
them, and may even be made for the purpose of covering up
previous deficiencies without in themselves constituting em-
bezzlement;* but if the agent, to cover up deficiencies on ac-
count of sims of money previously received, reports certain
sums as unpaid which have in fact been received by him, he
therein is guilty of embezzlement.‘ Books of account kept by
defendant for his employer, or receipts given by him, are admis-
sible to show the sums with which he is chargeable.® Where
a clerk’s accounts showed that on the morning of thé day in
question he had on hand a certain sum which in the evening
he was unable to produce, there being no showing that the
shortage had occurred previously, it was held that there might
properly be a conviction for the embezzlement of the amount
of the shortage without any evidence as to the persons from
whom the money with which he had charged himself was re-
ceived.’ It has been thought in some cases necessary to point
out the particular sum embezzled,’ but it would seem by the
later cases that a failure to pay over a portion of a general
balance, as has already been indicated, would be sufficient.’
1 Rex v. Hodgson, 3 C. & P. 422;
Reg. v. Creed, 1 C. & K. 63. Buta
correct entry was held not to exctse
a concealment and failure to pay
over a portion of sums received:
Reg. v. White, 8 C. & P. 742; Reg. v.
Guelder, Bell, 284; Reg. v. Lister,
Dears. & B. 118. It is not enough to
prove the receipt of money not en-
tered up unless there is also evi-
dence of denial of receipt: Rex v.
Jones, 7 C. & P. 833.
2Reg. v. Jackson, 1 C. & K. 384;
Reg. v. Aston, 2C. & K, 418; Rex v.
Hall, Russ. & Ry. 463. Thus, where
a servant, having received money in
England, immediately went off to
Ireland with it, it was held that the
jury might infer an intent to em-
bezzle: Rex v. Williams, 7 C. & P.
338,
3C. v. Este, 140 Mass. 279.
4 Bowman v. Brown, 52 Ia. 437.
5P. v. Bidleman, 104 Cal. 608; P. v.
Leonard, 106 Cal. 302; S. v. Reinhart,
26 Oreg. 466.
6 Rex v. Grove, 7 C. & P. 635. And
see Reg. v. Moah, Dears. 626.
7 Reg. v. Chapman, 1 C. & K. 119;
Reg. v. Wolstenholme, 11 Cox, 318;
Rex v. Murray, 5 C. & P. 145.
8 Rex v. Grove, 7 C. & P. 685; Reg.
v. Moah, Dears. 626; Rex v. Hall,
Russ, & Ry. 468.
651
R
§ 641.] OFFENSES AGAINST PROPERTY. [Part VIL.
While it may be that under some statutes a refusal to pay on
demand is sufficient to constitute a conversion, the demand by
another than the principal, on his behalf, will not be sufficient
to make a failure to pay in response thereto embezzlement, un-
less the person making the demand has authority from the
principal to make it.
§ 641. Intent necessary.— The statutes frequently make in-
tent to defraud an essential part of the offense, and in such
case the use of the word “embezzle” alone without an allega-
tion of such intent to defraud is not sufficient.2 And aside
from this statutory requirement it is essential that there be, as
in other crimes, a criminal intent. If the defendant has not
concealed the receipt of the money, but has claimed in good
faith to keep it under some right as against the owner, he is
not guilty of embezzlement.' But where the statute makes a
particular act embezzlement, such as the act of the officer of a
bank in knowingly overdrawing his account, then knowingly
doing the act is sufficient without regard to the intent with which
it was done.’ It is immaterial whether the intent to convert was
formed before or after the receipt of the money.’ So, where
the officer of a bank was charged with wilfully misapplying the
funds in certain speculations, it was held that defendant could
not disprove such averment by showing that his actions were
known to the president and some of the directors, and were
sanctioned by them and were intended for the bank’s benefit.”
If there is a taking with wrongful intent, an intent to return
or restore is immaterial.
1P, v. Tomlinson, 66 Cal. 344,
28. v. Lyon, 45 N. J. 272.
3U. 8. v. Sander, 6 McLean, 598;
Stallings v. S., 29 Tex. Ap. 220; C. v.
Este, 140 Mass. 279. The doing of the
wrongful, fraudulent and illegal act
sufficiently shows the intent: U.S.
v. Harper, 33 Fed. R. 471.
4Reg: v. Norman, Car. & M. 501.
If defendant claims to have acted in
the belief that he was authorized to
use the money as he did, his acts in-
consistent with such belief may be
shown: P. v. Bidleman, 104 Cal. 608,
58. v. Stimson, 24 N. J. 478.
6S. v. Findley, 101 Mo. 217.
7U.S. v. Taintor, 11 Blatch. 374.
8C. v. Tenney, 97 Mass. 50; S. v.
Pratt, 98 Mo. 482; S. v. Trolson, 21
Nev. 419. And so it will be imma-
terial that defendant offered return
or repayment before a prosecution:
was instituted: P. v. De Lay, 80 Cal.
52. But in England a disclosure.
seems to have been held material in:
a bankruptcy proceeding: Reg. v..
Skeen, Bell, 97.
652
Cx. 27.) EMBEZZLEMENT.
[S$ 642-644.
§ 642. Other acts.— For the purpose of showing intent it is
proper to prove other acts of embezzlement similar to that
-charged.!
§ 643. Without employer’s consent.— Statutes sometimes
make it essential that the misappropriation shall have been
without the consent of the owner, and under such a statute
‘the want of consent should be charged;? but to prove want of
‘consent it is not necessary to show dissent on the part of the
owner.’ In the case of an officer of a company, the phrase
“without consent of the employer or master” would refer to
the consent of the directors, and would be applicable even
though the officer has exclusive control of the funds as to de-
positing and paying them out. Without regard to any statu-
‘tory provision the consent of the owner of the money or
‘property would of course show absence of wrong;* but the
‘master’s consent involved in marking money to be paid by an-
other to the servant in the usual course of business for the
master would not be such consent as to prevent the wrongful
‘taking being embezzlement, the consent involved being a con-
-sent to the lawful act and not to the conversion.®
III. By Carrier or Orner Barren.
§ 644. Carrier liable.— The rule has been already stated in
connection with the subject of larceny, that a bailee or carrier
is not guilty of that crime in appropriating the goods to his
own use, in violation of the purposes with which they are
delivered to him, unless, as in case of a carrier, there is a
breaking of the package or some such act which may be
-deemed a renunciation of the bailment.’ The offense of un-
1p, v. Gray, 66 Cal. 271; Stanley v.
S,, 88 Ala, 154; Lang v. S., 97 Ala.
41; P. v. Cobler, 108 Cal. 538; S. v.
Lewis, 19 Oreg. 478; Reg. v. Proud,
L. & C. 97; Reg. v. Richardson, 2 F.
-& F, 343.
28. v. Foster, 11 Ta. 291. But
where such a clause is used with
reference to a conversion of goods,
it may be applicable only where it
is claimed that the goods were dis-
posed of without the owner’s con-
sent, and not to a case of fraudulent
conversion by defendant to his own
use: Alderman v. §S., 57 Ga. 367.
3P. v. Dalton, 15 Wend. 581.
4C. v. Tuckerman, 10 Gray, 173.
5Henderson v. &., 1 Tex. Ap. 432.
Subsequent ratification of the act
by the employer will not be a de-
fense: 8S. v. Frisch, 45 La. An, 1283.
6Rex v. Headge, Russ. & Ry. 160;
Rex v. Whittingham, 2 Leach, 912;
Reg. v. Gill, Dears. 289.
7 Supra, $§ 554, 555.
653
yee,
§ 644.] OFFENSES AGAINST PROPERTY. [Part VII.
lawful conversion of property in such cases is by many stat—
utes made the crime of embezzlement. Such statutes sometimes.
apply specially to common carriers, that is, those who receive-
goods to be carried for hire;! and such statutes may not extend
to any other cases of bailment than those to a common carrier.®
As to bailees in general, they are not included within a stat-
ute relating to embezzlement by agents, trustees, servants or
clerks.? But the general statute may be broad enough to em-
brace all persons who are guilty of fraudulently securing or
converting to their own use the money or property of others
intrusted to them or placed in their hands to be carried or de-
livered;‘ and this may cover an ordinary bailment.’ In such
case the delivery may be constructive. For instance, where
baggage checks were delivered, it was held to be such delivery
of the baggage as to make a conversion of the baggage by
means of possession of the checks, embezzlement.6 Under stat-
utes for the punishment of those who wrongfully convert prop-
erty intrusted to them, a pledgee may be guilty of embezzle-
ment.? So, one to whom implements are intrusted for sale
may be guilty of embezzlement in converting them to his own
use without the owner’s consent. But one to whom property
‘is hired, or delivered under a conditional sale, is not guilty of
embezzlement in selling the property in disregard of the limita-
tions upon his rights therein. Where the statute defining the
offense of embezzlement by carrier or other bailee does not
make demand an element of the crime, conviction may be had
without proof of such demand.” The property must have come
into the possession of defendant by virtue of the embezzle-
ment," and the indictment must show specifically what prop-
erty is charged to have been converted,” and in what capacity
the defendant received it."
1White v. S., 20 Wis, 233; 8. v. though in case the bailee may have
Stoller, 38 Ta, 321. authority to sell, the sale may bea
28. v. Grisham, 90 Mo. 163. conversion if with intent to misap-
3Hutchinson v. C., 82 Pa. St. 472. propriate the proceeds: Epperson v.
And see Reed v. S., 16 Tex. Ap. 586. S., 22 Tex. Ap. 694
4 Johnson v. C., 5 Bush, 480; Alder- 9Watson v. S&S, 70 Ala. 18; Wil-
man v.S., 57 Ga. 367. jams v. §., 25 Tex. Ap. 733.
58. v. Foster, 37 Ia. 404. 10 Wallis v. S., 64 Ark. 611.
6P. v. Husband, 36 Mich. 306. 11Gaddy v. 8., 8 Tex. Ap. 127.
7C. v. Butterick, 100 Mass. 1; P.v. 12P, v. Cohen, 8 Cal. 42.
Husband, 36 Mich. 306., 13C, vy. Concannon, 5 Allen, 502..
8S. v. Leicham, 41 Wis, 565. And
654
Ca. 27.) EMBEZZLEMENT.
[88 645, 646.
IV. By Pusuio Orricrrs.
§ 645. Special statutory provisions.— It has been generally
assumed that the ordinary statutes as to embezzlement by
agents, clerks and servants do not apply to public officers.
At any rate, the mere use of public funds by an officer for pri-
vate gain is not an offense at common law?
§ 646. Who deemed public officer.— A statute which pro-
vides for the punishment of embezzlement by any public officer
who is a receiver of public money will embrace all officers of
states, counties and other public corporations to whom money
is intrusted by virtue of such office.’ It is difficult to deter-
mine in all cases who is to be deemed a public officer. If the
office is one involving the taking of an oath and the filing of a
bond by the occupant, whether he be elective or not, such occu-
pant is a public officer.* This general description would cover
a state treasurer,’ or his deputy,’ or a deputy sheriff.’ Where
the statute specifies municipal officers, the treasurer of a school
district is within its terms,’ and a statute specifying officers.
appointed or elected by virtue of the constitution or any law
of the state covers township trustees® ora city treasurer.” It
has been held that a clerk of the board of county commission-
ers is within the statute “a clerk to a body corporate,” the
commissioners being a corporation." A tax collector,” and a
clerk of the administrator of city finance," have been held to
1 Supra, § 621.
2In re Breene, 14 Colo. 401. Per-
haps there is at common law some
punishment for the embezzlement of
public funds; but where the statute
provides a specific remedy, this rem-
edy is exclusive of any other: Hell-
ings v. C., 5 Rawle, 63.
38. v. Boody, 53 N. H. 610.
48. v. Walton, 62 Me. 106; P. v.
Bedell, 2 Hill, 196. As to who is a
public officer under federal statute,
see U. S. v. Hartwell, 6 Wall. 385;
but a general federal statute as to
public officers does not cover an as-
signee in bankruptcy: U. & v.
Bixby, 10 Biss. C. C. 238,
3 P, v. McKinney, 10 Mich. 54
6S. v. Brandt, 41 Ia. 593. An assist-
ant may be an officer, and not
merely a servant or clerk of his su-
perior officer: U.S. v. Bornemann,
36 Fed. R. 257.
78. v. Brooks, 42 Tex. 62. ;
8C. v. Morrisey, 86 Pa. St. 416. So
an officer employed by the state in
the operation of its gas works was
held to be within the terms of such
a statute: Culp v. C., 109 Pa. St, 363.
98. v. Cleveland, 80 Mo. 108,
10S, v. Krug, 12 Wash, 288.
Us. v. Denton, 74 Md. 517; Denton
v. &., 77 Md. 527.
12 Shivers v. S., 53 Ga. 149.
188, v. Exnicios, 33 La. An. 253,
655
8§ 647, 648.] OFFENSES AGAINST PROPERTY. [Parr VII.
be public officers. By statute one may be guilty of such offense
by aiding and abetting the officer, although not an officer him-
self}
§ 647. De facto officer.— One who acts de facto as a public
officer cannot escape liability for embezzlement on the ground
that he is not such officer de jure, and it is immaterial that
the officer has not taken the oath or given bond as required
by law. It is sufficient to allege that defendant was a public
officer, stating the office, without alleging how he came into
such office or that he was duly qualified.*
§ 648. Public funds.— The money or property for which
an officer may be held accountable under the statutes with ref-
erence to embezzlement by such officers must be the property
of the state, county, city or other public corporation, and the
ownership of the property must be alleged as in other cases.
But a city bond not yet issued may be property within the
meaning of an embezzlement statute, although the city has not
yet become liable thereon.’ The money may be alleged to be
that of a township, although the township does not by its own
officers collect taxes and pay indebtedness, the money em-
bezzled, however, being a part of a fund collected to pay town-
ship bonds;’ but on the other hand, in such cases the township
bonds may be charged to be the property of the county which
has the custody thereof.’ Where the fund embezzled belongs
in part to the county and in part to the state, the taking of
the whole may be charged as one embezzlement.’ It is not
necessary, however, to allege the source from which the em-
1 Brown v. 8., 18 Ohio St. 497. 5Crane v. S&S, 26 Tex. Ap. 482;
28. v. Goss, 69 Me. 22; Diggs v.S., Alden v. S., 18 Fla, 187.
49 Ala. 311; S. v. Stone, 40 Ia. 547; 6S. v. White, 66 Wis. 348. Where
8. v. Sellers, 7 Rich. 368; 8. v. Ma- atreasurer forwarded a county order
berry, 3 Strobh. 144, to the auditor for credit, although
3Fortenberry v. S., 56 Miss. 286; he knew such order had been re-
C. v. Logue, 160 Mass. 551. It is no deemed by his predecessor, held, that
defense to a deputy that the prin- he was guilty of embezzlement: 8.
cipal appointing him had never qual- v. Baumhager, 28 Minn, 226.
ified: P. v. Cobler, 108 Cal. 538, 78, v. Clarkson, 59 Mo. 149.
49. v. Goss, 69 Me. 22; Rex v. Bar- 88. v. Cunningham, 51 Mo. 479.
rett, 6 C. & P.124; Reg.v.Townsend, %P, v. De La Guerra, 31 Cal. 416.
Car. & M. 178; 1 Whart. Prec. 460; 2
Arch, Crim. Pr. 462,
656
‘Ca. 27.) EMBEZZLEMENT. [§ 649.
bezzled fund has been derived, nor to identify any precise sum,}
nor need the indictment specially allege ownership in county
-or state or other municipality; it is sufficient to describe the
‘fund as public moneys or funds in accordance with the lan-
guage of the statute? Money which an officer has received
without any authority to receive it cannot be deemed public
‘funds in his hands,’ but it is not necessary that it be specially
charged that the funds were received by the officer as such.
The allegation that they were under his official control and
custody is sufficient. It is not necessary that the funds shall
‘have actually come into the treasury in order to render the
‘treasurer liable for embezzlement thereof, if they have come
‘under the treasurer’s control by virtue of his office.
§ 649. What constitutes conversion.— Where the statute
‘makes the offense consist in the failure of the officer to account
for or pay over public funds received by him, it must appear
‘that there was some failure to pay over or account where the
‘officer was legally called upon to do so; for instance, where
‘there is lawful occasion to pay, such as the termination of the
‘term of office,* or lawful demand and a refusal.’ Under some
statutes failure to account or pay over when properly called on
‘is essential to constitute the offense;* but there may be addi-
tional statutory provisions making the misuse of the public
funds criminal without regard to whether there is any ultimate
Joss thereof or failure to account therefor when called on to do
so.® It is not necessary, however, to allege the mode unless the
18. v. Boody, 53 N. H. 610; S.v. v. Hebel, 72 Ind. 861; S. v. Govan, 48
Walton, 62 Me. 106; P.v. McKinney, Ark. 76.
10 Mich. 54
28. v. Hays, 78 Mo. 600; S. v. Flint,
62 Mo. 893; S. v. Walton, 62 Me. 106.
38. v. Newton, 26 Ohio St. 265. But
it is sufficient that it is received on
account of his office: Denton v. &.,
77 Md. 527.
4P. v. McKinney, 10 Mich. 54; Bork
v. P., 91 N. Y. 5.
5P. v. McKinney, 10 Mich. 54; 8S.
v. Ring, 29 Minn. 78; P. v. Gray, 66
‘Cal, 271; P. v. Cobler, 108 Cal. 538;
‘Robson v. S., 83 Ga, 166.
6 Hemingway v.S., 68 Miss. 371; S.
42
7S. v. Bryan, 40 Ia. 379; S. v. King,
81 Ia. 587; S. v. Cameron, 3 Heisk.
%8; S. v. Munch, 22 Minn. 67; S. v.
Leonard, 6 Coldw. 307.
8S. v. Brandt, 41 Ia. 593; Hale v.
Richards, 80 Ia. 164; S. v. Parsons,
54 Ia. 405. But if embezzlement has |
been committed it is immaterial, in
a prosecution therefor, that the loss
has been made good by bondsmen:
Robson v. S., 83 Ga. 166. And see
Fleener v. S., 58 Ark. 98.
98, v. Brandt, 41 Ia. 598; Comstock
v. Gage, 91 Ill. 328; 8. v. Krug, 12
Wash. 288; Reg. v. Moah, Dears. 626.
657
§ 649.] OFFENSES AGAINST PROPERTY. [Parr VII.
statute makes some act other than conversion punishable.) And
the mere failure to make returns or account as required is suffi-
cient.2. A conversion need not be of the specific coins or bills
received, but may be of money taken in exchange therefor.®
There may be embezzlement in applying money received for
public purposes to the extinguishment of a shortage in the offi-
cer’s accounts, but this will not depend on a mere question of
book-keeping, but on whether the money received was actually
applied to public purposes or not.! The question may arise in
such cases as to when the embezzlement actually took place,.
and the officer will not be estopped by his acts from showing
that it really occurred prior to the statutory period of limita-
tion for such prosecution, although at a settlement held within
the statutory period he was able to satisfy the accounting offi-
cers that he had on hand the public funds required.’ The books
of a treasurer being public records are admissible to show the
receipt of funds unaccounted for or a failure to account for
funds received, and it will be immaterial whether the books are
kept by the defendant or by his clerk or deputy, though of
course entries on such books by others will not be conclusive.*
The embezzlement may be committed by an accomplice or by
allowing another to misappropriate to his own use funds in
the custody of the officer.’ If the act of the officer in the mis-
use of the public funds is unlawful, the intention with which
the act was done will be immaterial. He is bound to know the
law, and good faith or innocent motives will not serve as an
excuse. The indictment should charge the act as felonious,
and an allegation of the act itself in the language of the stat-
ute without the usual averment of intent is not sufficient.
1§, v. Clarkson, 59 Mo. 149. pear that he did not misappropriate
2 Britton v. S., 77 Ala. 202. the particular money charged: Ida
3P. v. Bringard, 39 Mich. 22, County v. Wood, 79 Ia. 148.
4C. v. Este, 140 Mass, 279. 6 Hemmingway v. 8., 68 Miss. 371;
5S. v. Hutchinson, 60 Ia. 478 Itis P. v. McKinney, 10 Mich. 74.
immaterial as tending to prove em- 7Brown v. S, 18 Ohio St. 497;
bezzlement at a given time that the Noble v.S., 59 Ala. 73.
officer had money on deposit in ex- 88, v. Manley, 107 Mo. 364; U. S. v-
cess of the amount of the alleged Adams, 2 Dak. 305.
embezzlement, where it does not ap- = Stropes v. S., 120 Ind. 562.
658
Cx. 27.] EMBEZZLEMENT.
[§ 650.
V. Procepure.
§ 650. Venue.— It often becomes a matter of great impor-
tance to determine where the offense is to be deemed to have
been committed. It is of course committed wherever the wrong:
ful conversion or failure to account takes place, but that is some-
times a question of much complication. Itis in general proper
to lay the venue in the county where the defendant receives
the money or property which he subsequently fails to account
for;' but if it appears that he has taken the property into an-
other county before converting it, he cannot be convicted for
embezzlement in the county where the property was received.
In such case the question as to where the intent of wrongful
conversion was first entertained may be material.? If, however,
the crime charged consists in the failure to account, the venue
should be laid in the county where defendant was under obli-
gation to account, or declined to do so on proper demand.
One who is in another state may commit embezzlement in a
county where he causes his employer to be defrauded by means
of a check drawn upon him through a broker.’ In case of em-
bezzlement by a public officer, the crime will be taken to have
been committed in the county of which he is an officer, unless
the contrary affirmatively appears.’ It will appear from the
foregoing discussion that there may sometimes be an election
in the prosecution to lay the offense either where the money or
1Ex parte Palmer, 86 Cal. 631; S.
v. Small, 26 Kan. 209; Cole v. S., 16
Tex. Ap. 461; Reed v. S., 16 Tex. Ap.
586; Wallis v. S., 54 Ark. 611; Rex v.
Hobson, Russ. & Ry. 56. But the in-
dictment should allege the conver-
sion as well as the receipt in that
county: S. v. Mayberry, 9 Wash. 193.
The delivery fixing the venue may
be constructive; for instance, by de-
livery of checks for baggage: Cohen
v. 8. 20 Tex. Ap. 224.
2P, v. Murphy, 51 Cal. 376.
38. v. Bailey, 50 Ohio St. 636;
Campbell v. 8., 35 Ohio St. 70; Brown
v. 8, 28 Tex. Ap. 214; Rex v. Taylor,
3 B. & P. 596; Reg. v. Murdock, 2
Den, 298, Thus, where an agent
who had received moneys in another
county wrote a letter to his employer
intended to conceal the fact of the
receipt of the money, it was held
that the prosecution might be had
in the county where such letter was
received by the employer: Reg. v.
Rogers, 3 Q. B. D. 28. But the mere
fact of an admission of embezzle-
ment being made in a different
county than that where the money
was received, or that where it should
have been paid over, will not estab-
lish the venue in such county: Reg.
v. Treadgold, 39 L. T. 291.
4Ex parte Hedley, 31 Cal. 108
5 Robson v. S., 83 Ga, 166,
659
§§ 651, 652.] OFFENSES AGAINST PROPERTY. [Parr VIT.
property was received, or where there was a failure to account
therefor;! but it would be manifestly unjust to allow the prose-
cution by a mere technicality to lay the venue in a county other
than that in which some wrong was actually done.’
§ 651. Time.— The offense may perhaps be deemed a con-
tinuing one from the first wrongful act up to the final failure
to account. Thus, where fraudulent checks were issued by the
party to an accomplice and were cashed a few days afterwards,
thus consummating the crime, it was held continuous from the
first date to the last. But even if deemed continuous, it is
fully completed when there is a final conversion; and an indict-
ment showing possession and concealment, on a certain date, of
money embezzled and converted on a previous date, is not
good as a charge of embezzlement on the latter date.t In gen-
eral, it is sufficient to allege the embezzlement as of the date
of failure to account on proper demand,’ but it is not necessary
to prove the crime as committed on the date alleged,® and the
taking of separate sums.at different times may be proven.’
§ 652. Description of money or property.— As a general
proposition the money or property should be described with
the same certainty as in an indictment for larceny,‘ and if there
has been a change in form of the property between the time
of receipt and the time of embezzlement, it should be described
as of the form at the time of embezzlement.’ In the case of
money, unless there is a statutory provision to the contrary,
there must be some description, just as in larceny.” But even
aside from any special statute, it is not required that money be
described with impracticable particularity, the exact sum and
the exact specification of the bills or coins being in most cases
impossible." Where money is received by an officer or agent
1§. v. Bailey, 50 Ohio St. 636; Rex 10 La. Ann, 229; Grant v. S., 85 Fla.
v. Hobson, Russ. & Ry. 56. 581; Watson v. S. 64 Ga. 61,
28. v. Bailey, 50 Ohio St. 636, 90. v. Merrifield, 4 Met. 488.
38. v. Cushing, 11 R. I. 313. §, v. Denton, 74 Md. 517; S. v.
48. v, Nute, 63 N. H. 79. Thompson, 42 Ark. 517; S. v. Ward,
5 Colvin v. S., 127 Ind. 403. 48 Ark, 36; Reside v. S., 10 Tex. Ap.
6S. v. Pratt, 98 Mo. 482; P.v. Bidle- 6%5; Gerard v: S., 10 Tex. Ap. 690;
man, 104 Cal. 608; Reg. v. Welch, 2 U.S. v. Greve, 65 Fed. R. 488.
Cc. & K. 296. 118. v. Thompson, 32 La. An. 796;
78. v. Reinhart, 26 Oreg. 466; Reg. Malcolmson v. §., 25 Tex. Ap. 267:
v. Proud, L. & C. 97. Taylor v. S., 29 Tex. Ap. 466; Wallis
8P, v. Cox, 40 Cal. 275; S. v. Edson, v. S, 54 Ark. 611; U. S. v. Borne-
660
Cu. 27.] EMBEZZLEMENT.
[$ 653.
from various sources and through considerable periods of time,
it is not required that the indictment specify with certainty
the particular kind of funds wrongfully appropriated.' There-
fore in a number of states special provisions are found reliev-
ing the prosecution from the necessity of alleging the kind or
description of funds embezzled, and making it sufficient to
charge simply the embezzlement of so much money? If the
money is described as currency of the United States, the court
will take judicial notice of the value. But value is not always
material; and where it is not, no evidence of value is necessary
if 1t appears that the article taken was of some value.' As to
property other than money, it is evident that the description
ought to be as specific as in case of larceny, except as the stat-
ute has prescribed a form.’ Under an indictment for embez-
zlement of money it is not admissible to show embezzlement of
a county order. The description of the property as “a bond
of the United States for the payment of money,” and stating
its value, is a sufficient description.’
§ 653. Ownership of property.— The ownership of the
property embezzled should be alleged,® and a variance between
allegations and proof in this respect will be fatal.? In case of
ownership by partners it is not necessary to state their indi-
vidual names; but such names may be used." If the owner-
mann, 36 Fed. R. 257; Rex v. Car-
son, Russ. & Ry. 303; Rex v. Grove,
5 Mayo v. S., 30 Ala. 32. It is suffi-
cient to follow the statutory lan-
1 Moody, 447.
18, v. Smith, 18 Kan. 274; S. v.
Carrick, 16 Nev. 120; Reg. v. Balls,
L. R. 1 CG. C. 328; Rex v. Tyers, Russ.
& Ry. 402.
2c. v. Bennett, 118 Mass. 443; C.
y. Pratt, 187 Mass. 98; P. v. Brin-
gard, 39 Mich. 22; Huffman v. 6., 89
Ala. 38; S. v. Pratt, 98 Mo. 482; P.
v. Cobler, 108 Cal. 538; S. v. Fain,
106 N. C. 760; Lewis v. S., 28 Tex.
Ap. 140. The defendant may be in
such case entitled to a bill of partic-
ulars: Rex v. Hodgson, 3 C. & P.
422; C. v. Bennett, 118 Mass, 443,
3Gady v. S., 83 Ala. 51.
48. v. Fain, 106 N. C.760. And see
§ 636, supra.
guage: S. v. Trolson, 21 Nev. 419.
6 Goodhue v. P., 94 Ill. 37.
7C, v. Butterick, 100 Mass. 1.
8S. v. Nute, 63 N. H. 79; S. v. Rou-
bles, 48 La. An. 200; S. v. Collins, 4
N. Dak. 483; Grant v. S., 35 Fla. 581.
9 Livingston v. S., 16 Tex. Ap. 652;
McCrary v. &., 81 Ga. 334.
10S, v. Mohr, 68 Mo. 203.
11 Ker v. P., 110 Il. 627. In Eng-
land the statute authorizes the own-
ership to be laid in one of the part-
ners named and others: Reg. v.
Pritchard, L. & C. 84 If one of
the partners is accountable to the
others, the money may be alleged as
his individually: Reg. v. White, 8 C.
& P. 742,
661
§ 654.] [Parr VIL
OFFENSES AGAINST PROPERTY.
ship is laid in a corporation, proof of de facto existence will be
sufficient.!
§ 654. The relation under which the property is received.
There must be some allegation of the character or capacity in
which defendant received the money so as to show that he comes
within the classes of persons who by statute may be guilty of
the crime,? and the particular trust or relation under which it is
charged the defendant received the property must be proved as
laid’ But it is sufficient to allege the receipt of the money or
property by defendant as agent or as bailee, or in some such
general terms, without stating the particulars of the transac-
tion or the relationship. By some statutes it is specifically
provided that it is sufficient to describe the fiduciary relation
in the general terms of the statute.’ It is not essential that
the indictment use the particular words of the statute in de-
scribing the receipt of the money by defendant as agent, as
bailee, etc., if the facts alleged show in what capacity it was
received.® It seems that defendant should be advised by the
indictment, however, from whom the money or property is
charged to have been received by him.’
s
1P. vy. Leonard, 106 Cal. 302; Flee- ute is applicable to bailees under
ner v. S., 58 Ark. 98. The objection
that the indictment does not state
whether or not the association
named as owner is incorporated is
a technical one, not to be raised
after verdict: Laycock v.§., 186 Ind.
217.
2C, v. Smart, 6 Gray, 15; C.v. Wy-
man, 8 Met. 247. But itis sufficient
that the indictment alleges that the
money in question was delivered in
trust and confidence to be held in
defendant’s custody until demand
made, as this implies a bailment for
safe keeping: C. v. Doherty, 127
Mass. 20.
3C. v. O’Keefe, 121 Mass. 59.
4 P, v. Hill, 3 Utah, 334; S. v. Wash-
ington, 41 La. An. 778; S. v. Meyers,
68 Mo. 266; S. v. Jamison, 74 Ia. 602.
Contra, 8. v. Griffith, 45 Kan, 142; P.
v. Cobler, 108 Cal. 588, If the stat-
certain circumstances only, the cir-
cumstances necessary to bring the
cease within the statute must be
alleged: P. v. Cohen, 8 Cal. 42; P. v.
Peterson, 9 Cal. 318; but there is no
such necessity where the statute ap-
plies to all bailees: P. v. Poggi, 19
Cal. 600. If the statute specifies car-
riers for hire, the allegation of the
indictment must show delivery for
that purpose: S. v. Mims, 26 Minn.
191; C. v. Williams, 8 Gray, 461.
But the indictment should directly
charge the receipt of the money:
Grant v. S., 35 Fla, 581.
5 Lycan v. P., 107 Ill. 423.
6P, y. Johnson, 71 Cal. 384; P. v.
Neyce, 86 Cal. 393.
‘S. v. Griffith, 45 Kan. 142; S. v.
Combs, 47 Kan. 136; Gaddy v. S., 8
Tex. Ap, 127.
662
“Cu. 27.) EMBEZZLEMENT.
[8§ 655, 656.
§ 655. Description of the act.— Where the statute specifies
in the alternative several things which shall constitute em-
bezzlement, it is sufficient to allege embezzlement in one of the
ways thus described,! or in both or all such ways.’ In the ab-
sence of some special statutory provision the particular acts
relied upon must be set out.? But the charge of embezzling
and converting to defendant’s own use, after the property has
‘been sufficiently described, and it has been alleged to have come
into the possession of defendant in such capacity as to make
the conversion thereof embezzlement, is sufficient ;* and indeed
an allegation of fraudulent conversion alone has been held suf-
ficient.2 Where the offense consists in the overdrawing of his
account by an officer, it is sufficient to allege such overdrawing
without specifying the particular check by which the money
‘was drawn, or the specific coin, etc., which were drawn.’ In
‘some states, the requisites of the indictment are regulated by
‘statute? Where the statute defines embezzlement as a form
of larceny, the indictinent should allege that the defendant
“did feloniously steal, take and carry away” the property in
the same way as in an indictment for larceny ;* but where the
offense is otherwise described by statute as a distinct crime, it
ds sufficient to allege the act as done unlawfully, fraudulently
and feloniously,’ or otherwise as the language of the statute
may require.
§ 656. Joinder of counts; duplicity.— Under the common-
law rules of procedure both embezzlement and larceny might
-be charged in different counts in the same indictment.” Insuch
ease the prosecution may elect upon which count to proceed."
18, v. Stimson, 24.N. J. 9.
28, v. Dale, 8 Oreg. 229.
to describe the offense as larceny,
though the statute simply declares
3C.v. Wyman, 8 Met. 247; McCann
wv. U.S., 2 Wyo. 267.
4Claassen v. U. S., 142 U.S. 140;
§. v. Jamison, 74 Ia, 602.
58. v. Munch, 22 Minn. 67; Hoyt v.
‘$., 50 Ga. 318; Gibbs v. S., 41 Tex. 491.
68, v. Stimson, 24 N. J. 478.
7C. v. Butterick, 100 Mass, 1; Lycan
w. P., 107 Ill 423; Ker v. P., 110 Tl.
627,
80, « Pratt, 182 Mass, 246; Heller
v. P.,2 Colo. Ap. 459. It is not error
that the acts described shall be a
felony: S. v. Isensee, 12 Wash. 254.
98. v. Noland, 111 Mo. 473. “Embez-
zle and convert” is sufficient with-
out an allegation of stealing, taking
and carrying away: S. v. Reinhart,
26 Oreg. 466.
10 Rex v. Johnson, 3 Mau. & S. 539;
Reg. v. Holman, L. & C. 177; Rex v.
Murray, 5 C. & P. 145; Mayo v. S,
30 Ala. 32.
11 Reg. v. Holman, L. & C. 177.
663
§ 656a.] OFFENSES AGAINST PROPERTY. [Part VIL..
And even where it is not admissible to thus charge different of--
fenses in separate counts of the same indictment, a count
charging larceny in an indictment for embezzlement may be-
dismissed, and the conviction for embezzlement will stand.'
And in general, where the indictment sufficiently charges em-
bezzlement, any additional language in the same count tend-
ing to show larceny may be treated as surplusage.? Separate
embezzlements relating to different property may be prose-
cuted in separate counts although all the property is taken at
one time.’ But there may be one conversion of sums re-
ceived at different times from different persons, and it is not
necessary to describe them as separate offenses.‘ So where
there are successive embezzlements in the case of one employ-
ment, and coming within the same general description, the-
prosecution will not be limited to a proof of one only under an
indictment which in its terms is applicable to each.’ But this.
doctrine would not apply to conversion of some particular arti-
cles of property, as in case of a bailment.6 Where a public
officer in one act takes public funds in his custody belonging in
part to the state, and in part to the county, or township, or other-
municipal corporation, the entire transaction may be chargedi
as one embezzlement, the property being described as one sum.
belonging to the different divisions of the government.’
§ 656a. Forms of indictment.— The offense being entirely
statutory and the statutes varying materially in several impor-
tant respects, it will be impossible to do more than give ex-
amples of indictments which have been held sufficient under
particular statutes, care being taken, however, to select those-
which present the features usually necessary.
1Heller v. P., 2 Colo. Ap. 459. 5 Brown v. S., 18 Ohio St. 497; Ker-
28. v. Adams, 108 Mo. 208; S.v. v. P., 110 Ill. 627. By Wisconsin stat-
Gilmore, 110 Mo. 1; 8. v. Lanier, 89 ute, any embezzlement committed
N. C. 517; S. v. Harris, 106 N. C. 682. within six months after the time-
3C. v. Butterick, 100 Mass.1. And fixed in the indictment may be
the prosecution cannot be required proven: S. v. Cornhauser, 74 Wis. 42..
to elect: S. v. Bailey, 50 Ohio St. 6Kribs v. P., 82 Ill. 425; Goodhue-
636. See S. v. Rapley, 60 Ark. 13. v. P., 94 Tl. 37.
4Gravatt v. S., 25 Ohio St. 162; S| Brown v.8., 18 Ohio St. 497.
v. Reinhart, 26 Oreg. 466,
664
Cu. 27.] EMBEZZLEMENT. [§ 656a..
ENGLISH FORM.
That A. B., on ——, at —, was clerk to one C. D., and being
clerk as aforesaid did then and there by virtue of his said em-
ployment as such clerk as aforesaid receive and take into his.
possession, for and on account of the said C. D., divers, to wit,
nine bank-notes for the payment of divers sums of money
amounting in the whole to a certain sum of money, to wit, the:
sum of £9 of lawful money and of the value of £9 of lawful
money ;. and the said A. B., having so received and taken into-
his possession the said bank-notes, for and on account of his.
employer, the said C. D., he, the said A. B., afterwards, to wit,
ou , in the county aforesaid, fraudulently and feloniously
did embezzle and secrete the same. So the jurors aforesaid do.
say that he, the said A. B., on the said » at , in manner
and form aforesaid, feloniously did steal, take and carry away
the said bank-notes from his said employer, the said C. D., the-
said bank-notes being then and there the property of the said
C. D., on whose account the same were received by and taken
into the possession of him, the said A. B., being such clerk as.
aforesaid, and the several sums of money payable and secured
thereby being then, to wit, at the time of the committing the-
felony aforesaid, to wit, on ——, due and unsatisfied to the said
C. D., against the form of the statute and against the peace,,
ete.!
BY OFFIOER OF A NATIONAL BANK.
That A. B., at ——, on , was the president of a certain:
national banking association, known as the Sixth National’
Bank of the city of New York, organized under the act of con-
gress of June third, 1864 (ch. 106), and acting and carrying on a.
anking business in the city of New York, and being such presi-
dent and officer of such bank aforesaid did then and there by
virtue of his said office and employment, and while he was so:
employed and acting as such president as aforesaid, receive and
take into his possession certain funds and credits, to wit: [cer-
tain bonds and obligations particularly described, to the value:
in all of $672,000] then and there being the property of the
said association and which he held for and in the name and on
account of the said association, and did then and there wil-
fully and unlawfully, and with intent to injure and defraud the
said association, embezzle the said bonds and written obliga-
‘ tions, and convert them to his own use.
1This follows the indictments set 539; and a similar form is found in
out in Rex v. Johnson, 3 Mau. & 8, Rex v. Taylor, Russ. & Ry. 63.
2Claassen v. U. S., 142 U. S. 140.
665
§ 656a.] OFFENSES AGAINST PROPERTY. [Part VII.
UNDER MASSACHUSETTS STATUTE.
That A.B., on ——, at , being then and there the clerk,
servant and agent of G. P. and E. W., said P. and W. then and
there being copartners in business (the said A. B. not being then
and there an apprentice to the said P. and W. or toeither of them,
and not being then and there a person under the age of sixteen
years), did then and there, by virtue of his said employment,
have, receive and take into his possession certain money to the
amount and of the value of twenty-five thousand dollars, of
the said P. and W. as such copartners, the said employers of
the said A. B., and that the said A. B. the said money so by
him had, received and possessed, then and there feloniously did
embezzle and fraudulently convert to his own use, without the
consent of his said employers, or either of them, whereby, and
by force of the statute in such case made and provided, the
said A. B. is deemed to have committed the crime of simple
larceny. And so the jurors aforesaid, upon their oath afore-
said, do say that the said A. B. then and there, in manner and
form aforesaid, the said money, of the property and moneys of
the said P. and W., feloniously did steal, take and carry away,
against, etc.
OF CHATTELS.
That A. B., in the county aforesaid, on ——, being then and
there the servant and agent of one P. F., and being over the age
of sixteen years, did, by virtue of his said employment, have,
receive and take into his possession and under his control one
gold watch of the value of ninety-five dollars, the property of
said P. F., his employer, and the said gold watch, without the
consent of his said employer, did feloniously embezzle and
fraudulently convert to his own use.
1C, v. Bennett, 118 Mass. 443. This
case is under a Massachusetts statute
which provides thatin a prosecution
for embezzling bullion, money, notes,
checks, etc., it shall be sufficient to
allege generally in the indictment
the embezzling or fraudulent con-
version of money to a certain
amount without specifying any par-
ticulars of such embezzlement. The
statutory definition of the offense in
Massachusetts excepts apprentices
and persons under sixteen years of
age, and this indictment negatives
such exceptions. Statutes sometimes, however, relieve the prosecu-
tion from the necessity of proving the ownership as alleged
where the description of the property is otherwise sufficient.®
§ 708. Description of the property.— The indictment must
describe the property obtained with the same particularity as
in larceny.?. The same principles apply with reference to the
description of money as in cases of larceny. A general allega-
tion of the obtaining of a certain number of dollars in money
money: S. v. Knowlton, 11 Wash.
512.
1 Baker v. S., 31 Ohio St. 314.
28. v. Horn, 93 Mo. 190; S. v. Mc-
Chesney, 90 Mo. 120.
88. v. Lathrop, 15 Vt. 279; Ladd v.
§., 17 Fla. 215; Leobold v. S., 33 Ind.
484; Halley v. S., 43 Ind. 509; Wash-
ington v. 8. 41 Tex. 583; Reg. v.
Martin, 8 A. & E. 481; Reg. v. Nor-
ton,8 C. & P. 196; Reg. v. Parker, 3
Q. B. 292; White v. Reg., 13 Cox, 318.
48. v. Blizzard, 70 Md. 385; Sill v.
Reg., Dears. 182; S. C. (on error), 1
El. & B, 553. i
5Thomson v. P., 24 Ill. 60; S. v.
Smith, 8 Blackf. 489; Halley v. S.,
43 Ind. 509. Buthere asin larceny
cases, legal title need not be shown,
but only a possessory right: Mack v.
8., 63 Ala. 188; May v.8., 15 Tex. Ap.
430.
6 Hennessy v. C., 88 Ky. 801. And
702 :
see for a similar statute, Reg. v.
Moss, Dears. & B. 104.
78. v. Reese, 83 N. C. 687; S. v.
Kube, 20 Wis. 217; Johnson v. S., 75.
Ind. 553; Bonnell v. S., 64 Ind. 498;
Smith v. S., 33 Ind. 159; Treadaway
v. &., 37 Ark. 443; Jamison v. S., 37
Ark. 445. The ownership must be
alleged: Mays v.S., 28 Tex. Ap. 484.
And this isso even under a statute
prescribing the form for such in-
dictment: §S. v. Crooker, 95 Mo. 389.
It is sufficient to describe the prop-
erty obtained as “a check and order
for the payment of money of the
value of,” etc.: C. v. Coe, 115 Mass.
481. But on the contrary, held, that
describing the instrument asa check,
giving the bank and the amount, was
not sufficient without showing the
date, payor and payee: Bonnell v.S.,
54 Ind. 498,
Cu. 28.] FALSE PRETENSES; CHEATS AND FRAUDS.
[$$ 709, 710.
is sufficient.' And it is said that where the offense charged is.
in essence a fraud rather than a wrongful taking as in larceny,
the description of the property, as a certain named sum of
money of a kind and description to the grand jury unknown, is
sufficient.? The evidence must show that the property obtained
was that described in the indictment.
§ 709. Value.—If the degree of the offense is not made to.
depend, as it is in larceny, upon the value of the goods ob-
tained, it is not necessary to aver the value. But if the stat-
ute makes the offense larceny, there is the same necessity for
alleging value as there is in ordinary cases of larceny.® It is
not essential that the value be proved as alleged; a variance in
that respect will not be material.
§ 710. Variance.— The effect of variance as to some par-
ticular allegations has already been considered. As a general
proposition, the material averments must be proved as laid.’
Thus, a material variance as to the false representations will be
fatal,’ and, in general, the transaction must be proved as al-
1C. v. Lincoln, 11 Allen. 238; S. v.
Hurst, 11 W. Va. 54; S. v. Knowl-
ton, 11 Wash. 512. But it is has been
held otherwise in Smith v. 8, 33
Ind. 159; S. v. Reese, 83 N. C. 687;
Cain v. 8., 58 Ark. 48. And see, in
general, the discussion as to larceny,
supra, §§ 596-598. A description of
the money as “currency of the U.S.”
will cover national bank notes: Ed-
wards v. S., 49 Ala. 334.
2P. v. Dimick, 107 N. Y. 18.
3 Wilburn v. S., 60 Ark. 141.
48. v. Gillespie, 80 N. C. 396; Oliver
v. 8. 87 Ala. 134; P. v. Millan, 106
Cal. 320.
58. v. Porter, 75 Mo. 171; Jackson
v. C., 86 Ky. 1; Wax v. S., 43 Neb. 18.
6C. v. Morrill, 8 Cush. 571; Hager-
man v. S., 54 N. J. 104; Moore v.8.,
20 Tex. Ap. 283.
7 Jones v. S., 8 Tex. Ap. 648.
8 Reg. v. Bulmer, L. & C. 476. The
most pertinent illustrations of this
proposition are those furnished by
cases where the false pretense con-
sists in the misrepresentation of the
value of property and the proof does.
not correspond with the allegation
as to what value the defendant
placed upon the property. Such a.
variance has been held fatal: Todd
v S&S, 31 Ind. 514. So where it was.
alleged that defendant pretended
that his debts did not exceed $300
while the proof showed that they
did not exceed $400: C. v. Davidson,
1 Cush. 33. In P. v. Herrick, 13.
‘Wend. 87, it is said that the variance
in stating the amount which defend-
ant alleged to be due him from a
third person was immaterial if the
actual amount of the indebtedness.
was such as to form a sufficient
basis for the verdict; but this case is
disapproved of in Todd v. §., 31 Ind.
514. Where the representation al-
leged was that defendant had $300
in bank, and the proof was that he
said he had more than enough to.
pay a certain bill of that amount,
held, that the proof was sufficient:
C. v. Karpowski, 167 Pa. St. 225. So
exactaccuracy instating the amount.
703
[Part VII.
OFFENSES AGAINST PROPERTY.
§ 711.)
leged. But a slight variance between the exact words and
the false pretenses as laid and proved is not material if the
effect would be substantially the same.! The description of
the property must be proved as laid.” The evidence as to the
false pretenses made must be limited to those alleged.’
§ 711. Forms of indictment.— The following illustrations
of forms under various statutes will be found to cover the usual
cases, and to give sufficient guidance by analogy for cases aris-
ing under any of the statutes:
BY COUNTERFEIT COIN.
That A. B., on , at , devising and intending by un-
lawful ways and means to obtain and get into his possession
and hands the goods, merchandise, chattels, effects and personal
property of the honest and good citizens of this commonwealth,
and with intent then and there to cheat and defraud, did then
and there unlawfully, knowingly and designedly falsely pre-
tend and represent to one C. D. that a certain metallic medal
and substance which he, the said A. B., then and there had,
was a good and current gold coin, called an eagle, of the gold
coin current in the commonwealth aforesaid by the laws and
usages thereof, and was then and there of the value of ten dol-
lars; and the said A. B. did then and there deliver said metal-
lic medal and substance to the said C. D. as and for a good and
current gold coin of the money current in said commonwealth,
and of the value of ten dollars. And the said C. D., then and
there believing the said false pretenses and representations so
made as aforesaid by the said A. B., and being then and there
deceived thereby, was then and there induced by reason of the
false pretenses and representations so made as aforesaid to re-
ceive the said metallic medal and substance as and for a good
and current gold coin current in said commonwealth by the
laws and usages thereof, called an eagle; and was induced by
the false pretenses and representations, so by the said A. B.
then and there made as aforesaid, to deliver, and did then and
there deliver to the said A. B., in exchange for said metallic
medal and substance, sundry bank-bills current in said common-
of the note used as an instrument to
defraud is not required: 8. v. Bloods-
worth, 25 Oreg. 83.
1§. v. Thatcher, 35 N. J. 445.
2Berrien v. S., 88 Ga. 831. But it,
is said that an attempt to obtain by
' fraud a check on which money could
be obtained may be shown under an,
indictment charging an attempt to
obtain money: S. v. Terry, 109 Mo.
601. Where the fraud consists of-
misdescribing property it may be
described in the indictment as it was
represented by defendant: P. v. Nes-
bitt, 102 Cal, 827, | :
. 3P. v. Gates, 138 Wend, 811.
704
Ca. 28.] FALSE PRETENSES; CHEATS AND FRAUDS.
[§ TLL.
wealth by the laws and usages thereof, amounting together to
the sum of nine dollars, and then and there of the value of
nine dollars, and sundry pieces of silver coin current in said
commonwealth by the laws and usages thereof, amounting
together to seventy cents, and then and there of the value of
‘seventy cents, of the moneys of him, the said OC. D. And the
‘said A. B. did then and there unlawfully, knowingly and de-
‘signedly receive and obtain the said moneys of the said C. D.
by means of the false pretenses and representations aforesaid,
and with intent then and there to cheat and defraud the said
‘©. D. of the said moneys. Whereas, in truth and fact, the said °
metallic medal and substance was not then and there a good
and current gold coin, called an eagle, of the gold coin current
in said commonwealth by the laws and usages thereof, and was
not then and there of the value of ten dollars, but was then
and there of little value, to wit, of the value of five cents, all
which he, the said A. B., then and there well knew!
BY FALSELY REPRESENTING PROPERTY.
That A. B., on ——, at ——, contriving and intending, know-
ingly and designedly by false pretenses to cheat and defraud
one J. L. of his money, goods, wares and merchandise and
other things, did knowingly and designedly falsely pretend to
said J. L. that a certain horse which he, the said A. B., then
wished and offered to, exchange with said J. L. for a certain
colt and five dollars in money, was then and there a sound
horse and was the horse called the “Charlie,” the said horse
called the “Charlie” being well known to said J. L., by true and
‘correct representations which he had received, although he had
not seen said horse called the “Charlie,” by which false pretenses
said A. B. then and there induced the said J. L. to exchange
with and deliver to said A. B. his said colt and five dollars in
money for said horse, falsely represented as aforesaid to be the
“‘Charlie;” whereas, in truth and in fact, the said horse which
‘said A. B. offered to and exchanged with said J. L., and which
he represented as a sound horse and as the horse called the
“Charlie,” was not a sound horse and was not the horse called
the “Charlie,” but was a different horse and unsound and
wholly worthless.?
1C, v. Nason, 9 Gray, 125. Prob-
-ably the following very much shorter
‘form, taken from that given in §. v.
‘Boon, 4 Jones, 463, would be suffi-
-cient for such cases:
‘That A. B., at —-, on —, know-
uingly and designedly by means of a
certain false token, to wit, by means
-of a quarter of a dollar which the
said A. B. well knew to be counter-
45
feit, did then and there obtain from
one C. D. one piece of gingerbread
with intent to cheat and defraud the
said C. D.
See Bishop, Direc. & F. 423, n. For
a form where the false pretense con-
sists in misrepresenting the amount
due on a bill, see S. v. Hurst, 11 W.
Va. 54,.3 Am, Cr. R. 100.
28, v. Mills, 17 Me 211.
705
§ 711.] OFFENSES AGAINST PROPERTY. [Parr VII,
BY FALSE PERSONATION.
That A. B., on ——, at ——, with intent to cheat and de-
fraud C. D. of his money, did unlawfully, knowingly and de-
signedly falsely pretend and represent to E. F., a person who-
owed a sum to C. D., to wit, the sum of eleven dollars and
sixty-three cents, that he, the said A. B., was an authorized
collector and a servant of C. D.; that said O. D. had sent him,.
. the said A. B., to collect and receive the sum of money so due
and owed by E. F. to said C. D., and that said E. F., believ-
ing the false pretenses so made and being deceived thereby,
was induced by reason of them to deliver, and did deliver to.
the said A. B., the sum of eleven dollars and sixty-three cents
due and owing from him, the said E. F., to said C. D., of the
pepe money and effects of said E. F. due and owing to said
. D., and the said A. B. did receive and obtain the same by
means of the false pretenses and representations and with the
intent to cheat and defraud said E. F. and said C. D. of the
same money and effects; whereas, in fact, the said A. B. was
not an authorized collector and a servant of the said C. D., and
‘the said C. D. had not employed and sent him and did not
then and there employ and send him to collect and receive for
him the sum so due from said E. F. to him, but had forbidden
the said A. B. to collect and receive any sum or sums for him
and had turned him, the said A. B., out of the employment of
him, the said C. D. And so the jurors say that the said A. B.,
by means of the false pretenses and representations, unlawfully,.
knowingly and designedly did receive and obtain from E. F.
the sum of eleven dollars and sixty-three cents, being the said
money due and owing as aforesaid and effects of the proper
money and effects of the said E. F. due, owing and payable to
said C. D., with intent to defraud said C. D. of the same!
BY MISREPRESENTING FINANCIAL STANDING.
That A. B., on ——, at ——, having applied to one C. D. to
loan him, the said A. B., the sum of twenty-five dollars in
money, and in order to induce the said C. D. to believe him, the
said A. B., worthy of credit, and loan him, the said A. B., the:
said sum of money, to wit, twenty-five dollars in money, of
the value of twenty-five dollars, with intent to cheat and de-
fraud said C. D., he, the said A. B., did then and there design-
edly, falsely, fraudulently and feloniously represent and pre-
tend to the said OC. D. that he, the said A. L, was then and
there engaged in store-keeping in ——; and he, the said C. D.,.
1C, v. Call, 21 Pick. 515. For an defendant was the husband of the
indictment charging the obtaining woman to whom the package was.
from an express company of a pack- addressed, see S. v. Kube, 20 Wis.
age of money by false pretense that 217.
706
Cu. 28.) FALSE PRETENSES; CHEATS AND FRAUDS. [§ 712.
believing and relying upon the said false pretenses and repre-
sentations so made as aforesaid by the said A. B., and being
then and there deceived thereby, and being then and there in-
duced thereby, was induced to make said loan and to deliver,
and did then and there deliver to the said A. B., the sum of
twenty-five dollars of-the moneys, goods and chattels of him,
the said C. D. And the said A. B. did then and there design-
edly, hoe falsely, fraudulently and feloniously obtain
from the said C. D., by means of the said false, fraudulent and
felonious pretenses aforesaid, twenty-five dollars in money, of
the value of twenty-five dollars, of the personal property, goods
and chattels of him, the said C. D. hereas, in truth and in
fact, the said A. B. was not then and there, to wit, on ;
engaged as a store-keeper at , or at any other time or place,
all of which the said A. B. then and there well knew, to the
great damage and deception of the said O. D., and to the evil
example of all others in like cases offending.!
OBTAINING SIGNATURE.
That A. B., on ——, at ——, did unlawfully, feloniously, de-
signedly and with intent to defraud one S. 8. represent and
retend to him, the said §. S., that a certain instrument which
e, the said A. B., then and there had prepared ready to be
executed by him, the said §.8., was an order for a certain num-
ber of patent churns, it being then and there understood by
and between the said A. B. and the said S. 8. that he, the said
8.8., should execute and deliver to him, the said A. B., such an
order for patent churns, and by means of such false representa-
tions and pretense the said A. B. did then and there obtain the
name and signature of the said 8.8. to a certain written instru-
ment, to wit, a promissory note of him, the said S. 8., pur-
rune to bear date of the day and year aforesaid, and to be
given for the sum of one hundred and eighty dollars, payable
sixty days after date to said A. B. or order, for value received ;
whereas, in truth and in fact, the said instrument so prepared
and made ready for the signature of him, the said S. 8., was
not an order for a certain number of patent churns, which the ,
said A. B. then and there well knew, and that the said A. B.
then and there well knew that the said pretense and represen-
tations were false, and said representations and pretense were
designedly then and there so made by him, the said A. B., with
intent to defraud him, the said S. 8.
§ 712. Restitution.— The English practice as to restitution
of the property in cases of larceny is not applicable, it seems,
lHigler v. P., 44 Mich. 299. For ?8, v. Joaquin, 48 Ia. 131.
a similar form, see S. v. Call, 48
N. H. 126, ®
707
§ 712.] OFFENSES AGAINST PROPERTY. [Parr VII.
in prosecutions for obtaining money by false pretenses.' But
there is a special English statute on the subject, and under
this the court may order a restitution of the proceeds as well
as of the property itself, provided the proceeds are still in the
hands of defendant or his agent.?, And it has even been held
that under this statute the property may be restored although
, it has passed into the hands of an innocent purchaser.*
1Parker v. Patrick, 5 T. R. 175; %Bentley v. Vilmont, 12 App, Cas.
Rex v. Devaux, 2 East, P. C. 789; 2 471, overruling Moyce v. Newington,
Bish. Cr. Pr. 198, 4Q. B, D. 32, And see Cundy v. Lind-
2 Reg. v. Justices, 17 Q. B. D. 598; say, 1Q.B. D. 848; 8.C,, 2 Q. B.D. 96,
8. CG, 18 Q. B. D. 814 _ and 8 App. Cas, 459,
708
Nae
CHAPTER 29.
RECEIVING STOLEN GOODS.
§ 718. Nature of the offense.—While one who knowingly
receives stolen goods, or assists in concealing them for the '
purpose of aiding the thief to escape, would be at common
law an accessory after the fact to the larceny,! statutes have
been passed both in England and the various states of this
Union making the act of knowingly buying, receiving or con-
cealing stolen goods a substantive offense, and perhaps such
statutes have superseded the common law, so that the receiver
3s not under any circumstances an accessory after the fact,
and is only punishable by statute. In early cases in this
country the courts seem to have regarded these statutes as
partial substitutes only for the common law, and to have held
that, wherever the crime is not specifically described in such
way us to make it a substantive offense under the statute, the
common-law doctrine, that the accessory could only be con-
victed after conviction of the principal, is applicable;* but.
under the statutes making the receiver punishable as principal
or for a substantive offense, it is wholly immaterial whether
the thief has been tried and convicted or not. The receiver
is therefore indictable as for an independent crime, and not for
the larceny,’ and if the evidence shows him guilty of larceny,
in arrest of judgment: Martin v. 6.,
95 Ga. 478.
1 Licette v. S., 75 Ga. 258. And see
supra, § 209.
28. v. Calvin, 22 N. J. 207; Rex v.
Morris, 2 East, P. C.'748,
8C. v. Andrews, 3 Mass. 126; Licette
v. 8,75 Ga. 253; S. v. Ives, 13 Ived.
338; 8. v. Groff, 1 Murph. 270; 8. v.
Goode, 1 Hawks, 468. As to the
provisions of early statutes, see 8. v.
Harkness, 1 Brev. 276; S. v. Minton,
Phill. 196. But even though this be
the correct rule, which is doubted,
the objection that the principal has-
not been convicted is not available
48. v.S. L., 2 Tyler, 249; Redman
v. S., 1 Blackf. 429; C. v. Frye, 1 Va.
Cas. 19; Smith v. C., 10 Leigh, 695;
S. v. Weston, 9 Conn. 527; S. v. Mc-
Aloon, 40 Me. 138; Butler v. S., 3 Mc-
Cord, 888; Swaggerty v.89 Yerg.
338.
5Bieber v. S., 45 Ga. 569; S. v.
Hodges, 55 Md. 127; Brown v. 8., 15
Tex. Ap. 581; Chandler v. S., 15 Tex.
Ap. 587.
709
OFFENSES AGAINST PROPERTY. [Parr VII.
§ 714.]
he should not be convicted under the charge of receiving
stoleti goods;! though it is said that a defendant may be guilty
of receiving stolen goods although he participated with an-
other in the larceny itself.2 But some statutes make the re-
ceiver a principal in the larceny.2 The statutes are sometimes
broad enough to cover receiving of goods procured by em-
bezzlement‘ or false pretenses® as well as those stolen; but
they do not cover cases of receiving goods unlawfully ob-
tained where the crime of larceny, embezzlement or false pre-
tenses has not been committed.6 The crime may be committed
in receiving property procured by burglary or robbery as well
as that procured by simple larceny.’
The buying, aiding and re-
ceiving constitute but one offense, and the proof of any of these
acts is sufficient under the indictment charging all of them.’
The retaining of the goods even for a moment, or allowing
them to be placed in defendant’s possession, constitutes a receiv-
ing;° and the receiving may be by a servant if with the knowl-
edge and consent of the defendant; and so the act may be com-
15. v. Honig, 78 Mo. 249; Sartorious
v. S., 24 Miss. 602; Reg. v. Kelly, 2C.
& K. 379; Reg. v. Coggins, 29 L. T.
469. Butif the larceny and the re-
ceiving are charged in two counts,
there may be a conviction for the
receiving, although the evidence also
shows the larceny: Reg. v. Hilton,
Bell, 20. In such case if the offenses
are by statute the same in degree
and in punishment, there may be a
general conviction under the two
counts without an election between
them: S. v. Speight, 69 N. C. 72;
Campbell v. P., 109 Tll, 565. Contra,
8. v. Larkin, 49 N. H. 39.
2 Jenkins v. 8., 62 Wis. 49.
38. v. Ward, 49 Conn, 429; Price v.
C., 21 Grat. 846.
4C. v. Leonard, 140 Mass. 478; Reg.
v. Frampton, Dears. & B. 585. Con-
tra, Leal v. 8., 12 Tex. Ap. 279.
5 Taylor v. Reg., 1 Q. B. D. (1895) 25.
6 Reg. v. Wilson, 2 Moody, 52.
78. v. Turner, 19 Ia. 144; S. v. Lane,
68 Ia. 384. The early South Caro-
lina statute covered only goods taken
in burglary or house-breaking: 8. v:
Sanford, 1 Nott & M. 512.
8Stevens v. C., 6 Met. 241; S. v.
Nelson, 29 Me. 829; Huggins v. S., 41
Ala. 893.
38. v. Scovel, 1 Mill, Const. 274;
Leonardo v. T., 1 N. M. 291. One who
acts as agent as between the thief
and the owner for the purpose of re-
storing the goods and sharing in the
part retained as a reward for the re-
turn of the property is a receiver:
P. v. Wiley, 3 Hill (N. Y.), 195. As
to sufficiency of the evidence in par-
ticular cases, see U.S. v. Montgom-
ery, 3 Sawyer, 544; S. v. St. Clair, 17
Ta. 149.
10Reg. v. Parr, 2 M. & Rob. 346;
‘Reg. v. Rogers, 37 L. J. M. C, 88. In
such cases the servant, knowing the
goods to be stolen, is also guilty of
the crime: Cassels v. S., 4 Yerg. 149;
Wright v. 8, 5 Yerg. 154,
710
On. 29.] RECEIVING STOLEN GOODS. [§ 715.
mitted jointly ;! but when persons are jointly charged, a joint
receipt must be proven.? It is not necessary that the goods
come into the manual possession of the defendant, but if they
are by his direction delivered to and disposed of by a servant,
that is sufficient; so if they come within the possession of de-
fendant’s wife with defendant’s consent, it will constitute a
receiving by him;‘ but a subsequent adoption by the hus-
band of the wife’s act will not render him guilty of a joint
receiving.” The husband may be guilty in receiving property
which his wife has voluntarily and without any constraint on
his part obtained by larceny. But the wife is not punish-
able for receiving from the husband.’ To show the prisoner
guilty of receiving, it must appear that in some of the ways
designated he actually had the goods in his possession? It
is not necessary that any consideration pass between the re-
ceiver and the thief. To constitute a concealing it is not
necessary that defendant shall have aided in the actual hid-
ing or secreting, but any act tending to assist the thief in
converting the property to his own use and keeping it from
the observation of the owner is sufficient.” An act done in
order to hinder identification of the article stolen is sufficient,"
but merely assisting the thief by giving him breakfast and feed
for stolen animals, knowing them to be stolen, does not consti-
tute a crime. The defendant must have assisted in hiding the
property in order to elude pursuit or avoid discovery in order
to make him guilty.”
§ 715. What goods.— It is essential that the goods which
the defendant is charged with receiving shall be shown to be
stolen goods," and if, by the consent or direction of the owner,
the goods are delivered to the receiver, the latter will not
be guilty of receiving stolen goods even though he supposes
1Faunce v. P., 51 Il. 311. 8 Reg. v. Hill, 2 C. & K. 978; Reg.
- 2Rex v. Messingham, 1 Moody, 257; v. Wiley, 2 Den: 37.
Reg. v. Dovey, 4 Cox, 428. * Hopkins v. P., 12 Wend. 76.
8Reg. v. Miller, 6 Cox, 353; Reg.v. WP. v. Reynolds, 2 Mich. 422,
Smith, Dears. 494; 8. v. St. Clair,17 8. v. Ward, 49 Conn. 429.
4a. 149, 122 Upton v. S., 5 Ia. 465.
4Reg. v. Woodward, L. & C. 122. 13See infra, § 724, where the ques-
5Reg. v. Dring, Dears. & B, 329, tion as to evidence of the fact of the
* Reg. v. McAthey, L. & C, 250. theft is considered,
7 Reg. v. Brooks, Dears. 184.
711
§ 716.] OFFENSES AGAINST PROPERTY. [Parr VII.
he is receiving them from the thief Although the prop-
erty has been altered in form, the receiving will be criminal
if the property be described as in the condition it was in
when received.? Indeed, if the property is still of the same
species when received as when stolen, the indictment describ-
ing it as it was when stolen will be sufficient, although there-
has been some alteration before its receipt.’ Where goods.
taken in distinct larcenies are received at one time, there is but
one offense of receiving! It has been said that under statutes
providing for the punishment of the receiver of stolen goods.
‘and chattels there cannot be a conviction for receiving money
or bank-bills;* and the same doctrine has been extended by the
English judges to the receiver of stolen promissory notes on
the theory that although by statute the stealing of promissory
notes is made larceny, yet if the statute with reference to re-
ceiving stolen goods does not specifically include promissory
notes, it cannot be enlarged to cover property not within the
original meaning of those terms.® A contrary doctrine, how-
ever, was recognized by the judges a few years after in Ire-
land,’ and has been followed in this country.®
§ 716. Guilty knowledge.— The knowledge that the prop-
erty has been stolen is an essential element in the offense of re-
ceiving or concealing such property,’ and the burden is on the
prosecution to show such knowledge, and not on the defendant
’
1 Reg. v. Villensky, 2 Q. B. D. (1892)
597; Reg. v. Schmidt, L. R. 10. C
15; Reg. v. Dolan, Dears. 436; Reg.
v. Hancock, 38 L. T. 787.
2For instance, if the theft was of
a live animal, and the receiving was
of the flesh in the form of pork or
mutton: Rex v. Cowell, 2 East, P. C.
617; Sands v. S., 30 Tex. Ap. 578. And
see Reg. v. Robinson, 4 F. & F. 43.
3C. v. White, 123 Mass, 480.
4S, v. Nelson, 29 Me. 829. This
would be otherwise under the
charge of being accessory after the
fact to the larcenies, in which case
there would be a distinct offense as
to each larceny: C. v. Andrews, 2
Mass, 409.
5S, v. Calvin, 22 N. J. 207; Ruther-
ford v. C., 2°Va,. Cas. 141; Rex v.
Morris, 2 East, P. C. 748.
6Rex v. Gaze, Russ. & Ry. 384.
But where stamped bank-notes had
been retired and were being held for"
re-issue, an indictment for receiving
them as stamped paper was sup-
ported: Rex v. Vyse, 1 Moody, 218..
TRex v. Crone, Jebb, 47.
8 Hall v. S38 Ohio St. 575. And
see a discussion of the same ques-
tion under larceny, supra, § 543. «:
9O’Connell v. S., 55 Ga. 191; S: v.
Caveness, 78 N. C. 484; Wilson v:.
S., 12 Tex. Ap. 481; Rex v. Kernon,
2 Russ, Cr, 562; Reg. v. Wood, 1
F. & F, 497; Reg. v. Larkin, Diibies-
365.
712
Ox, 29.]
RECEIVING STOLEN GOODS.
[§ 717.
to show the want of it.!' But it is not necessary to prove abso-
lute knowledge of that fact, which would often be impossible.
It is sufficient to show that the property was received by de-
fendant believing it to have been stolen, that being the fact?
If the circumstances are such as to induce a man of ordinary
observation to believe the property to have been stolen, that is
sufficient. That goods were received with such belief may
appear from the circumstance that defendant paid much less
for them than their real value,‘ although this is open to the ob-
jection, in case of goods not new, that it is difficult to deter-
mine their real value, and that a second-hand dealer buying
goods, even if new, usually pays less than the value of new
goods, because, in the nature of his business, he cannot sell even
new goods for their price as new goods.’ The fact of buying
the property very much below its value is not conclusive proof
of guilty knowledge, but only a circumstance tending to prove
it.§ The proof of previous good character is to be considered
in determining the weight of such evidence.’
The fact that
defendant received the goods clandestinely, or immediately con-
cealed them, will tend to show guilty knowledge.’
§ 717. Intent.—
There must be a felonious intent,’ and this.
felonious intent consists in the purpose of depriving the owner
of the property,” or deriving gain from receiving or concealing
the goods."
Consequently, if the goods are received with the.
owner’s consent,” or with the honest purpose of restoring them.
1Reg. v. Davis, L. R. 1 C. C. 272;
Reg. v. Harwood, 11 Cox, 388. Proof
- that defendant had a general knowl-
edge of the circumstances under
which the goods were taken is not
enough, unless it satisfies the jury
that he knew that the circumstances
constituted larceny: Reg. v. Adams,
1F. & F. 86.
2Reg. v. White, 1 F. & F. 665.
§Frank v.S., 67 Miss. 125; Collins
v. 8., 83 Ala. 484; Cobb v. S., 76 Ga.
664. As to proof of guilty knowl-
edge in case of recent possession,
see infra, § 726.
4 Jupitz v. P., 34 Til. 616.
5 Andrews v. P., 60 Ill. 354,
Py, Levison, 16 Cal. 98
TJupitz v. P., 34 Ill. 516.
8Isaacs v. P., 118 Ill. 538; Collins
v. S., 83 Ala, 484; Murio v. S., 31 Tex.
Ap. 210.
9S. v. Caveness, 78 N. C. 484; P. v. .
‘Weldon, 111 N. Y. 569. :
10 Rice v. S., 3 Heisk. 215; Hurell v. :
S., 5 Humph. 68, If the taking is |
not in collusion with the thief, or is
in opposition to his wishes or inten-
tions, it will not be a criminal re-
ceiving: Reg. v. Wade, 1 C. & K. 739.
ll Aldrich v. P., 101 TIL 16; P. v.
Avila, 43 Cal. 196.
Dodge v. Brittain, Meigs, 84.
Guilty intent will be immaterial if.
the goods are in fact received from-
the owner: Supra, § 715.
713
OFFENSES AGAINST PROPERTY.
8§ 718, 719.] [Parr VIL.
to the owner without deriving any pecuniary advantage theré-
from,! there will be no crime; but if the intent is to secure a
reward by returning them, the crime is committed? One who
receives for the mere purpose of concealment, though without
intent to derive any profit, is punishable,’ and it is no excuse
that they were received out of mere friendship for the thief;*
or simply to assist the thief in getting away with them;> or
even for the purpose of saving defendant himself from loss.
While the intent is material, it may be inferred from the guilty
knowledge.’
§ 718. Indictment; description of the property.— The in-
dictment for receiving stolen goods should describe the goods
with the same accuracy as an indictment for larceny.2 The
general discussion of this subject under the head of larceny is
pertinent in this connection.’ A description of stolen money
received which is not sufficient under the requirements as to
an indictment for larceny will not be sufficient in the indict-
ment for receiving.” The description of the stolen property
by alleging the ownership thereof is subject to the same rules
as in larceny," and one from whom the property is wrongfully
taken may be named as owner, although he is not the rightful
owner.”
The indictment for re-
ceiving or concealing alone (not charging the larceny as a sub-
stantive offense) need not describe the stealing of the goods
with the same technicality as would be necessary in an indict-
ment for such larceny. It is sufficient to allege that the goods
1 Aldrich v. P., 101 Ill. 16.
28. v. Pardee, 37 Ohio St. 63; Baker
between the larceny and the receiv-
ing thereof, see supra, § 715.
v. S., 58 Ark. 518. That taking with
intent to secure a reward for return-
ing is larceny, see supra, § 567.
3Rex v. Richardson, 6 C. & P.
335.
4C. v. Bean, 117 Mass. 141.
58. v. Rushing, 69 N. C. 29.
6Campbell v. P., 109 ILL 565.
78, v. Turner, 19 Ia. 144; S. v. Lane,
68 Ia. 384; S. v. Smith, 88 Ia. 1.
8 Williams v. P., 101 Ill. 882. As
to how the goods are to be described
when they have been altered in form
9See supra, § 592 ef seq.
10 Baggett v. S., 69 Miss. 625; Burney
v. 8, 87 Ala. 80.
ug, v. Tiedeman, 4 Strobh, 300; P,
v. Ribolsi, 89 Cal. 492; O’Connell v.
8., 55 Ga. 296. If property is alleged
to be that of a corporation, proof of
a de facto corporation is sufficient:
Butler v. S., 35 Fla. 246.
120, vy. Finn, 108 Mass. 466. And
see supra, § 546. So ownership may
be laid in the agent in possession
when stolen: Arcia v. S., 28 Tex.
Ap. 198,
14
Cu. 29.] RECEIVING STOLEN GOODS.
[§ 720.
were “then lately before stolen,” and that the defendant knew
them to have been stolen, without alleging technically the
stealing, taking and carrying away.' Nor is it necessary to
allege by whom the theft of the goods was committed, or that
the name of the person committing the theft is unknown, It
seems that it is not necessary even to allege from whom the
goods were received.’ Neither is it required that the indict-
ment state when and where the original larceny was com-
mitted.
§ 720. Jurisdiction and venue.— It tia been held in Eng-
land that if the goods were stolen outside of the kingdom
there could not be a guilty receiving of them in the king-
dom. In this country it has been held that it is immate-
rial that the goods were stolen outside of the state,’ and there
is sometimes a statutory provision to that effect.’ The venue
of the offense, if deemed a substantive one, is in the county
where the goods are received;® but if it is accessorial in its
10, v. Lakeman, 5 Gray, 82; S. v.
McAloon, 40 Me. 133. And see
Brothers v. &, 22 Tex. Ap. 447.
‘Where the charge is of receiving
goods obtained by false pretenses, it
is not necessary to set out the false
pretenses: Taylor v. Reg.,1 Q. B. D.
(1895) 25.
2C. v. Slate, 11 Gray, 60; 5 v.
Hazard, 2 R. I. 474; Shriedly v.S.,
28 Ohio St. 180; P. v. Ribolsi, 89 Cal.
492; S. v. Smith, 37 Mo. 58; Swag-
gerty v.S., 9 Yerg. 338; Hester v.8.,
108 Ala. 88; P. v. Caswell, 21 Wend.
86; Rex v. Jervis, 6 C. & P. 156; Rex
v. Thomas, 2 East, P. C. 605. It is
‘said, however, that if the name of
the thief be alleged it must be
proven as laid: C. v. King, 9 Cush.
284; Rex v. Woolford, 1 M. & Rob.
384. Contra, P. v. Caswell, 21 Wend.
86. The fact that, in a separate in-
dictment for the larceny, a different
person is named as thief than the
one named in the indictment for the
receiving will be immaterial: C. v.
Hill, 11 Cush. 137.
3Levi v. S., 14 Neb. 1; S. v. Moul-
tree, 34 La. An, 489; Huggins v. S.,
41 Ala. 398; 2 Bishop, Cr. Pr., § 983;.
Arch. Cr. Pr. & Pl. 474. Contra, S. v.
Beatty, Phill. 52; S. v. Ives, 13 Ired.
338: U.S. v. De Bare, 6 Biss. 358.
But where it was alleged that such
person was unknown, whereas the
fact was otherwise, there was held
to be a fatal variance: Sault v. P., 3
Colo. Ap. 502.
4C, v. Sullivan, 186 Mass. 170; P. v.
Goldberg, 39 Mich. 545; P. v. Smith,
94 Mich. 644; S. v. Crawford, 39 S. C.
343; Holford v.S., 2 Blackf. 103. The
allegation that the goods were feloni-
ously received sufficiently indicates
that they were received from the
thief: Kaufman v. S., 49 Ind. 248.
5 Reg. v. De Bruiel, 11 Cox. 207.
6 Holford v. S., 2 Blackf. 108; C. v.
White, 123 Mass. 480.
7P. v. Goldberg, 39 Mich, 545.
8 Campbell v. P., 109 Tl. 565; Roach
v.S.,5 Coldw. 39; Licette v. S., 75
Ga. 258. One who receives under an
arrangement that the goods shall be
stolen in another county and shipped
to him is triable in the county where
715
§§ 721, 722.) OFFENSES AGAINST PROPERTY.
[Parr VIE.
character by the statute, the venue is where the goods were
stolen.!
§ 721. Allegation of intent and knowledge.— The necessity
of knowledge and intent being alleged and proven has been
sufficiently discussed in a preceding section.? As the substan-
tive offense is statutory, the method of alleging the intent will
depend somewhat on the language of the statute? It is not
necessary to allege that the felonious ner eneiny was with intent
to defraud the owner or any person,‘ and an allegation that
defendant received the property well knowing that the same
had been feloniously stolen, etc., is sufficient to charge knowl-
edge’
§ 722. Joinder.— Where the offense is considered an acces-
sorial one, the offense of receiving may be charged, together
with that of the larceny, in one count;® but even where the
receiving is regarded as a substantive offense, it may be charged
in an additional count of the indictment charging the larceny ;?
and under such an indictment, of which one count charges one
defendant with larceny, and another charges a different defend-
ant with receiving, there may be a conviction of the receiver
without conviction of the person charged with the theft.® But
it is said that ifthe transaction is so described in the indictment
that the failure to prove the larceny shows that the goods
received by the defendant charged with receiving were not
stolen goods, then he should be acquitted also.® Where two
are charged jointly with receiving, there may be a conviction
of one alone; but to warrant a conviction of two for joint re-
they are thus shipped: S. v. Habib,
18 R. I. 558.
18. v. Ward, 49 Conn. 429,
2See supra, §§ 716, 717.
3P, v. Weldon, 111 N. Y. 569; S. v.
Moultrie, 34 La. An. 489. Where
“not having the intent to restore”
is a part of the statutory definition,
such intent must be negatived: Sel-
lers v. S., 49 Ala. 357.'
4S. v. Hartleb, 35 La, An. 1180.
And further as to the requisite intent
with reference to the owner, see
supra, §'717.
5 Huggins v. S., 41 Ala. 393,
6C. v. Adams, ? Gray, 48, And if
the count is not sufficient to charge
the larceny it will not support a con-
viction for receiving: Ibid.
78. v. Hazard, 2 R. I. 474; 8. v.
Laque, 37 La. An. 858; Reg. v. Rear-
don, L. R. 1 C. C. 31. And further,
see a discussion of the same subject.
in connection with indictment for-
larceny, supra, § 609.
8C. v. Slate, 11 Gray, 60.
§C, v. King, 9 Cush. 284; C. v. Ad-
ams, 9 Gray, 48; S. v. Antoine, 42 La.
An, 945,
0C, v. Slate, 11 Gray, 60; S. v.
Smith, 87 Mo. 58
716
Cn. 29.] RECEIVING STOLEN GOooDs. [S$ 798, 724.
‘ceiving, it must appear that the receiving was actually joint,
and not by one from the other.! The same defendant may be
charged in two counts with larceny and with receiving, but
the count for receiving must be sufficient in itself;? and on such
indictment a verdict of receiving, etc., is good as a general ver-
‘dict on the second count.’ Indeed, it is said that where the
punishment for the theft and the receiving are the same, a gen-
eral verdict on such indictment, not specifying which offense
the conviction is for, will be sustained.’ \
§ 728. Finding of value.— Where the degree of punishment
‘for the receiving is dependent upon the value of the goods re-
ceived, the value must be alleged and proven just as in larceny,®
“but if by statute there is no division of the offense into degrees
dependent upon the value of the goods, it is not necessary to
allege nor find the value; ® and in the latter case it is, of course,
‘immaterial whether the evidence shows the receiving of all the
‘goods charged to have been received or not.’ Where the value
is important, the values of goods received at several times in
‘pursuance of one general plan may be aggregated.®
§ 724. Evidence.— Proof of the larceny of the goods al-
‘leged to have been received is essential to establish the corpus
delicti of the crime of receiving, and therefore cannot be estab-
‘lished by the uncorroborated confession of the accused.’ Such
larceny is to be established as if it was the crime charged.” The
1 Rex v. Messingham, 1 Moody, 257;
‘Reg. v. Dovey, 2 Den. 92.
28, v. Phelps, 65 N. C. 451.
- §Oxford v. S., 33 Ala. 416.
- 4Campbell v. P., 109 Ill. 565; 8. v.
‘Speight, 69 N. C. 72. Contra, S. v.
Larkin, 49 N. H. 39.
5Sawyer v. P., 8 Ill. 53; Tobin v.
'P., 104 Ill. 565; Thompson v. P., 125
ITH), 256. .
6 Engster v. S., 11 Neb. 539; Sands
v. S, 80 Tex. Ap. 578; P. v. Rice, 73
‘Cal, 220; P. v. Fitzpatrick, 80 Cal.
588.
TP. v. Fitzpatrick, 80 Cal. 538; C.
‘v. Johnson, 133 Pa. St. 293.
8 Levi v. S., 14 Neb. 1.
9 Williams v. P., 101 Ill. 382.
10 Reg. v. Blick, 4C. & P. 377. Thus,
admissions of guilt by the thief while
in custody, made in the presence of
the receiver, are evidence against the
receiver: Reg. v. Cox,1 F. & F. 90;
and it is said that such a confession,
though not made in the presence of
the receiver, is admissible, there
being nothing in it which charges
the offense upon the receiver: S. v.
Smith, 37 Mo. 58; Reilley v. S., 14
Ind, 217. But this is doubtful, and
it has been decided, on the other
hand, that the record of the convic-
tion of the principal thief on his plea
of guilty is not admissible as against
the receiver: C. v. Elisha, 3 Gray, 460.
Parol evidence of the trial and con-
viction of-the principal thief will be
sufficient unless objection is made
717
§§ 725, 726.] [Parr VII.
OFFENSES AGAINST PROPERTY.
thief is a competent witness on behalf of the state as against
the receiver, but there should not be a conviction unless his
evidence is corroborated.?
§ 725. Recent possession.— The recent possession of prop-
erty stolen is evidence tending to show the guilty receipt of
such property.’ In view of what has been said under the head
of larceny with reference to the finding of recently stolen goods.
in defendant’s possession,! it is evident that such recent posses-
sion is evidence of the substantive crime of the guilty receipt
only where the circumstances indicate that defendant was not
the thief.’ The rule that defective or insufficient explanations
as to how the goods came into defendant’s possession will not
remove the inference of guilt derived therefrom is the same as-
in larceny§
§ 726. Guilty knowledge.— The evidence of recent posses-.
sion will warrant conviction for guilty receiving only where.
it appears also that defendant had knowledge that the goods
had been stolen.?. As bearing on the question of such know!-
edge, evidence of what was said by the party from whom the.
goods were received at the time of their receipt is admissible,
and also any arrangement or understanding under which they
thatit is not the best evidence: Mar-
tin v. S., 95 Ga. 478. Of course con-
versations between defendant and
the thief before the commission of
the offense relating to the proposed
receiving may be shown: C. v. Jen-
kins, 10 Gray, 485.
1§. v. Coppenburg, 2 Strobh. 273.
2Reg. v. Robinson, 4 F. & F,. 43,
The mere fact of the finding of the
goods on the prisoner’s premises is
nota sufficient corroboration in such
case: Reg. v. Pratt, 4 F. & F. 315.
’Comfort v, P., 54 Ill. 404; Sah-
linger v. P., 102 Ill. 241; Jenkins v.
S., 62 Wis. 49; Boston & W. R. Co. v.
Dana, 1 Gray, 83, 102; S. v. Grebe,
17 Kan. 458. So the fact that de-
fendant produces or secures the re-
turn of stolen property tends to
show his connection with the receiv-
ing: Reg. v. Hobson, Dears. 400. Cir-
cumstances showing that acts con-
nected with the wrongful taking of
the property wére done on defend-.
ant’s premises will tend to show a.
guilty receiving: C. v. Slate, 11 Gray,
60. If the defendant admits having
bought the article which is found in
his house, this constitutes evidence
of the receipt without other evidence
of possession by him: Reg. v. Mat-
thews, 1 Den. 596.
4See supra, § 616.
5 Sartorious v. S., 24 Miss, 602; Regy:
v. Langmead, L. & C. 427.
6P. v. Harris, 93 Mich. 617; S, v.
Mayer, 45 Ia. 698; Adams v. S., 52
Ala, 379. And as to the whole sub-
ject of the effect of recent posses-
sion, see the discussion under the
head of larceny, supra, $$ 616-620.
7Tolliver v. &, 25 Tex. Ap. 600;
Rex v. Densley, 6 C. & P. 399. Fur-
ther as to knowledge, see supra,.
§ 716.
718
Cu, 29.] RECEIVING STOLEN GOODs. [$ 727.
were received! As tending to show knowledge that the goods
had been stolen, evidence of the previous receipt of other stolen
goods with guilty knowledge is admissible? In England it
has been doubted whether the mere fact that defendant had
previously received other stolen goods, without evidence that
as to such other goods he had knowledge of their character, is
admissible to show guilty knowledge in the receiving of the
goods in question;* but a statute makes the finding of other
stolen property in the possession of the person charged admis-
sible in evidence.* So in this country it has been held that the
mere fact of the previous receipt of stolen property, without
evidence of guilty knowledge as to such property, does not
raise the presumption of guilty knowledge in regard to the prop-
erty in question,’ and of course the subsequent receipt of stolen
property does not tend to show guilty knowledge in the previ-
ous receiving.’ Recent possession is corroborative evidence of
the testimony of an accomplice with reference to the receiving
with knowledge, whether the accomplice testifies to such pos-
session or not.’ Proof that the alleged thief had previously
stolen other goods of the same kind is not admissible for any
purpose under a prosecution for the illegal receiving.’ Of
course, whateyer has been said about previous receipt of stolen
goods is equally applicable to the receipt of other stolen goods.
at the same time as the goods in question.? .
§ 727. Forms of indictment.— It is cor mon to charge the
receiving in the same indictment with a charge of larceny,
either in a separate count or in the same count;" but it is not
necessary to repeat here the count or portion of a count charg-
ing the larceny, the forms already given for that purpose being
available here.”
1Durant v. P., 13 Mich. 351.
2Copperman v. P., 56 N. Y. 591;
Shriedley v. S., 23 Ohio St. 130, 142;
Devoto v. C., 3 Met. (Ky.) 142; S. v.
Ditton, 48 Ia. 677; S. v. Habib, 18
R. L 558; Reg. v. Nicholls, 1 F. & F.
51; Rex v. Dunn, 1 Moody, 146.
3 Reg. v. Oddy, 2 Den. 264.
4But this statute does not extend
to proof of the previous possession
of stolen property: Reg. v. Carter,
12 Q. B. D. 522; Reg. v. Drage, 14
Cox, 83.
58. v. Bulla, 89 Mo. 595.
6P, v. Willard, 92 Cal. 482,
7C. v. Savory, 10 Cush. 535.
8 McIntire v. S., 10 Ind. 26.
98. v. Jacob, 30S. C. 181; Harwell
v. S., 22 Tex. Ap. 251.
10C, v. Adams, 7 Gray, 48. ;
11 For forms of indictment for lar-
ceny, see supra, § 610.
719
§ 727.) OFFENSES AGAINST PROPERTY. [Parr VIL.
GENERAL FORM.
That A. B., on —, in the county aforesaid, feloniously did
receive, have and conceal [description of the property], of the
goods and chattels of OC. D., then lately before stolen, taken
and carried away by a certain evil-disposed person; he, the
said A. B., then well knowing the said goods and chattels to
have been feloniously stolen.
LARCENY AND RECEIVING JOINED.
That A. B.,in the county of ——, on ——, three sleigh
shaws of the goods and chattels of one T. G., and all of the
value of thirty-seven dollars, then and there in the possession
of said T. G. being found, feloniously did steal, take and carry
away, against, etc. . . . And the jurors aforesaid, ete.
. . that C. D., in said county, afterwards, to wit, on the
same day, the said goods and chattels of said T. G. aforesaid,
so as aforesaid feloniously stolen, taken and carried away, felo-
niously did receive and have and did then and there aid in
concealing the same; he, the said ©. D., then and there well
knowing the said goods and chattels to have been feloniously
stolen, taken and carried away, against, etc.?
1See Archbold, Cr. Pr. & Pl. 474; 2See the form given in §S. v. Mc-
C. v. Adams, 7 Gray, 43. “Feloni- “Aloon, 40 Me. 183; with a change in
ously stolen” as here employed is the second count as to the owner-
sufficient without saying also“taken ship of the property for the pur-
and carried away: ” C. v. Lakeman, pose of obviating the objection
5 Gray, 82. made to the indictment in that case.
720
CHAPTER 30.
OBTAINING PROPERTY BY THREATS; BLACKMAIL,
§ 728. What constitutes.— Elsewhere the offense of taking
property from the presence of another by putting in fear is dis-
cussed under the head of robbery.!' There is also a discussion
elsewhere of the offense of extorting money by officers.2 In
each of these cases is present the element of securing property
by some sort of fear, or, as is popularly said, by extortion. But
the term “extortion” has been appropriated to the case of
wrongfully obtaining property by an officer acting in some
sort of assumed official capacity, and it cannot properly be used
otherwise.’ It has been suggested that obtaining money by
threats such as would overcome the ordinary free will of a firm
man might be punished at common law;‘ but in general the
offense is regarded as statutory only. Statutes now universally
recognize, however, as a crime the obtaining of money or prop-
erty from another by threats of injury to the person, property
or character. The offenses which are thus grouped together
are statutory entirely, and it is necessary to consult the stat-
utes of the various states in order to determine what constitutes
the crime in any particular case. There are, however, certain
well marked statutory forms which may be considered under
general headings.
§ 729. Sending threatening letters.— The earliest English
statutes on the subject (9 Geo. 1, ch. 22; amended by 27 Geo. 2,
ch. 15) relate to the sending of anonymous threatening letters
demanding money or property.’ The usual statutes in regard
1See supra, § 468.
*8ee infra, $914.
34 Bl. Com. 141; 2 Bishop, Cr. Law,
390. But statutes sometimes use
the term “extortion” in the popular
sense, and extend the crime to cover
the obtaining of property by threats:
P. v. Tonielli, 81 Cal. 275; P. v. Hughes,
137 N. Y 29. See, also, as giving this
46
a.
broader meaning to the term “ex-
tortion:” C. v. O’Brien, 12 Cush.
84, 90. ,
4Rex v. Southerton, 6 East, 126;
2 Russ. Cr. 706.
54 BL Com. 144; Rex v. Robinson,
2 East, P. C. 1110. A letter may be
anonymous though from its contents
the writer might be discovered: Rex
721
§ 730.] [Parr VIL
OFFENSES AGAINST PROPERTY.
to threatening letters do not make it important that the writer
conceals his identity, and it is generally criminal to send a letter
maliciously threatening to do injury to the person or business
of another with the intent to compel the person so threatened
to do an act against his will.’
§ 730. Threats for the purpose of extortion.—A leading
English statute (7 & 8 Geo. 4, ch. 29, sec. 8) makes it criminal
to send a letter demanding, with menaces and without reason-
able and probable cause, any money or property or threatening
to accuse of crime?